“Political speech is the most protected kind of speech under the First Amendment. Thus if by a heroic effort we enacted a constitutional amendment stating that corporations are not people, a future conservative Court would have no trouble striking down limits on corporate political expenditures anyway. Current First Amendment doctrine—dating back nearly a half-century before Citizens United—would make the opinion easy to write.”
Don’t blame ‘corporate personhood,’
The American Prospect, April 16th, 2012
In his article addressing the 2010 Citizens United decision, Professor Epps made a great number of excellent points. He also conveyed a profound misunderstanding of corporate Constitutional rights and, disturbingly, of what specific part of the 1st Amendment applies to the news media.
First, the good points that Epps addressed about the Court’s rulings regarding election speech are worth noting. He wrote:
But the problem didn’t start with Citizens United and can’t be fixed by a corporate-personhood amendment. The threat to American self-government runs far deeper. It started nearly 40 years ago, when the Court first became involved in campaign-finance cases. Four decades of decisions have allowed the rich and powerful to transform free speech—our most important tool of bottom-up self-government—into a means of top-down social control.
Unfortunately, he does not mention that the Court’s involvement in campaign-finance cases is an unconstitutional usurpation of power as explained here. He did explain that “[t]he Republican right, supported by the conservative majority on the Supreme Court, has decided that freedom of speech is incompatible with equal citizenship. That misunderstanding has done severe damage to our democracy and now threatens to destroy it.” Chief Justice Roberts is particularly adverse to fair elections that involve any type of leveling of the playing field between those of great wealth and ordinary Americans. Epps quotes Roberts in court saying, “I checked the Citizens’ Clean Elections Commission website this morning, and it says that this [Arizona Citizens Clean Elections Act] was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?”
Why isn’t that clear evidence that Roberts has a political agenda? As Epps acutely points out, “Appellate judges are not supposed to go Googling around on argument day in search of new evidence to spring on counsel during oral argument. They are supposed to decide cases only on the record before the Court.”
The biggest problem with Epps’ piece in The American Prospect stems from the following paragraph:
But the attack on “corporate personhood” reflects both a misconception of Citizens United and the problem with current First Amendment law. The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan (1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media. Nor is the problem the idea that “money is speech”; the First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them.
“Of course they do.” Really? That is ONLY because corrupt corporate-oriented Supreme Court justices have been granting these artificial persons the rights of natural persons since 1889. If that had never happened, corporations and “First Amendment law” would not be in the same sentence together. Corporations have always been “persons.” That is not, and never has been the issue concerning corporate personhood. Entering contracts, suing, being sued, negotiating, paying taxes are all qualities of personhood, artificial or otherwise; but they are not constitutionally protected rights! Epps, of all people, should understand how the corporations exploited a loophole in the 14th Amendment to first obtain constitutional rights because he wrote a book about that amendment entitled Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006). Section 1 of that amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
If the authors of that amendment had inserted the word “natural” between “any” and “person” in those two phrases of the last sentence, corporate personhood, corporate constitutional rights, would not likely be a matter of contention today. Clearly, they were describing human beings, but corporate lawyers exploited this loophole.
Epps’ examples here that involved the New York Times do not take into consideration that the press, and the news media in general, does not need free speech rights as corporations. When he does that, he makes the common mistake of conflating an individual’s 1st Amendment right of freedom of speech, and a news corporation’s 1st Amendment right of freedom of the press which is expressly guaranteed in the Bill of Rights. Media corporations do not need the first amendment right of free speech to gather and publish the news. This concern is, however, why some amendment proposals, including the Edwards’ amendment and the language proposed by Move to Amend explicitly excludes corporations that comprise the news media. One would think that a professor of law at the University of Baltimore would understand the difference between free speech and the free press.
Corporations have had free speech rights at least since the 1976 decision Virginia State Pharmacy Board v Virginia Citizens Consumer Counsel when the Court claimed that corporate advertising is protected under the 1st Amendment. So how much did that right play into the Citizens United decision? In fact, part of the problem is that Court’s 1976 Buckley decision that money is a form of speech. (The 1st Amendment most certainly was not “toothless” for the first 187 years prior to Buckley!) Justice Kennedy clearly conflated the two matters of speech as money and corporations having constitutional rights in his decision when he wrote:
2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, § 441b‘s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA § 203‘s extension of § 441b‘s restrictions on independent corporate expenditures is also overruled.
(a) Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” § 441b‘s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions….
(b) The Court has recognized that the First Amendment applies to corporations, e.g., First Natl Bank of Boston v. Bellotti… While Buckley did not consider a separate ban on corporate and union independent expenditures found in § 610, had that provision been challenged in Buckley’s wake, it could not have been squared with the precedent’s reasoning and analysis.
How Professor Epps can not blame, at least in part, corporate constitutional rights on the Court’s opinion is nearly beyond comprehension. Lawyers and legal scholars are so busy arguing over legal interpretations, they fail to understand that they have forgotten that the Constitution is written in English, not legalese. When the Constitution says “speech,” it means speech, not the representation of speech or an in-kind contribution that is a reasonable facsimile of speech. It is just speech, including that which comes from a pen (or keyboard). And when the constitution says “person,” it is just a natural person, not all those entities that could reasonably be considered persons for legal purposes. That may be something to find in legal code books but it’s not found anywhere in the Constitution.
What Professor Epps is arguing is based on the continuity of case law handed down by successive Supreme Courts over many generations. As with most legal scholars, he fails to separate the system from the structure it sits atop. When considering a constitutional amendment, case law is only instructive inasmuch as it serves to guide the language of the amendment to address the apparent deficiencies. However, case law is subservient to the Constitution and any new amendment would become the law of the land. So, in reality, current interpretations of the First Amendment, as they relate to legal fictions in law, are irrelevant to the issue of adopting an amendment to abolish legal personhood, since those interpretations would be rendered obsolete by the new amendment. But Professor Epps is not alone. This is a basic point that seems to sail over other progressive’s heads at the moment as well.
Any amendment to reverse the “means of top-down social control” certainly must abolish corporate constitutional rights as a starting point. That would not be sufficient, but it is most certainly a necessary step to having a government of, by and for the people and not of, by and for the corporations that are currently in control.
[This was written by rootchoppervst, founding member of the Ithaca affiliate of Move to Amend, with assistance from yours truly.]