Citizens United And The SOPA/PIPA Blackout: Why The First Amendment Matters

Some questions for opponents of the Supreme Court's decision in Citizens United.

In the wake of yesterday’s decision by several major websites to either shutdown or otherwise engage in some form of protest over the Stop Internet Piracy Act and Protect IP Acts, Ken at Popehat has an interesting question for people who have spent the last two years or so criticizing the Supreme Court’s decision in Citizens United v. FEC:

The widespread protest seemed to succeed at its aim of raising awareness and led to defections from the ranks of SOPA/PIPA supporters.

All of that seemingly effective advocacy raises a question: did its participants have a First Amendment right to protest that way?

For folks like us at Popehat — mere individuals, not corporations or partnerships (we’re more like an unincorporated mystical brotherhood) — the answer is rather clearly yes. Few would dispute it.

But for entities like Google, or Mozilla, or the Wikimedia Foundation, the answer is apparently unsettled in the minds of some of you.

(…)

So, to critics of Citizens United, I have a question: should those business entities have had a right to engage in SOPA/PIPA protests like they did? If so, what is the source of that right, and by what mechanism is it vindicated?

It’s a good question, actually. There really isn’t any functional difference between what Wikimedia, Mozilla, Google, and Conde Nast (the owners of Reddit, which was blacked out for 12 hours yesterday) did yesterday and what Citizens United was seeking to do in the dispute with the Federal Election Commission that ultimately ended up in front of the United States Supreme Court. In both cases, a corporate entity (in the case of the SOPA protests many of them for-profit entities) were taking a position on a matter of public controversy and advertising their position publicly.  What’s the difference, then, between the film that Citizens United wanted to distribute and the actions that took place yesterday? Personally, I don’t see one.

Let’s take it a step further. Let’s say these four corporations wanted to get together and form a political action committee that would broadcast ads and otherwise advocate against SOPA/PIPA and the candidates for office that support it? Should they be permitted to do that or not? And if not, why not?

Ken continues his questions for the “corporations don’t have First Amendment rights” crowd later in the post:

1. If corporations have no First Amendment rights, why can’t federal or state or local governments single out, say, Wikimedia Foundation for its SOPA/PIPA blackout? Why can’t they penalize or fine or even dissolve it? Why can’t they single Wikimedia Foundation out for disproportionate enforcement of unrelated laws in retaliation for disfavored speech?

2. If your answer is “the political process — the voice of the people — will stop them from suppressing expression in this way,” what is the historical basis in America for the assertion that the political process, standing alone, without judicial review based upon application of constitutional rights, is sufficient to stop governmental overreach?

(…)

3. If courts adopt your view — if the Supreme Court says “corporations have no First Amendment rights” — is it really your view that government restrictions on corporate speech will be imposed in a neutral and even-handed manner? Really?

4. You say that people, not corporations, have First Amendment rights. Fine. Tell me: as a person, how do you plan to exercise your freedom of speech if corporate venues for doing so may be restricted by the government?

Again, all good questions that I would love to see a true opponent of Citizens United address at length. To start with, they would need to address the point that Justice Scalia made in his concurrence in the case, where he noted absurdity of trying to decide when a corporation has First Amendment rights based on the kind of business they engage in:

It is passing strange to interpret the phrase “the freedom of speech, or of the press” to mean, not everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant. Patriot Noah Webster’s 1828 dictionary contains, under the word “press,” the following entry: “Liberty of the press, in civil policy, is the free right of publishing books, pamphlets, or papers without previous restraint; or the unrestrained right which every citizen enjoys of publishing his thoughts and opinions, subject only to punishment for publishing what is pernicious to morals or to the peace of the state.” 2 American Dictionary of the English Language (1828) (reprinted 1970). As the Court’s opinion describes, ante, at 36, our jurisprudence agrees with Noah Webster and contradicts the dissent. “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U. S. 444, 452 (1938) .

In other words, the fact that, say, Google, is principally a search engine doesn’t per se grant it any greater First Amendment rights than any other business entity. If corporations don’t have First Amendment rights, then none of them do and that includes the ones who engage in speech that you agree with.  From there, the Citizens United opponent would need to deal with the central issue of  Citizens United, the issue of “corporate rights,” an issue that The Cato Institute’s Ilya Shapiro addressed shortly after the decision came out:

[The argument that corporations lack Constitutional rights] demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”

Well of course they aren’t — but that’s constitutionally irrelevant:  Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn’t because they’re “legal” persons, however — though much of the doctrine builds on that technical point — but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection — that “real people” lose some of their rights when they join together in groups of two or ten or fifty or 100,000 — is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

Corporations don’t have rights because they are corporations. They have rights because they are entities made up of individuals who have Constitutional, and natural, rights. To accept the “no corporate rights” argument, one would also have to accept that individuals lose their rights any time they act as a group toward a common purpose.  If you reject the idea that corporations have rights, then it means that you don’t believe that Wikimedia, Mozilla, Google, or Conde Nast had the right to utilize their corporate resources to speak out on an issue of public concern. There are no exceptions to the First Amendment, and there are no exceptions to an argument that a particular entity doesn’t have First Amendment rights.  The same people who reject the Court’s decision in Citizens United would no doubt be outraged if the government sought to prevent the SEIU from taking a position on upcoming recall elections in Wisconsin, for example, but if corporations don’t have rights, then the union doesn’t have a right to speak out about the election. Before you start restricting rights, then, it’s a good idea to think through the consequences of what you’re saying.

FILED UNDER: Law and the Courts, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Actually, neither Mozilla nor Wikipedia are corporations, they’re both nonprofits.

  2. Non-profit corporations

  3. John Burgess says:

    Nice post.

  4. dude says:

    To accept the “no corporate rights” argument, one would also have to accept that individuals lose their rights any time they act as a group toward a common purpose.

    Actually, those individuals will retain their personal First Amendment Rights… no need to create an entirely new right for an entity made-up of people… just let the people do the talking.

  5. Ken says:

    Actually, those individuals will retain their personal First Amendment Rights… no need to create an entirely new right for an entity made-up of people… just let the people do the talking.

    Under this theory, if I want to start a major magazine, I should pay all the employees out of my own checking account and sign the lease for the building myself.

  6. Herb says:

    Interesting question….but then again, doesn’t Citizens United also pave the way for the corporate interests pushing Congress to put SOPA on the books? Yes, yes I think it does.

  7. It’s a fair point. So sure, I’ll take the restriction that all these cannot lobby in politics if I get the same from other corporations.

    Did you note though that the SOPA/PIPA protests are really catch-up on all the lobbying Hollywood corporations have done? Don’t we call the Sony Bono copyright extension “The Disney Bill?”

    What we would have had, with such a ban in place, was a greater “personalized” action, as for instance Mark Zuckerberg’s first tweet in 3 years

  8. murray says:

    Very cute, and would perhaps convince someone not paying attention.

    None of the “entities” protesting SOPA/PIPA spent millions on lobbyists or lawyers. They simply spoke out.

    Nobody has a problem with corporation CEOs going on TV and supporting a cause or a candidate which is clearly their first amendment right.

    Citizens united is about funneling huge amounts of cash into political campaigns under the pretense that money is free speech.

    In short, this post is a beautiful example of false equivalence.

  9. Dwight says:

    Citizens United was about electioneering communications, SOPA/PIPA blackout was about an issue that targeted two specific pieces of legislation and secondarily those elected officials in support of it.

  10. (It is actually deep irony that legislation from one set of corporate interests is only commented on when it faces the push-back from the other.)

  11. Vast Variety says:

    The corporations themselves as an entity don’t have the right.

    The individuals that own and operate the corporation have the right to alter their own personal property, i.e. their websites, to participate in the protest. There is a significant difference to what they did in the SOPA protest with giving money to a political campaign.

  12. @murray:

    Nobody has a problem with corporation CEOs going on TV and supporting a cause or a candidate which is clearly their first amendment right.

    Citizens united is about funneling huge amounts of cash into political campaigns under the pretense that money is free speech.

    Uh no, Citizens United was about a group of people that made a movie about Hillary Clinton and were banned from showing it to anyone within 60 days of an election.

  13. Ken says:

    The corporations themselves as an entity don’t have the right.

    The individuals that own and operate the corporation have the right to alter their own personal property, i.e. their websites, to participate in the protest. There is a significant difference to what they did in the SOPA protest with giving money to a political campaign.

    A corporation’s web site is not the personal property of its officers or directors — at least, not unless it’s a small closely-held corporation. Google’s website is the property of the corporation, not of the people making the decision to put something on it.

  14. FWIW, we’ve historically made a distinction between “editorial” and “political contribution.”

    A newspaper could endorse a candidate without any accounting of equivalent advertising value. This site takes all kinds of (crazy, lol) positions, but we wouldn’t want it to “count against” Jon Huntsman or anyone else’s campaign contributions.

    So, while I don’t really agree with those above who say “as long as it’s not money it’s fine,” I think there is a different place for “editorial” comment.

    I would suppose that Citizens United’s movie was treated as advertisement, and not editorial, and thus got lumped with prime-time ads, rather than with NY Times columnists.

  15. Herb says:

    @Ken: While that is no doubt true, how is that relevant to Citizens United? If the decision had been upheld, would Google be prevented from airing any political content on their website? Not so sure…

    If they did so in violation of the McCain–Feingold Act, probably. But would putting a Stop SOPA banner on your search engine really violate the pre-Citizens United McCain-Feingold Act?

  16. Al says:

    @Ken:

    Under this theory, if I want to start a major magazine, I should pay all the employees out of my own checking account and sign the lease for the building myself.

    Part of me doesn’t necessarily have a problem with that. I realize it’s throwing out the baby with the bathwater kind of solution but in my experience D&Os have been able to walk away from the wreckage of some very poor decisions unscathed simply because they managed to be just slightly more sophisticated than David Bell was in their execution. That kind of thing gets frustrating.

  17. Ken says:

    @Herb: My comment was a response to a particular argument about whether the corporation or the corporate officer is the speaker in a particular instance.

    More broadly, Citizens United is relevant because it is inspiring a lot of post-OWS “corporations are not people/corporations have no First Amendment rights” rhetoric recently, in addition to the somewhat more sensible and nuanced “certain campaign finance restrictions ought to pass constitutional muster.”

  18. Hey Norm says:
  19. PD Shaw says:

    I think the great victory of the majority opinion in Citizens United is to have its opposition framed in terms of whether or not corporations have any Constitutional rights or whether corporations are persons, when the dissenting opinion did not dispute either notion, but from my reading claimed that natural and artificial persons have different natures and thus may be entitled to different rights. As far as I’m concerned, corporate personhood goes back to English Common law at the time the Constitution was enacted, if not the Nineteenth Century.

  20. progcivlib says:

    This seems backwards to me. Someone on the right arguing that rights are originating from the constitution? I thought the constitution curtailed the government’s ability to infringe on certain rights. The question to be asking isn’t what right are they exercising by participating in this protest, but what law would they be breaking if they did. If they are not breaking the law, they get to participate. Equating this in some way to the Citizens United case seems neither here nor there – just a big pot of start-with-your-conclusion-then-work-back reasoning.

  21. PD Shaw says:

    @progcivlib: That’s a good point; the word “person” doesn’t appear in the First Amendment; its centrality to the discussion is questionable.

  22. gVOR08 says:

    Not an argument Doug will accept, but the difference is the long venerated legal precedent that the Constitution is not a suicide pact. The protests yesterday hardly threaten democracy in the United States. Citizens United well may. I think you’d find a number of conservatives in Iowa and NH who believe Restore Our Future, Romney’s Super PAC, has demonstrated that.

  23. MBunge says:

    That the 1st Amendment and our political discourse seemed to work fine for a century before Citizens United should be pretty persuasive for any real Conservative. For Libertarians and Randians, perhaps not.

    Mike

  24. Herb says:

    @Ken:

    More broadly, Citizens United is relevant because it is inspiring a lot of post-OWS “corporations are not people/corporations have no First Amendment rights” rhetoric recently, in addition to the somewhat more sensible and nuanced “certain campaign finance restrictions ought to pass constitutional muster.”

    And rightly so.

    Many people, not just vile lefties who hate free speech, are concerned about the ability of moneyed interests to corrupt the more pliable members of Congress with campaign contributions.

  25. tyndon clusters says:

    I think doug is missing the point here.

    Most people support the idea that a corporate entity has certain rights.

    We, as individuals all have the right to free speech, but there are libel laws and obvious circumscribed instances where one’s freedom of speech rights are problematic (Holmes’ screaming out fire in a movie theater.)

    I think what alarms most of us is the notion that unfettered campaign donations in the hundreds of millions are the equivalent of a Spartacus Youth being on a soapbox in Union Square bleating out “death to capitalists.”

    I certainly have the right to recite the Gettysburg Address, but if I do it at 3 AM with a loud speaker in my neighborhood, a cop will soon come and “deny” me my right to “free” speech.

    Similarly, no one is denying the corporate right to free speech, its the regulation of this speech which is the question.

    Perhaps the definition of a campaign contribution to a politician could be changed to “bribe” and therefore be de jure illegal

  26. Ron Beasley says:

    @murray: Thanks Murray – I was going to write something like that but you did it for me.

  27. sam says:

    Hear, hear!

    Folks, this is a crucial time in the fight for corporate civil rights. Just look at the hateful signs at Occupy Wall St, ‘Corporations are not people.’ Wow, I thought we were passed the point in this country, just because they have different color skin, or different religion, or were born in the lawyer’s office and exist on paper and were created in the lawyer’s office, have no soul and can never die.

    Étienne de Colbert, De la démocratie en Amérique au cours de la oligarchie

  28. the truth says:

    Hey crazy liberals, lay off the corporations….I mean, aren’t they people too?…. if you prick them, do they not bleed? If you tickle them, do they not laugh? If you poison them, do they not die? Hath not a corporation hands, organs, dimensions, senses, affections, passions?

    Of course they do!!!!!

    Silly liberals, tricks are for kids.

  29. Prudence says:

    If laws can be made against corporations, pick winners and losers among them, then why shouldn’t corporations be able to use their money and speech to influence who gets to become the maker of those laws?

  30. nice strategy says:

    If corporate advocacy or politcally-related advertising had been subject to a blanket ban, it might be worth discussing whether that ban violated their rights. No one has proposed such a ban, and one has never existed.

    The Bipartisan Campaign (finance) Reform Act was about campaigns by individuals and parties for political office. It was not about advocacy over pending legislation per se. BCRA included bans on issue advertising within 60 days of an election because the intent of some of those ads was clearly more directed at affecting the election than general promotion of the group’s issue, but that provision was thrown out in FCC v. Wisconsin Right to Life. That ruling clearly protected the sort of advocacy that Google and wiki just engaged in, even if within 60 days of an election, and even if a candidate had taken a similar position as a point of contrast with another candidate and would likely be helped by the advocacy.

    Citizens United went much further. I suppose there are some unsophisticated understandings of Citizens United out there, but one can criticize the effect of CU, the legal rationale for CU, and the judicial philosophies driving CU and not believe in a hypothetical law that attempts to ban corporations from expressing opinions about the future of their own industries. The ruling could have enabled CU to run its anti-Hillary ad during the election while also requiring groups that wish to engage in electioneering (as opposed to issue advertisements) to raise money in modest amounts so that the speech of the few cannot drown out the speech of the many. The court chose to make a much broader ruling, either oblivious to or pleased by the prospect of elected officials owing their position, in large degree, to a few narrow interests or individuals. That is what is driving the outrage.

    Doug, burn this lazy strawman down.

  31. Herb says:

    @Prudence: “then why shouldn’t corporations be able to use their money and speech to influence who gets to become the maker of those laws? ”

    Because it distorts our democracy, that’s why.

  32. John Burgess says:

    @gVOR08: Actually, the Constitution IS a suicide pact, if a majority of Americans wish it to be. Call it a mass suicide pact.

    All it takes is a constitutional amendment to make the US a theocracy–repeal the First Amendment. Or a dictatorship, which would call for repealing a few more.

    I trust my fellow citizens to not do those things. But I really do like the fact that they are empowered to do them if they can collect a large enough majority in the states.

  33. Liberty60 says:

    To accept the “no corporate rights” argument, one would also have to accept that individuals lose their rights any time they act as a group toward a common purpose.

    The individuals don’t, but they entity they create does.

    Corporations are a legal artifice created for the purpose of separating the individuals who form them from the entity they create.

    This is why the responsibility, and liability found with the corporate entity, not the individuals.

    Individuals have rights, and accept comensurate responsibility; if corporations draw their rights from the individuals comprising them, do the individuals bear responsibility for the acts of the corporations? Or is this a one way street?

  34. jd says:

    Sigh. I’m coming to the opinion that we should just stand back and let corporations vote for the next president.

  35. superdestroyer says:

    What most of the pro-limit political speech posts seem to be arguing is that the government should be free to determine what is acceptable political speech and what is unacceptable political speech. That all of the proponents of this approach are on the left should let everyone know that the main purpose of limiting political speech is to limit of those on the right.

    Of all of those who claim that is is about corporations and influencing campaigns should remember when the left tried to silence radio talk show hots in Washington State. http://www.ij.org/publications/1480?task=view

    Give the government the power to regulate political speech and the government will use the power to silence anyone outside of the conventional leftist progressive realm.

  36. grumpy realist says:

    If corporations are to have more of the rights and privileges we associate with actual live humans, then I think we should also be able to impose the responsibilities associated with being human on them. Any human that acted like the average “it’s only the bottom line” corporation would be considered a demon of psychopathic selfishness. No more “we only have a fiduciary right to the stockholders”–any company carrying out any business activity whatsoever will have to deal with its responsibilities as a “good citizen.” Moving jobs anywhere would be much more curtailed. Attempts by corporations to get tax breaks from states by threatening to move elsewhere if they didn’t obtain them could be charged with blackmail. And similar…..

  37. Michael says:

    Prior to Citizens United there was no restriction on the kind of speech corporations could be involved in. The only limitation was in how much. Suppose that individuals or corporations could “buy” time on the capital steps (also a 1st amendment right) for 1 second per dollar, do you think individuals would ever again have access to it?

    It’s not that I don’t want corporations to be able to make political statements, it’s that I know an individual can not and will not be heard if the amount of speech given is proportional to the size of our bank accounts.

  38. @Prudence:

    If laws can be made against corporations, pick winners and losers among them, then why shouldn’t corporations be able to use their money and speech to influence who gets to become the maker of those laws?

    Corporations, by their nature, will always be more powerful than mere humans. If you make them true “peers” in rights, then they’ll end up running everything.

    IBM is 130 years old and has $14B in cash reserves. If we could all match that, and be as spry at 130, it might not be such a big deal.

  39. @superdestroyer:

    What most of the pro-limit political speech posts seem to be arguing is that the government should be free to determine what is acceptable political speech and what is unacceptable political speech.

    The trick would be in limiting spending, rather than parsing speech.

    In my better world, if IBM wanted to post an “editorial” on their website, that would be fine. If they wanted to contribute $1M to a lobbying campaign, it would not.

  40. Moosebreath says:

    jd,

    “Sigh. I’m coming to the opinion that we should just stand back and let corporations vote for the next president.”

    What makes you think this isn’t what we have?

  41. the truth says:

    So superdestroyer, you go to a hospital, have the wrong leg amputated, sue the doctor, it ends up in court and you find out the hospital your suing gave $10 million to the judges re election PAC and he doesn’t recuse himself from the your trial, stating that he is impartial since he didn’t receive any ot the funds and never coordinated with the hospital on strategy etc.

    Do you really think you will get a fair trial? Would you push for a new judge?

    Or would you think its just swell that corporations can “buy” judges through their right to “free speech”?

    While it may be legal for the judge to not recuse himself, I will be willing to bet $10,000 that you would have the uneasy feeling that you were screwed if the verdict goes against you and that the system is rigged.

    And so it goes with unfettered limits on PAC money buying politicians who will favorably vote for legislation unfairly benefiting their benefactors.

  42. superdestroyer says:

    @the truth:

    To use your example, McCain-Feingold and others would say that as long as the the judge did not accept the donation within 60 days of the trial it would be OK, that if the judge was a liberal activist that it would be OK, that if the group that is giving the money for a left leaning not-for-profit that it was OK.

    Courts are bound to treat everyone equally. The same should come to speech. Writing regulations that gives some points of view an advantage over others is about as far away from the intent of the first amendment as possible.