Patterico's Pontifications

12/1/2011

RJ Reynolds v. FDA and the Hidden Danger of Denying Free Speech Protection to Corporations (Update: Althouselanche!)

Filed under: General — Aaron Worthing @ 7:32 am

[Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.]

Update: Althouse links, writing: “Aaron Worthing has an excellent post about the litigation over the FDA rules requiring new warning labels on cigarettes.”  Thank you for that high praise.

Every now and then I see a case or an issue, that I intend to look into but then for one reason or another, I can’t find the time when the issue is still fresh.  That was definitely the case in the recent litigation entitled RJ Renyolds et al v. the FDA et al., so today when I saw that the Federal Government was appealing this decision, I thought this was a good excuse to finally read the decision and see if I had something interesting to say about it.  And what do you know, there is something interesting there…

Here’s what is going on in the case.  Congress passed a law demanding that the FDA come up with new graphic warning labels for cigarettes—graphic, as in using pictures.  They would be required to cover at least 50% of the front and back of every cigarette package and 20% of all advertisements.  And here is what the FDA came up with:

And this too:

That comes from a New York Times story whose headline succinctly captures the goal of the new warnings: U.S. Releases Graphic Images to Deter Smokers.  They understood intuitively that the purpose of these images was not to inform people but to persuade them.  Isn’t that obvious to you?  For instance, taking the 8 images, look at the second from the left on the top, showing a crying woman.  This conveys no information about the effects of cigarette smoke, it just makes you imagine how horrible the people you love would feel if you died.  Similarly with the baby on the bottom left, it’s not information, it’s a guilt trip.  And the one right next to it, is simply a guy announcing he is quitting (or turning into the lamest superhero ever).

And guess what?  That is sort of a problem, under the First Amendment, which is what led the Reynolds court to grant the tobacco companies an injunction preventing enforcement of this new labeling rule.  Judge Leon’s decision is well written and I believe lay people will get what he is saying if you decide to read it, but let me sum it up.  Generally most instances of coerced speech is subject to the strict scrutiny standard requiring that the rule be narrowly tailored to serve a compelling governmental interest.  But there is a limited exception to that rule in relation to so-called “commercial speech” where the government can compel people and companies selling products to provide truthful and uncontroversial information about those products.  That is how, for instance, the FDA is allowed to force food companies to put nutrition labels on your food packages.

But because these graphic ads crossed the line from merely providing truthful and noncontroversial information to advocacy, it could not fit into that exception.  From the opinion:

Unfortunately for the Government, the evidence here overwhelmingly suggests that the Rule’s  graphic-image requirements are not the type of purely factual and  uncontroversial disclosures that are reviewable under this less stringent standard.  Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of “purely factual.”  That the images were unquestionably designed to evoke emotion – or, at the very least, that their efficacy was measured by their “salience,” which the FDA defines in large part as a viewer’s emotional reaction… further undercuts the Government’s argument that the images are purely factual and not controversial.  Moreover, it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from  disseminating purely factual  and uncontroversial information.  Thus, while the line between the constitutionally permissible dissemination of  factual information and the impermissible expropriation of a company’s advertising space for Government advocacy can be  frustratingly blurry, 19  here – where these emotion-provoking images are coupled with text extolling consumers to call the phone number ” 1 -800-QUIT [NOW]”  – the line seems quite clear.

So we shift to the strict scrutiny test which requires it to be narrowly tailored to serve a compelling interest.  Most lawyers will tell you that regulations almost never survive this test and for good reason.  In this case, the court found that the proffered reason—to give people information—was false and that the actual purpose of this regulation was to get people to quit, which was impermissible.  Particularly the government’s claim that this was designed to reach illiterate people seems to be belied by the second from the left on the bottom, consisting of little more than a man wearing a T-shirt with words written upon them.  The judge also noted that the sheer size of these ads meant that they were not narrowly tailored.

But then again, if you are one of the myriad opponents of the Supreme Court’s decision in Citizens United, the path to victory is elegantly simple.  There are of course two camps among opponents of that decision.  The first are those who declare that no corporation should have any protection under the First Amendment (such as, paradoxically, the NYT Corporation).  The second are those who, like Justice Stevens think that there is a limited exception carved out for the institutional press and only the institutional press under freedom of the press.  Of course I have long said that the second notion can be defeated by common sense, or rather by Common Sense, by pointing out that under this reading of the press clause Thomas Paine’s famous pamphlet would not be protected from censorship.  Plainly that was not the founders’ intent.

But right or wrong, those are the two camps and both would grant an easy victory for the FDA under their legal theories.  As corporations outside of the “institutional press” the Tobacco companies have no right to freedom of expression under either approach—including the right to be free of compelled expression—and thus can be forced to say whatever the government wants, case closed.  And maybe you don’t like smoking so much that you think that this would be just a dandy result.

But that would be because you are failing to see the bigger picture.  Today we are talking about ads that advocate the end of smoking.  Tomorrow the required speech might be this:

If RJ Reynolds is categorically barred from claiming that it has any right to refrain from speech, then what is left to prevent the political party presently in power from requiring all corporations (except maybe the institutional press) to spend money to promote their favored causes and even their candidates to the exclusion of opposing positions and candidates?

And that is the hidden danger lurking in the position of those who oppose the outcome in Citizens United.  Rather than getting corporations out of politics entirely as they claim, they are opening the door to politicians conscripting corporations into supporting their campaigns.  The idea that a large class of speakers in our society should be unable to avail themselves of First Amendment protections is downright pernicious and represents yet another reason why the Supreme Court ruled correctly in that case.

[Posted and authored by Aaron Worthing.]

333 Responses to “RJ Reynolds v. FDA and the Hidden Danger of Denying Free Speech Protection to Corporations (Update: Althouselanche!)”

  1. Those cigarette packs will become collector’s items. They’ll just encourage teens to buy them.

    Does anybody remember how well the film “Reefer Madness” worked to scare us away from smoking marijuana?

    Smoker's Cough (42a507)

  2. I expect Scott Jacobs to have a colorful comment on all of this in 3… 2… 1…

    Aaron Worthing (e7d72e)

  3. the last thing America celebrates is freedom anymore

    it’s very sad

    happyfeet (3c92a1)

  4. I was in a foriegn country (don’t remember where)… They simply sold (gave away?) slip-on designer covers for cigarett packs that had graphic warnings.

    Ain’t capitalism wonderful (not sarc).

    BfC (2ebea6)

  5. (sorry–too early, spell’n fixed)

    I was in a foreign country (don’t remember where)… They simply sold (gave away?) slip-on designer covers for cigarette packs that had graphic warnings.

    Ain’t capitalism wonderful (not sarc).

    BfC (2ebea6)

  6. Our free speech loving President:

    “Today, some big tobacco companies are trying to block these labels because they don’t want to be honest about the consequences using their products,” Mr. Obama says. “Unfortunately, this isn’t surprising.

    MayBee (081489)

  7. But then again, if you are one of the myriad opponents of the Supreme Court’s decision in Citizens United, the path to victory is elegantly simple.

    I don’t see how. Citizens United pertained to “political speech” and has no bearing on cases like the Cigarette/FDA “commercial speech” matter.

    If RJ Reynolds is categorically barred from claiming that it has any right to refrain from speech, then what is left to prevent the political party presently in power from requiring all corporations (except maybe the institutional press) to spend money to promote their favored causes and even their candidates to the exclusion of opposing positions and candidates?

    Two points:

    (1) The tobacco companies don’t claim that they have the absolute right to refrain from all speech — just these particular graphics.

    (2) Re: your question — what’s to prevent some political party from requiring all corporations to spend money to promote favored cause — the answer is, of course, the First Amendment. It’s the same thing that prevents the government from requiring that individuals espouse a belief in God through compulsory school prayer. There’s a high bar for “compulsory speech” when that speech reflects beliefs/opinions, and the government almost always fails to meet it.

    But you don’t need Citizens United to get there, and I fail to see the relevance of that case to this one.

    Kman (5576bf)

  8. Our free speech compelling President, MayBee.

    Dovetails nicely with Holder sticking his finger in the face of the DailyCaller staffer yesterday, demanding they quit covering Fast and Furious.

    JD (318f81)

  9. Someone feels lonely, Aaron. I think you complete him.

    Simon Jester (927690)

  10. There’s a difference, as exemplified in the arguments over Obamacare, between regulating what a corporation must say in the course of promoting a product and requiring a corporation to engage in speech. The former is generally allowed, the latter not so.

    Thus, your slippery slope doesn’t glide… provided the Obamacare mandate is thrown out. If it isn’t, then that provides the basis for government dictating speech, the 1st Amendment is trumped by the government’s ability to regulate commerce.

    As for Citizens, I have yet to hear any substantive argument as to why a corporation that in effect is nothing more than an amalgamation of of its shareholders, customers and workers should lose the protections enjoyed by every single person associated with the corporation.

    steve (369bc6)

  11. Steve: I don’t follow. How does Obamacare purport to trump the first amendment?

    (As for corporations, I think the strongest argument is that limited liability ownership is a privilege, and that the state has the power to impose special rules on entities whose owners have only limited liability for the entity’s actions).

    aphrael (5d993c)

  12. I don’t see how. Citizens United pertained to “political speech” and has no bearing on cases like the Cigarette/FDA “commercial speech” matter.
    – Well of course you don’t since it is a “freedom of speech” issue that both, A) applies equally to both cases; and, B) is anti-thetical to your way of thinking. (i.e. ‘What’s the big deal? Our nanny-state is just doing what is good for us, because nanny knows best.)

    Icy (75814f)

  13. Aphrael – Sebelius pretty clearly showed her intent and/or desire to tell corporations what they would be allowed to say to their customers in regards to policy changes, rate increases, etc …

    JD (0388c1)

  14. But you don’t need Citizens United to get there, and I fail to see the relevance of that case to this one.
    FTFY

    But you don’t need Citizens United to get there, and I fail to see the relevance of that case to this one.
    FTFY

    But you don’t need Citizens United to get there, and I fail to see the relevance of that case to this one.
    FTFY

    Icy (75814f)

  15. It’s the same thing that prevents the government from requiring that individuals espouse a belief in God through compulsory school prayer.

    – Quick, Robin, to the Batmobile! The Boogeyman has escaped from my closet Arkham Asylum!

    Icy (75814f)

  16. The tobacco companies don’t claim that they have the absolute right to refrain from all speech — just these particular graphics

    – And Aaron did not say that the tobacco companies claimed otherwise, although they probably would object to a written warning that said “You smell and you have no friends,” true though it may be in the case of some smokers.

    Icy (75814f)

  17. “Today we are talking about ads that advocate the end of smoking. Tomorrow the required speech might be this:”

    This is advertising. The latter is not. The commercial speech distinction still holds.

    cmaggs (4919ea)

  18. Thank you for letting your inner totalitarian loose, cmaggs. Good little drive-by.

    JD (87dfcc)

  19. I think all the Eco-green government motors Chevy Volts should have to have graphics of people burned alive on their hoods.

    JD (87dfcc)

  20. Re: your question — what’s to prevent some political party from requiring all corporations to spend money to promote favored cause — the answer is, of course, the First Amendment.

    – IOW, you agree with the court’s decision in this case, right Kman?

    Icy (75814f)

  21. “(As for corporations, I think the strongest argument is that limited liability ownership is a privilege, and that the state has the power to impose special rules on entities whose owners have only limited liability for the entity’s actions).”

    aphrael – You of course include unions above, correct?

    daleyrocks (bf33e9)

  22. No, daleyrocks. Unions are not corporations, nor is the NY times. Their free speech must never be stifled.

    JD (87dfcc)

  23. B-b-but haven’t you heard, JD? Those evil, money grubbing CAPITALISTS are by definition robbers of freedom, and therefore are subject to enjoying only the freedom to fail miserably under the yoke of high taxes, Draconian regulations, and untenable trade practices.

    Come on, get with it, man!

    Icy (75814f)

  24. JD – My mistake.

    daleyrocks (bf33e9)

  25. IOW, you agree with the court’s decision in this case, right Kman?

    Absolutely. Kind of a no-brainer.

    Kman (5576bf)

  26. Kman

    As usual you respond without either having read what you are responding to, or having comprehended it.

    > I don’t see how. Citizens United pertained to “political speech” and has no bearing on cases like the Cigarette/FDA “commercial speech” matter.

    Which is why I didn’t say the outcome in citizens united demanded this outcome, but that the major critiques, if accepted and made into law, would bear on this case. The critics of Citizens United would have us believe that RJ Reynolds has no first amendment right at all.

    And I believe I can count you as one of them, right? You have been pretty vague and self-contradictory on this point.

    > (1) The tobacco companies don’t claim that they have the absolute right to refrain from all speech — just these particular graphics.

    And neither did the judge and neither do I. See what I mean about you not reading what you are responding to, or comprehending it? You just made a point that was never disputed in the first place.

    > Re: your question — what’s to prevent some political party from requiring all corporations to spend money to promote favored cause — the answer is, of course, the First Amendment.

    And the incomprehension continues. If RJ Reynolds has no first amendment rights—as many of the critics of citizens united would have the courts hold—then how could the first amendment protect them from this compelled speech?

    Either RJ Reynolds has first amendment rights, or it doesn’t. You can’t have it both ways.

    Aaron Worthing (73a7ea)

  27. What’s next? A photo of Michael Moore on Hershey bars with the message “Warning: chocolate is addictive”?

    Icy (75814f)

  28. “No, daleyrocks. Unions are not corporations, nor is the NY times. Their free speech must never be stifled.”

    The labor laws prohibit union speech on certain secondary actions.

    cmaggs (ac6278)

  29. You are a clown, “cmaggs”

    JD (87dfcc)

  30. The critics of Citizens United would have us believe that RJ Reynolds has no first amendment right at all.

    Name these critics.

    That’s simply not true. You’re mischaracterizing the objections to Citizens United.

    And neither did the judge and neither do I.

    And neither does the FTC.

    Yet you are bringing up the spectre that Reynolds might be “categorically barred from claiming that it has any right to refrain from speech” to premise a sky-is-falling scenario in which the government compel all corporations to spend money for a favored candidate or cause.

    My point is that you are introducing a slippery slope argument based upon something is pure fiction.

    Either RJ Reynolds has first amendment rights, or it doesn’t. You can’t have it both ways.

    Are those the only two choices? Of course not.

    The objection to Citizens United is the argument that the Constitution affords speech protections to corporations that are co-extensive with the “god-given” speech protections of individuals preserved by the Constitution. Do corporations have some speech protections? Sure, but the Bill of Rights doesn’t give it to them, and it certainly wasn’t what the framers had in mind.

    Surely that’s not too nuanced for you.

    Kman (5576bf)

  31. “The labor laws prohibit union speech on certain secondary actions.”

    cmaggs – They also prohibit advocacy of specific political candidates, but they have not proven to be much of a barrier.

    Do you have a point?

    daleyrocks (bf33e9)

  32. Do you have a point?

    Only the top of imdw’s Kimberlin loving head.

    JD (87dfcc)

  33. cmaggs will now educate us on WHY the guvmint needs to strictly regulate messages on commercial packaging. GO!

    Icy (75814f)

  34. “cmaggs – They also prohibit advocacy of specific political candidates, but they have not proven to be much of a barrier.”

    I don’t see how that prohibition can pass Citizens United.

    cmaggs (4449cc)

  35. Let’s quit pretending that cmaggs is some new troll not named imdw.

    JD (87dfcc)

  36. O/T – I’m sure this is just some kind of oversight, but I don’t remember reading about any of this in the MSM during the 2008 campaign:

    “A federal grand jury is investigating former New Mexico Gov. Bill Richardson over possible campaign-finance violations stemming from his 2008 presidential run, including allegations that he arranged for supporters to pay off a woman who planned to say they had engaged in an extramarital affair, according to people familiar with the inquiry.

    Several of Mr. Richardson’s close associates have been granted immunity from prosecution in exchange for their testimony before the panel in Albuquerque, the people said. The panel is one of several grand juries in recent years to examine aspects of Mr. Richardson’s administration and campaigns.”

    http://online.wsj.com/article/SB10001424052970204397704577070603352881354.html

    daleyrocks (bf33e9)

  37. daleyrocks, that story has been bubbling out there for some months.

    SPQR (26be8b)

  38. “I don’t see how that prohibition can pass Citizens United.”

    cmaggs – It is the same prohibition other corporations have been adhering to for 100 years.

    Labor unions organized as not-for-profit corporations, trusts or associations are supposed to confine themselves to issue advocacy. Aren’t you supposed to know something about the subject matter before opening your pie hole?

    daleyrocks (bf33e9)

  39. SPQR – A little late for the 2008 campaign, but then again everybody knew Richardson was a typical Dem slimeball.

    daleyrocks (bf33e9)

  40. “Today, some big tobacco companies are trying to block these labels because they don’t want to be honest about the consequences using their products. Unfortunately, this isn’t surprising.

    - President Barack Obama.

    This is another example of President Barack Obama somewhat misstating what something really is about. Unfortunately, this isn’t surprising.

    This is not about avoiding informing people. This is about avoiding alarming people, and giving them a telephone number to a government sponsored or endorsed smoking cessation program.

    I tend to think something like this ought to be legal. The government is requiring, as a condition of selling mass-produced cigarettes in interstate commerce, that space be reserved for (glaring) advertising.

    If this is characterized as forcing corporations to sponsor a message, of course this doesn’t sound costitutional. What if the government’s message was false or misleading?

    But if, let’s say, corporations can be forced to use, let’s say, accounting firms (for annual reports) or credit ratings, and even maybe let’s say include them whenever mailing certain other material, could they not be required to print that stuff on the packages, so long as it is clear this is not the company’s own message? (I am not talking about the fact these ads might be overreaching, because they indeed look like they are overreaching? Why not require that cigarettes be called “coffin nails?”)

    Is there no example of something like that, where something is forced to be included with other things or are they all clearly distinguishable as at least supposedly simple factual messages?

    Sammy Finkelman (54094c)

  41. Clearly, Congress and the courts can restrict the speech of corporation that have no human shareholders (if you can find any, let me know), but as long as corporations are formed by the free assemlby of capital of human citizen shareholders, the 1st amendment will apply.

    Michael Moore (d1c681)

  42. Infinite Rule of Leftist Life:
    Do as I say, not as I do – and Michelle won’t let me smoke anymore; but, what she can’t catch me at….

    AD-RtR/OS! (b11b8b)

  43. If I were a tobacco company, I’d come up with a graphic warning like this. Just to make Obama mad.

    MayBee (081489)

  44. Maybee

    or you could just show the famous picture of obama smoking and say, “if you smoke cigarettes you might end up being as big a loser as this guy…” :-)

    Aaron Worthing (e7d72e)

  45. Do as I say not as I do is what leftys are all about.

    Dohbiden (ef98f0)

  46. Comment by MayBee — 12/1/2011 @ 10:43 am

    If a cig maker came out with packs with that pix on it, non-smokers would buy it just to look at, along with millions of men smokers too.

    AD-RtR/OS! (b11b8b)

  47. …and just how many smokers would throw-away those empty packs?

    AD-RtR/OS! (b11b8b)

  48. Warning: Smoking will make you skinny.

    MayBee (081489)

  49. This is another example of President Barack Obama somewhat misstating what something really is about. Unfortunately, this isn’t surprising.
    – No kidding.

    This is not about avoiding informing people. This is about avoiding alarming people, and giving them a telephone number to a government sponsored or endorsed smoking cessation program.
    – Huh? Are you saying that this is the goal of the tobacco companies?

    I tend to think something like this ought to be legal. The government is requiring, as a condition of selling mass-produced cigarettes in interstate commerce, that space be reserved for (glaring) advertising.
    – Of course you do. Well, first of all, “that space” severely hampers the ability of companies to advertise their products; secondly, they aren’t just reserving the space, they are dictating what the glaring advertising is to be.

    If this is characterized as forcing corporations to sponsor a message, of course this doesn’t sound costitutional. What if the government’s message was false or misleading?
    – That’s very good, Sammy. It only took you a few paragraphs to restate the tobacco companies’ complaint, as well as Aaron’s point in writing this thread, in the form of a question. Excellent!

    Icy (75814f)

  50. Comment by daleyrocks — 12/1/2011 @ 10:22 am

    I don’t remember reading about any of this in the MSM during the 2008 campaign:

    “A federal grand jury is investigating former New Mexico Gov. Bill Richardson over possible campaign-finance violations stemming from his 2008 presidential run, including…

    There wasn’t any grand jury then. We also didn’t know about John Edwards hiding an affair. I think it;s kind of dangerous to call this a campaign contribution,e even if it is functionally the same thing.

    What if somebody did this two years before? Five years before? Would somebody be barred from running because years back friends of his paid off a woman? What if it is not a woman, but some other embarrassment? What about legal fines or court judgments as happened in the case of Al Sharpton before he ran for President?

    http://www.slate.com/articles/news_and_politics/ballot_box/2003/09/the_worst_of_al_sharpton.html

    A grand jury investigation concluded in late 1988 that Brawley “was not the victim of forcible sexual assault” and that the whole thing was a hoax. The report specifically exonerated Pagones, and in 1998 Pagones won a defamation lawsuit against Sharpton, Brawley, and Brawley’s lawyers. Sharpton was ordered to pay Pagones $65,000. Johnnie Cochran and other Sharpton benefactors subsidized the payment.

    Hey, under the Edwards and Richards or principle, wasn’t that an unrecorded and over the limit campaign contribution??

    Or do we say, well, they were close enough friends for that not to be a campaign contribution, and/or they had other motives for trying to regularize Sharpton’s finances besides his 2004 Presidential election campaign or other federa; election campaigns? Or do we say this is only for payments to maintain a secret where that is also not part of a legal settlement? Or do we say, well, nobody had thought of this legal theory while the statute of limitations had not expired?

    I think we need bright lines.

    Sharpton did run into some campaign finance difficulties, but not that one.

    http://en.wikipedia.org/wiki/Al_Sharpton

    Sharpton ran for a United States Senate seat from New York in 1988, 1992, and 1994. In 1997, he ran for Mayor of New York City. During his 1992 bid, he and his wife lived in a home in Englewood, New Jersey, though he said his residence was an apartment in Brooklyn.[88]

    On January 5, 2003, Sharpton announced his candidacy for the 2004 presidential election as a member of the Democratic Party.

    On March 15, 2004, Sharpton announced his endorsement of leading Democratic candidate John Kerry.

    On December 15, 2005, Sharpton agreed to repay $100,000 in public funds he received from the federal government for his 2004 Presidential campaign. The repayment was required because Sharpton had exceeded federal limits on personal expenditures for his campaign. At that time his most recent Federal Election Commission filings (from January 1, 2005) stated that Sharpton’s campaign still had debts of $479,050 and owed Sharpton himself $145,146 for an item listed as “Fundraising Letter Preparation — Kinko’s.”[89]

    In 2009 the Federal Election Commission announced it had levied a fine of $285,000 against Sharpton’s 2004 presidential campaign for breaking campaign finance rules during his presidential campaign.[90][91]

    On April 2, 2007, Sharpton announced that he would not enter the 2008 presidential race. “I am not going to run,” he said.[17]

    I wonder of what really kept him out was that there would be legal questions about campaign financing. Or his personal finances.

    Sammy Finkelman (54094c)

  51. I am continually impressed by our Democrat Mensa members facing state budget deficits who see increasing sin taxes as an easy answer only to find themselves collecting lower sin taxes after jacking up the price of sin.

    They can’t figure it out. It’s sort of like when a state imposes a millionaire’s tax and then the next year discovers they no longer have as many millionaires.

    Some mysteries just cannot be explained to our Democrat Mensa Masters.

    daleyrocks (bf33e9)

  52. I forgot that Obama is a smoker until Aaron mentioned it.

    LOL. What a putz. Whining about how a company is dishonest because it doesn’t want to post a huge and hysterical picture condemning themselves.

    How many Americans don’t know that smoking is unhealthy? Is awareness of this issue a problem? No.

    Apparently, Obama, some people smoke despite being aware smoking is unhealthy. You should know all about that. This used to be known as freedom.

    Democrats are consistently against freedom.

    Dustin (cb3719)

  53. Is there no example of something like that, where something is forced to be included with other things or are they all clearly distinguishable as at least supposedly simple factual messages?
    Comment by Sammy Finkelman — 12/1/2011 @ 10:30 am

    – Yes. It’s called the current warning messages printed on cigarette packs vs the photographs above. Reading is comprehension, buddy.

    Icy (75814f)

  54. The discovery that smoking is harmful to your health is a relatively new phenomanon…oops…
    why is it that GI’s in WW-2 referred to smokes as “coffin nails”?
    Must have been that the glowing tip and/or smoke would attract snipers resulting in death?
    Yeah, that was it.

    AD-RtR/OS! (b11b8b)

  55. More on the problem with categorizing things retrospectively as campaign contributions:

    Herman Cain is in a little bit of trouble because a speaking and book tour in 2010-2011 seems to have morphed into a Presidential campaign, and his campaign tried to account for some activity in December and January a year ago as testing-the-water activities because they predated his beginning to accept contributions in January.

    But that created another problem. His travels, and that of Mark Block, were subsidized by Prosperity USA, a would-be tax exempt nonprofit incorporated in April 2010, and some iPads costing $3,764 were donated as well.

    The documents of that non-profit now say money (presumably what is now attributed to this proleptic real word – not a typo
    “testing the waters” phase of his presidential campaign is “due from FOH” but that’s still not OK!

    Apparently, it is not legal for a nonprofit to engage in political activities, so if these travels were political activities, they couldn’t legally have paid for them, and that includes even loans, unless they are strict business propositions and neither can a campaign borrow money on non-commercial terms from anyone but the candidate (who has to get the money back pretty soon after the close of his campaign or forswear getting back the money)

    This could result in a potential candidate being trapped into not running.

    Sammy Finkelman (54094c)

  56. Comment by Dustin — 12/1/2011 @ 11:03 am

    I forgot that Obama is a smoker until Aaron mentioned it.

    According to Michelle, he hasn’t smoked since sometime early in 2010 (nearly a year as of february 8) and his latest medical report says he doesn’t use tobacco.

    What this means is he is getting his nicotine some other way, most likely mostly e-cigarettes.

    Sammy Finkelman (54094c)

  57. Kman

    Okay this is official, you are not even reading what you are responding to. For instance you wrote that the tobacco companies did not deny they could be forced to engage in some speech, and I pointed out that the court agreed and so did I, so you were proving a point that no one was disputing. And you write:

    > And neither does the FTC.

    Except the FTC is not involved in this case, at all. It is in fact the FDA and a few related office holders and entities. So apparently you didn’t even read the caption of the case.

    Then you write:

    > Name these critics.

    Except that I named two of those persons as I characterized their positions. Well, admittedly one of them was a disembodied corporate voice (for extra irony), but there you go.

    And further, you know of many people who take the same view, given that the entire book you cited in the turow thread is chock full of people who advocate wholly stripping corporations of all first amendment protections, including the author of the book itself.

    Or is it the case that you didn’t really read that, either? Given your patently false assertions about it, I would say that is a distinct possibility.

    > My point is that you are introducing a slippery slope argument based upon something is pure fiction.

    Proving you don’t know what a slippery slope argument even is. If the court says “the first amendment doesn’t apply to corporations (except for the institutional press),” then you are not saying that you are slipping down the slope when you point out that RJ Reynolds is 1) not member of the press and 2) a corporation and therefore not protected by the First Amendment. That is not slipping down a slope. Showing how a rule—or in this case, a proposed rule—would apply to different factual situations is not a slippery argument.

    > [me] Either RJ Reynolds has first amendment rights, or it doesn’t. You can’t have it both ways.

    > [you] Are those the only two choices? Of course not.

    Really, it’s possible for a person or corporation to have something and not have it at the same time? Is this by the same mechanism that Schrodinger’s Cat can be both dead and not dead at the same time? Quantum law, if it were?

    Or did you mistakenly insert the word “equal” into my words?

    And then here is the most amazing part of your response:

    > Do corporations have some speech protections? Sure, but the Bill of Rights doesn’t give it to them, and it certainly wasn’t what the framers had in mind.

    (emphasis added) Now when I said that “[t]he critics of Citizens United would have us believe that RJ Reynolds has no first amendment right at all” you denied that claim, saying “[t]hat’s simply not true. You’re mischaracterizing the objections to Citizens United.”

    But above you just said that the Bill of Rights does not give corporations “speech protections.” Since the First Amendment is part of the Bill of Rights, you have effectively denied that the First Amendment applies to them—or at least the First Amendment right to free speech. So you want me to name a critic who says that the First Amendment doesn’t apply to corporations? Look in the mirror.

    And you then seem to think that something in the constitution grants corporations free speech rights outside of the first amendment. I will say bluntly that if there is any other provision in the constitution guaranteeing free speech that bears on this case or citizens united, I can’t think of it. Or do you mean that it is granted by something outside the constitution entirely?

    But I have come to a realization as I wrote this. I owe you an apology. Clearly you are a newcomer to America and are only starting to learn the English language, which makes it grossly unfair of me to pick on you for your lack of comprehension. It is purportedly a tricky language if it is not your first language. For this I apologize.

    Or maybe you are actually writing in a foreign language and using google translate to read what I am writing and to turn your responses into English? Is that it?

    I mean that is the case, right? You’re not just a native speaker of the language who is just really, really incompetent in the language, right? Right?

    Aaron Worthing (e7d72e)

  58. “There wasn’t any grand jury then. We also didn’t know about John Edwards hiding an affair.”

    Sammy – My point is not about the Grand Jury and we did learn about Edwards hiding the affair during the campaign. I’ll be more overt, my point is about potential double standards on candidate vetting by the media.

    Why are we only hearing about this Richardson affair three or four years after the campaign?

    daleyrocks (bf33e9)

  59. Just think how much easier it would be if we just got rid of all of these pesky impediments to attaining power.
    Perhaps we need to emulate how Gaius Julius superseded the Republic by “crossing the Rubicon”?
    (Is there a river in PA/VA/MD that can function as our “Rubicon”?)
    Just think about it, one simple act by someone wishing power (not counting how difficult it would be to raise an army of any kind…well, except for Glenn Beck), and the rest of us would not have to be bothered by this seemingly endless, mindless, campaigning, with all of the attendant back-biting, sniping, double-dealing, and just down-right disagreeable partisanship.

    AD-RtR/OS! (b11b8b)

  60. Dustin

    actually i am not sure if it has been confirmed that he is a current smoker. but he has in the past as well as doing a myriad of other drugs. Which is funny, because i seem to recall that Kman was positively scandalized when George W. Bush was accused of using cocaine, by Kitty Kelly’s poorly sourced book. But Obama has admitted to being on coke and I have never seen him bat an eyelash about that.

    Aaron Worthing (e7d72e)

  61. “Warning: Smoking will make you skinny.

    Comment by MayBee — 12/1/2011 @ 11:00 am”

    Maybee – Proof! Last time I stopped I gained 30lbs. It was not healthy.

    daleyrocks (bf33e9)

  62. Wow, kmart alleging facts not in evidence, misconstruing the words of others, and just plain making-$hit-up.
    Who would ever guess that could happen?

    AD-RtR/OS! (b11b8b)

  63. Dustin

    i will add that beldar has talked a lot about that and so if you want to nail down whether obama actually currently smokes, he would have the answer.

    it is an interesting dichotomy that he has in the past chosen to smoke, but he thinks people ought to be brow-beaten on the subject. did he need graphic pictures to figure out that it was bad for him, or did he take the attitude that he enjoyed it and he just didn’t care? Probably the latter, and if that is the case, i respect that decision. i just wish he would respect everyone else’s.

    or maybe he is like a certain personality that projects their weakness onto everyone else. for instance at yale when i was there was an ethernet connection in every desk. Some students used it wisely, looking up cases, etc. and some went on ebay. and one teacher go on this crusade to eliminate ethernet access in the classroom basically arguing that the students were too childish to make up their own minds on this, etc.

    Then i learned a hilarious thing. the professor himself was an internet addict, who actually had to have a net nanny installed in his computer (voluntarily) to keep himself under control. so all of this was really about his control issues, and not ours. maybe its the same with obama.

    Aaron Worthing (e7d72e)

  64. Aaron—remember the story about wrestling with a pig in a mud puddle? It wastes your time, gets you all muddy….

    …and the pig likes it.

    And it is very, very clear that Kman lives to have interactions with you. Eeew.

    Simon Jester (c8876d)

  65. “I tend to think something like this ought to be legal. The government is requiring, as a condition of selling mass-produced cigarettes in interstate commerce, that space be reserved for (glaring) advertising.”

    Sammy – Do you think Obama would go for putting a warning on green or high gas mileage cars that “Driving this car increases your odds of dying if involved in an auto accident?”

    daleyrocks (bf33e9)

  66. simon

    it all reminds me of a bit in the movie “the watchmen” when two ex-superheroes are discussing one bad guy who apparently just liked to get beat up. He would be like “punish me… punish me” in ecstasy.

    And the girl says, “what ever happened to him?”

    And the guy says, “he pulled that routine on Rorschach and he threw him down an elevator shaft.”

    Aaron Worthing (e7d72e)

  67. It’s like the old joke, Aaron:

    “Hit me,” the masochist pleaded.

    “No,” the sadist replied.

    Simon Jester (c8876d)

  68. It’s actually worse than that, Aaron the original claim came from a Kimberlin like character, James
    hatfield, a fellow who had been to prison, for attempting to blow up his boss, yet St. Andrews
    press, seemed to clear that and other irregulaties,
    they say the book was mulched, but you can find it in many libraries, as McGuinness’ will soon be as
    well, I’m afraid.

    narciso (87e966)

  69. “I think we need bright lines.”

    Sammy – I’m not in favor of any additional regulations on who can or cannot run for public office in this country.

    I think the American public is smart enough to figure out which candidates are deserving of their support without imposing new regulations.

    What I am in favor of is less biased media coverage.

    daleyrocks (bf33e9)

  70. AI is calling for Bush’s arrest?

    These same people called Uribe and current president Santos thugs while ignoring FARC and Mugabe.

    Dohbiden (ef98f0)

  71. Except that I named two of those persons as I characterized their positions.

    Uh, MIScharacterized their positions. FTFY.

    *I* certainly don’t believe that corporations should have no First Amendment rights, and neither does the NY Times Corporation. The NYT opinion piece you link to merely says that corporations should not have the SAME First Amendment rights as people, which is different from saying that they should have NO First Amendment rights at all.

    Seriously, read your own link — apparently, I’m not the one with the reading comprehension problem.

    And further, you know of many people who take the same view

    I don’t. I honestly don’t. I’m not saying there aren’t any, but that certainly doesn’t characterize the view of mainstream Citizen United opposers. You are simply making an over-generalization. It would be like saying “Everyone who opposes Kelo thinks there should never ever be government takings under any circumstance.”

    But above you just said that the Bill of Rights does not give corporations “speech protections.” Since the First Amendment is part of the Bill of Rights, you have effectively denied that the First Amendment applies to them—or at least the First Amendment right to free speech. So you want me to name a critic who says that the First Amendment doesn’t apply to corporations? Look in the mirror.

    I think I see where you are confused.

    The First Amendment, as written, when it was written, was not intended to apply to corporations. That’s just historical fact.

    As this nation grew during the Industrial Revolution, we, as a matter of policy, decided to endow corporations with certain legal rights and protections that normally are attributed to individuals. They could exist in perpetuity; they could sue in court; they could be sued in court, for example. By the same token, we opted to afford them certain limited speech rights, particularly rights which fall under the rubric of “commercial speech”. Again, we afforded these (limited) “constitutional” rights to corporations; they were not among the “self-evident” “inalienable” “God-granted” rights envisioned by the framers.

    So today, yes, corporations are effectively protected by the freedom of speech provision of the First Amendment, although that protection was never intended to be co-extensive with that of actual persons, until five judicial activists made that so with Citizens United.

    Kman (5576bf)

  72. Step off Kman you pile of smoldering braincells.

    Dohbiden (ef98f0)

  73. “They could exist in perpetuity; they could sue in court; they could be sued in court, for example.”

    Kman – These rights did not emerge during the Industrial Revolution, they carried over from British law. I pointed them out to you from Justice John Marshall’s opinion in the Dartmouth College case. Nice try.

    daleyrocks (bf33e9)

  74. daley:

    These rights did not emerge during the Industrial Revolution, they carried over from British law.

    Yes, I stand corrected. You’re mostly right. The right to sue and be sued in court was a carryover from British law right from the beginning of this country. But initially, corporations were not initially allowed to exist in perpetuity. And it wasn’t until the 19th century where they were allowed to have more autonomy from the government and eventually develop some aspects of “personhood”.

    Kman (5576bf)

  75. Mrs Doubtfire hearts AW.

    JD (0388c1)

  76. The First Amendment, as written, when it was written, was not intended to apply to corporations. That’s just historical fact.

    – Thus spake the preacher in the Church of the Divine Intent

    Icy (75814f)

  77. Kman

    > *I* certainly don’t believe that corporations should have no First Amendment rights

    Well, you did say it. But if you want to say that you were either too dishonest or stupid to say what you meant, I will accept that.

    > The NYT opinion piece you link to merely says that corporations should not have the SAME First Amendment rights as people

    Not at all, but thank you for playing.

    > [me] And further, you know of many people who take the same view, given that the entire book you cited in the turow thread is chock full of people who advocate wholly stripping corporations of all first amendment protections, including the author of the book itself.

    > [you] I don’t. I honestly don’t.

    Then you cited a book without reading it or without actually retaining anything it said. Hardly, surprising though.

    > I think I see where I am confused.

    (FTFY.)

    > So today, yes, corporations are effectively protected by the freedom of speech provision of the First Amendment, although that protection was never intended to be co-extensive with that of actual persons, until five judicial activists made that so with Citizens United.

    Which is a reasonable, albeit mistaken, statement. Only that isn’t what you said. What you said was:

    > Do corporations have some speech protections? Sure, but the Bill of Rights doesn’t give it to them,

    I also find this interesting. You have been denying that Citizens United bore on this case at all, but you also wrote:

    > corporations are effectively protected by the freedom of speech provision of the First Amendment, although that protection was never intended to be co-extensive with that of actual persons, until five judicial activists made that so with Citizens United.

    But according to you prior in the thread you asserted that Citizens United did not extend the First Amendment to corporations. So which is it? Did it or didn’t it? Or is this more “quantum law?”

    Well, the correct answer is that the courts have been ruling that the Corporations have the right of free expression for decades, had signed on to a previously unheard of limitation of that right in McConnell and overturned it in Citizens United.

    And of course your assertion that the founders didn’t intend for any corporations at all to enjoy first amendment rights is ahistorical claptrap, but we have been over this before and when you tried to prove that factual assertion, you ran crying from the intellectual fight and now pretend you won it. Corporations have exercised expressive rights, particularly in print, since the beginning of the republic and the founders never batted an eye about it. You can’t even dispute that so instead you took what I said out of context, twice, and pretended to refute what I didn’t say. At the very least the founders intended to preserve freedom of the press and speech as it was practiced in that day, which included corporations that opined on elections, whether you want to admit that or not. And more fundamentally, it represents Madison et. al’s judgment that the government should not be in the business of regulating expression, period. The issue isn’t where a corporation gets the right to speak freely during elections, but where does the Federal Government get the power to suppress them. The First Amendment demonstrates that Congress positively does not have that power. It didn’t in the mediums that existed in that day and therefore it can’t possibly have it in the mediums of today. And it is not judicial activisim to refuse to extend congressional power to spheres (television, the internet, etc.) that literally didn’t exist at the time of the founding.

    By the way, weren’t you the little crybaby who claimed that real lawyers didn’t use terms like judicial activism? I guess it gets hard to keep track of all of your dishonest spin.

    Aaron Worthing (e7d72e)

  78. So. One person should have 1st Amendment rights, but a group of people gathered together – a corporation – should not have those rights. Which pretty much throws the part about “peaceably to assemble, and to petition for redress…..” out the window.

    Mike Giles (fc8939)

  79. that protection was never intended to be co-extensive with that of actual persons, until five judicial activists made that so with Citizens United.
    – All five are activists, are they? Funny, there are some that say those that attempt to divine “intent” from within the clear language of the Constitution, those people are the true activists.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    – Where is it, Kman?

    Icy (75814f)

  80. btw, i have to admit the althouse link was very nice.

    Aaron Worthing (e7d72e)

  81. Is there really a qualitative difference between the troll, the Journolist and the apparatchik;

    http://online.wsj.com/article/SB10001424052970204630904577056490023451980.html

    narciso (87e966)

  82. Maybee – Proof! Last time I stopped I gained 30lbs. It was not healthy.

    There you go. Send before and after photos to RJR for them to use on their labels.

    MayBee (081489)

  83. Palin makes gaffes and it is wrong.

    Obama makes gaffes and the left insist Obama has an education and his gaffes are proof of his humor.

    If we get Universal Healthcare don’t whine about illegals.

    And the Tea Party is center-right.

    Dohbiden (ef98f0)

  84. So. One person should have 1st Amendment rights, but a group of people gathered together – a corporation – should not have those rights. Which pretty much throws the part about “peaceably to assemble, and to petition for redress…..” out the window.

    Comment by Mike Giles

    Nice refutation of “corporations / associations / etc ” not having first amendment rights – Congress shall make no law abridging the freedom of speech “except the freedom of Speech of corporations and / or any other assembly of individuals – my apologies for misquoting stevens’ dissent in CU

    Joe (6f5cc6)

  85. Unless the corporations vote for Obama they must have free speech rights.

    Dohbiden (ef98f0)

  86. then they must have free s[eech rights*

    Dohbiden (ef98f0)

  87. Speech*

    Dohbiden (ef98f0)

  88. You’re not far from the truth, Doh, remember the Auto Task Force, that closed down thriving auto dealership (that had contributed to McCain) and kept others open, that had supported Obama, they want ‘their piece of the action’

    narciso (87e966)

  89. Me: The NYT opinion piece you link to merely says that corporations should not have the SAME First Amendment rights as people, which is different from saying that they should have NO First Amendment rights at all.

    You: Not at all, but thank you for playing.

    Well, then I leave it to your followers to read the piece and determine who has reading comprehension problems…. the link again.

    But according to you prior in the thread you asserted that Citizens United did not extend the First Amendment to corporations.

    I never asserted that. Where did I say that?

    And of course your assertion that the founders didn’t intend for any corporations at all to enjoy first amendment rights is ahistorical claptrap, but we have been over this before and when you tried to prove that factual assertion, you ran crying from the intellectual fight and now pretend you won it. Corporations have exercised expressive rights, particularly in print, since the beginning of the republic and the founders never batted an eye about it.

    Well, fine, I won’t re-fight it with you, although (unlike me) you haven’t produced one shred of evidence to support your contention that the founders weren’t wary of corporations and/or sought to protect corporations via the Bill of Rights. After all, after being ruled harshly by British corporations like the Massachusetts Bay Colony Corp., why would they turn around and give them “rights”?

    I also note that you make the first-year law student mistake of believing that just because corporations did X (“exercised expressive rights”) and nobody howled, that X was protected by the Constitution.

    At the very least the founders intended to preserve freedom of the press and speech as it was practiced in that day, which included corporations that opined on elections, whether you want to admit that or not.

    Not in the days of the founders. They simply didn’t. I can’t prove a negative, so the burden rests on you to support your bald assertion. People opined on elections through the media, but non-media corporations simply didn’t opine on elections.

    The issue isn’t where a corporation gets the right to speak freely during elections, but where does the Federal Government get the power to suppress them. The First Amendment demonstrates that Congress positively does not have that power.

    Again, you completely overlook (intentionally?) that the Bill of Rights protects people viz a viz the federal government. Corporations are not people (and even if that truism is debatable now, it certainly wasn’t in 1787). Rather, corporations are “legal fictions” which are creatures of the state government, and weren’t granted “personhood” status until many decades later (and even then, it was only in a limited sense). Corporations back then couldn’t exist at all if the state didn’t approve their charter, which was many times not forthcoming, and they had to abide by the laws of the state in which they were incorporated (still do, as a matter of fact). To argue that such entities had “natural” “god-Given” rights (which the Bill of Rights was intended to preserve) is absolutely ridiculous.

    Kman (5576bf)

  90. Aaron, as often is the case, you say what I was trying to say, with a lot more clarity.

    Yeah, it’s hilarious, if it weren’t frustrating, that Obama probably had a sense of personal freedom when he smoked, despite knowing it was unhealthy.

    I didn’t know Kman raised such a fuss that Bush was a cokehead, which I never personally fond credible. These dopes never pause to reflect on their own comments, but Kman really pushes it to the limit.

    Dustin (cb3719)

  91. Comment by daleyrocks — 12/1/2011 @ 12:23 pm

    Actually, on this particular point, you’re both partially correct. But Daley is more correct than Kman. Originally under British law, corporations had rather limited rights, including the right to sue; but by the time of the American Revolution, most of those limitations had fallen away. But the central fact remains that corporations are legal entities whose exist solely by governmental action (the act of incorporation and filing of a corporate charter, etc.) and there’s no inherent reason that would bar a corporation from having political rights in the way a natural person (meaning a human being) does. Not letting RJ Reynolds advocate for a law would not keep any of its individual shareholders, executives, directors, or employees from advocating for that law. Allowing RJ Reynolds to advocate politically, however, allows that advocacy to be amplified, which can have a seriously distorting effect, which means that instead of (to quote Aaron)politicians conscripting corporations into supporting their campaigns. we currently have a system in which corporations recruit politicians into supporting them–the same basic situation as a hundred and ten years ago, which allowed the Progressive movement to become the dominant political force of its era.

    JBS (38f6c3)

  92. Dustin

    that was before you had the pleasure of knowing Kman. i know you remember that time. the sun shined a little brighter. the air smelled better. the people you talked to online made more sense…

    Kman definitely thought this was reason enough not to vote for GWB, that is for sure.

    And bluntly, it is pretty serious. not insurmountable given that i believe in redemption, but serious.

    i don’t personally like smoking, but i don’t brow beat smokers. I respect their personal responsibility coming and going. i don’t even mind people smoking around me although it will cause me to involuntarily cough; i get annoyed with people who fake coughing around smokers just to register their disapproval. And while they are smoking, i respect they are intelligent enough to have weighed the pros and cons and decided it was worth it. and if they get lung cancer, i expect them to own up to the fact that they made this decision and not blame anyone else. I am not dismissing the fact that it can be hard to break the habit, but ultimately they can break it. if i had my druthers, i would dismiss every one of these tobacco liability suits. in law we call that assumption of risk, and we shouldn’t bend that rule because we don’t like smoking or something.

    i don’t even buy the claim that we didn’t know it was bad until the 20th century. i think anyone with more than two brain cells to rub together would figure out that it isn’t good for you to be sucking that stuff into your lungs, with or without scientific studies showing it causes cancer, or increased the chances of getting cancer or whatever it precisely does.

    i mean this is a very poor metaphor, but it is a little bit like how i think about the morality of slavery or the holocaust and why i don’t have much patience with the claim that people couldn’t have known back then it was wrong. Like when i watched Amistad, for instance, or Schindler’s List, I couldn’t help but think, “you don’t even treat cattle like that.” I mean even if they had convinced themselves that these people are no better than animals, that only justifies at most treating them like animals, not the evil sh-t that they did do. Some things are so clearly wrong that I think any person should have figured out it was wrong at the time, even if the rest of society told them it was right.

    Which is a bad metaphor because i am equating something that is morally appalling (holocaust and slavery) with something that is just bad for you (smoking). But what i am trying to say is that i think smoking is as obviously bad for you, even in 1860, as slavery was obviously evil. if that makes sense.

    Aaron Worthing (e7d72e)

  93. This brings to mind the West Virginia Board of Ed v. Barnette SCOTUS decision of 1943 that reversed the 1940 Minersville (PA) School District Gobitis verdict, which said that a school district had the right to expel the children of Jehovah’s Witnesses because they — as a matter of principle — refused to salute the flag. Justice Felix Frankfurter, the lone dissenter, wrote something that boggled my mind (bold mine):

    The flag salute exercise has no kinship whatever to the oath tests so odious in history. For the oath test was one of the instruments for suppressing heretical beliefs. [...] Saluting the flag suppresses no belief, nor curbs it. Children and their parents may believe what they please, avow their belief and practice it. It is not even remotely suggested that the requirement for saluting the flag involves the slightest restriction against the fullest opportunity on the part both of the children and of their parents to disavow, as publicly as they choose to do so, the meaning that others attach to the gesture of salute. All channels of affirmative free expression are open to both children and parents. Had we before us any act of the state putting the slightest curbs upon such free expression, I should not lag behind any member of this Court in striking down such an invasion of the right to freedom of thought and freedom of speech protected by the Constitution.

    So Frankfurter essentially said that the government — in this case, the local school board — has the right to compel speech as long as it’s relatively meaningless, and as long as you also are permitted to invoke your First Amendment right to disavow and object to what you had just been coerced to say.

    Everybody got that? The state can force you to say something, and then you can say, “I didn’t really mean it, the state forced me to say it.” Problem solved, right?

    It’s pretzel logic that the most talented Boy Scout could not unravel. And so is this: Tobacco companies have the freedom to sell their product (largely because the government, for whatever reason, refuses to ban it), but their freedom is hampered by the state forcing them to flaggelate themselves and make their product appear so thoroughly disgusting, it counteracts all their advertising (which is First protected as long as it is factual).

    Ever since Janet Reno first floated the possibility of banning tobacco by classifying nicotine as a drug restrictable by the FDA, it’s been a government cash grab. Faced with the prospect that the entire tobacco industry might disappear overnight, the companies agreed to ridiculous multi-million dollar settlements to family members of willing smokers (hello, John Edwards) and excessive taxation within tax-strapped states.

    The way I see it, the relationship between government and the tobacco companies is the equivalent of that between crooked beat cops and streetwalkers: They’ll allow the hookers to ply their trade rather than lock them up, but in return, the cops get to rape them whenever they feel like it.

    L.N. Smithee (dfcddb)

  94. i am equating something that is morally appalling (holocaust and slavery) with something that is just bad for you (smoking).

    It’s pretty funny that you were starting out by being relatively cool about smokers, and then found yourself saying this.

    LOL.

    But point taken.

    And I agree that abusing drugs like cocaine is a huge lapse of judgment, and I wouldn’t vote for someone as president who made that mistake. For all the screaming the left gave Bush 43, I guess they didn’t mean it.

    You don’t even hear them complain about Obama’s drug war very much.

    Politics is just a game to some folks. Complaining about someone cheating on their wife, doing drugs, running a deficit, or stunts like these ghastly pictures on packages… those are only cards to play against the other side. The real argument Kman has is that Republicans = bad. That’s it.

    Dustin (cb3719)

  95. Denying free speech to corporations that vote for Obama is racist.

    Denying abortion rights to women is racist.

    Not aborting your DS baby is racist.

    /Lefty liberal off

    Dohbiden (ef98f0)

  96. Look I’m sorry if my words went too far.

    Dohbiden (ef98f0)

  97. abortion is very controversial Mr. biden

    happyfeet (3c92a1)

  98. “Actually, on this particular point, you’re both partially correct. But Daley is more correct than Kman. Originally under British law, corporations had rather limited rights, including the right to sue; but by the time of the American Revolution, most of those limitations had fallen away. But the central fact remains that corporations are legal entities whose exist solely by governmental action (the act of incorporation and filing of a corporate charter, etc.) and there’s no inherent reason that would bar a corporation from having political rights in the way a natural person (meaning a human being) does.”

    JBS – I disagree. Kman’s corporate personhood theory was presented more completely on a prior thread and based on the work of lay constitutional scholar and progressive hero Thom Hartmann who contended that the various attributes of corporations were not recognized under American law until the 1880s. That’s complete bunk.

    Kman’s position today is a walk back from that prior thread. I have no idea what you and he consider the date of the Industrial Revolution. In order to support the position advanced by Kman (before his many flip flops) though, that corporations have no rights unless they are specifically granted in the Constitution, one would have to agree that this country specifically abrogated all English law and precedent not specifically assumed or superseded by the Constitution.

    I am not aware of anyone except Kman advancing such an argument, are you?

    daleyrocks (bf33e9)

  99. “abortion is very controversial Mr. biden”

    Mr. Feets – Enuf wif your fetus slicing fetishes. How many fetuses do you know who say they were happy to have been aborted?

    daleyrocks (bf33e9)

  100. most of the ones I know are pretty torn up about it

    happyfeet (3c92a1)

  101. :lol:

    I’m pro-life but I did giggle.

    Dohbiden (ef98f0)

  102. Comment by Icy — 12/1/2011 @ 9:48 am

    What’s next? A photo of Michael Moore on Hershey bars with the message “Warning: chocolate is addictive”?

    It’s worth pointing out, that the framers of the original constitution, with its very limited bill of rightsintendedd the main check on tghe government to be the system of “checks and balances” (divided government) plus elections.

    That’s why some crazy things won’t happen, but not all. Actually we do see crazy thing happen BECAUSE CONGRESS IS LEGISLATING VERY CARELESSLY and not ion response to the public.

    Sammy Finkelman (d3daeb)

  103. And I would have to say this is one of the crazy things. (these pictures on the cigarette packages)

    Too few people actually work on the law. Too few people feel resoponsible. And all they want is not to get criticized.

    Sammy Finkelman (d3daeb)

  104. “Actually we do see crazy thing happen BECAUSE CONGRESS IS LEGISLATING VERY CARELESSLY and not ion response to the public.”

    Sammy – Or we see the Executive Branch and its appointees usurping the power of Congress, as has been the case with the current administration.

    daleyrocks (bf33e9)

  105. Thrown into the mix here is the high probability (hard to prove, but there are LOTS of indications) that the vast majority of current anti-smoking ‘fact’ is dogma based on sloppy thinking, or outright fraud.

    And then you can start to look into the finances of big anti-smoking organizations. I have no idea what you will find there, but the record of large movements that are as SURE of their Divine Wonderfulness as the anti-smokers are is pretty dismal.

    The anti-smoking movement gradually abandoned fact and persuasion in the 1970′s, in favor of hysteria and coercion. WHen it all blows up in their face they are likely to lose everything they gained, just as the Anti-Saloon League did.

    C. S. P. Schofield (e6ca01)

  106. SF: There wasn’t any grand jury then. We also didn’t know about John Edwards hiding an affair.”

    Comment by daleyrocks — 12/1/2011 @ 11:30 am

    Sammy – My point is not about the Grand Jury and we did learn about Edwards hiding the affair during the campaign.

    Not while he was still campaiugning. I think this might have been the beginning of public knowledge:

    http://www.nationalenquirer.com/celebrity/sen-john-edwards-caught-mistress-and-love-child

    SEN. JOHN EDWARDS CAUGHT WITH MISTRESS AND LOVE CHILD!

    Published on: July 22, 2008

    Vice Presidential candidate Sen. John Edwards was caught visiting his mistress and secret love child at 2:40 this morning in a Los Angeles hotel by the NATIONAL ENQUIRER.

    There was something heard about it by the press, and onl;y in part, and certainly not the payments.

    I’ll be more overt, my point is about potential double standards on candidate vetting by the media. Why are we only hearing about this Richardson affair three or four years after the campaign?

    Probably either because it’s been confirmed or there’s a news hook now.

    By the way, Henry Cisneros also paid off a woman, but used his own money and so eventually I think got indicted by the special prosecutor for filing false financial disclosure forms.

    The differences sometimes may be because in some cases there’s somebody really trying to push the story.

    Sammy Finkelman (d3daeb)

  107. Uh icy your right.

    Dohbiden (ef98f0)

  108. Anyway Crapyyfeet ‘m sure your a hit at parties.

    Dohbiden (ef98f0)

  109. I’m*

    Dohbiden (ef98f0)

  110. “Not while he was still campaiugning. I think this might have been the beginning of public knowledge:”

    Sammy – No. You are wrong, which is why I said my point was about double standards, not criteria for running for office.

    “On October 10, 2007, The National Enquirer, an American supermarket tabloid newspaper, published an article claiming that Edwards had engaged in an extramarital affair with an unnamed female campaign worker. On the same day, Sam Stein published another article at The Huffington Post which contained additional details about Hunter and the Web videos she had produced.[24] The following day, October 11, New York published a piece which linked Hunter to the Enquirer allegations.[19]“

    daleyrocks (bf33e9)

  111. SF: Actually we do see crazy thing happen BECAUSE CONGRESS IS LEGISLATING VERY CARELESSLY and not in response to the public.”

    Comment by daleyrocks — 12/1/2011 @ 3:33 pm

    Sammy – Or we see the Executive Branch and its appointees usurping the power of Congress, as has been the case with the current administration.

    But in this case, according to Aaron, Congress actually passed a law demanding that the FDA come up with new graphic warning labels for cigarettes—graphic, as in using pictures. They would be required to cover at least 50% of the front and back of every cigarette package and 20% of all advertisements.

    This was the Family Smoking Prevention and Tobacco Control Act of 2009.

    The following is taken from:

    http://en.wikipedia.org/wiki/Family_Smoking_Prevention_and_Tobacco_Control_Act

    H.R. 1256 passed the House of Representatives on April 2, 2009, by a vote of 298 to 112 and had 178 co-sponsers. S. 982 had 57 cosponsors. On June 2, the Senate voted 84-11 to proceed to consideration of the House bill. On June 8, the Senate voted 61-30 on cloture on amendments to the Senate bill. The Senate bill requires that cigarette health warning labels be large enough to make up 50 percent of the front and rear panels of the package and that the word “warning” appear in capital letters.” On June 11, the Senate passed H.R. 1256 by a vote of 79-17, with 3 Senators not voting. Passage of the legislation came a week later than was originally scheduled.

    Senate Roll call vote on cloture, arranged several ways:

    http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00203

    The Senate’s version of the bill was approved by the House on June 12, by a bipartisan vote of 307-97 and was signed into law on June 22, 2009 by President Barack Obama.

    The controversy was over the FDA regulating tobacco, and I suppose allowing them only to require labels was a bit of a compromise – and nobody actually wanted to make anything illegal – they’d lose taxes.

    Of course nobody knew what the FDA nmight come up with. Maybe all that Congress wanted was that notices should not get lost – they should be in color and cover 50% of the surface area.

    Sammy Finkelman (d3daeb)

  112. On October 10, 2007, Nhe national Enquirer poublished a story about an affair, but not about a payoff.

    There could be a problem with double standards but those double standards could be in great part caused by lying to reporters.

    Sammy Finkelman (d3daeb)

  113. I can’t believe I am about to do this…

    Kman, I was wondering exactly what you think a corporation is, and WHY it should not have First Amendment protections.

    Scott Jacobs (d027b8)

  114. Comment by C. S. P. Schofield — 12/1/2011 @ 3:42 pm

    Thrown into the mix here is the high probability (hard to prove, but there are LOTS of indications) that the vast majority of current anti-smoking ‘fact’ is dogma based on sloppy thinking, or outright fraud.

    Well, it’s not just taht maybe but there are other things.

    The tobacco companies made a high level decision years ago not to get into the health benefits of cigarettes or damage mitigation, because that woulkd give the FDA an opening to regulate them.

    For instance I think, vitamins could be packaged with cigarettes that might mitigate some of the damage. It’s nevber happened – mopst people probably never even thought of it. I would bet the tobacco copanies have

    Or – tobacco, or rather nicotine, is good for depression, and other things. Not only is it good, it is better than anti-depressants healthwise.

    Taking anti-depressants all the time reduces life expectancy by about 10-13 years, while smoking
    reduces life expectancy only by about 8 years.

    For smoking I have something I read in abook published in 1965. I assume it is correct. Eight year reduction in life-expectancy.

    For anti-depressants, I once prepared something for reply to someone else in anotehr place:

    > What’s more, people taking these medications die more frequently (of mostly non-psychiatric causes) – on average 15 to 25 years earlier than normal.

    [Note Dec 1, 2011: Actually closer checking reveals it ks more like 10-12 years]

    xx> This is a preposterous assertion. It ought to have not been made without references cited to support it (of which I assume there are none).

    My answer:

    This is not preposterous. This is astounding, which is not the same thing as incorrect.

    And I think I can also actually even explain why, which I’ll get to later.

    I thought it was obvious that this came from the book I mentioned (although I slightly modified – for a good reason – the sentence I paraphrased, adding the words ‘of mostly non-psychiatric causes’)

    But my writing is often rambling enough, and not edited well enough, so that you might reasonably think that maybe this wasn’t connected to
    what I said before, but it was.

    The book, again, is: “Anatomy of an Epidemic: Magic Bullets, Psychiatric Drugs, and the
    Astonishing Rise of Mental Illness in America by Robert Whitaker (Crown Publishers 2010)

    On page 211, he writes:

    “…In the previous chapters, we mostly focused on studies that showed that psychiatric medications worsen target symptoms over the long run, and only briefly noted that the drugs may cause physical, emotional numbing, and cognitive impairment. This is also a form of care that
    leads to early death. The seriously mentally ill are now dying fifteen to twenty five years earlier than normal, with this problem of early
    death having become much more pronounced in the past fifteen years.

    [2] They are dying from cardiovascular ailments, respiratory problems, metabolic illnesses, diabetes, kidney failure, and so forth–the
    physical ailments tend to pile up as people stay on antipsychotics (or drug cocktails) for years on end. [3] ”

    The brackets indicate footnotes (or rather endnotes. They are on pages 379-380).

    You can’t search inside the book at Amazon.com.

    The Google Books result is at:

    http://books.google.com/books?id=JaWtPwAACAAJ&dq=anatomy+of+an+epidemic&hl=en&ei=-cFuTJugH4OdlgfdmbjXDQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CC0Q6AEwAA

    And here is a page where reader reviews, mostly Amazon, but also others, are collected :

    http://books.google.com/books?id=JaWtPwAACAAJ&sitesec=reviews

    I didn’t cite the footnotes the book gives, mainly, I think…

    1) Out of laziness or time limitations.

    2) Because I didn’t check them to see what they said. I don’t like to cite things without knowing what they are or what they say.

    3) Because I think the statement of Robert Whittaker is based on more than just these references, so that statement derived from the book is better than the references, because more complete.

    4) Because I think it is undisputable that people taking these medications die more frequently, and it doesn’t really need a strong defense, even though that fact is largely unknown. It’s a simple
    matter to verify.

    The references the book gives are:

    Prospective analysis of premature mortality in schizophrenia in relation to health service engagement: a 7.5-year study within an
    epidemiologically complete, homogeneous population in rural Ireland.

    Morgan MG, Scully PJ, Youssef HA, Kinsella A, Owens JM, Waddington JL.
    Psychiatry Res. 2003 Feb 15;117(2):127-35.

    This can be found online at
    http://robertwhitaker.org/robertwhitaker.org/Outcomes%20in%20the%20era%20of%20atypical%20antipsychotics_files/MM-PsychRes2003.pdf

    This seems to be taken from a website the author put up which gives many references.

    The website for the book is:

    http://robertwhitaker.org/robertwhitaker.org/Anatomy%20of%20an%20Epidemic.html

    And this is one of the sub-pages
    http://robertwhitaker.org/robertwhitaker.org/Schizophrenia.html

    An abstract of the article above: http://www.ncbi.nlm.nih.gov/pubmed/12606015

    The abstract says, in part:

    “…A relative risk of 2.06 (95% CI, 1.40-2.80; P < 0.001) among this epidemiologically complete population may constitute an estimate of
    risk for mortality inherent to schizophrenia when disengagement from health services, residential mobility and socioeconomic, ethnic and
    geographical diversity are minimised. On long-term prospective evaluation, risk for death in schizophrenia was doubled on a background of enduring engagement in psychiatric care with increasing provision of community-based services and introduction of second-generation antipsychotics."

    Risk for death was doubled. (Of course if that was all there was, you could say something unusual was or is going on in Ireland.)

    The article itself starts:

    "Among the breadth of studies now available on all aspects of schizophrenia, premature loss of life is one of the most consistent and accepted epidemiological findings. A relative mortality that is of the order of twice that of the general
    population remains poorly understood. It is recognised that though up to 10% of patients with
    schizophrenia complete suicide, this high rate appears unable to account fully for the excess burden of mortality…"

    That means they haven't really found too many good statistics that break things down by cause of death, but they know it can't be explained by suicide, even if you were to assume there was a 10% rate of suicide, and it isn't 10%.

    The next reference is:

    Congruencies in Increased Mortality Rates, Years of Potential Life Lost, and Causes of Death Among Public Mental Health Clients in Eight States by Craig W Colton, PhD and Ronald W Manderscheid, PhD

    Preventing Chronic Diseases 2006 April; 3(2): A42.
    Published online 2006 March 15. PMCID: PMC1563985
    PEER REVIEWED

    This can be found online at:

    http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1563985/

    [It's also in footnote in the afterword to the 2010 edition of his 2002 book: Mad in America. There he writes: "Children and teenagers
    prescribed an atypical regularly put on a great deal of weight and end up suffering a host of metabolic problems; adults taking medications
    are dying early from drug-related ailments.". Page 304]

    This one is just pure mortality. It doesn't say intervention or medications is the reason or distinguish between people diagnosed and not given treatment and people diagnosed and given treatments or between different kinds of treatments (you will really only get that
    sort of thing from retrospective longitudinal studies) but only different states.

    It does say it is mostly nonpsychiatric causes:

    "Most mental health clients died of natural causes similar to the leading causes of death found nationwide, including heart disease,
    cancer, and cerebrovascular, respiratory, and lung diseases."

    References at footnote 3 are:

    A Systematic Review of Mortality in Schizophrenia: Is the Differential
    Mortality Gap Worsening Over Time? by Sukanta Saha, MSc, MCN; David
    Chant, PhD; John McGrath, MD, PhD,

    Archives of Gen Psychiatry. 2007 Oct;64(10):1123-31

    A PDF file can be found at:

    http://psychrights.org/articles/SystematicreviewofSchizophreniamortality.pdf

    And a PubMed abstract at: http://www.ncbi.nlm.nih.gov/pubmed/17909124

    The abstract says, in part:

    "The SMRs [standardized mortality ratios] for all-cause mortality have increased during recent decades (P = .03). CONCLUSIONS: With respect
    to mortality, a substantial gap exists between the health of people with schizophrenia and the general community. This differential
    mortality gap has worsened in recent decades…."

    The article says: "It is also well known that schizophrenia is associated with elevated suicide rates. 3 Less widely appreciated is the fact that people with schizophrenia are at increased risk for premature death associated with comorbid somatic conditions."

    I think that when it says schizophrenia above, that really should be a *diagnosis* of schizophrenia.

    Of course nothing is ever attributed to anything that anybody does to them or the way their life might be limited or controlled, but rather,
    if anything "proves' how serious the situation was before.

    You could maybe say that shows a extraordinary lack of insight by professionals into their own behavior (some people commit suicide when
    their lives go very bad – you wouldn't say those German Jews, mostly without religion, who killed themselves in the late 1930s, had a pre-existing psychiatric condition. And there are few conditions in life that are much worse than being a psychiatric patient, with no independence and everything examined and judged and with no hope etc. [I had a first cousin who I believed killed herself because of this sort of thing. her mother lied to psychiatrists and also later at age 30 tgriecked her into cominmg backj to her city and was conmtrolling her life]

    So therefore at least a certain portion of suicides should be attributed to the diagnosis itself and ensuing events, unless you are
    assuming the rate is unchanged) but really this failure is human nature.

    The next reference is:

    Sudden unexplained death in psychiatric in-patients by Louis Appleby, MD Jenny Shaw, MRC Psych and Tim Amos MRC Psych

    The British Journal of Psychiatry (2000) 176: 405-406

    Online at :http://bjp.rcpsych.org/cgi/content/full/176/5/405

    It's a brief comment. It says in part: "The mechanism by which antipsychotic drugs may cause sudden death is by inducing cardiac
    arrhythmias, because they are known to disturb normal cardiac electrophysiology, resulting in electrocardiogram (ECG) changes."

    The last reference here from the book is:

    Schizophrenia, neuroleptic medication and mortality by Matti Joukamaa, MD, PhD et al

    BRITISH JOURNAL OF PSYCHIATRY (2006), 188, 122-127

    There is a PDF file at: http://bjp.rcpsych.org/cgi/reprint/188/2/122.pdf

    It says in part:

    "Conclusions There is an urgent need to ascertain whether the high mortality in schizophrenia is attributable to the disorder itself or the
    antipsychotic medication."

    Other articles on this general subject can be found online at
    http://www.ahrp.org/cms/content/view/615/110/

    This one disputes a of mortality study that was published in the Lancet that had claimed mortality rates really weren't higher.

    "The study has received much media attention because the authors claim-contrary to well documented previous reports about spiraling
    mortality rates among schizophrenia patients treated between the 1970s and 2000 [1, 2, 3, 4, 5, 6]-that the use of the second generation
    antipsychotic drugs in Finland was associated with lower mortality rate compared to no drug treatment.

    Some more things turned up by Google:

    http://bipolarblast.wordpress.com/2010/07/02/morethyroidnewsblogs/

    http://bjp.rcpsych.org/cgi/content/abstract/171/6/502
    http://ebmh.bmj.com/content/11/1/9.full
    http://www.healthcentral.com/schizophrenia/c/674/16111/heart-major

    As for the reason for the higher mortality, I would say:

    1) The drugs have effects on the liver and the kidneys and use up nutrients. The problem is actually for any long term use of drugs.

    [I just saw this in Monday's New York Times. (Oct 2010)

    When Drugs Cause Problems They Are Supposed to Prevent

    “Here is a wide-scale institutional failure,” he said. “We have placed far more resources and requirements upon premarket assessment of drugs
    than on postmarket.”

    http://www.nytimes.com/2010/10/17/health/policy/17drug.html?_r=1&scp=3&sq=drugs&st=cse.

    The basic problem obviously is that drugs - well, if bad diet causes problems, why should not prescription drugs?]

    2) It is known that people who live alone die more. Nobody near to them suggests they see a doctor.

    3) People taking these drugs don't have any initiative, so there is no one to go to a doctor with a complaint.

    Sammy Finkelman (d3daeb)

  115. “On October 10, 2007, Nhe national Enquirer poublished a story about an affair, but not about a payoff.”

    Sammy – Given recent events, I fail to see why you’re so hung up on the payoff. Herman Cain is not being attacked for payoffs. Bill Richardson having an affair would have been news in a campaign. The fact that paying somebody off may be an election law violation is a completely separate matter.

    daleyrocks (bf33e9)

  116. SF: There wasn’t any grand jury then. We also didn’t know about John Edwards hiding an affair.”

    DR: No. You are wrong, which is why I said my point was about double standards, not criteria for running for office.

    SF: On October 10, 2007, Nhe national Enquirer poublished a story about an affair, but not about a payoff.

    ?

    daleyrocks (bf33e9)

  117. “But in this case, according to Aaron, Congress actually passed a law demanding that the FDA come up with new graphic warning labels for cigarettes”

    Sammy – I was under the impression you were speaking generally rather than specifically.

    I suggest you take a look at the actions taken by Obama’s EPA, certainly without legislative direction by Congress or with the input of realistic cost/benefit studies as can be seen from the testimony of Lisa Jackson and other EPA bureaucrats in front of Congress.

    daleyrocks (bf33e9)

  118. And you can get fatal lung disease even if you don’t smoke.

    Dohbiden (ef98f0)

  119. Comment by daleyrocks — 12/1/2011 @ 3:05 pm
    No, I’m not advancing Kman’s theory, or at least not as you summarize it. But essentially:

    1)Corporate rights were originally very limited, but during the 17th and 18th centuries they were gradually expanded by Parliament and the British courts, and by the time of the Revolution most of the basic corporate powers we assume today, such as the right to sue, were in general use.

    And even now, there are political rights no one expects corporations to have, such as the right to vote.

    Skimming the Constitution, I don’t see any reference to corporations at all–which means, strictly speaking, there should be no such thing as a federally chartered corporation or bank because there is no mention of Congress having the power to grant corporate charters, and that corporations can not be sued and can not sue in the federal courts (because they’re not mentioned in Article III, section 2).

    2)There was a good deal of coming and going around the ideas of due process and the post Civil War amendments during the last decades of the 19th century,and I would need to review a lot of the legal history I’ve forgotten since I learned it in college and law school before I could say that Kman was certainly wrong about the status of corporations during that period, but I’m inclined to say from what I remember that he is wrong–but only because his date is wrong. Change the date to, say, 1750, and he’s more likely to be correct. You would also have to disentangle the status of what British law called “corporations sole”, which was a a corporation whose legal capacities rested in one person at a time, and which we would not necessarily recognize as a corporation now. Examples would be a Church of England parish (in England, of course) or diocese, or (an example Blackstone himself uses) the monarch. In these cases, the legal representative would be the parish rector, the bishop, or the reigning king.

    As always, the best place to start checking on what the Founders knew as law for their own era would be Blackstone’s Commentaries. It’s available on the Net if anyone actually wants to check on it.

    With that out of the way, let me try to say succinctly what I was saying too verbosely above. This does not involve any dates or anything, but rests on the nature of corporations in general.

    Corporations are creatures of law and government, and therefore their rights all come from law and government. They are not inborn, natural, or God-given rights (or however you want to phrase that idea), as they are for you and me. RJReynolds can sue and be sued because the law says it can, and because it obtained a charter from the government of whichever state in which it is incorporated which says it can. Without that charter and/or those positive laws that say corporations can sue and be sued, it would be unable to do anything.

    A corporation’s rights come from the government, and therefore can be limited or taken away from the government, without violating the concept of natural, inborn rights. Government taking away the rights of a corporation to do something may violate the rights of the shareholders of the corporation, but it would be a violation of their property rights as natural individuals; it would not be a violation of any innate right of the corporation because corporations do not have innate rights.

    Which means that there is nothing inevitable about corporations having freedom of speech, and that limiting their right to speak freely does not have implications for the freedom of speech of individuals.

    BTW, I missed this earlier:
    Comment by Joe — 12/1/2011 @ 1:40 pm
    You’re wrongfooting yourself there, because your argument admits that the corporation in and of itself has no rights; it’s merely the form in which a group of individuals (the stockholders) choose to exercise their own rights–which is a perfectly good argument but is of no help in supporting the Citizens United decision–which ultimately boils down to the idea that corporations have the right of free expression independent of their stockholder’s rights. And your argument would eventually fail because it would run up against the government’s right to reasonably regulate public assemblies for the sake of public order, etc.

    JBS (127f42)

  120. Kman

    > [me] But according to you prior in the thread you asserted that Citizens United did not extend the First Amendment to corporations.

    > [you] I never asserted that.

    At comment 7 you stated that the first amendment protected corporations but you didn’t need citizens united to do that. so, yes you did say that.

    > Well, fine, I won’t re-fight it with you, although (unlike me) you haven’t produced one shred of evidence to support your contention that the founders weren’t wary of corporations

    The only thing you have produced evidence of is that the framers had some distrust of corporations. But that only makes the fact that the language of the first amendment DOESN’T exclude corporations—indeed says nothing about whom owns the right at all—all the more glaring.

    And to prove that they planned to exclude corporations you have to do more than produce some writings suggesting that they didn’t 100% trust corporations (who the f— does, by the way), but that they trusted the new Federal Government more, or at least enough to enforce the rules on expression even handedly. Fat chance, that.

    But if I were you, I wouldn’t want to re-fight the issue, either.

    > and/or sought to protect corporations via the Bill of Rights. After all, after being ruled harshly by British corporations like the Massachusetts Bay Colony Corp., why would they turn around and give them “rights”?

    Right, one corporation or two act badly in given the power of government behind them and therefore they decided to suppress their freedom entirely. Wow, that is so logical I can’t assail it.

    Jefferson often complained about how he was portrayed in the press, and so did Madison. Did that mean they both wanted to ban the press?

    > I also note that you make the first-year law student mistake of believing that just because corporations did X (“exercised expressive rights”) and nobody howled, that X was protected by the Constitution.

    No, actually I apply this test for constitutional inclusion actually applied by the Supreme Court:

    > It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.

    If you have half a clue about the law you will know exactly where that comes from and the only hint I will give you is that it is about another chartered body’s rights under the Constitution.

    > [me] At the very least the founders intended to preserve freedom of the press and speech as it was practiced in that day, which included corporations that opined on elections, whether you want to admit that or not.

    > [you] Not in the days of the founders. They simply didn’t. I can’t prove a negative, so the burden rests on you to support your bald assertion. People opined on elections through the media, but non-media corporations simply didn’t opine on elections.

    Well, the funny thing is you just implicitly admitted I was right. You admitted implictly that “media corporations” (they’re called newspapers and book publishers) existed back then and did opine on elections.

    Really, your thinking just isn’t very rigorous, is it?

    > Again, you completely overlook (intentionally?) that the Bill of Rights protects people viz a viz the federal government.

    That assumes what you are trying to prove. Consider for instance, this. The second amendment talks about “the right of the people.” The fourth talks also about the right of “the people” against unreasonable search and seizure, etc. The fifth: “no person shall be held…” And yet weirdly there is not a word in the first amendment about who is being protected; instead it is wholly framed as a limit on congressional power: “Congress shall make no law…”

    I also find that position unfathomable given your prior claims on the second amendment. According to you the second amendment was only there to preserve a state’s right to create and arm a militia. Individual people were not to be protected by it at all. But now suddenly you think the bill of rights is all about the people. Its like as if your opinion on these matters change depending on what outcome you are trying to achieve.

    Well, the bill of rights is not all about the people. It is in fact all about making explicit the implicit limits on federal power already in the constitution.

    > Corporations back then couldn’t exist at all if the state didn’t approve their charter, which was many times not forthcoming, and they had to abide by the laws of the state in which they were incorporated (still do, as a matter of fact).

    Which establishes a federal power over them how exactly? In case you missed it, the entire bill of rights originally only applied to the Federal Government in the first place. So showing me that the states could exercise a dominion over corporations doesn’t prove a damn thing; they could do the same to their people.

    > To argue that such entities had “natural” “god-Given” rights (which the Bill of Rights was intended to preserve) is absolutely ridiculous.

    First, not every constitutional provision has anything to do with natural rights. Some of them go beyond what I would call a God-given right. And one could argue that my natural, God given right to freedom of expression should not be infringed just because I am on the clock for a corporation. That is hardly a ridiculous proposition.

    It is equally not a ridiculous proposition to say that the New York Times has a god given right to express itself freely, as does MSNBC’s Ed Schultz, however ridiculous Schultz is as a person. But it does seem ridiculous to say that GE, through its subsidiary NBC, has a right to express itself freely, but its rival LG does not.

    I guess ridiculousness is in the eye of the beholder.

    Aaron Worthing (73a7ea)

  121. I think that this (admittedly thought-provoking) argument turns on a sleight of hand.

    To say that prohibitions on corporate speech automatically open the door for compelled corporate speech seems to forget the reason we’re talking about this issue in the first place: the extremely detrimental effects of cigarettes on people’s health, and (more importantly) the massive economic drain that smokers ultimately impose on our healthcare system.

    The distinction here – the reason that we can talk about compelling corporate speech even without classifying it as “commercial speech” in the present case – is that there’s a good argument that the government does have a compelling, strict-scrutiny-surviving interest in preventing smoking – the fact that it’s a major contributing factor to the slow, hacking death of our healthcare system.

    What I mean is, there’s a middle ground here re: the issue at hand (compelling the corporate speech of the tobacco companies) – a middle ground between “Allow the government to compel corporate speech whenever it wants” and “Wipe anti-smoking advocacy off of cigarette boxes”. THAT argument turns on whether or not there’s a compelling government interest in preventing smoking which would justify compelling the placement of advocacy labels. If there is, then you can compel the placement of advocacy labels without opening the door to compelling Taco Bell to make all its employees wear “HOPE(not change) 2024″ t-shirts with Obama looking like a red and blue Cornel West.

    I’m not really sold on the idea of eliminating corporate speech, one way or the other. (but as an aside, how would a prohibition on corporate speech prevent the authorship of Common Sense? Or are you referring to a hypothetical prohibition on its publication?)

    Leviticus (241540)

  122. Lev

    > THAT argument turns on whether or not there’s a compelling government interest in preventing smoking which would justify compelling the placement of advocacy labels.

    But that is a dangerous doctrine. by the same logic, then, a kid can be compelled to say the pledge of allegiance because gosh darn america is more important than whether a person smokes!

    The courts have implicitly decided that the simple desirability of a certain position is not cause enough to compel speech.

    Aaron Worthing (73a7ea)

  123. Right, one corporation or two act badly in given the power of government behind them and therefore they decided to suppress their freedom entirely. Wow, that is so logical I can’t assail it.

    Actually, Kman’s argument is more absurd than that. The Massachusetts Bay Company was how the Puritans organized themselves to avoid royal interference in New England as much as possible. The British government eventually dissolved it so that it could rule the colony directly from London. But for most of the 17th century, the Company and the colony were the same thing; to be a freeholder was to be both a voting citizen of the colony and a voting shareholder of the Company, and the “legislature” was the Company’s General Court–the assemblage of the freeholders.

    And one could argue that my natural, God given right to freedom of expression should not be infringed just because I am on the clock for a corporation. That is hardly a ridiculous proposition.
    I’m ruling for Kman here. No one is arguing that your rights to express yourself are infringeable while and because you work for a corporation (leaving out the right of the employer to limit what you say or do while you are employed there).
    The argument is over whether the corporation itself has any inherent right to freely express itself. It’s not whether the employees or directors or shareholders of Acme Widget Co. can express themselves. It’s whether Acme Widget Co. has the inherent right to express itself freely. And (leaving Kman aside) I would say no, because Acme Widget is a corporation and therefore, like all corporations, has no inherent rights.

    JBS (d785be)

  124. You admitted implictly that “media corporations” (they’re called newspapers and book publishers) existed back then and did opine on elections.
    Actually, you’re also wrong there, because the publishing business was not generally organized in the form of corporations in that era–it was more usually a sole proprietorship or partnership, and the rights of expression were simply and solely that of the publisher/printer, not some corporate entity.

    Plus of course in that era journalism was of two sorts: republishing news items clipped from foreign or out of state sources, and openly partisan political reporting. Back then, the New York Times, if it had existed, would have openly identified as a Leftist publication and been read (or ignored) as such, with no one pretending to any sort of impartiality.

    JBS (d785be)

  125. If this were OK, just think what President Santorum might put warning labels on.

    Kevin M (563f77)

  126. http://www.historicpages.com/nprhist.htm

    This does not seem to track with JBS’ version of the history of the press, newspapers in particular.

    JD (318f81)

  127. JD, it does not even mention the point I’m making. I was describing something very specific–the legal status of the business entity which published the newspaper. During the 18th century printing (both book and newspaper publishing) was generally not a business in which corporations were involved. It was individual printers working as sole proprietors with a small staff(sometimes only their wife and kids, sometimes not even that) or as a partnership with another printer. He had perhaps one press on which he printed everything. There were no corporations, no shareholders to whom the publisher needed to answer. He simply sold his paper or he didn’t. The freedom of the paper to publish what it wanted was nothing more or less than the printer’s right to publish what he wanted. The change to corporate ownership of papers came in the 19th century, well after any period we could link to the Founding Fathers.

    JBS (d785be)

  128. JBS – Thank you for comment #119.

    “and by the time of the Revolution most of the basic corporate powers we assume today, such as the right to sue, were in general use.”

    I believe this is contrary to Kman’s assertions.

    “Skimming the Constitution, I don’t see any reference to corporations at all–which means, strictly speaking, there should be no such thing as a federally chartered corporation or bank because there is no mention of Congress having the power to grant corporate charters, and that corporations can not be sued and can not sue in the federal courts (because they’re not mentioned in Article III, section 2).”

    I find nothing wrong with the above conclusion or which contradicts my argument from #99. Most corporations of which I am aware are state chartered rather than federally chartered. The reason I mentioned the Dartmouth College Case is because John Marshall laid out the process of assuming legal obligations from Britain so clearly and his view of the nature of corporations:

    “The parties in this case differ less on general principles, less on the true construction of the Constitution in the abstract than on the application of those principles to this case and on the true construction of the charter of 1769. This is the point on which the cause essentially depends. If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the college be public property, or if the state of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the state may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States.

    But if this be a private, eleemosynary institution, endowed with a capacity to take property for objects unconnected with government, whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposition and management of those funds in the manner prescribed by themselves, there may be more difficulty in the case, although neither the persons who have made these stipulations nor those for whose benefit they were made should be parties to the cause. Those who are no longer interested in the property may yet retain such an interest in the preservation of their own arrangements as to have a right to insist that those arrangements shall be held sacred. Or, if they have themselves disappeared, it becomes a subject of serious and anxious inquiry whether those whom they have legally empowered to represent them forever may not assert all the rights which they possessed, while in being; whether, if they be without personal representatives who may feel injured by a violation of the compact, the trustees be not so completely their representatives, in the eye of the law, as to stand in their place, not only as respects the government of the college but also as respects the maintenance of the college charter.

    A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs and to hold property without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented and are in use.

    By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being. But this being does not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person. It is no more a state instrument than a natural person exercising the same powers would be.

    If, then, a natural person, employed by individuals in the education of youth, or for the government of a seminary in which youth is educated, would not become a public officer, or be considered as a member of the civil government, how is it that this artificial being, created by law for the purpose of being employed by the same individuals for the same purposes, should become a part of the civil government of the country? Is it because its existence, its capacities, its powers are given by law? Because the government has given it the power to take and to hold property in a particular form, and for particular purposes, has the government a consequent right substantially to change that form or to vary the purposes to which the property is to be applied? This principle has never been asserted or recognized and is supported by no authority. Can it derive aid from reason?

    From the fact, then, that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation but out of the manner in which they are formed and the objects for which they are created. The right to change them is not founded on their being incorporated but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects though not incorporated, would be public institutions and, of course, be controllable by the legislature. The incorporating act neither gives nor prevents this control. Neither, in reason, can the incorporating act change the character of a private, eleemosynary institution.

    From this review of the charter, it appears that Dartmouth College is an eleemosynary institution, incorporated for the purpose of perpetuating the application of the bounty of the donors to the specified objects of that bounty; that its trustees or governors were originally named by the founder and invested with the power of perpetuating themselves; that they are not public officers, nor is it a civil institution, participating in the administration of government, but a charity school, or a seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation. Yet a question remains to be considered, of more real difficulty, on which more doubt has been entertained than on all that have been discussed. The founders of the college, at least those whose contributions were in money, have parted with the property bestowed upon it, and their representatives have no interest in that property. The donors of land are equally without interest so long as the corporation shall exist. Could they be found, they are unaffected by any alteration in its constitution, and probably regardless of its form, or even of its existence. The students are fluctuating, and no individual among our youth has a vested interest in the institution, which can be asserted in a court of justice. Neither the founders of the college nor the youth for whose benefit it was founded, complain of the alteration made in its charter or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be protected. Can this be such a contract, as the constitution intended to withdraw from the power of state legislation? Contracts, the parties to which have a vested beneficial interest, and those only, it has been said, are the objects about which the Constitution is solicitous, and to which its protection is extended.

    According to the theory of the British constitution, their Parliament is omnipotent. To annul corporate rights might give a shock to public opinion, which that government has chosen to avoid; but its power is not questioned. Had Parliament, immediately after the emanation of this charter, and the execution of those conveyances which followed it, annulled the instrument, so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged. Yet then. as now, the donors would have had no interest in the property; then, as now, those who might be students would have had no rights to be violated; then, as now, it might he said that the trustees, in whom the rights of all were combined, possessed no private, individual, beneficial interest in the property confided to their protection. Yet the contract would at that time have been deemed sacred by all. What has since occurred to strip it of its inviolability? Circumstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769.

    This is plainly a contract to which the donors, the trustees, and the Crown (to whose rights and obligations New Hampshire succeeds) were the original parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract on the faith of which real and personal estate has been conveyed to the corporation. It is then a contract within the letter of the Constitution, and within its spirit also, unless the fact that the property is invested by the donors in trustees for the promotion of religion and education, for the benefit of persons who are perpetually changing, though the objects remain the same, shall create a particular exception, taking this case out of the prohibition contained in the Constitution.

    It is more than possible that the preservation of rights of this description was not particularly in the view of the framers of the Constitution when the clause under consideration was introduced into that instrument. It is probable that interferences of more frequent recurrence, to which the temptation was stronger and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the state legislatures. But although a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given.

    It is not enough to say that this particular case was not in the mind of the Convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an exception.

    On what safe and intelligible ground can this exception stand? There is no expression in the Constitution, no sentiment delivered by its contemporaneous expounders which would justify us in making it. In the absence of all authority of this kind, is there, in the nature and reason of the case itself, that which would sustain a construction of the Constitution not warranted by its words? Are contracts of this description of a character to excite so little interest that we must exclude them from the provisions of the Constitution as being unworthy of the attention of those who framed the instrument? Or does public policy so imperiously demand their remaining exposed to legislative alteration as to compel us, or rather permit us, to say that these words, which were introduced to give stability to contracts, and which in their plain import comprehend this contract, must yet be so construed as to exclude it?

    Almost all eleemosynary corporations, those which are created for the promotion of religion, of charity, or of education, are of the same character. The law of this case is the law of all. In every literary or charitable institution, unless the objects of the bounty be themselves incorporated, the whole legal interest is in trustees and can be asserted only by them. The donors, or claimants of the bounty, if they can appear in court at all, can appear only to complain of the trustees. In all other situations, they are identified with, and personated by, the trustees; and their rights are to be defended and maintained by them. Religion, charity, and education are, in the law of England, legatees or donees, capable of receiving bequests or donations in this form. They appear in court and claim or defend by the corporation.

    The opinion of the Court, after mature deliberation, is that this is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States. This opinion appears to us to be equally supported by reason and by the former decisions of this Court.

    We next proceed to the inquiry whether its obligation has been impaired by those acts of the legislature of New Hampshire to which the special verdict refers. By the Revolution, the duties as well as the powers of government devolved on the people of New Hampshire. It is admitted that among the latter was comprehended the transcendent power of Parliament, as well as that of the Executive Department. It is too clear to require the support of argument that all contracts and rights respecting property remained unchanged by the Revolution.

    The obligations, then, which were created by the charter to Dartmouth College were the same in the new that they had been in the old government. The power of the government was also the same. A repeal of this charter at any time prior to the adoption of the present Constitution of the United States would have been an extraordinary and unprecedented act of power, but one which could have been contested only by the restrictions upon the legislature to be found in the constitution of the state. But the Constitution of the United States has imposed this additional limitation, that the legislature of a state shall pass no act impairing the obligation of contracts.”

    In his decision Marshall makes it clear the the Revolution did not have the effect of abrogating all prior civil contract law and that the Founders could not have had such a perverse intent even though no reaffirmation of such law was mentioned in the Constitution.

    He’s basically saying, don’t be an azzhole, just because the Constitution doesn’t mention everything, the Founders did not intend the rule of law and contracts to disintegrate once we threw out the British. Use some common sense and stop making silly arguments.

    http://www.vlib.us/amdocs/texts/drtmouth.htm

    daleyrocks (bf33e9)

  129. If Kman is asserting that the Bill of Rights only applies to individuals and not organizations, isn’t that counterintuitive on his part? What about the collective, pal? Or is it only selective groups — unions, say — that are protected?

    Icy (75814f)

  130. Kman believes in the constitution?

    Then why does he believe in Gun Control?

    Dohbiden (ef98f0)

  131. “by the same logic, then, a kid can be compelled to say the pledge of allegiance because gosh darn america is more important than whether a person smokes!”

    - Aaron Worthing

    Is there any legitimate use for a provision that allows the government to compel speech, in your opinion (subject to the strict scrutiny, compelling government interest provisions we’re discussing)? Outside of commercial speech?

    I understand that your problem is with compelling advocacy, vs. compelling disclosure of information. But sometimes information speaks for itself. Is it advocacy to show a picture of a cancer-blackened lung? Where do you draw the line when the information at hand is so damning that forcing someone to provide it (and emphasize it) speaks advocacy to right reason?

    We consider it battery when someone with AIDS has unprotected sex with a partner without telling them of the condition. That’s compelling the provision of information, but it points pretty hard in one direction. Advocacy?

    I can certainly appreciate your concern with enabling the government to compel advocacy.

    Leviticus (241540)

  132. Fear not, Mr Jacobs, for as soon as someone asked him a direct, on-topic question, brave Sir Kman ran away.

    Icy (75814f)

  133. JBS – when was the first corporation that you would consider as one, as you apparently do not want to include the hundreds of papers through the 1800s that were published. Granted, many were vanity rags, many published by the rich, etc… But they were also commercial enterprises, selling ads as early as 1704.

    JD (318f81)

  134. I guess the difference between allowing the government to say you have to tell someone of the condition and allowing the government to compel you to tell someone “Don’t have sex with me” is a pretty significant one.

    Leviticus (241540)

  135. I understand that your problem is with compelling advocacy, vs. compelling disclosure of information. But sometimes information speaks for itself. Is it advocacy to show a picture of a cancer-blackened lung?

    Don’t we have a FDA that has funded this for decades? Now we are going to compel a company to fund advertising against the product being sold, in the product being sold, and someone else gets to determine the visuals and text?

    JD (318f81)

  136. Isn’t John Peter Zenger, a more important milestone
    (1733) than whether the Times of London (1785)was
    a corporate enterprise.

    narciso (87e966)

  137. Not only that Kman you punk congress can pass laws to prevent pollution too.

    Dohbiden (ef98f0)

  138. Is there anyone in the United States that does not know that cigarettes can be a cause of cancer?

    Is there any one in the U.S. who has not had a family member or someone they know die of cancer because of cigarettes?

    Of all the non-violent “wars” the government has waged, the fight against smoking is one of the most successful. Of course, it was an easy war, because, you know, cigarettes stink and they cause cancer.

    This just seems to be another “we’ll-stick-it-in-your-face” exercise by the nanny state to show everyone who is boss.

    Besides, rebellious teens will just use the dumb pictures on the packs to show how tough and brave they are.

    Common sense continues to evade the government and the left.

    And, on a side note, wouldn’t this actually crimp government revenue? Also, taxpayers could potentially, if the stupid pictures work, have to prop up tobacco farmers under the USDA.

    All in all, a stupid waste of my money, your money but all is well in Obamaland.

    Ag80 (ec45d6)

  139. Ag – multiple levels of government across our country would collapse in short order if everyone simply quit smoking.

    JD (318f81)

  140. To say that prohibitions on corporate speech automatically open the door for compelled corporate speech seems to forget the reason we’re talking about this issue in the first place: the extremely detrimental effects of cigarettes on people’s health, and (more importantly) the massive economic drain that smokers ultimately impose on our healthcare system.
    – Perhaps it is you that is forgetting, Leviticus. We ARE talking about compelled speech. As for the economic drain on the healthcare system: A) Either people are, within reason, free to do what they choose to their own bodies, or they are not; B) All the more reason to NOT have an individual mandate for health insurance.

    Icy (75814f)

  141. Here’s a link to the ten oldest companies in the U.S. by age. The companies on the list appear to be still in existence rather than companies which were formed and then dissolved.

    daleyrocks (bf33e9)

  142. I have an idea that will appeal to everyone on both sides of this issue.

    Legalize marijuana. However, the government should force the parents of tokers to make their children watch videos of them while they are high.

    It would be a doubleplusgood. All the lefties that hate cigarettes would be able to smoke weed whenever they wanted and their children would be able to see what fools they are.

    Except, you know, for that government thing forcing lefties to do things they don’t want.

    Ag80 (ec45d6)

  143. Anyone that tells the NRA to kiss my butt while saying they support the right to own guns are contradicting themselves.

    Dohbiden (ef98f0)

  144. AG80 while your at it will you tell the left to leave this country if they don’t like celebrities throwing the hollyweird orthodox under the bus.

    Dohbiden (ef98f0)

  145. The distinction here – the reason that we can talk about compelling corporate speech even without classifying it as “commercial speech” in the present case – is that there’s a good argument that the government does have a compelling, strict-scrutiny-surviving interest in preventing smoking – the fact that it’s a major contributing factor to the slow, hacking death of our healthcare system.
    – Again with the “system”! Hey, Leviticus, remember the good old days, back before the FEDERAL GOVERNMENT was in-charge of the “system”? And (again) we ARE talking about compelling speech; specifically, is the compelling speech in those photos fair to the companies that are being compelled to display them. Okay, are you up to speed now?

    Icy (75814f)

  146. Yo Heisenberg, I like guns, but don’t like Harry Reid, and think the NRA has made some off the wall calls.

    For example, DC v Heller was CATO’s doing. The NRA may have acted like it was their victory, but it was not.

    I see the NRA as quite a bit more moderate than myself on gun rights.

    Dustin (cb3719)

  147. Yes but the left thinks they are anti-government and laughed when Charlton Heston died.

    But of course being anti-government in 2001-2009 was perfectly ok.

    Dohbiden (ef98f0)

  148. Good point, doh.

    Maybe Hanna Montana can tell St. Peter at the Holy Gate that she hates to make him wait, but she’s just gotta have another cigarette.

    Ag80 (ec45d6)

  149. Also, I agree with Icy’s irritation at this idea the government exists to manage and protect the health care system.

    They really aren’t helping. I wish they were as inconsequential in my life as possible. Health care is expensive because the federal government exists. Seriously. Our money is getting radically less valuable as time moves along, while many goods are also becoming cheaper (and crappier) such that we don’t always notice how much wealth we are being robbed of (by baby boomers, btw). Now, health care is seen as atrociously expensive because it takes up a larger portion of our expenses.

    But maybe if our money wasn’t being burned away, everything would be more affordable. Also, much of the super expensive health care is new stuff we wouldn’t have without the high costs needed to … pay for it.

    All you have to do to solve the problem of lung cancer contributing to problems with health care is make sure it’s very profitable to insure and treat smokers. This obviously means you can exclude people for preexisting conditions, etc. It also means some people will have to live with their choices, which will give some liberals a sad.

    Dustin (cb3719)

  150. Dude Hannah doesn’t count since the hollyweird orthodox is to side with the OWStards.

    Dohbiden (ef98f0)

  151. Yes but the left thinks they are anti-government and laughed when Charlton Heston died.

    I know. There are some sick lefties out there.

    Just saying the NRA is not above reproach or anything.

    Dustin (cb3719)

  152. Although we disagree on a few points mostly relating to the timing of historical events, JBS seems to “get it” in two notable ways (as well as in other ways)

    (1) Corporations are creatures of the state legislature and have been endowed with CERTAIN rights (e.g., the right to sue, to enter into contracts, own property) only because we have allowed them to over the course of time.

    (2) The Constitution does not grant rights, but merely protects rights that we consider to be “God-given” (or “natural” if you prefer that term. When the Declaration of Independence said “they are endowed by their Creator with certain unalienable Rights”, the “they” refers to “men”, not corporations.

    It is simply incorrect, therefore, to think that the framers of the Constitution had corporations in mind when they fashioned the Bill of Rights. Part of the reason, I repeat, is that corporations chartered in America at that time were relatively rare. To the extent they existed, it was typically for some limited purpose, i.e., a civil construction project like a bridge or something. But mostly, the reason that the Bill of Rights didn’t originally apply to corporations was because the Bill of Rights was thought to be necessary to protect the inalienable rights of MAN.

    Some here have pointed to the section of the First Amendment that discusses the right to assemble, and asked “Well, isn’t that corporations?” No, of course not. And the founding fathers knew the difference between the Sons of Liberty holding a rally in Boston’s market district, and the First National Bank. The right to assemble meant the former (and the framers, no dummies, knew how to write, the “right to incorporate” if that’s what they meant).

    Kudos to JBS at #127 for his accurate description of what “the press” was in the late 18th century as well. Again, not corporations — they were mom-and-pop operations at best, and their product often resembled what we would call today “pamphlets”.

    Kman (62888f)

  153. THAT argument turns on whether or not there’s a compelling government interest in preventing smoking which would justify compelling the placement of advocacy labels.
    – Leviticus, if it’s all about the healthcare system then what about Hershey bars? and pork rinds? and deep-fried Twinkies at the state fair? Slippery slope, sir. There is a DIFFERENCE between presenting information that warns of ill effects and telling people how they should live their lives.

    Icy (75814f)

  154. Of course, doh, you’re right again.

    If Republicans had the White House, OWS would be in Washington.

    The whole argument isn’t about the problem, it’s about forcing people to accept leftism for their own good.

    Because, God knows, it has always worked so well before.

    Ag80 (ec45d6)

  155. ==And, on a side note, wouldn’t this actually crimp government revenue? ….
    All in all, a stupid waste of my money, your money but all is well in Obamaland.
    Comment by Ag80 — 12/1/2011 @ 8:41 pm
    ==

    Oh, but it’s all about the jobs jobs jobs. Can you imagine how many awesome new government bureaucrats, supervisors, analysts and drones will be required to monitor, administer and prosecute this new FDA advertising policy?
    11ty!!!!

    elissa (3a77ac)

  156. I reject the notion that the first amendment was meant to protect mom and pop pamphlets. It was designed to protect assembly of people (corporations, of course) and political speech, and a general notion of personal sovereignty.

    Of course corporations have free speech, as they are assemblies of people.

    Dustin (cb3719)

  157. But of course if you laugh about Robert Byrd dying the ultra-left get pissed.

    And since when was siding with Harry Reid Anti-government.

    Dohbiden (ef98f0)

  158. Kman:

    Your comment represents a very dangerous premise. I hope you can understand it upon reflection, despite your interpretation of the Constitution.

    Ag80 (ec45d6)

  159. “they” refers to “men”, not corporations.

    Because we all know evil corporations are comprised of not-men. Or slestaks.

    It is simply incorrect, therefore, to think that the framers of the Constitution had corporations in mind when they fashioned the Bill of Rights.

    They also did not envision automatic weapons, the Internet, cars, computers, or the MFM as we know it today. Just because it did not exist in the same form at that time does not mean it cannot be afforded the protections afforded by the document.

    JD (318f81)


  160. “..JBS seems to “get it” in two notable ways…”

    I hope that doesn’t mean what I think it means.

    To each their own.

    Simon Jester (5e1cd2)

  161. The NY Times Corp, in kmart’s mendoucheous construct, would not be afforded 1st Amendment rights because corporations are not afforded said privilege, and the freedom of the press would not apply because really just meant that to apply to pamphleteers.

    JD (318f81)

  162. (1) Corporations are creatures of the state legislature and have been endowed with CERTAIN rights (e.g., the right to sue, to enter into contracts, own property) only because we have allowed them to over the course of time.
    – And therefore the First Amendment does not apply to them because we have not endowed them with the right to have it apply? The First Amendment does not specify to whom speech cannot be abridged, sir.

    (2) The Constitution does not grant rights, but merely protects rights that we consider to be “God-given” (or “natural” if you prefer that term. When the Declaration of Independence said “they are endowed by their Creator with certain unalienable Rights”, the “they” refers to “men”, not corporations.
    – What it does is specify particular rights that are protected, and prohibits the Congress from trampling them. And since you have chosen once again to claim that it only applies to individuals, I ask you once again: What about unions? Are they allowed to collectively speak as one entity?

    Icy (75814f)

  163. Just to remind everybody (hint, kman), the Constitution outlines what the government can’t do, not what you want it to do.

    Ag80 (ec45d6)

  164. Comment by JD — 12/1/2011 @ 8:11 pm

    being in business or being a commercial enterprise is not the same as being a corporation. You can be in business but not incorporate; you can incorporate but not be in business.

    I don’t mean to be condescending, but I have to ask this; do you know what a sole proprietorship is, and how it differs from a corporation? And what a partnership is, and how it differs from a corporation? I’ve been assuming you do, but I’d better ask. If you don’t know, look it up, because all I’m saying is that during the era of the Founding Fathers newspapers were generally organized not as corporations, but as sole proprietorships and partnerships, which means that the owners (the printers/publishers) of those newspapers were legally one and the same as the business. The business had no existence apart from the owner, and any rights it had were simply his rights. To become a sole proprietorship all that’s required is a sign in the window (although most places seem to require filing some sort of paperwork which allows the public to know that Joe Jones is the sole proprietor of Joe’s Plumbing, in case they want to sue Joe’s Plumbing or something); to become a corporation requires a complicated legal process, and in earliest times an act of the legislature or a special warrant from the king.

    Narciso mentioned Zenger. At issue in that case was Zenger’s right to print what he wanted–not the right of Zenger’s business to print what it wanted. There’s an important distinction to be made. Freedom of the press in the Founder’s times was the right of individuals to publish what they wanted. Corporations were at that point not part of the picture. And that’s all I’m trying to say on that point.

    I have no idea of when the first corporation appeared in the newspaper business. I think it was in the 1830s, but I may be wrong on that. Like many industries, the need for greater capital caused by increased readership and technological changes in the printing process (bigger better presses) were the likely reasons for the move to incorporate. I do know that I have never heard of any newspaper that was incorporated during the first two decades of the Republic.

    JBS (38f6c3)

  165. But mostly, the reason that the Bill of Rights didn’t originally apply to corporations was because the Bill of Rights was thought to be necessary to protect the inalienable rights of MAN.
    – What about the inalienable rights of man to join with his fellow man, form a corporation, and then speak as a collective entity? Is that somehow not inalienable? Tell me this, Kman: Does this all really just come down to your little wish-fulfillment fantasy that this part of the Constitution “The United States shall guarantee to every State in this Union a Republican Form of Government,” doesn’t exist, and that we really are a constitutional democracy?

    Icy (75814f)

  166. SJ he means they get it in the butt and the face.

    Dohbiden (ef98f0)

  167. No, JBS. I had never heard of that fascinating concept. Thank you for not being the least bit condescending. I will endeavor to google. Brb

    JD (318f81)

  168. You don’t have to like guns to believe in the 2nd amendment.

    Dohbiden (ef98f0)

  169. This case, seems to be dominating precedent, however
    there was no such thing as ‘commercial speech’ until 1943;

    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=341&invol=622

    narciso (87e966)

  170. This is where I found the group of cases;

    http://www.abuse.net/note.html#1

    narciso (87e966)

  171. JBS:

    Investment in business is as old as the hills.

    The founding fathers were as aware of it as you or me. After all, they would not have been the founding fathers except for investment in enterprise.

    Your argument is odd. Business is business. The press is a business just as a local grocer. What would have precluded someone in the 1700s from investing in a successful enterprise and why would the framers of the Constitution care?

    Ag80 (ec45d6)

  172. The First Amendment does not specify to whom speech cannot be abridged, sir.

    But it can not give the power of speech to something that doesn’t have the power of speech in the first place.

    What about unions?
    The are not corporations. The proper analogue to SEIU in this discussion is not RJReynolds but the NRA–an association of people who have come together because of a common interest and/or common political goal.

    I reject the notion that the first amendment was meant to protect mom and pop pamphlets. It was designed to protect assembly of people (corporations, of course) and political speech, and a general notion of personal sovereignty.

    Dustin, I think you’re running way with yourself here. The first sentence seems to be saying that there is no First Amendment protection for, say, a Thomas Paine pamphlet–and I know you don’t think that’s true. And when you study the legal theory of corporations you will never find reference to the political right of assembly. The whole purpose of corporations was to allow for a permanent enterprise that would go beyond the lifetime of its founder, and a legal entity that would limit the liability of the owners and serve as a means (through shareholding) of raising more capital than the corporation’s founder could raise on his own. The right of assembly is literally that–the right of people to get together, unmolested by the government, for political purposes (notice how the phrase ends with “Petition for the redress of grievances”)–to gather, for instance, at Tea Party rallies.

    JBS (b2e859)

  173. “What about unions?
    The are not corporations.”

    JBS – Please correct me if I’m wrong, but aren’t most unions organized as not-for profit corporations, trusts or associations? If not, what the heck are they?

    daleyrocks (bf33e9)

  174. Some here have pointed to the section of the First Amendment that discusses the right to assemble, and asked “Well, isn’t that corporations?” No, of course not.
    – Corporations are not men, corporations are not assemblies . . . perhaps they are nothing. Of course in Kman’s Socialist Utopia of America that is precisely what they would be; nothing.

    the founding fathers knew the difference between the Sons of Liberty holding a rally in Boston’s market district, and the First National Bank. The right to assemble meant the former (and the framers, no dummies, knew how to write, the “right to incorporate” if that’s what they meant).
    – Okay, so your new tack seems to be to incorporate (pun intended) a variation on the the abortion debate into this argument. Just as the COTUS does not specify rights to the unborn it also does not specify any rights for corporations either; therefore, babies can be killed and corporations are subject to the whims of Congress. Question: Why do you believe that it’s wrong for corporations to enjoy some of the freedoms that the rest of us have?

    Icy (75814f)

  175. How does one expect to have electricity if all the nuclear power plants shut down?

    Dohbiden (ef98f0)

  176. Obama/Kman – The Constitution is a charter of negative liberties.

    daleyrocks (bf33e9)

  177. I love how the left insists nuclear powerplants don’t run the electricity as if they are experts………..I hope they are proven wrong when they all shut down.

    Dohbiden (ef98f0)

  178. But it can not give the power of speech to something that doesn’t have the power of speech in the first place.

    But of course, it does. The freedom of speech is not abridged. To what are you speaking? A corporation has the same right of speech as you or I. It is not a collection of non-entities.

    By your reasoning, commercials are proscribed.

    Again, the framers were well aware of corporations. The Constitution does not preclude corporations from speech.

    Goodness gracious, again, the Constitution outlines very well the role of government and simply says what it can not do.

    Ag80 (ec45d6)

  179. I also want them to suffer when the power plants shut down also.

    Dohbiden (ef98f0)

  180. And yet the left support Iran’s nuclear power plants never mind that it could kill people.

    Dohbiden (ef98f0)

  181. Question: Why do you believe that it’s wrong for corporations to enjoy some of the freedoms that the rest of us have?

    Comment by Icy — 12/1/2011 @ 10:08 pm

    This gets right down to the point. Especially in Citizens United, which was pure political speech aimed at criticizing Hillary Clinton.

    Why kind of prick thinks corporations shouldn’t enjoy free political expression? If they are right, and the constitution doesn’t even speak to the matter, then why do they think it’s good policy for leaders to select which corporations or other organizations get to make political statements?

    My view is that the first amendment is quite clear. No assembly of people should ever have their political speech infringed upon unless there is an extremely good reason. Like a once in a century kind of reason.

    Dustin (cb3719)

  182. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    That’s it. That’s what it says. It does not make an exception for businesses, corporations or anything else. Those are the words.

    Ag80 (ec45d6)

  183. I reject the notion that the first amendment was meant to protect mom and pop pamphlets. It was designed to protect assembly of people (corporations, of course) and political speech, and a general notion of personal sovereignty.

    There is a significant difference between Joe Jones d/b/a Joe’s Plumbing and Joe’s Plumbing Inc., Joe Jones CEO. In the former case, you can sue Joe Jones for everything he owns, including car and bank account; in the latter you can only sue for whatever Joe has placed as assets under the corporate name. (That’s very simplistic, and ignores the laws that allow people to sue Joe Jones if the corporation is essentially just a shell erected to avoid liability. I’m just trying to illustrate.)

    The Framers did not care how people invested in businesses–you’re right about that. But the rise of the corporation was an important step in creating our current economic system, by allowing more people to invest in different businesses and through limiting liability, which encouraged investment. (If you simply became a partner with the original owner, all your money was at risk just as their was, even the money not invested in the business, which obviously discouraged investments. Investing in a corporation meant that only the money you put into the corporation was at risk.) But the rise of the corporation was really a 19th century thing, and they were far less important in 1800. In particular, media corporations did not exist back then. There was no Fox News then; there was only Mr. Fox printing and selling copies of his weekly paper from his printing shop, where he also printed up pamphlets, advertising broadsheets, and whatever odd jobs printers were asked to do back then. Which means that for the Founders freedom of the press simply did not involve corporations, for good or for ill. Freedom of the press was an individual right belonging to the printer and whichever writers he published in his newspaper.

    JBS (38f6c3)

  184. in the latter you can only sue for whatever Joe has placed as assets under the corporate name.

    Yeah, it’s been a long time since I took Corporations, but I understand the basics. A lot of organizations are structured in a way that protects them from lawsuits.

    Why in the hell would this create an interest in infringing on political speech from any group of people for any reason?

    The world you envision is ridiculous and wrong.

    I say let anyone say whatever they want. It’s protected if it’s just political speech. I think even the laws they currently have on political advertisements are going too far.

    Dustin (cb3719)

  185. A lot of organizations are structured in a way that protects them from lawsuits.

    I guess I should have said ‘the investors’.

    I don’t really take this point very seriously, though. If someone is complaining about the ability of citizens to form Corporations for protection from liability, tearing up civil rights is a ridiculous way to solve that ‘problem’.

    Dustin (cb3719)

  186. Dustin–I repeat. A corporation is not an assembly of the people. It is not the collection of stockholders, as you seem to think it is.

    A corporation is an artificial entity existing through an act of law (incorporation) and can have only such powers as the law grants to it. And what the law grants the law can take away. It is owned by the shareholders, but it is not the collection of shareholders acting together.

    Natural people–humans–have innate rights. Corporations–legal artifices–don’t. If the law doesn’t give it the power to speak, then it doesn’t have it.

    And as I said above, if you view the corporation as merely an assemblage of the stockholders, then you are really arguing against the rationale of Citizens United, and not supporting it.

    JBS (38f6c3)

  187. If nuclear power plants shut down their goes our electric grid than what?

    Dohbiden (ef98f0)

  188. JBS:

    You are simply wrong. There is no other way to say it. You may not like it. It may not be the way you want things to be. You may not like Fox News, you may not like MSNBC. You may not like the corporations that provide you the ability to post here.

    But, is clear that the freedom to speak is a right, no matter what you think or believe. See my previous post.

    You can ignore me. You can shout to the high heavens. It simply does not affect the facts regardless of your take on history.

    Ag80 (ec45d6)

  189. If someone is complaining about the ability of citizens to form Corporations for protection from liability, tearing up civil rights is a ridiculous way to solve that ‘problem’.

    I’m not complaining about limited liability. I’m simply arguing that corporations don’t have innate rights in the way that real people do, and to say that RJReynolds does not have the right of free speech does not threaten your right to free speech, because your right is based on something RJReynolds will never have–existence as a living human being. No tearing up of civil rights is involved.

    And now, I’m off to bed, I guess.

    (And just to be clear, most of comment was meant for Ag80, but the clip and paste that should have indicated that seems to have gotten lost.)

    JBS (38f6c3)

  190. Comment by Ag80 — 12/1/2011 @ 10:32 pm
    It’s a right that belongs to you, and to me and to Patterico, but it’s not a right that belongs to Fox or MSNBC. Or more precisely: the reason that means that the government can’t stop you or me from speaking out does not apply to Fox or MSNBC. The government can’t stop us because we are humans. Fox and MSNBC are not.

    JBS (38f6c3)

  191. the reason that means that the government

    should really have been

    the reason that the government

    And now, for real, good night, gentlemen.

    JBS (38f6c3)

  192. I’m struck in retrospect, specially considering the Althouse link, that we didn’t go to at least the pretense of the legal justification, yes I made
    the same mistake.

    narciso (87e966)

  193. . The government can’t stop us because we are humans. Fox and MSNBC are not.

    You are right about MSNBC. Not people. Dogs. Slestaks. Wart hogs. Not people.

    JD (318f81)

  194. Comment by daleyrocks — 12/1/2011 @ 10:07 pm

    Almost missed that one.
    Unions are not for profit (or should be not for profit) corporations, same as NRA, etc. RJ Reynolds is, obviously a for profit corporation.

    Also, RJReynolds’ main purpose is to sell a tangible product to individual consumers. The purpose of Unions and the NRA is totally different. Political speech is one of their primary purposes; the right of assembly really is directly involved there. Raising capital and limiting liability obviously don’t apply to the Teamsters or the NRA.

    JBS (38f6c3)

  195. Look the left love to insist that nuclear power plants don’t power our electric grid when it does.

    Dohbiden (ef98f0)

  196. I guess I better google slestaks before I go to bed. :)

    G’night y’all.

    JBS (38f6c3)

  197. And I have no problem with sensible regulations to power plants IMO.

    Dohbiden (ef98f0)

  198. And only idiots believe wind and solar can work to change the environment for the better.

    the best scientists insist that gorebull warming will be caused by nuclear power plants which is a lie.

    Dohbiden (ef98f0)

  199. To those who support wind powered turbines is it worth the risk?

    Dohbiden (ef98f0)

  200. “Raising capital and limiting liability obviously don’t apply to the Teamsters or the NRA.”

    JBS – Limiting liability matters a great deal for the Teamsters. Are you nuts?

    What difference does it make whether a corporation is for profit or not-for-profit to your argument about speech? Seriously?

    You agree both the Teamsters and RJR are corporations and based on your reasoning neither should be allowed to engage in political speech.

    Congratulations.

    daleyrocks (bf33e9)

  201. JBS – Should union property and traditional corporate property be subject to unreasonable searches and seizures or is that just limited to individuals?

    daleyrocks (bf33e9)

  202. A corporation is not an assembly of the people. It is not the collection of stockholders, as you seem to think it is.

    Disagree.

    Anyway, who came up with the political views expressed by Citizens United? People did. People wanted to criticize Hillary Clinton. Sure, many of the mechanisms people use are not people. Many of our organizations aren’t if you find a strict way of saying things.

    This keyboard is what’s triggering the pixels on your screen. The internet is not a person, strictly speaking.

    But the ideas are coming from people.

    So even if we assume you are correct about corporations (And I don’t agree), the political speech you read in the Times, hear from SEIU, and read from GE’s public relations officer all came from people.

    Dustin (cb3719)

  203. JBS – Should union property and traditional corporate property be subject to unreasonable searches and seizures or is that just limited to individuals?

    Comment by daleyrocks — 12/1/2011 @ 11:18 pm

    I gotta admit, that’s a great response.

    The notion that it would be OK to search anything a Corporation owns without a warrant must be acceptable to JBS, at least constitutionally speaking.

    Or perhaps the idea in the Bill of Rights is to limit government from conducting any unjust searches or infringing any speech. I guess that’s just too fascist of me to say in today’s completely screwed up political language.

    Dustin (cb3719)

  204. “This keyboard is what’s triggering the pixels on your screen. The internet is not a person, strictly speaking.”

    “But the ideas are coming from people.”

    Dustin – Exactly. I think it goes back to the act of speech, rather than who or what is performing the act. The concept is you can’t restrict speech, artificially creating categories based on historical accident and then tweaking them for differences between types of corporations – unions versus RJR – is pure mental masturbation when the fundamental act is the same one way or another.

    daleyrocks (bf33e9)

  205. Natural people–humans–have innate rights. Corporations–legal artifices–don’t. If the law doesn’t give it the power to speak, then it doesn’t have it.

    – The stance of JBS laid bare: the power to regulate commerce equals the power to control business. What a nice little freedom-hating troll you turned out to be!

    Icy (3493f7)

  206. Icy

    US Corporations are real property of US citizens and are considered to be extensions of them – are they not?

    Same as a house or a car, its the people who own the stock elect the directors of the Corporation who speak on behalf of them in all manners of social, governmental and business related matters.

    To say corporations are not real would/could remove the ability to tax and regulate them or at least remove the criminal penalties for directors for non complaince with the myriad of rules and regulations.

    Its funny for tax and regulatory environments – Corporations are considered a living and breathing entity – but for free speech……

    EricPWJohnson (2a58f7)

  207. Someone mention CATO, they were thunderstruck about the doctrine, sa of 1991;

    http://www.cato.org/pubs/pas/pa-161.html

    narciso (87e966)

  208. It’s funny the left accuses others of trying to take away free speech rights.

    Dohbiden (ef98f0)

  209. The late Jean Jacques Revel, had a similar saying’
    ‘the long dark night of fascism is always falling
    on America, but it always lands in Europe’

    narciso (87e966)

  210. Ironically Timothy Geithner and everyone on the left refuse to pay taxes on their wealth but it is the repubs that protect the wealthy cause they don’t wanna extend damn things.

    I hate when Michael Moore insists he pays too much in taxes when he doesn’t.

    Dohbiden (ef98f0)

  211. Raising taxes only goes one way to the right wing rich people.

    Dohbiden (ef98f0)

  212. 210.It’s funny the left accuses others of trying to take away free speech rights, from certain groups that only they determine
    Comment by Dohbiden — 12/2/2011 @ 4:55 am

    Added some punch for ya

    EricPWJohnson (2a58f7)

  213. Yeah.

    Dohbiden (ef98f0)

  214. JBS

    > I’m ruling for Kman here. No one is arguing that your rights to express yourself are infringeable while and because you work for a corporation (leaving out the right of the employer to limit what you say or do while you are employed there).

    Actually that is precisely what is being argued here. How exactly do you think corporations express themselves? Through human agency, obviously. And it is my position that, for instance, Anne Hathaway (to be in theme with our sock puppet thread), has the same right to speak when she is walking down the street and expressing her personal point of view as when she is being paid by Warner Brothers to depict a character on screen, as when she is being paid by Colgate to advertise for their toothpaste, as when she is paid by a corporation to advocate for their position in the political process.

    > Actually, you’re also wrong there, because the publishing business was not generally organized in the form of corporations in that era–it was more usually a sole proprietorship or partnership, and the rights of expression were simply and solely that of the publisher/printer, not some corporate entity.

    The key word being “generally.” Unless you can replace it with the word “exclusively” you lose the argument.

    > Back then, the New York Times, if it had existed, would have openly identified as a Leftist publication and been read (or ignored) as such, with no one pretending to any sort of impartiality.

    Which is only different from today in the sense that they aren’t admitting to their status as an organ of the democratic party, and particularly the far left faction within it.

    > But it can not give the power of speech to something that doesn’t have the power of speech in the first place.

    It is not giving anything. It is denying a power to congress. Read the amendment again. Again the issue isn’t where are they granted the right to speak, but where is Congress granted the right to silence them.

    Lev

    > Is there any legitimate use for a provision that allows the government to compel speech, in your opinion (subject to the strict scrutiny, compelling government interest provisions we’re discussing)? Outside of commercial speech?

    It might be a reflection of how early it is in the morning that I am writing this, but nothing’s coming to mind at the moment. I am sure there is something, but the test applied here—strict scrutiny—is designed to be fatal in almost all circumstances, because exceptions to freedom of speech should be few and far between.

    > Where do you draw the line when the information at hand is so damning that forcing someone to provide it (and emphasize it) speaks advocacy to right reason?

    Well, I think in the passage I quoted from the court’s opinion, they were admitting that it can be very tough in some situations to determine.

    Kman

    > The Constitution does not grant rights, but merely protects rights that we consider to be “God-given” (or “natural” if you prefer that term.

    See, that is you major move, to pretend every single right protected in the constitution is God-given and then to pretend it is absurd to pretend that corporations are entitled to them, too.

    But that claim that the rights protected by the constitution are all considered “God given rights” doesn’t stand up to scrutiny. If you look at the constitution as it existed after the ratification of the bill of rights, you will see some rights that are difficult to describe as “God given.”

    For instance, Art. I Sec. 10 says that “No State shall… pass any… Law impairing the Obligation of Contracts[.]” So is it your position that this right is God-given? And if it is a God-given right, why isn’t there a similar provision preventing Congress from doing the same?

    Art. I, Sec. 9 says (in relation to federal power) that “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” So prior to the passage of the 16th Amendment it was a God-given right not to be directly taxed by the Federal government with those limitations. Section 2 of the same article states that such taxes must be apportioned among the several States—another God given requirement?

    How about in Art. 4, Sec. 2, which contains the fugitive slave clause? Another God-given right? Yes, I am sure some slave owners believed they had a natural right to own slaves, but some, like Jefferson, thought the slaves had a natural right to be free. So this provision was inserted into the constitution not because everyone agreed that they were protecting God-given rights, but because it was necessary to prevent a disintegration of the fledgling United States.

    How about Art. I, Sec. 9: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress.” This meant that the people had a right to import slaves without congressional interference. Do you want to pretend that this is a God given right? Because here’s the thing, I am leaving out part of it. The rest says “…prior to the Year one thousand eight hundred and eight[.]” So I suppose it is a God-given right, until 1808, right? I suppose on December 31, 1807, God was reexamining his position on the importation of human slaves.

    So it’s a cute argument, but it doesn’t stand up to scrutiny and if taken to its logical conclusion would result in the government being able to regulate the speech of the New York Times. If you want absurd, there you go.

    > It is simply incorrect, therefore, to think that the framers of the Constitution had corporations in mind when they fashioned the Bill of Rights.

    Except for the fact that these rights were practices by corporations which you admitted previously.

    > Some here have pointed to the section of the First Amendment that discusses the right to assemble, and asked “Well, isn’t that corporations?” No, of course not.

    That’s an assertion, not an argument.

    > and the framers, no dummies, knew how to write, the “right to incorporate” if that’s what they meant

    They also knew how to limit rights to human beings if that is what they meant. But I said that before, and you ignored that.

    And one other thing. You keep asserting that in that day corporations were basically created solely for the benefit of state governments.

    Even if that was true, that is not a defense. If they are just appendages of state governments, then for the Federal Government to tell a state corporation that it may not speak freely amounts to the Federal Government telling a STATE that it might not speak freely. Does anyone believe that the Federal Government has the right to tell a state what it can and cannot say?

    Does the word “federalism” ring a bell?

    Aaron Worthing (e7d72e)

  215. (As for corporations, I think the strongest argument is that limited liability ownership is a privilege, and that the state has the power to impose special rules on entities whose owners have only limited liability for the entity’s actions)

    So in return for the privilege of receiving taxpayers’ money, the government may require a museum to agree not to exhibit pictures offensive to Christians?

    Milhouse (ea66e3)

  216. There’s a difference, as exemplified in the arguments over Obamacare, between regulating what a corporation must say in the course of promoting a product and requiring a corporation to engage in speech. The former is generally allowed, the latter not so.

    So we may choose to remain silent, but once we decide to speak the government may compel us to say whatever it likes?

    Milhouse (ea66e3)

  217. This is advertising. The latter is not. The commercial speech distinction still holds.

    In what sense are the graphics the government wanted to force the plaintiff to run “advertising”? How exactly do you distinguish them from the graphic that you claim is not advertising?

    Milhouse (ea66e3)

  218. Being against Nuclear Power means your against production of electricity……………although lefty know-it-alls like to insist electricity doesn’t come from Nuclear Power.

    Dohbiden (ef98f0)

  219. People opined on elections through the media, but non-media corporations simply didn’t opine on elections.

    Whence this distinction between “media corporations” and “non-media” ones? How can a corporation’s rights depend merely on what business it chooses to engage in? Either corporations inherit their shareholders’ Creator-endowed right to freedom of speech and of the press, or they don’t. And either they did in the late 18th century, or they didn’t. If, as you seem to concede, some corporations did opine on elections, then you’ve conceded everything.

    Milhouse (ea66e3)

  220. AW:

    Again the issue isn’t where are they granted the right to speak, but where is Congress granted the right to silence them.

    The issue is whether they speak at all. By your logic, the First Amendment — in fact, the whole Bill of Rights — applies to trees.

    See, that is you major move, to pretend every single right protected in the constitution is God-given and then to pretend it is absurd to pretend that corporations are entitled to them, too.

    Well, actually, I meant the Bill of Rights, not the Consittution (you would have discerned this is you read everything I wrote rather than cherry-pick one sentence out of context).

    And yes, the mindset then (as now) is that it protects “natural” or “God-given” rights — rights fundamental to the person. (See, e.g., Gitlow v New York “For present purposes we may and do presume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”; emphasis added)

    Me: It is simply incorrect, therefore, to think that the framers of the Constitution had corporations in mind when they fashioned the Bill of Rights.

    You: Except for the fact that these rights were practices by corporations which you admitted previously.

    Yeah. Your logic there is really bizarre. Basically, boiled to a syllogism, you’re saying this:

    (1) The First Amendment guarantees freedom of the press.
    (2) The New York Times is “press”.
    (3) The New York Times is also a corporation.
    (4) Therefore, ALL corporations are protected by the First Amendment.

    Uh, what?

    Even if that was true, that is not a defense. If they are just appendages of state governments, then for the Federal Government to tell a state corporation that it may not speak freely amounts to the Federal Government telling a STATE that it might not speak freely.

    But the federal government wasn’t telling the states ANYTHING (neither affirmatively or negatively) with the First Amendment. Again, the Bill of Rights protects people viz a viz the federal government.

    Kman (5576bf)

  221. Milhouse

    > then you’ve conceded everything.

    Well, especially because, like me, Kman dismisses the “institutional press” theory of the free press clause. Freedom of the press is the right to express yourself in print nothing more. Thomas Paine is protected and so is the NYT.

    Aaron Worthing (e7d72e)

  222. Not letting RJ Reynolds advocate for a law would not keep any of its individual shareholders, executives, directors, or employees from advocating for that law

    Really? How could any of Citizens United’s shareholders possibly have afforded to make and distribute a movie, without banding together?

    Milhouse (ea66e3)

  223. i don’t even buy the claim that we didn’t know it was bad until the 20th century. i think anyone with more than two brain cells to rub together would figure out that it isn’t good for you to be sucking that stuff into your lungs, with or without scientific studies showing it causes cancer, or increased the chances of getting cancer or whatever it precisely does.

    This isn’t true. Until fairly recently smoking was thought to have health benefits. (Actually it still is, but we now know that those benefits are far outweighed by the harm it does, except in some unusual cases.) And while by the ’30s people had generally got the idea that it was bad for you, and did call cigarettes “coffin nails”, they had no scientific basis for that belief, and in fact many doctors continued to recommend smoking right into the early ’50s, when the first real evidence started to emerge about the danger.

    Milhouse (ea66e3)

  224. I love your way of debating.

    Dohbiden (ef98f0)

  225. – The stance of JBS laid bare: the power to regulate commerce equals the power to control business. What a nice little freedom-hating troll you turned out to be!
    That’t not at all what I’m saying. What I’m saying is this–I’ve already said it, in fact: artificial entities do not have natural rights. Corporations are artificial entities. God did not create then, so they don’t have any “God given” rights. The law and the government creates corporations, and all they have are “law given” rights. And what the law giveth the law can taketh away.

    The government telling RJ Reynolds to shut up is conceptually a very different thing from the government telling you to shut up–and the difference means that it can do the former but not the latter.

    Should union property and traditional corporate property be subject to unreasonable searches and seizures or is that just limited to individuals?

    This is, essentially, the point where Citizens United went of the rails.

    The answer to your question is “it should not be subject to unreasonable searches and seizures”. But not because it is the property of XYZ Corporation. The property is protected because it is the property of the individual shareholders, who each own a portion of that property in ratio to the amount of shares they own.

    Or to put it more simply, any rights a corporate entity has either derives from the rights of its stockholders, or is specifically granted to it by the government which created it.

    And it is my position that, for instance, Anne Hathaway (to be in theme with our sock puppet thread), has the same right to speak when she is walking down the street and expressing her personal point of view as when she is being paid by Warner Brothers to depict a character on screen
    Of course she has the right–but it’s Anne Hathaway’s right, not Warner Brothers’s right.
    She’s expressing her own individual freedom of expression, and not any freedom of expression which might vest in her corporate employer.

    Fox News and the New York Times have no freedom of expression independent of the freedom of expression which is the right of the individuals who own and work at Fox News and the New York Times.

    The key word being “generally.” Unless you can replace it with the word “exclusively” you lose the argument.
    Actually, I think “exclusively” would apply. But being a fallible human being, I try not to make categorical statements unless I’m absolutely sure they are true.

    BTW, the logical result of the approach you are advocating here would be that robots would be entitled to all the “God given” rights that humans have. As a point of theoretical interest, would you be comfortable with the idea that they could have such rights?

    JBS (510a0a)

  226. Kman

    > The issue is whether they speak at all.

    And you have conceded that they did, even in 1789. You have just claimed they were not thinking about them speaking.

    > By your logic, the First Amendment — in fact, the whole Bill of Rights — applies to trees.

    First, once again your illiteracy gets in the way of productive discussion. My very argument relied on the fact that numerous other amendments mentioned persons or “the people.” By no stretch of the imagination can you argue that a tree is a person, so it is ludicrous to suggest that the due process clause applies to trees (although if memory serves Justice Douglas has suggested that inanimate objects should have standing in federal court, a similar but not identical concept that is just about as silly).

    Second, there is no more need to worry about the right of speech for trees than there is to worry about whether a man has a right to an abortion in the Life of Brian. It is not presently even scientifically possible. And if tomorrow trees gained the ability to speak, you would have a cogent argument for the notion that THEY were not intended to be protected by the first amendment because they did not speak at the time of the founding and in their wildest dreams they never imagined that they could.

    But you have already conceded that at the time of the founding that corporations did in fact speak and even opine on elections, so you really can’t as much as you try call this an unanticipated possibility—that corporations might opine on elections—given that they were already doing it. So if you want to exclude, say, RJ Reynolds from the first amendment, you have to either adopt the “institutional press only” theory of justice stevens (except I will show that you have already rejected that). Or you have to show how this language you keep ignoring allows for constitutional exclusion:

    > It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.

    Good luck with that.

    > Well, actually, I meant the Bill of Rights, not the Constitution

    Well, then perhaps you should have said what you meant, then. And it doesn’t hold water in any case. For example the Fifth Amendment says that property cannot be taken without due process of law and just compensation. Now today I think most people would say that this vindicates a natural right in property (leaving communists aside), but at the time of the founding there are few that would deny that it would apply to SLAVES, meaning not that the slaves had a right to liberty, but that their masters had a right to keep them as property and if they are taken from them, for there to be just compensation. I mean it’s vile, but it’s the only reasonable reading of Fifth Amendment until the 13th Amendment was ratified. And while I think it is fair to characterize the right to be free of unreasonable search and seizure generally it is hard to argue that the framers thought that the specific procedures for obtaining a warrant were passed down from God, that no other procedure would be sufficient to protect against unreasonable intrusion. The thing with natural rights is that they are not procedural, they are substantive. For instance the founders didn’t believe there was a natural right to democracy; instead they felt that democracy was the best system to ensure natural rights.

    It also undercuts your “natural law” theory to note that many of the protections of the bill of rights were not offered by state constitutions. For instance, the right to a trial by jury or to the Grand Jury process was only sporadically protected in the constitutions of the many states as was the right against self-incrimination. That is why it was necessary to incorporate the bill of rights to the states in the 14th Amendment—because the state constitutions did not offer sufficient protections to the same rights. So in each of those states they were expressing the opinion that these were not in fact natural rights.

    Indeed, your own reading of the second amendment contradicts the claims that this was about protecting the natural rights of human beings. You have asserted that the second amendment meant nothing more than a state’s right to organize and arm a militia. So by your own previous claims about the constitution, you have asserted that at least one amendment was designed to protect a legal entity rather than a person, and of course it is hard to argue that it is a god given right for a state to have a militia.

    So your claim that every protection in the bill of rights is a natural right just doesn’t hold water.

    Indeed, even the principles of the first amendment has not been treated as sacrosanct. While you and I would certainly agree that the establishment clause vindicates one’s natural right to freedom from coercion in religion, clearly the people at the time of the founding did not share our definition of natural law, given that many states actually established official churches consistent with their constitutions.

    So this is not consistent with your claim that we the people, circa 1789, were simply protecting rights that everyone agreed was “God-given.” If there is any theme that is consistent it is that these were all specific limitations on federal power that were already implied. It also explains why the bill of rights so often went further than the state constitutions—because they trusted the states far more than this new Federal Government.

    And your theory leads to another absurd result: it would declare that the Federal Government had the right to censor the states. After all this is how your sillygism (a silly syllogism) works:

    1) all expression not affirmatively protected by the first amendment or any other provision of the constitution can be censored freely by the Federal Government;
    2) only human beings enjoy explicit protection from censorship under the constitution ;
    3) corporations are not people;
    4) therefore corporations can be censored freely.

    Well, why can’t we then say this instead?

    1) all expression not affirmatively protected by the first amendment or any other provision of the constitution can be censored freely;
    2) only human beings enjoy explicit protection from censorship under the constitution ;
    3) states are not people;
    4) therefore states can be censored freely.

    So if a state legislature wishes to publish a resolution protesting a particular act of congress or a tax, tough luck. Indeed according to your theory the Federal Government could have banned the Virginia and Kentucky Resolutions, right? And I am speaking precisely. I am not saying that those resolutions were right—I reject compact theory—I am merely saying that those states had a right to put out those resolutions, however wrongheaded they were. But your reasoning would grant the Federal Government the power to censor them because after all, states are not people.

    > Yeah. Your logic there is really bizarre. Basically, boiled to a syllogism, you’re saying this:

    > (1) The First Amendment guarantees freedom of the press.
    > (2) The New York Times is “press”.
    > (3) The New York Times is also a corporation.
    > (4) Therefore, ALL corporations are protected by the First Amendment.

    > Uh, what?

    Well, that is actually close but not quite how my syllogism works. Here’s the correct syllogism:

    (1) The First Amendment guarantees freedom of the press.
    (2) The New York Times is entitled to freedom of the press.
    (3) The New York Times is also a corporation.
    (4) The first amendment does not discriminate in favor the institutional press. “Press” refers to the act of publishing, not the news and publishing industry.
    (5) Therefore, ALL corporations are protected by the First Amendment.

    So which part of that do you disagree with? And don’t say number 4, because you did write: “’The press’ refers to the means of communication, not the corporate entities at the time that was in the business of communicating.” With those words you rejected justice stevens’ “institutional press only” theory of the first amendment and instead have advocated for the categorical exclusion of corporations.

    > But the federal government wasn’t telling the states ANYTHING (neither affirmatively or negatively) with the First Amendment.

    According to you they were. According to your reading of the first amendment they were telling them that a corporation created under state law was not protected from federal censorship. Combined with your apparent belief that the original unamended constitution granted broad powers of censorship that is only held back by the first amendment and other explicit protections for freedom of expression, this meant that according to you the states were being told that “you are not allowed to create a corporation that speaks freely unless we let you do it and federalism be damned.”

    Aaron Worthing (e7d72e)

  227. aaron the day he agrees is the day the world tilts off it’s axis and crushes Michael Moore.

    Dohbiden (ef98f0)

  228. “Should union property and traditional corporate property be subject to unreasonable searches and seizures or is that just limited to individuals?

    This is, essentially, the point where Citizens United went of the rails.

    The answer to your question is “it should not be subject to unreasonable searches and seizures”. But not because it is the property of XYZ Corporation. The property is protected because it is the property of the individual shareholders, who each own a portion of that property in ratio to the amount of shares they own.”

    JBS – Actually, this is where your argument flies off the rails. Claiming that corporations have constitutional protection from unreasonable search and seizure because you see through the ownership structure to the individual owners is exactly the same argument others have made here for the First Amendment. You cannot offer the argument in one place and take it away in another.

    daleyrocks (bf33e9)

  229. JBS

    > The law and the government creates corporations, and all they have are “law given” rights. And what the law giveth the law can taketh away.

    And the first amendment is a law, too, and by its terms bans all restrictions on the press, period. You and kman can huff and puff all you want, but you can’t suddenly change the first amendment from saying:

    “Congress shall make no law …abridging the freedom of speech, or of the press”

    To saying

    “Congress shall make no law …abridging the people’s freedom of speech, or of the press”

    Its also worth noting that the federal government cannot necessarily take away what the law of a state gives, just as the law of a state cannot necessarily take away what the law of the Federal Government gives, see McCullough.

    > The government telling RJ Reynolds to shut up is conceptually a very different thing from the government telling you to shut up

    Except the differences between RJ Reynolds and, say, the New York Times are not recognized in the constitution. Or do you think the NYT can be told to shut up, too?

    > The answer to your question is “it should not be subject to unreasonable searches and seizures”. But not because it is the property of XYZ Corporation. The property is protected because it is the property of the individual shareholders, who each own a portion of that property in ratio to the amount of shares they own.

    Right, so the property owned by a corporation is actually owned by people regardless of any legal fiction. But when human being in the employment of the corporation attempt to express themselves as spokespeople of the corporation, that isn’t protected expression, right? Well maybe not…

    > Of course she has the right–but it’s Anne Hathaway’s right, not Warner Brothers’s right.

    Then you have conceded the whole thing. A corporation cannot express itself but through the actions of its employees. Freedom of speech for a corporation is the freedom of its employees, etc. to speak on its behalf.

    > Actually, I think “exclusively” would apply

    Then you would be wrong.

    > BTW, the logical result of the approach you are advocating here would be that robots would be entitled to all the “God given” rights that humans have. As a point of theoretical interest, would you be comfortable with the idea that they could have such rights?

    I think I mostly addressed this with Kman’s talking trees example.

    But comfortable with robots speaking freely? By this I presume you mean robots formulating their own message and expressing them. And yes, I would be quite comfortable with them being allowed to speak freely. Whether the constitution demands that result is a different matter.

    Aaron Worthing (e7d72e)

  230. doh

    > aaron the day he agrees is the day the world tilts off it’s axis and crushes Michael Moore.

    Well, then that gives me all the more motivation to try, then, right?

    Aaron Worthing (e7d72e)

  231. OMG! EPWJ actually said something that makes sense!

    Batten down the hatches and put the livestock into the root cellar, Martha. It’s the Apocalypse!!!

    Icy (3493f7)

  232. Claiming that corporations have constitutional protection from unreasonable search and seizure because you see through the ownership structure to the individual owners is exactly the same argument others have made here for the First Amendment
    Daley, they are not making that argument. They’re claiming that Corporation X has rights totally independent of the rights of its owners (the stockholders). I disagree with that.
    If people are arguing that Corporation X’s rights derive from its owners’ rights, then I agree with them. But they don’t seem to be arguing that (or at least, they don’t seem to understand what the difference between the two ideas is.)

    Or do you think the NYT can be told to shut up, too?
    Yes it can. It’s the people who write in its pages and who own its printing presses who can’t be told to shut up.

    In practice, that’s not much of a difference, but in principle it’s a very big difference.

    Then you would be wrong
    I know of no instance of a newspaper being owned by a corporation, as opposed to a sole proprietor or a partnership, prior to 1820. You are implying that you know of at least one such case. Can you give me the details?

    By this I presume you mean robots formulating their own message and expressing them.
    Actually, that would keep them from being a good analogy with corporations.

    As for Kman’s talking trees–with all respect to you , I tend to skim over whatever Kman says, so that example and your response rings no bells.

    Comment by Aaron Worthing — 12/2/2011 @ 9:54 am
    Kman agreeing with your argument is a good indication that your argument may be wrong, and should be checked over. (Yes, I know Kman agreed with me on some stuff in this thread. :) But a stopped clock etc. etc.)

    JBS (510a0a)

  233. Comment by Icy — 12/2/2011 @ 10:05 am

    :) :) :)

    JBS (510a0a)

  234. “…BTW, the logical result of the approach you are advocating here would be that robots would be entitled to all the “God given” rights that humans have. As a point of theoretical interest, would you be comfortable with the idea that they could have such rights?”
    Comment by JBS — 12/2/2011 @ 9:28 am

    I don’t think that anyone here would advocate that the “robots” that assemble cars, or make-up your Amazon shipment have inherent rights.
    Those rights reside with the owners of that machinery.
    Just as the “state” does not have any “right” to search your car without your permission, absent “probable cause”,
    neither would it have the “right” to search or detain your robot (and if your “robot” is C3PO, we all would want that ninny taken away – R2D2, not so much).

    AD-RtR/OS! (4046c5)

  235. Yes Aaron.

    Hey Another Drew when will Kman makes sense?

    Dohbiden (ef98f0)

  236. Kman – Your logic there is really bizarre. Basically, boiled to a syllogism, you’re saying this:

    (1) The Bill of Rights protects natural or God given rights.
    (2) The First Amendment guarantees freedom of the press.
    (3) The New York Times is “press”.
    (4) The New York Times is also a corporation.
    (5) Therefore, the New York Times has a natural or God given right to publish whatever it wants that other corporations I do not like do not.

    Uh, what?

    daleyrocks (bf33e9)

  237. Comment by Dohbiden — 12/2/2011 @ 10:18 am

    Some time when the Twelfth of Never falls on a Blue Moon.

    AD-RtR/OS! (4046c5)

  238. Excuse me did EPWJ make sense?

    ZOMG the mayan prophecy has been fulfilled.

    Dohbiden (ef98f0)

  239. “Claiming that corporations have constitutional protection from unreasonable search and seizure because you see through the ownership structure to the individual owners is exactly the same argument others have made here for the First Amendment
    Daley, they are not making that argument. They’re claiming that Corporation X has rights totally independent of the rights of its owners (the stockholders). I disagree with that.
    If people are arguing that Corporation X’s rights derive from its owners’ rights, then I agree with them. But they don’t seem to be arguing that (or at least, they don’t seem to understand what the difference between the two ideas is.)

    Or do you think the NYT can be told to shut up, too?”

    JBS – I am not claiming they are making that argument. I am claiming it is the logical extension of your argument.

    daleyrocks (bf33e9)

  240. “Daley, they are not making that argument.”

    Correction.

    JBS – People on the thread have made the argument.

    daleyrocks (bf33e9)

  241. Meanwhile, down in Trollville . . .
    The issue is whether they speak at all. By your logic, the First Amendment — in fact, the whole Bill of Rights — applies to trees.
    – Perhaps YOU should apply to be a tree. That way you could just stand there straight & tall, in a big grove of like-minded non-boat-rockers, subject to the whims of forces (nature, man) capable of altering your status.

    yes, the mindset then (as now) is that it protects “natural” or “God-given” rights — rights fundamental to the person. (See, e.g., Gitlow v New York “For present purposes we may and do presume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
    – Way to go, Kman! Choosing a case that has nothing to do with corporations . . . or the federal government . . . or the 1st Amendment, since it is about the 14th . . .

    Icy (3493f7)

  242. Comment by Dohbiden — 12/1/2011 @ 5:19 pm

    And you can get fatal lung disease even if you don’t smoke.

    I know of two people who got lung cancer both of whom I think did not smoke.

    http://www.nytimes.com/1989/03/11/obituaries/prof-albert-fein-58-urban-studies-expert.html

    Professor Albert Fein was one of them and I heard them saying he did not smoke. The other was my Rabbi. Both of course, lived in New York City for many years before the 1960s.

    I now know of someone who has lung cancer, but this person was a smoker.

    Sammy Finkelman (d3daeb)

  243. And you have conceded that they did, even in 1789.

    Corporations “spoke” in 1789, but only because we created them and allowed them to do so. But they don’t naturally speak, because they do not exist in nature.

    But you have already conceded that at the time of the founding that corporations did in fact speak and even opine on elections…

    No, I conceded that people used the press to opine on elections at the time of the founding. You’re the one who keeps equating “the press” with “corporations” which is a silly equivalency in ANY era, but especially THAT one.

    It also undercuts your “natural law” theory to note…

    MY “natural law” theory? Hey, you are the outlier here. “Natural law” as the basis for Constitutional protections is accepted as true from virtually all sources (i.e., it’s hardly leftist dogma), the only controversy being the extent to whether judges should be empowered to recognize its application where the Constitution is silent on any given issue.

    After all this is how your sillygism (a silly syllogism) works:

    1) all expression not affirmatively protected by the first amendment or any other provision of the constitution can be censored freely by the Federal Government;
    2) only human beings enjoy explicit protection from censorship under the constitution ;
    3) corporations are not people;
    4) therefore corporations can be censored freely.

    Exactly! They CAN be. In fact, we CAN do away with corporations altogether. They are creatures of law. They don’t exist in nature. They were not endowed by our creator with certain inalienable rights; they were endowed by US with certain inalienable rights (and rights not as extensive as individual rights).

    By the way, I could make a solid argument that a flower expresses something when it blooms, or that a dog expresses something when it barks at a stranger. Are those expressions protected by the First Amendment?

    Well, that is actually close but not quite how my syllogism works. Here’s the correct syllogism:

    (1) The First Amendment guarantees freedom of the press.
    (2) The New York Times is entitled to freedom of the press.
    (3) The New York Times is also a corporation.
    (4) The first amendment does not discriminate in favor the institutional press. “Press” refers to the act of publishing, not the news and publishing industry.
    (5) Therefore, ALL corporations are protected by the First Amendment.

    So which part of that do you disagree with?

    I’m saying that the first sentence of #4 cannot be true because there WAS no “institutional press” when the First Amendment was written. You’re imprinting a 21st understanding of the “press” (a media industry comprised of incorporated publishing outlets) on a 18th century construct, and pretending that the framers had this in mind all along. That’s where you fall apart.

    According to your reading of the first amendment they [the framers] were telling them that a corporation created under state law was not protected from federal censorship.

    That’s not what I am saying. I’m saying that the FIRST AMENDMENT didn’t protect corporations from federal censorship. But notions of federalism and limited federal powers, as they existed at the time, still could have prevented the federal government from censoring corporations. It depends on the situation.

    Kman (5576bf)

  244. Yeah. Your logic there is really bizarre. Basically, boiled to a syllogism, you’re saying this:
    (1) The First Amendment guarantees freedom of the press.
    (2) The New York Times is “press”.
    (3) The New York Times is also a corporation.
    (4) Therefore, ALL corporations are protected by the First Amendment.
    Uh, what?

    – Wait. Hold the phone, Agnes! The solution is at hand:
    Every corporation needs to publish news on their websites. Why, they could even have a tab on their home pages that says “News”. Quick, Kman, you go scan some corporate websites to see if there is room for such a thing. Why, this is positively REVOLUTIONARY!!!

    Icy (3493f7)

  245. Liars opposition too Food Stamps is not causing poverty.

    The rich leftys like Schumer support Food Stamps.

    Dohbiden (ef98f0)

  246. But the federal government wasn’t telling the states ANYTHING (neither affirmatively or negatively) with the First Amendment. Again, the Bill of Rights protects people viz a viz the federal government.
    – But if some people freely gather together to form a corporation then they have no protection whatsoever, is that it? You truly are a Marxist, are you not? It’s what you have been saying, or not saying, for the duration of this thread: it’s okay for the workers to speak out; not okay for the “bosses” to do the same.

    Icy (3493f7)

  247. SF, there are many documented cases in the med books of people dying of lung cancer who never smoked tobacco,
    and were not in relationships with smokers (2nd-hand smoke);
    as there are countless smokers who never die of either lung cancer, heart disease, or anything other than “old age”.
    Some times you just get cancer, and sometimes you just don’t.

    Eat right, Exercise regularly, and you still Die!

    AD-RtR/OS! (4046c5)

  248. dohbiden is very funny lately.

    Is it sad that he’s probably the main reason I visited the blog today? #That’s11:05inSeattleIthink

    Dustin (cb3719)

  249. Comment by daleyrocks — 12/1/2011 @ 8:51 pm

    Here’s a link to the ten oldest companies in the U.S. by age. The companies on the list appear to be still in existence rather than companies which were formed and then dissolved.

    At the time they were founded, they were probably not corporations. All this is irrelevant as far as the First Amendment goes. A corporation is just a legal method of organzation. The main characteristic of a corporation, as opposed to a partnership, is that it has a legal identity distinct from its shareholders, and liability is limited to the assets of the corporation (with, I guess, some fraud or malfeasance exceptions)

    The personal creditors of the stockholders have no claim to the assets of the corporation (although they may have a claim to the ownership stake or shares) and creditors get taken care of first in liquidation.

    That applied even to GM – the old shareholders didn’t get anything. And people with unsettled lawsuits didn’t get anything either, since they were not yet creditors, if I’m right.

    The law was bypassed, however, in some other ways in that the wrong creditors were preferred rather than what was specified in bankruptcy law.

    This was done by having a creditors committee vote to accept the terms, and the Obama Administration controlled or pressured many of the creditors (whose votes weer weighted according to the amount owed) As in other bankruptcies creditors became shareholders.

    Sammy Finkelman (d3daeb)

  250. http://www.smallbusinessnotes.com/small-business-resources/timeline-of-business-history.html says Covenant Life Insurance started out as the Presbyterian Ministers’ Fund. (It appears now to be part of HSBC.)

    Those at your link are apparently the oldest businesses still in existence as a separate entity.

    And those are not the oldest corporations.

    Harvard, for instance is older:

    http://www.harvard.edu/harvard-corporation

    The oldest corporation in the Western Hemisphere is the Harvard Corporation, known formally as the President and Fellows of Harvard College. It is the smaller of Harvard’s two governing boards; the other is the Board of Overseers.

    Originally, corporations had to be specially chartered by a state legislature and all kinds of restrictions could be put on its activities.

    http://en.wikipedia.org/wiki/Corporation

    Corporate charters were closely regulated by the states. Forming a corporation usually required an act of legislature. Investors generally had to be given an equal say in corporate governance, and corporations were required to comply with the purposes expressed in their charters. Many private firms in the 19th century avoided the corporate model for these reasons (Andrew Carnegie formed his steel operation as a limited partnership, and John D. Rockefeller set up Standard Oil as a trust).

    What a corporation

    Sammy Finkelman (d3daeb)

  251. SF, there are many documented cases in the med books of people dying of lung cancer who never smoked tobacco, and were not in relationships with smokers (2nd-hand smoke);
    as there are countless smokers who never die of either lung cancer, heart disease, or anything other than “old age”.

    Correct. Now a much higher proportion of luing cancer victims are smokers than the general population is, buit moire people died of other thinbgs is they die from smokimg. Like FDR.

    Sammy Finkelman (d3daeb)

  252. The problem is very basic ‘Congress shall make no law’ what part of that did they miss.

    narciso (87e966)

  253. Dustin I apologize for straying off-topic.

    Anyways only corporations that vote for Maobama get free speech.

    Dohbiden (ef98f0)

  254. JBS in #227:
    What I’m saying is this–I’ve already said it, in fact: artificial entities do not have natural rights. Corporations are artificial entities. God did not create then, so they don’t have any “God given” rights. The law and the government creates corporations, and all they have are “law given” rights. And what the law giveth the law can taketh away.
    – Does “artificial entities” include marriages? Or is the “constitutional right to marry” (to quote the California Supreme Court) a God-given right? I’m not trying to thread-jack here; just searching for some intellectual honesty.
    – God did not create corporations, but God did create the people that choose to incorporate; so, until such time that corporations are run by Artificial Intelligences . . .
    – Here is another intellectual honesty question:
    Do YOU personally think that it’s okay for the government to stifle the speech of corporations? And if so, why? (Note: I am deliberately challenging you to step outside the box of “the government has the right to do it” and to opine on whether or not you think it is the right thing for the government to do.)

    Icy (3493f7)

  255. JBS is dishonest.

    Dohbiden (ef98f0)

  256. Kman

    > Corporations “spoke” in 1789, but only because we created them and allowed them to do so.

    Yes, and thus you concede the whole thing.

    > But they don’t naturally speak, because they do not exist in nature.

    Um, printing presses weren’t found in nature, either. Indeed in nature you didn’t find guns, houses, papers… Sheesh.

    > No, I conceded that people used the press to opine on elections at the time of the founding.

    Um, yes you did. Your words:

    > People opined on elections through the media, but non-media corporations simply didn’t opine on elections.

    Unless you are so incompetent that you don’t know what expressio unius means.

    > MY “natural law” theory? Hey, you are the outlier here. “Natural law” as the basis for Constitutional protections is accepted as true from virtually all sources (i.e., it’s hardly leftist dogma),

    I didn’t say it was leftist dogma and as usual your source didn’t support what you claimed. You claimed every right in the bill of rights was a natural right. That is not what the FRC said, and in any case that is an appeal to authority and thus fallacious, which is what you resorted to because you know that it is silly to claim that the right to own property in slaves was accepted by most of the people ratifying the constitution as a natural right. You know that is wrong, so you go, “look! This person agrees with me!”

    > Exactly! They CAN be.

    Well, in case you missed it, that is emphatically not how to read the constitution—that all powers not denied are granted, etc. Madison told you that. And notice you ignore completely the implication of that argument—that you can ban speech by the states. You’ve admitted the correctness of the syllogism, not explain to me why it doesn’t apply equally to the states.

    > [me] (4) The first amendment does not discriminate in favor the institutional press. “Press” refers to the act of publishing, not the news and publishing industry.

    > [you] I’m saying that the first sentence of #4 cannot be true because there WAS no “institutional press” when the First Amendment was written.

    Lol, you are becoming more ridiculous by the second. So in your opinion this thing, the institutional press, did not exist in 1789. That’s not quite true, but let’s pretend your ridiculous factual assertion is true. So you are saying that the first amendment DOES discriminate in favor of a thing that according to you didn’t exist at the time? I mean its like saying the founders of the original constitution preferred Betamax to VHS. If you don’t think it existed, then how could they have discriminated in favor of it? Were time machines involved?

    The truth is that it didn’t exist quite like it did, the 20th-21st century concept, but it did exist. But the fact it didn’t exist like it did today suggests that they didn’t make a distinction in favor of the institutional press, not that they did.

    > You’re imprinting a 21st understanding of the “press” (a media industry comprised of incorporated publishing outlets) on a 18th century construct, and pretending that the framers had this in mind all along.

    No, actually that is what you just did. Or are you too stupid on the language to get that? Is this like the time you got confused about whether I thought “sleep with me or you’re fired” is sexual harassment?

    > That’s not what I am saying. I’m saying that the FIRST AMENDMENT didn’t protect corporations from federal censorship. But notions of federalism and limited federal powers, as they existed at the time, still could have prevented the federal government from censoring corporations. It depends on the situation.

    Lol, then what else does protect them. Name anything applicable. And while you are at it, do name the portion of the constitution that grants the power of censorship to the Federal Government, that says the Congress can infringe on freedom of the press so long as nothing else prevents them from doing it.

    Aaron Worthing (e7d72e)

  257. Dustin I apologize for straying off-topic.

    Anyways only corporations that vote for Maobama get free speech.

    Comment by Dohbiden — 12/2/2011 @ 11:15 am

    You certainly aren’t bothering me, man. No apologies necessary.

    Dustin (cb3719)

  258. “And those are not the oldest corporations.”

    Sammy – I did not assemble the list at the link. Of course Harvard is older. Dartmouth College was chartered in 1769, Yale to 1701. Incorporation was not uncommon for educational institutions to preserve the endowment and purposes of their founding.

    The purpose of providing a list was to show that corporations were not as uncommon as claimed by commenters here. The list, as I explained, shows companies surviving today. Imagine the much larger number which perished in the intervening 200+ years.

    daleyrocks (bf33e9)

  259. Sammy

    well i am sure in all of its history, harvard has never exercised freedom of speech.

    Aaron Worthing (e7d72e)

  260. the Citizens United decision–which ultimately boils down to the idea that corporations have the right of free expression independent of their stockholder’s rights.

    Does it really? I haven’t read the decision so I don’t know, but why does it have to boil down to that? Why can’t the corp. just be exercising its shareholders’ rights?

    Milhouse (ea66e3)

  261. JBS is dishonest.
    Comment by Dohbiden — 12/2/2011 @ 11:20 am

    No, he’s not. He may disagree, or be in error, which is different.

    Stashiu3 (601b7d)

  262. JBS – To expand further on your theories of business organization at the time of the Revolution, imagine I am a small businessman. I have not bothered to incorporate or anything, but I have half a dozen or so employees. I regularly petition my local and state government over matters which I believe are important to my business. I place issue advertisements in newspapers and write letters to newspapers under my business name on the same matters.

    Business booms! I decide I need to hire more employees and that I might need to raise some capital to buy some machinery for expansion. I figure the best way to do that is to incorporate the business.

    After incorporation are you suggesting because of that mere artifice I have lost my ability to petition the government and place issue advertisements and write letters under my business name?

    Does that make any freaking sense?

    daleyrocks (bf33e9)

  263. JBS in #227:
    The government telling RJ Reynolds to shut up is conceptually a very different thing from the government telling you to shut up–and the difference means that it can do the former but not the latter.
    – Not surprisingly, you are still getting this backasswards. The government has been telling tobacco companies to shut up
    FOR DECADES. No radio or tv advertising, restricted magazine ads, no t-shirts (can’t have any walking billboards!) or hats . . . they’ve mostly been doing nothing BUT telling tobacco companies to shut up! The question before us now is how much of a right does the government have to tell tobacco companies what TO say?

    Icy (3493f7)

  264. “I mean its like saying the founders of the original constitution preferred Betamax to VHS.”

    A.W. – I also understand the Founders did not like 8 Track tapes.

    daleyrocks (bf33e9)

  265. yeah, i will agree with stash on this. Its easy to go with this syllogism:

    1) kman is dishonest
    2) JBS agrees with Kman on this.
    3) therefore JBS is dishonest.

    But no, that isn’t fair. I think JBS is misguided, but is honest, here.

    Aaron Worthing (e7d72e)

  266. I see several buses pull up to a Tea Party rally and disgorge a bunch of loud, angry people wearing purple T-shirts and waving perfectly lettered signs.

    These people belong to an artifical entity call the SEIU, not a natural person. According to Kman, but I’m not sure about JBS, the constitution prohibits their right to assemble and their political speech because it is not specifically authorized in the Bill of Rights.

    daleyrocks (bf33e9)

  267. Here is a nice little factoid for everybody to ponder:
    The first known advertisement in the USA was for the snuff and tobacco products of P. Lorillard and Company and was placed in the New York daily paper in 1789.
    – Hmm, seems to me there was something else of significance that happened in 1789. Now, if I could only remember . . .

    Icy (3493f7)

  268. There is a pretty big difference between Kman and JBS.

    If everyone agreed on everything this would be quite a boring blog.

    On the other hand, I really do take extreme exception to the world JBS has in mind. Political speech is sacred, comes from people, and shouldn’t be infringed just because of abstractions like ‘it came from executives who do not always perfectly represent the shareholders so they aren’t people anymore’.

    No. No excuses for infringing speech are acceptable. If it’s inciting a crime or itself criminal for non political reasons, that is the only OK reason.

    I don’t care if the political speech was anonymous, or if it came a foreign country, or if it’s obviously deeply immoral and incorrect. The only recourse is more speech.

    Dustin (cb3719)

  269. JBS is in error and refuses to admit it.

    Dohbiden (ef98f0)

  270. The serious point, here, is Obama views these as ‘negative liberties’ because it’s what government can’t do to you, not for you,

    mitt romney (87e966)

  271. JBS ain’t dishonest. Maybe a bit condescending ;-) but not dishonest. Comparing him or her to kman is silly.

    JD (0388c1)

  272. JBS is in error and refuses to admit it.
    Comment by Dohbiden — 12/2/2011 @ 11:59 am

    If that’s true (not saying it is because I’m not getting down into the weeds on this topic), he’s hard-headed and unconvinced, not dishonest. If you think he’s in error, make your case.

    Stashiu3 (601b7d)

  273. Me: Corporations “spoke” in 1789, but only because we created them and allowed them to do so.

    You: Yes, and thus you concede the whole thing.

    Well, I don’t concede that they’re protected by the First Amendment. Just because they spoke (in a limited commercial sense) doesn’t mean they have, or were intended to have, the full panoply of First Amendment protections that were given to citizens.

    Um, printing presses weren’t found in nature, either. Indeed in nature you didn’t find guns, houses, papers… Sheesh.

    Correct. But those things spring from natural individual rights — the right of expression, the right to self-defense, the right to privacy, etc.

    Um, yes you did. Your words… Unless you are so incompetent that you don’t know what expressio unius means.

    Yeah, you need to stop using “expressio unuis” until you understand what it means. First of all, it is “an aid to [statutory] construction, not a rule of law. It can never override clear and contrary evidences of Congressional intent.” Neuberger v. Commissioner, 311 U.S. 83, 88 (1940)

    So when you you use on MY words (which aren’t statutes) in order to put words in my mouth, you’re demonstrating a lack of understanding about expressio unuis, as well as being an intellectually dishonest and somewhat desparate debater.

    Nice try, though.

    You know that is wrong, so you go, “look! This person agrees with me!”

    I’m not saying the FRC agrees with me. I’m saying that the Founders and Aristotle and Thomas Aquinas and Abraham Lincoln and Martin Luther King agree with me. Not to mention John Locke (not the guy from LOST).

    Well, in case you missed it, that is emphatically not how to read the constitution—that all powers not denied are granted, etc

    *Facepalm* I don’t think you understand the difference between “powers” and “rights”, which is basic law school stuff. Corporations do not have rights; therefore, it is possible that the federal government can “censor” them (assuming, it goes without saying, that they have some Article 1, Section 8 power) which trumps state power.

    And notice you ignore completely the implication of that argument—that you can ban speech by the states.

    Because I ignored the absurdity of the notion that states speak. In the constitutional sense, they don’t.

    So in your opinion this thing, the institutional press, did not exist in 1789.

    Right. And despite numerous requests, you haven’t laid out one shred of evidence that it did exist. Or that there was an incorporated newspaper at all in the 18th century. You just throw out things as being true, without any substantiation.

    So you are saying that the first amendment DOES discriminate in favor of a thing that according to you didn’t exist at the time?

    Wow. Nice try. When written, it was not intended to discriminate in any way FOR or AGAINST the institutional press, because the institutional press did not exist.

    ME: That’s not what I am saying. I’m saying that the FIRST AMENDMENT didn’t protect corporations from federal censorship. But notions of federalism and limited federal powers, as they existed at the time, still could have prevented the federal government from censoring corporations. It depends on the situation.

    YOU: Lol, then what else does protect them.

    I just said. Read much?

    And while you are at it, do name the portion of the constitution that grants the power of censorship to the Federal Government…

    Why? Did I say such thing existed? Ever?

    Kman (5576bf)

  274. Comment by daleyrocks — 12/2/2011 @ 11:43 am

    r incorporation are you suggesting because of that mere artifice I have lost my ability to petition the government and place issue advertisements and write letters under my business name?

    Does that make any freaking sense?

    Well, don’t think he really knows what he is talking about (he;s probably repeating sometrhing he saw somewhere else) but there can be limitations on the use of money

    It could make a little sense if the rule was you’d have to withdraw the money from the corporation first. Now normally there are no such restrtictions on corporations, but if there
    were it would be in corporation law.

    In fact, nowadays, some corporations are restricted from advocacy under tax law. That is, people donating to them lose their charitable deductions for that donation if the non profit exceeds some ill defined boundary.

    There is actually no restriction on the non profit, only consequences.

    Sammy Finkelman (d3daeb)

  275. First of all JBS corporations are run by people so they deserve free speech IMO.

    Dohbiden (ef98f0)

  276. Or to put it more simply, any rights a corporate entity has either derives from the rights of its stockholders, or is specifically granted to it by the government which created it.
    – So, if the stockholders grant the “corporate entity” the right of free speech it can then say whatever it wants? Woo-hoo!

    Fox News and the New York Times have no freedom of expression independent of the freedom of expression which is the right of the individuals who own and work at Fox News and the New York Times.
    – Certainly you thought the above to be very profound when you wrote it. Now, explain it. Should FOX be banned from saying “fair & balanced”? Does the NYT need to remove “all the news that’s fit to print” from their masthead? Should the employees take a secret ballot to give approval to any and everything the corporation wishes to say? Or should the corporation just shut up and sit in the corner until called upon by its government master?

    Icy (3493f7)

  277. Dustin:

    Political speech is sacred, comes from people, and shouldn’t be infringed just because of abstractions like ‘it came from executives who do not always perfectly represent the shareholders so they aren’t people anymore’.

    I don’t believe in the infringement of political speech either.

    But tell me why executives should get a bigger microphone than any other individual? A microphone so big, in fact, that it has the potential to drown out the voices of the individual?

    In a capitalist system, there will always be haves and have-nots. Everyone tacitly understands that. But do we want that in our political system as well?

    Just asking…

    Kman (5576bf)

  278. JBS in #234:
    It’s the people who write in its pages and who own its printing presses who can’t be told to shut up.
    – IOW, the workers, not the bosses. Solidarity, brother!

    I know of no instance of a newspaper being owned by a corporation, as opposed to a sole proprietor or a partnership, prior to 1820. You are implying that you know of at least one such case. Can you give me the details?
    – But what about Lady Gaga, Mr Stengel? Think of the children!

    Icy (3493f7)

  279. Kman

    > Well, I don’t concede that they’re protected by the First Amendment.

    Whether you realize it or not, you did.

    > Correct. But those things spring from natural individual rights — the right of expression, the right to self-defense, the right to privacy, etc.

    So you have just admitted that your proffered distinction doesn’t actually work, but you are too small to admit it.

    > Yeah, you need to stop using “expressio unuis” until you understand what it means. First of all, it is “an aid to [statutory] construction, not a rule of law. It can never override clear and contrary evidences of Congressional intent.” Neuberger v. Commissioner, 311 U.S. 83, 88 (1940)

    Um, that court didn’t imply that it was wrong to use it outside of statutes, you pinhead.

    > I’m saying that the Founders and Aristotle and Thomas Aquinas

    Pay attention. We are talking about the meaning of the bill of rights, a legal document. Aristotle has no opinion on the subject or on HD-DVD v. Blu ray. I didn’t deny that natural rights existed. I denied that they were the basis of each and every one of the bill of rights—your assertion. Aristotle cannot possible support your assertion.

    > *Facepalm* I don’t think you understand the difference between “powers” and “rights”, which is basic law school stuff. Corporations do not have rights;

    Well, its funny because for well over a hundred years the courts have said exactly that—such as the free speech rights of corporations. Indeed the judge in this case spoke of RJ Reynolds et al as having “rights” so I guess they didn’t get that kind of basic law school stuff, too. Its always hilarious when you convince yourself you are smarter than me, only to make yourself look like a fool.

    > Because I ignored the absurdity of the notion that states speak. In the constitutional sense, they don’t.

    So then the Federal Government could have prohibited Virginia and Kentucky from passing their resolutions?

    > And despite numerous requests, you haven’t laid out one shred of evidence that it did exist.

    Um, no you have not been requesting that, and I am not also going to prove that in 1789 that water was wet either. Things that are or should be common knowledge are not going to be proven because you are too dumb to know it.

    > Or that there was an incorporated newspaper at all in the 18th century.

    You don’t know that there was? Pathetic.

    > Wow. Nice try. When written, it was not intended to discriminate in any way FOR or AGAINST the institutional press, because the institutional press did not exist.

    Which is exactly what I said in part 4 of that syllogism. But again you are too small to admit it.

    > I just said. Read much?

    No, you didn’t. You never named one specific part of the constitution that you think protects them from censorship. So do it already. Because unless I am missing something I can’t think of it.

    > Why? Did I say such thing existed? Ever?

    What do you think you have been advocating this whole time?

    Aaron Worthing (b1db52)

  280. “In fact, nowadays, some corporations are restricted from advocacy under tax law. That is, people donating to them lose their charitable deductions for that donation if the non profit exceeds some ill defined boundary.”

    Sammy – Not sure which “he” you are referring to earlier in your comment.

    The IRS puts out regulations with numerous examples for corporations organizing themselves under the various categories of not-for-profit organizations. Permitted and prohibited activities are spelled out. Loss of federal not-for-profit status is certainly a consequence for engaging in prohibited activity, but not all not-for-profit organizations are established to accept charitable contributions.

    The assertion made by some commenters in the thread was that the First Amendment did not apply to Corporations since they were artificial persons and that the Bill of Rights was only intended to apply to natural or God-given rights.

    It has since been pointed out that some of the Bill of Rights clearly apply not just to individuals.

    It has also been pointed out that unions are typically organized as not-for-profit corporations, trusts or associations and have not faced the same restrictions on their political activities as the RJR’s of the world, although the IRC would restrict them to issue advocacy to maintain their not-for-profit status.

    daleyrocks (bf33e9)

  281. Comment by daleyrocks — 12/2/2011 @ 11:43 am

    The not very simple answer is, it depends on what the corporate charter and the state statutes regarding corporations said at the time.

    It all starts with something everyone here except Kman is familiar with–the doctrine of enumerated powers.

    Charter[Articles of Incorporation in modern terminology]is to Corporation as Constitution is to United States Government.

    You might say that the Constitution is the corporate charter of the USG.

    Just like the USG can exercise a power only if it’s mentioned in the Constitution, a corporation can only exercise a power if that power is mentioned in its charter or if the statutes of the state in which it is incorporated give that power to corporations in general. Without those specific grants of authority, the action can be null and void. The law-Latin term is ultra vires.

    So say you have a corporation whose charter does not enumerate “X” as one of its powers, and which is incorporated in a state whose general statutes don’t give that power “X” to corporations. If the government tells the corporation not to do “X”, then no one can complain. The rights of the stockholders are not infringed because the power never existed in the first place. If the corporation was not granted the power to advocate politically, then the stockholders lose nothing by being told they can not advocate politically.
    Their rights to express themselves and their rights to associate for a political purpose were not infringed, because the right to do so through that particular corporation never existed in the first place.

    And they can not pass on to the corporation their own rights of expression. The corporation can’t exercise the shareholders rights on their behalf. Either the corporation was granted that power or it wasn’t at the very start, in the act of incorporation.

    If, however, the power was mentioned in the charter or the state statutes,then the corporation can exercise that power because to stop it would be a breach of the stockholders’ rights.

    I suspect that in modern times at least, the power to politically advocate is (usually by implication from other powers) par for the course for corporate charters and state statutes on the topic of corporation, but it is at least technically possibly that they don’t. At the very least, it’s not an automatic thing. But that’s why the status of corporations as artificial creations of law, in contrast to people as natural beings, is important.

    And, of course, in answer to your hypothetical businessman of 1790, his right of expression, etc remains unimpeded . It would only be a question of deciding if he could do it under the name of the corporation or under his own name as an individual.

    JBS (9ee373)

  282. “Corporations do not have rights; therefore, it is possible that the federal government can “censor” them (assuming, it goes without saying, that they have some Article 1, Section 8 power) which trumps state power.”

    This is some pretty nifty thinking. To hell with property rights, contract rights, the right to trials, etc.

    “Right. And despite numerous requests, you haven’t laid out one shred of evidence that it did exist. Or that there was an incorporated newspaper at all in the 18th century. You just throw out things as being true, without any substantiation.”

    More nifty thinking. Kman has not provided any evidence for his assertion that an institutional press did not exist, that newspapers in existence, such as the Hartford Courant, were not corporations, so his argument is an assertion for others to disprove. In any event it is irrelevant to the debate, just more goal post moving on his part. Corporations existed at the time of Revolution. Their rights were not abrogated during the Revolution.

    daleyrocks (bf33e9)

  283. We consider it battery when someone with AIDS has unprotected sex with a partner without telling them of the condition. That’s compelling the provision of information, but it points pretty hard in one direction. Advocacy?

    No, just disclosure. But we cannot require an HIV-positive person to show each prospective partner a safe sex movie, or take him on a tour of an AIDS ward. Once he has disclosed his status and the other person has understood and accepted the risk, no more can be expected.

    Milhouse (ea66e3)

  284. It’s what you have been saying, or not saying, for the duration of this thread: it’s okay for the workers to speak out; not okay for the “bosses” to do the same.

    Icy, if you insist on putting words in my mouth, please ensure they resemble stuff I’m actually saying.

    Let’s break it down:
    The stockholders, executives, directors, and officers of Fox News can express themselves however they want. That’s their God given right.
    The employees of Fox News can express themselves however they want, subject only to whatever restrictions Fox News puts in the employment contract. That’s their God-given right.
    Fox News, the corporation, has no God-given right. It only has the right to do things enumerated in its charter or the statutes of the state of its incorporation. If the right is not enumerated there, it can’t do it, either in its own right or as agent of the stockholders, officers, etc.

    JBS (9ee373)

  285. “And, of course, in answer to your hypothetical businessman of 1790, his right of expression, etc remains unimpeded . It would only be a question of deciding if he could do it under the name of the corporation or under his own name as an individual.”

    JBS – Ignoring all the blather about a corporation’s charter, we are talking about the Federal Government’s ability to restrict activities of corporations.

    Implicit in my hypothetical was the corporation’s ability to undertake those activities pursuant to it’s charter.

    I will take your answer: “And, of course, in answer to your hypothetical businessman of 1790, his right of expression, etc remains unimpeded .”
    to mean that you now agree the First Amendment applies to corporations.

    daleyrocks (bf33e9)

  286. Kman in #245:
    Corporations “spoke” in 1789, but only because we created them and allowed them to do so. But they don’t naturally speak, because they do not exist in nature.
    – Exactly what is it that they might say that makes you so afraid?

    No, I conceded that people used the press to opine on elections at the time of the founding. You’re the one who keeps equating “the press” with “corporations” which is a silly equivalency in ANY era, but especially THAT one.
    – I agree! Corporations should be punished for, A) not being around at the time of the founding [except for that tobacco company (still in existence today) that was placing newspaper ads the same year that the Bill of Rights was written; an aberration, to be sure], and, B) not knowing their place in a free society.

    By the way, I could make a solid argument that a flower expresses something when it blooms, or that a dog expresses something when it barks at a stranger. Are those expressions protected by the First Amendment?
    – Kman is like the Bizarro World version of Chuck Heston:
    “Corporations — is NOT — people!!!”

    Kman in #276:
    Well, I don’t concede that they’re protected by the First Amendment. Just because they spoke (in a limited commercial sense) doesn’t mean they have, or were intended to have, the full panoply of First Amendment protections that were given to citizens.
    – And to the best of my knowledge no one here (except for maybe Ron Paul . . . is he here? and if he was, would he know it?) is saying that they have the “full panoply”. Now, answer the question: Why do YOU think that they should have nearly no First Amendment protection at all?

    Icy (3493f7)

  287. Does “artificial entities” include marriages?

    No. for one thing, there is no entity created which can act in any way on its own. Husband and/or wife must act. For another, marriages can exist even if the law does not recognize them (most obviously, what used to be called “living in sin” when you and I were growing up). The legal recognition of a marriage gives certain rights and responsibilities to husband and wife, but absent the legal recognition the marriage would still be there.

    Do YOU personally think that it’s okay for the government to stifle the speech of corporations? And if so, why? (Note: I am deliberately challenging you to step outside the box of “the government has the right to do it” and to opine on whether or not you think it is the right thing for the government to do.)

    I’m of two minds on the matter. I don’t think it is okay. But I also keep in mind that the concentration of money is what corrupts the political process and the integrity of our political system.

    I’ll throw a hypothetical back at you.
    Suppose Warren Buffet uses the money of Berkshire Hathaway to buy all the TV advertising time and all the billboards in some swing state like Ohio or Florida, and use them on Obama’s behalf, so that only Obama’s message gets out and the GOP candidate’s access to those avenues of advertising is blocked in a very legal manner.
    Based on what you’ve said, I believe you would say that the GOP candidate would just have to suck up and deal with it as best as he can. Am I correct in thinking that would be your answer?

    JBS (9ee373)

  288. A corporation is an artificial entity existing through an act of law (incorporation) and can have only such powers as the law grants to it. And what the law grants the law can take away. It is owned by the shareholders, but it is not the collection of shareholders acting together.

    Except that it really is exactly that. As a matter of convenience the law pretends it is not. As Marshall said in the long excerpt Aaron posted, a corporation is essentially a time-saving abstraction; much like a function call in a high-level programming language, which stands for a lot of assembly-language stuff that we no longer have to bother with. But it’s all a pretense; a legal fiction. The underlying reality is that a corporation is its members.

    Milhouse (ea66e3)

  289. to mean that you now agree the First Amendment applies to corporations.

    I’m not. I was simply referring to the fact that the individual rights of the business owner to express himself remain unimpeded no matter what the answer regarding the corporation might be.

    And don’t dismiss the “blather” so lightly: what I said in that “blather” is the heart of the whole problem.

    JBS (9ee373)

  290. Comment by Milhouse — 12/2/2011 @ 1:15 pm

    Let’s just say that, although Marshall might be the most important judge in US history, there were some things he was wrong about.

    JBS (9ee373)

  291. Kman in #276:
    Because I ignored the absurdity of the notion that states speak. In the constitutional sense, they don’t.
    – Paging Mr Holder. Your second chair for The United States vs The State of Arizona has arrived!

    Icy (3493f7)

  292. Whether you realize it or not, you did.

    ***

    So you have just admitted that your proffered distinction doesn’t actually work, but you are too small to admit it.

    Hey, declare victory by putting words in my mouth. If that’s what you need to do, be my guest.

    Um, that court didn’t imply that it was wrong to use it [expressio unuis] outside of statutes, you pinhead.

    Other courts recognize its feebleness in any context (a good list is here)

    I denied that they were the basis of each and every one of the bill of rights—your assertion.

    I never said “each and every one”.

    Yeah, yeah, I know. Because I didn’t specify which amendments within the Bill of Rights, I must have meant all of then. Once again, the expressio unuis fallacy knocks you on your ass again, and renders you a dishonest debater.

    So then the Federal Government could have prohibited Virginia and Kentucky from passing their resolutions?

    Wow, you like to get far adrift. The Virginia and Kentucky resolutions, and the issue of whether or not the federal government could have prohibited their passage, has no bearing on the First Amendment.

    Things that are or should be common knowledge are not going to be proven because you are too dumb to know it.

    Well, you’ve got people here (besides me) noting that no newspaper was incorporated until 1810, that “the press” in the late 18th century consisted of sole proprietorships publishing pamphlets, that the first newspaper advertisement didn’t appear until 1789, etc. So the burden seems to be on you to either (1) clarify what you mean by “institutionalized press” (as distinguished from merely “the press”) or (2) come up with some link which supports the “common knowledge” that the institutionalized press was in existence in 1789 (which shouldn’t be too hard if it’s “common knowledge”).

    Or we can just assume that the so-called “common knowledge” comes from… thin air.

    ME: Or that there was an incorporated newspaper at all in the 18th century.

    YOU: You don’t know that there was? Pathetic.

    Ok. So tell me the name of the newspaper incorporated in the 18th century.

    You never named one specific part of the constitution that you think protects them from censorship.

    Again, there is nothing explicit in the Constitution that specifically protects corporations from censorship. Why not? Because there is nothing in the Constitution that explicitly pertains to, or protects, corporations. (Courts have chosen to grant certain First Amendment protections to corporations over the past 220 years — for example, in the areas of commercial speech — but there is nothing specific in the Constitution which mandates that we must).

    But even in the absence of First Amendment protections, a corporation may CONCEIVABLY be protected from a SPECIFIC federal government attempt to censor it IF the federal government’s action is violating some OTHER aspect of the Constitution — say, going beyond its Article I powers. But you would have to give me a specific example of why the federal government is attempting to censor a corporation.

    What part of that don’t you understand?

    What do you think you have been advocating this whole time?

    That the First Amendment was not intended to apply to corporations. That’s all I have been advocating; everything else has been you running off into the tall weeds. This has nothing to do with whether or not the federal government has the power to censor. Again, if you understood the basic difference between “rights protected” under the Constitution and “powers conferred” under the Constitution, you probably wouldn’t blur the distinction so easily in your head.

    Kman (5576bf)

  293. JBS in #283:
    Their rights to express themselves and their rights to associate for a political purpose were not infringed, because the right to do so through that particular corporation never existed in the first place.
    – Yes it did! The First Amendment prohibits Congress from abridging the rights to speak and to peaceably assemble; it DOES NOT define who can speak and who can peaceably assemble.

    Icy (3493f7)

  294. JBS, I was born in the 60′s and grew up in the 70′s. Everybody was living in sin back then.

    Icy (3493f7)

  295. The First Amendment prohibits Congress from abridging the rights to speak and to peaceably assemble; it DOES NOT define who can speak and who can peaceably assemble.

    So herds of bleating sheep are protected by the First Amendment. Good to know.

    Kman (5576bf)

  296. “The underlying reality is that a corporation is its members.”

    It’s a business association, and in that it is much more than its members. There are various forms of business associations, but no constitutional right to have any one of them exist in their current form. For example, congress could pass a law that did away with limited liability for shareholders if a certain percentage of the corporate business was spent on electioneering. Likewise it could pass a law that certain corporate activities — say, influencing a political campaign — require approval by shareholder vote, not the actions of managers. People can get together for the purposes of political speech, but there’s not really a reason why the corporate form has to accomodate that. They can pass the money around on their own.

    salk (613d30)

  297. it DOES NOT define who can speak and who can peaceably assemble.

    well, at least we sort of agree on something.

    Sort of agree.

    Correct–Congress can not define who can speak, etc.

    But the corporate charter and the statutes of the state of incorporation can say whether the corporation can express the views of its shareholders.

    Before arguing over whether Congress can keep you from travelling to Mars, first you have to figure if you can get to Mars in the first place.

    JBS (9ee373)

  298. “And don’t dismiss the “blather” so lightly: what I said in that “blather” is the heart of the whole problem.”

    JBS – No it isn’t. We’re talking about the constitution, not articles of incorporation or state charters. All you are doing is introducing red herrings into the discussion. Any decent lawyer will have catch all paragraphs enabling officers and directors of a corporation to take any and all generalized activities necessary to achieve its objectives within its charter or articles.

    All you are doing is muddying the water and avoiding the questions raised about the federal government’s ability to restrict private activity.

    daleyrocks (bf33e9)

  299. “I’m not. I was simply referring to the fact that the individual rights of the business owner to express himself remain unimpeded no matter what the answer regarding the corporation might be.”

    JBS – Then what is your answer with respect to the corporation assuming the activity is permitted under its charter.

    I understand you don’t want to restrict speech, but restricting it for some because of a concern over concentrations of money which can fluctuate over time does not seem like a very principled stand.

    daleyrocks (bf33e9)

  300. Then what is your answer with respect to the corporation assuming the activity is permitted under its charter

    That the government can not interfere.

    But I’m reaching the conclusion using a different route than you are (I think). We’re getting the same result, but using a different way of analyzing the problem to get to the result. And because of that difference, the result I reach isn’t so absolute as the one you reach.

    You think it’s forbidden by the First Amendment.

    I think it’s forbidden by the part of the Constitution that forbids interference with contract. If Congress restricts the corporation’s political activities, then it is interfering with the property right of the shareholders–the right to use their property in accordance with the contract (the corporate charter).

    Which is why the “blather” is important. If the contract doesn’t give the shareholders the right to use the corporation for political advocacy, then Congress could forbid such activity without interfering with their contractual rights.

    JBS (33a0bd)

  301. Kman

    > Hey, declare victory by putting words in my mouth.

    No, by recognizing what your words actually mean.

    > [me] I denied that they were the basis of each and every one of the bill of rights—your assertion.

    > [you] I never said “each and every one”.

    Liar:

    > [you] The Constitution does not grant rights, but merely protects rights that we consider to be “God-given” (or “natural” if you prefer that term.

    > [me] See, that is you major move, to pretend every single right protected in the constitution is God-given and then to pretend it is absurd to pretend that corporations are entitled to them, too.

    > [you] Well, actually, I meant the Bill of Rights, not the Consittution (you would have discerned this is you read everything I wrote rather than cherry-pick one sentence out of context).

    Going on:

    The Virginia and Kentucky resolutions, and the issue of whether or not the federal government could have prohibited their passage, has no bearing on the First Amendment.

    Why not? They were exercising freedom of the press and expression generally.

    > Ok. So tell me the name of the newspaper incorporated in the 18th century.

    Why? You already conceded this point.

    > Again, there is nothing explicit in the Constitution that specifically protects corporations from censorship. Why not? Because there is nothing in the Constitution that explicitly pertains to, or protects, corporations. (Courts have chosen to grant certain First Amendment protections to corporations over the past 220 years — for example, in the areas of commercial speech — but there is nothing specific in the Constitution which mandates that we must).

    So in other words, they are not protected from censorship. So, tomorrow the NYT can be commanded to published only articles supportive of the government.

    I guess then it would make the hysterical talk about the dangers of corporations correct—they are a danger to the republic, because they can be so easily commandeered by the government.

    > That the First Amendment was not intended to apply to corporations.

    And the result is censorship. Or is this like that time on south park where one of the boys asks his father: “isn’t that fasism?”

    “No.”

    “Why not?”

    “Because we don’t call it fascism.”

    So its not censorship you are advocating because you don’t call it that, not because there is any substantive difference between what you are advocating and censorship.

    Aaron Worthing (e7d72e)

  302. If the contract doesn’t give the shareholders the right to use the corporation for political advocacy, then Congress could forbid such activity without interfering with their contractual rights.

    If the contract is silent, wouldn’t it be prudent to assume that a group of people can express their voice?

    If you would afford 4th Amendment protection based on the property being owned by the shareholders, why would you not allow the same shareholders to own their collective voice?

    JD (0388c1)

  303. “If the contract doesn’t give the shareholders the right to use the corporation for political advocacy, then Congress could forbid such activity without interfering with their contractual rights.”

    JBS – Thanks for explaining your point about what I called “blather”. I submit for most modern corporations it is a nonissue because of what I described in #301. I can understand it being an issue for limited duration, limited purpose corporations, but you would have to show me examples to convince me general purpose business corporations commonly prohibited political activities or were required by states to exclude such activities in their charters.

    JD raises an interesting point in #305. Since you have stated you believe corporations are protected from unreasonable search and seizure because the property is ultimately owned by individual shareholders, why would you not feel the same way about corporate speech rather than fumbling around with a contract law approach?

    daleyrocks (bf33e9)

  304. Your wrong IMO.

    Dohbiden (ef98f0)

  305. So what JBS you have a different conclusion than us.

    That Is free speech.

    DohBiden (ef98f0)

  306. If the contract is silent, wouldn’t it be prudent to assume that a group of people can express their voice?

    Remember that we are dealing with enumerated powers here. Therefore the prudential approach is to assume that if the contract is silent, the people who drew up the contract did not want the people to express their voice. Just as under the Constitution, we should assume that if the Constitution does not mention a power as belonging to the government, it intended the government not to have that power.

    why would you not allow the same shareholders to own their collective voice?
    why would you not feel the same way about corporate speech rather than fumbling around with a contract law approach

    First you have to establish that the collective voice exists. Only then can you talk about who owns it.

    I submit for most modern corporations it is a nonissue because of what I described in #301.

    And you would probably be correct. But it’s not an automatic thing, and I’m fairly certain that there were cases in early modern times (meaning before 1800) which would be good examples.

    There is one further wrinkle to my approach: it means that while Congress can not limit the political activities of any currently existing corporation, it could enact a law which restricted the activities of corporations incorporated after a set future date–eg, pass a law in 2012 that would restrict any entity incorporated on or after 1 January 2013–because such a law would not interfere with any existing contract–that is, with any corporation existing at the time of the law’s passage.

    JBS (cc1ec4)

  307. We just approach this differently. My approach assumes “speech” as the default. Yours assumes “not speech”. Off to the gym and pool.

    JD (0388c1)

  308. “Enumerated powers” are things that the Constitution specifies are within the purview of the Federal Government.
    Nowhere in that list will you find the abrogation of contract, or the suppression of speech, absent the due process of law.
    That is the whole point of the Bill of Rights, to tie the hands of government when it comes to the Natural Rights of The People.

    AD-RtR/OS! (4046c5)

  309. Natural rights you say.

    Like abortion?

    Spartacvs (25ba40)

  310. Ha, sporty comes along to stir everything up again.

    Good sporty.

    Here’s a treat, then you can go away:

    If abortion is a natural right, but it’s not mentioned in the Constitution, would it be OK for the states to decide its legality rather than by federal judicial fiat?

    You really don’t have to answer that. When the Constitution can be interpreted any way you want to fit whatever current leftist thought is fashionable, it doesn’t matter.

    Kind of like, well, you.

    Ag80 (ec45d6)

  311. “Just as under the Constitution, we should assume that if the Constitution does not mention a power as belonging to the government, it intended the government not to have that power.”

    JBS – That has been part of the argument here all along. Here’s the text of the First Amendment:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    I see no qualifiers in there about making no law abridging individual speech as opposed to corporate speech or individual press as opposed to corporate press. You get the picture.

    No qualifiers in there as to whose speech Congress may not abridge. Therefore under your logic and mine, the default assumption must be nobody’s.

    daleyrocks (bf33e9)

  312. I will not vote for Gingrich because he is a RINO not because of what he said about the OWS.

    By the way defend Obama’s gaffes while calling Palin an idiot lefties.

    DohBiden (ef98f0)

  313. So herds of bleating sheep are protected by the First Amendment. Good to know.
    Comment by Kman — 12/2/2011 @ 1:44 pm

    – It IS comforting to know that they were thinking of you, isn’t it?

    [BTW, nice characterization of corporations as "herds of bleating sheep". Can't imagine why people here ever accuse you of ad hom attacks.]

    Icy (3493f7)

  314. So kmart keeps trying to turn people into trees, and now sheep. But actual people, well, just shut up.

    JD (318f81)

  315. Natural rights you say.
    Like abortion?

    Comment by Spartacvs — 12/2/2011 @ 6:29 pm

    – Nothing more “natural” than sucking out the brains of an innocent fetus and then yanking out the carcass with forceps.

    Icy (2d3e08)

  316. (1) The First Amendment guarantees freedom of the press.
    (2) The New York Times is “press”.
    (3) The New York Times is also a corporation.
    (4) Therefore, ALL corporations are protected by the First Amendment.

    No, the NYT is not “press”, any more than a hawker crying his wares is “speech”, or the Catholic Church is “religion”. The NYT uses a press (in fact thousands of presses) and the first amendment protects its right to do so; the street vendor uses speech (i.e. his vocal cords) and the first amendment protects his right to do so; the Church teaches religion and the first amendment protects its right to do so. The NYT and the RC Church are corporations, one chartered by the State of New York, the other (or so it claims) by Jesus. The vendor may be in his own employ, or he too may be the agent of a corporation such as Mister Softee. If the NYT and the RCC, despite being corporations, are protected by the first amendment, then so are all corporations. There is no way to distinguish them.

    Milhouse (ea66e3)

  317. Daley, they are not making that argument. They’re claiming that Corporation X has rights totally independent of the rights of its owners (the stockholders). I disagree with that.

    If people are arguing that Corporation X’s rights derive from its owners’ rights, then I agree with them. But they don’t seem to be arguing that (or at least, they don’t seem to understand what the difference between the two ideas is.)

    Then I think you’re arguing with a strawman. I understand the distinction you’re making, and I assume that those who argue as I do also understand it, but I don’t think it’s a real distinction, because I think everyone understands that underneath the legal fiction that a corporation is a separate person lies the reality that a corporation is all of its shareholders considered as a single person.

    A few posts before this you recognised that the government can’t just confiscate the property of a corporation, because ultimately that property belongs to the shareholders. On the surface of the law, though, it doesn’t. If I own one share of a company, do I own a tiny fraction of each chair in its headquarters? Or do I own one chair out of all the thousands that it owns? The legal answer is, neither. I don’t, as a matter of formal law, own any of the company’s property. But in reality I do, as you recognised; if the government were to take all the company’s property I, as a shareholder, would have standing to sue, because under the hood that’s my property.

    And that’s because a corporation is an abstraction, a convenient way of referring to all of its shareholders. All of the purposes of a corporation could be achieved without a law of corporations, by means of a series of cumbersome instruments that would have to be executed on a daily basis. But the transaction costs would be so high that they would eat up a substantial part of the business’s profit, or perhaps even all of it. So the law saves us all that wasted effort by providing us with a convenient method of achieving our goal.

    Consider for another example, marriage. Most (though not all) of the benefits of marriage can be achieved in other ways. This is an argument made against the institution of same-sex marriage: if you really want to do it, you can set things up with your partner so that you have most of what married people have. The main argument for marriage is that it’s much more convenient; you sign one piece of paper and all these changes go into effect automatically. Corporations are much the same. You register your company and sell shares, and everything happens under the hood.

    Milhouse (ea66e3)

  318. SF, there are many documented cases in the med books of people dying of lung cancer who never smoked tobacco,
    and were not in relationships with smokers (2nd-hand smoke);

    Lung cancer existed in the Old World before Raleigh brought tobacco back from the New World.

    Milhouse (ea66e3)

  319. I mean its like saying the founders of the original constitution preferred Betamax to VHS.

    After all, the only videotape of the creation of the universe is on Betamax.

    Milhouse (ea66e3)

  320. – Nothing more “natural” than sucking out the brains of an innocent fetus and then yanking out the carcass with forceps.

    Comment by Icy — 12/3/2011 @ 1:05 am

    For someone to claim murder is a natural right basically proves they are a troll, which of course, that one has never really pretended to be anything but.

    Dustin (cb3719)

  321. But tell me why executives should get a bigger microphone than any other individual? A microphone so big, in fact, that it has the potential to drown out the voices of the individual?

    Because they can afford it. What about an individual who can afford a really big microphone? Are you OK with him buying one and using it? Then why should several people with less money not band together to buy a bigger one?

    In a capitalist system, there will always be haves and have-nots. Everyone tacitly understands that. But do we want that in our political system as well?

    In a political system there will also always be haves and have-nots. Some people were born with louder voices, or more charisma. Some are pleasant to look at, so people may more attention to their words. Some can write beautiful songs that express what they have to say, and that can become popular and spread their message far and wide. Should the rest of us, who have no such natural advantages, just accept the situation and shut up? Or shall we pool our money and compete with them? If I have a soft voice, why should I not hire someone with a loud one to speak for me? Is that not every bit as much my right as it is to speak for myself?

    Milhouse (ea66e3)

  322. Suppose Warren Buffet uses the money of Berkshire Hathaway to buy all the TV advertising time and all the billboards in some swing state like Ohio or Florida, and use them on Obama’s behalf, so that only Obama’s message gets out and the GOP candidate’s access to those avenues of advertising is blocked in a very legal manner.
    Based on what you’ve said, I believe you would say that the GOP candidate would just have to suck up and deal with it as best as he can. Am I correct in thinking that would be your answer?

    What’s preventing more supply from being created to meet the increased demand? If it’s the market (there just aren’t people interested in watching any more TV programs, or people driving down roads that haven’t been completely lined with billboards) then yes, that’s exactly what he would have to do. If it’s government that artificially restricts the supply, then those restrictions should be lifted (and should have been long before this happened).

    Milhouse (ea66e3)

  323. congress could pass a law that did away with limited liability for shareholders if a certain percentage of the corporate business was spent on electioneering. Likewise it could pass a law that certain corporate activities — say, influencing a political campaign — require approval by shareholder vote, not the actions of managers.

    It certainly could. And your point is?

    Milhouse (ea66e3)

  324. [BTW, nice characterization of corporations as "herds of bleating sheep". Can't imagine why people here ever accuse you of ad hom attacks.]

    Um, no. How on earth did you see that as a characterization of corporations? Just because it’s Kman doesn’t mean you can just read things into his words that clearly aren’t there.

    Milhouse (ea66e3)

  325. So kmart keeps trying to turn people into trees, and now sheep.

    No, he’s distinguishing between people and non-people, such as trees and sheep.

    Milhouse (ea66e3)

  326. And yes democraps accusing Israelis of hating america because of their stupid video.

    Irony much?

    Dohbiden (ef98f0)

  327. ongress could pass a law that did away with limited liability for shareholders if a certain percentage of the corporate business was spent on electioneering. Likewise it could pass a law that certain corporate activities — say, influencing a political campaign — require approval by shareholder vote, not the actions of managers.

    Things like that are sort of like Senator Chalers Schumer’s idea, but the basis would not be limitations on liability, because most corporations are organized under state law, and there are 50 different states. Plus the District of Columbia, Guam, Virgin Islands, Puerto Rico, American Samoa, Northern Marianas and maybe foreign corporations, which makes 57. Maybe there are a few more varieties.

    Schumer’s idea would relate to interstate commerce and public corporatios that have to register with the SEC..

    Sammy Finkelman (54094c)

  328. Me: BTW, nice characterization of corporations as “herds of bleating sheep”. Can’t imagine why people here ever accuse you of ad hom attacks.

    Um, no. How on earth did you see that as a characterization of corporations? Just because it’s Kman doesn’t mean you can just read things into his words that clearly aren’t there.
    Comment by Milhouse — 12/3/2011 @ 8:14 pm

    – It was a joke, sir. Kman wrote “So herds of bleating sheep are protected by the First Amendment. Good to know.” I know (and knew at the time) that he was literally referring to “bleating sheep”; I brought up corporations just to keep the discussion on-message. However, my maxim is “if you have to explain a joke then it probably isn’t all that funny,” so . . . point, Milhouse.

    Icy (7e0657)

  329. Yes, if it was a joke it went right by me. Maybe if it had been someone other than Kman I might have got it, but this is Kman, who is wrong and outrageous so often that swatting him could easily become an automatic response, so it wasn’t clear to me that that hadn’t happened.

    Milhouse (ea66e3)


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