What Does It Take To Be A Professor At Penn And To Get An Opinion Published In USA Today?

Politics & Current Events

Answer: apparently it takes . . . words fail me. It takes a level of aggressive vapidity and idiocy that . . . words are failing me again. Let me explain. No, there is too much. Let me sum up.

Anthea Butler is an associate professor of religious studies at Penn. Yesterday she called for the arrest of "Sam Bacile" — the "person" associated with the anti-Islam movie associated with violent riots in Libya and Egypt, whom I mentioned yesterday. I say "Sam Bacile" and "person" because it appears increasingly likely that "Sam Bacile" is a made-up persona, possibly of a convicted fraudster named Nakoula Basseley Nakoula. (Moreover, it's increasingly in doubt whether the worst violence in the embassy attacks was inspired by the film or just used the anti-film mobs as an opportunity to launch an assault.) Anyway, Prof. Butler called for his arrest on her Twitter account, then swiftly made her account private when criticized.

Good Morning. How soon is Sam Bacile going to be in jail folks? I need him to go now.When Americans die because you are stupid…

And people do to jail for speech. First Amendment doesn't cover EVERYTHING a PERSON says.—

Anyway, for reasons that passeth understanding, USA Today has now seen fit to run an opinion piece by Anthea Butler entitled "Why Sam Bacile deserves arrest." It's remarkable.

First — though this is a situation in which mobs are rioting, Americans have died, and the First Amendment rights of Americans are in question, Professor Butler chooses to frame the piece as being about the controversial nature of things she said on Twitter — things which she does not even specify or quote — and about her feelings justifying those tweets:

My initial tweet about Bacile, the person said to be responsible for the film mocking the prophet Mohammed, was not because I am against the First Amendment. My tweets reflected my exasperation that as a religion professor, it is difficult to teach the facts when movies such as Bacile's Innocence of Muslims are taken as both truth and propaganda, and used against innocent Americans.

Let me just say this: if a YouTube video produced by a convicted felon renders it difficult for you to teach kids smart enough to get into Penn about religion, then you might want to consider another profession that does not require communication skills.

Next up, this howler:

If there is anyone who values free speech, it is a tenured professor!

That unfortunate odor your smell is the result of everyone at The FIRE laughing themselves incontinent. In fact, American universities are at the forefront of stupid, stupid forms of censorship, as we frequently discuss here.

Next:

So why did I tweet that Bacile should be in jail? The "free speech" in Bacile's film is not about expressing a personal opinion about Islam. It denigrates the religion by depicting the faith's founder in several ludicrous and historically inaccurate scenes to incite and inflame viewers. Even the film's actors say they were duped.

A logic professor — excepting, perhaps, one at Penn — would give this an "F." The statement that the film "is not about expressing a personal opinion about Islam" does not flow from anything else Butler says. The opinion may be vile, and it may be expressed in a vile way intended to offend, but that does not make it less a personal opinion. Moreover, "is it a personal opinion?" is not the relevant First Amendment inquiry.

Bacile's movie is not the first to denigrate a religious figure, nor will it be the last. The Last Temptation of Christ was protested vigorously. The difference is that Bacile indirectly and inadvertently inflamed people half a world away, resulting in the deaths of U.S. Embassy [sic -- sentence trails off in original]

Here Butler undermines her own "case" — such as it is — for jailing "Bacile." As anyone with a nodding familiarity with the First Amendment would know, whether Bacile can conceivably be prosecuted for "incitement" or any such crime depends on his intent to do so and on the immediate connection between his acts and the resulting violence. The First Amendment only permits punishment of "incitement" that is intended to cause, and likely to cause, imminent lawless action. Action that is "indirect" and "inadvertent" cannot be actionable incitement. You'd think that a college professor, before she spoke, would . . . you know, never mind. Even I can't carry that off.

Unfortunately, people like Bacile and Terry Jones, the Florida pastor who provoked international controversy by burning copies of the Quran, have a tremendous impact on religious tolerance and U.S. foreign policy.

What does that mean? Are there people who were tolerant of other faiths, but stopped being tolerant after they saw a YouTube video? Is U.S. foreign policy being driven by YouTube videos?

Case in point: Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, called Jones on Wednesday to ask him to stop promoting Bacile's film. Clearly, the military considers the film a serious threat to national security. If the military takes it seriously, there should be consequences for putting American lives at risk.

I had to read that three times to make sure I hadn't gone nuts. An American college professor — one who just paragraphs earlier announced that college professors are self-evidently supporters of the First Amendment — just said that speech should be punished by the government if the United States military thinks it should be. Is this real life?

While the First Amendment right to free expression is important, it is also important to remember that other countries and cultures do not have to understand or respect our right.

This is a true statement — other countries don't have to adopt or respect our legal system. But what does that have to do with whether someone can or should be prosecuted in America?

In short, having tweeted demands that an American be arrested for producing a movie, Anthea Butler writes a column that is mostly about her, in which she promises but utterly fails to explain why the filmmaker should be arrested.

Remember, this is a university professor, and this is a column USA Today saw fit to publish online. YOU SPEND FIFTY GRAND A YEAR TO HAVE PEOPLE LIKE THIS TEACH YOUR CHILDREN. (Well, actually, you probably spend fifty grand a year to have them skip her class.)

God help us.

(Edit: hat tip to Austin and Michael.)

Last 5 posts by Ken White

100 Comments

97 Comments

  1. Gavin  •  Sep 13, 2012 @8:51 am

    This is a professor of Religious studies. I'm not saying my Religion degree wasn't hard, it was, but I didn't get into law until I started my other degree. Maybe a Religious Studies professor shouldn't try explain the secret ways that laws and policies are designed or how laws should be enforced.

    Is Sam Bacile a play on the word Imbecil?

  2. Ben  •  Sep 13, 2012 @8:51 am

    When more than half your income comes from "free" copies in hotels (http://www.forbes.com/sites/jeffbercovici/2011/08/02/how-usa-today-slips-82-million-a-year-onto-your-hotel-bill/) I guess you just don't care much about what you publish.

  3. adam  •  Sep 13, 2012 @8:59 am

    +1 for the princess bride line.

  4. Geeves  •  Sep 13, 2012 @9:09 am

    I'm curious about how the whole "incitement" thing actually works. Is it only if you tell x mob to go do y criminal act. Or would it extend to intentionally provoking a criminal response to something?

  5. Mike  •  Sep 13, 2012 @9:10 am

    Ken, you couldn't have returned at a better time! Thank you, as always, for your thoughful and entertaining beat down of this idiocy.

  6. Geeves  •  Sep 13, 2012 @9:12 am

    Just to clarify – I'm not American, not a lawyer and not advocating or defending a position with my previous comment, just curious how the law works in this case

  7. Caleb  •  Sep 13, 2012 @9:15 am
  8. En Passant  •  Sep 13, 2012 @9:16 am

    Mike wrote Sep 13, 2012 @9:10 am:

    Ken, you couldn't have returned at a better time!

    Second that. Looks like a target rich environment for a while.

  9. Lizard  •  Sep 13, 2012 @9:43 am

    While I'm not a lawyer, as a layman, I'd roughly define advocacy vs. incitement as follows:
    Advocacy: Writing in a book, web post, etc:"Islam is evil. It's not immoral to kill Muslims."
    Incitement: Screaming at a crowd:"Hey, there's a Muslim! Let's kill him!"

    If advocacy of criminal acts was illegal, you could not call for civil disobedience to protest something, for example. Nor could you write a passionate article about particular evils or injustices, because such an article could stir people up to do something that might be illegal.

    My experience has been that people like Ms. Butler don't ever have any actual overarching principles that they dispassionately apply to all cases. Any attempt to try to weasel such principles out of them is met with a squawk of "That's different!" or "False equivalency!". Give them a cracker, tell them they're a pretty bird, and move on.

  10. Ken  •  Sep 13, 2012 @9:51 am

    Watch for news of a reprint of this (minus the incontinence joke) elsewhere today.

  11. discretionary docket  •  Sep 13, 2012 @9:53 am

    Early contender for censorious asshat of the year! An early frontrunner!

  12. Ken  •  Sep 13, 2012 @10:00 am

    Reprinted, minus the most ranty part and the incontinence joke, at Salon:

    http://www.salon.com/2012/09/13/should_sam_bacile_be_jailed/

  13. Miranda  •  Sep 13, 2012 @10:06 am

    Yes! Ken is back – and with multiple posts! Awesome post. Your poking fun at professors reminds me of Shirley Jackson's mocking of her professor-husband in her books "Raising Demons" and "Among the Savages." Excellent work!

  14. Kelly  •  Sep 13, 2012 @10:40 am

    Hey Ken,

    As a Penn alum, I'm obviously embarrassed by this asshat being associated with my alma mater. There are a large number of fine, non-censorious professors at the University. This one seems to be of the same mindset as the various countries who are always trying to push the UN to pass a resolution defining any insult of religion to be a crime against humanity or some such nonsense.

    We want my son to go there in a few years, but if he wants to take Religious Studies he can pay his own tuition.

  15. adam  •  Sep 13, 2012 @10:44 am

    hey ken, i'm curious as to what you think about the alleged comment from gen. dempsey. do you think the US military has any standing in this regard?

  16. John Beaty  •  Sep 13, 2012 @10:48 am

    USA Today, the newspaper for the non-thinking set.

    Why would you read something that leaves you dumber than when you started?

  17. scott  •  Sep 13, 2012 @11:02 am

    No need to censor since once the chap's real name is known he's Jihad fodder for sure! I just discovered this blog and I love it – I was in the most PC social work program in human history and everything here rings true.

  18. B  •  Sep 13, 2012 @11:33 am

    FWIW, I always appreciate a good use of the term 'asshat'.

  19. Tarrou  •  Sep 13, 2012 @11:41 am

    Pretty low for the military to be involved. The good General should have been ashamed to make such a call. As to the good professor, what is new, a college instructor who can't reason her way out of a wet paper sack? Please, you can't throw an eraser in college without hitting an idiot. Maybe I'm just bitter……

  20. Lizard  •  Sep 13, 2012 @11:49 am

    @adam — I'm neither Ken nor a lawyer, but I can't imagine any situation where the military would have standing to force censorship of anything other than the fairly obvious case of troop movements, imminent military plans, security codes, yadda yadda. It's pretty much unthinkable that they would ever be able to say, "Don't state your opinion about X, because that could be bad.", and have that have any legal weight to enforce censorship. One could easily argue that a "Stop the war!" protest (any war) will embolden the enemy and raise their morale, and cause them to strike harder in the hopes of increasing opposition to the war. (Pretty sure I've read exactly such arguments from the usual suspects across decades of time…)

    A private citizen has a clear right to ask someone else to stop talking. (Ask, not command or force. Threaten boycotts, protest, whatever. That's how the game is played.) The issue is muddier when a general "asks", because there's a specter of implied threat of government force. He certainly has no legal right, under any relevant 1A decisions I've ever seen, to demand the film be pulled or not promoted. If they couldn't stop the Pentagon Papers, there's no way they can stop this.

    The issue is complex to me, because there's a fine line between arguments which attempt to persuade someone not to speak (such persuasion being, of course, part of free speech), and implicit or explicit threats of legal action if someone continues to speak, which is generally not protected, unless the speech they're engaging in falls into well-defined categories of illegal speech (fraud, slander, libel, etc). At what point does "I wish he wouldn't do this" or "It's immoral for him to do this" or "I hate that he does this" tip over into "He MUST stop this, under threat of law."? Because of the power wielded by the government, there's always an implied threat when a high-ranking government official, civilian or military, expresses their opinion on an issue. We are so enmeshed in laws and regulations that it is virtually impossible for anyone to not be a criminal; all that needs to be done to silence someone is to focus sufficient government attention on them until it can be shown there is some law, somewhere, that they've broken, most likely without being aware of it.

  21. Dave Ruddell  •  Sep 13, 2012 @11:56 am

    I've read that, as part of his no contest plea to bank fraud charges, Nakoula was not to use the internet for 5 years without the approval of his probation officer. I wonder if posting this video to youtube is a violation.

  22. Evan  •  Sep 13, 2012 @12:03 pm

    I'm a little concerned about reports that the individual who did this may have been committing a crime in the process:

    In 2010, he pleaded no contest to federal band fraud charges in California and was ordered to pay over $790,000 in restitution, sentenced to 21 months in federal prison and ordered not to use computers or the internet for five years. Thus, hosting a “Sam Bacile” YouTube channel may be deemed a violation of his probation.

    In violating his parole, we may have a situation where he does go to jail.

    As a layman who admittedly has zero legal knowledge, but watches way too much Law & Order, may I ask how big of a hurdle it would be to punitively take this even further on a parole violation?

  23. Ken  •  Sep 13, 2012 @12:08 pm

    Evan:

    It's Supervised Release, not parole. (Nitpick, I know.) Yes, his supervised release could be revoked. Whether it would send him back to prison or not is questionable.

  24. mojo  •  Sep 13, 2012 @12:16 pm

    "You keep using that word. I do not think it means what you think it means."

  25. Evan  •  Sep 13, 2012 @12:19 pm

    Nope, don't mind a good nitpick, it's good to know.

    But for the purposes of felony/non-felony for application of the felony murder rule, does violation of the court order* count as a continuation of the original charge (which I believe is a felony) or a separate infraction?

    I'm not looking for a way to 'get this guy'. I think the appropriate penalties for being an ass (being considered an ass by a huge chunk of the populace) will already be levied. What I worry about is a prosecutor or politician making the same wild guesses I am, and setting off a free speech versus intolerance war.

    It's an election year. There's only room for two sides.

    [*] The instant I wrote 'court order' I knew I am probably mangling the terminology. 'Terms of early release'?

  26. Ken  •  Sep 13, 2012 @12:28 pm

    Evan:

    Neither, exactly.

    In a modern federal case (leaving aside old federal cases, which had parole), you can be sentenced to probation (which has terms) or imprisonment followed by supervised release (which has terms). Both are supervised by the probation office, an arm of the court.

    A violation could, technically, be a separate crime (like, say, a DUI). But generally it's handled through the process for revocation of probation or supervised release. It's not a new felony — it's the termination of a boon (the boon being your release on probation or supervised release rather than continued imprisonment). It's not a separate conviction, and the government's burden is much lower and the due process allowed much more limited.

    Practically speaking, if "Sam" violated his supervised release by using the internet, the result will depend upon what he did. If the probation office treats it as fraud — posting on YouTube was part of a scheme of deceiving actors and others involved with the film — I could see it leading to a revocation. But if the only violation was him posting the video to YouTUbe, it's the sort of thing where the probation officer would say "cut that shit out" and not initiate a revocation, most likely.

    If they did initiate a revocation, there could be serious selective prosecution issues.

  27. Evan  •  Sep 13, 2012 @12:32 pm

    Comforting to know. Thank you.

  28. C. S. P. Schofield  •  Sep 13, 2012 @1:22 pm

    Colleges and Universities have always existed, in part, as comfortable posts for people with power to stash intellectuals whose opinions mirror their own. Thus the professoriat has alway had a leavening of screwballs and toadies with no discernible talent for scholarship. It isn't even a New Thing that this swill is paid for with tax money; it always has been. And the men who control such money, be they kings of simply political panjandrums, have always been astonished when anybody complains about how it is spent.

  29. David T  •  Sep 13, 2012 @1:40 pm

    It frightens me to count how many of my friends think that "Innocence of Muslims" deserves First Amendment protection — unless it was sponsored by a corporation.

    In 2008, the DC District court prohibited Citizens United from advertising its production, "Hillary – The Movie". SCOTUS reversed, in the much-criticized "Citizen's United" decision. Many of my liberal friends think that the 1st Amendment issues are unimportant, SCOTUS erred, and the advertising should have been prohibited.

    What kind of political reasoning thinks that a movie insulting Hillary Clinton deserves no protection, but that a movie insulting Mohammad does?

  30. SassQueen  •  Sep 13, 2012 @1:43 pm

    I have nothing clever to add, only two things to mention:

    1) I, like everyone else here I am sure, am glad to have you back, Ken.
    2) I would like to thank you for arranging a "Reader's Digest" version of this bullshit for me. If I were to try to read that whole article, my eyes would bleed dry I am sure.

  31. Nicholas Weaver  •  Sep 13, 2012 @2:42 pm

    Hey, it MAY be that the guy behind the film is a convinced Meth cook… Fun fun fun…

    http://www.thedailybeast.com/articles/2012/09/13/mohammed-movie-s-mystery-director.html

  32. Grifter  •  Sep 13, 2012 @2:59 pm

    @David T:

    There was more to the "Citizen's United" decision than just whether it was allowed for a person to criticize Hillary…the fact that the courts extended the constitution to an entity which cannot be held accountable to the same standards as a regular citizen doesn't sit well with me, for example.

  33. Grifter  •  Sep 13, 2012 @3:08 pm

    Scratch that, that was unneccessarily repetitive. Thank you for seeing my point, Gavin.

  34. David T  •  Sep 13, 2012 @3:33 pm

    @Grifter: So, should Citizens United been allowed to purchase advertising for its movie, or not?

  35. Grifter  •  Sep 13, 2012 @3:41 pm

    @David T:

    I am bothered by the court's logic in that case; corporations are not entitled to the rights of citizens, because they are not citizens. They are not people. They cannot be jailed for bad behavior, or executed if the overall actions constitute murder.

    I'm unsure of the other specifics of the case, but when the courts said corporations had the same rights as individuals, I feel they went too far.

  36. Alex the Too Old  •  Sep 13, 2012 @4:44 pm

    @David T:

    Yes, the advertising should have been allowed.

    No, it does not follow that corporations as entities have the same rights as human citizens of the United States. That's where the Supreme Court made a horrible mistake.

  37. malcom digest  •  Sep 13, 2012 @4:46 pm

    Two things.

    First, isn't there something in the UCMJ military people getting involved in politics in their roles as military?

    Second, can't I just go kill my neighbor and then have Prof. Butler jailed. That'd shut her up, no?

  38. Janet C  •  Sep 13, 2012 @5:01 pm

    "That unfortunate odor your smell is the result of everyone at The FIRE laughing themselves incontinent."

    OK, that line made me spit my drink out. Thanks for that.

  39. Jess  •  Sep 13, 2012 @5:12 pm

    To: Anthea Butler – - – - Mais, mon chou, qui crois-tu embobiner?

  40. darius404  •  Sep 13, 2012 @6:54 pm

    I think some people here are under the misconception that corporations aren't composed of people. They obviously are. You can't restrict speech to incorporated groups of people any more than you can restrict speech to individual people. To say that someone is allowed to spend money on speech, but two or more people together can't spend money on speech together, is an absurd distinction. Not to mention, the Citizen's United decision was not about spending in general, but only on political speech 60 days before an election and 30 days before a primary.

  41. Grifter  •  Sep 13, 2012 @7:17 pm

    @darius404:

    And if the speech is lies, flat out lies, who is sued?

    Who can be held accountable for the libel or slander?

    Oops, that corporation shuttered its doors, and the individual actors don't have liability for the decisions, which is a reason why corporations exist in the first place. Of course, their assets were sold at auction to a company strangely similar….but that's a differently incorporated entity!

    So, no, in the first place it's not "two or more people spending money on speech", since a corporation is its own legal entity (it owns its own property, etc.), and more to the point, it's not an "absurd distinction" because, again, the point here is that corporations AREN'T PEOPLE, and can't be held accountable like people.

    Corporations do not have the same civic responsibilities as people, yet you want to say the corporation has the same rights? That, sir, is what is absurd.

  42. Jess  •  Sep 13, 2012 @7:47 pm

    @Ken – congrats on the post to The Salon.

    The finer points of your post apparently elude the comprehension of one poster by name of “Operation Enduring Boredom”

  43. Demosthenes  •  Sep 13, 2012 @9:48 pm

    "…corporations are not entitled to the rights of citizens, because they are not citizens. They are not people."

    Of course corporations have speech rights. Not basically, mind you, because a corporation is a legally constituted entity, not a flesh-and-blood human being. But a corporation has speech rights which are derivative of the rights of its owners and shareholders. They have speech rights because they ARE people…at least in the sense in which Mitt Romney clearly meant those words (i.e., because they are made up of people.)

    darius404 has the right of it. It is the height of bizarro-logic to say that I, Demosthenes, have the right of free speech…that darius404 has the right of free speech…and yet, if we join together and form the Demodar Corporation to further a common purpose, that our entity does not have the right of free speech which we both possess.

    "…but when the courts said corporations had the same rights as individuals, I feel they went too far."

    The Supreme Court never said that. In fact, corporations do NOT have the same rights as people — I take you to mean the same rights set. They can't vote, for instance. Neither can they marry.

    But anything which people in a group would have the legal right to do, yes, a corporation has those rights — again, those rights being derivative upon the rights of their owners and shareholders. They can own property. They can enter into contracts. They can advertise services. And yes, they can speak.

    An honest question, Grifter. (I know we've clashed in the past, but hear me out.) If you believe corporations shouldn't have the constitutional right to speak, derivative or otherwise, should they be able to lay claim to any constitutional rights at all? If not, then what happens to the New York Times, to MSNBC, and to other corporations which exercise their right to freedom of the press?

    "And if the speech is lies, flat out lies, who is sued? Who can be held accountable for the libel or slander?"

    There seems to be an important connection missing here. Being sued is not the only way to be held accountable.

  44. Demosthenes  •  Sep 13, 2012 @9:53 pm

    Accidentally posted too soon. Briefly finishing that last thought:

    Perhaps, instead of expressing dissatisfaction with the Citizens United decision, people who disagree should be looking for ways to answer speech they see as harmful with…more speech. That is something regulars here all believe in, right?

  45. Adrian Ratnapala  •  Sep 13, 2012 @10:11 pm

    We should be fair to USA Today: they published Prof. Butler's piece only as a counterpoint to their own editorial

    http://www.usatoday.com/news/opinion/editorials/story/2012-09-12/US-ambassador-Libya-Egypt/57769762/1

    Admittedly I am not quite sure what point they were making in that article, but they do say:


    The enemy, then, is not just terror groups such as al-Qaeda. It is the acute sensitivity and intolerance of a significant number of Muslims who resist Western values even when there is no direct effect on their lives. Obviously, the U.S. is not about to surrender its most precious freedoms, nor will the radical Muslims abandon their exploitative piety, all while the Internet feeds a clash of cultures that no government can control.

    Hear ye!

  46. Grifter  •  Sep 13, 2012 @10:31 pm

    @Demosthenes:

    A few points.

    If you and Darius made a corporation, it would be a separate entity from you and Darius 404. So, therefore, it does NOT follow that it would inherently have the same rights as you and Darius. Not at all. You need to give the reason that the thing which you create has the same rights as its creators, please, because otherwise you're just making bald assertions and claiming anyone else has "bizzaro-logic". It's just disingenuous of you to call an opposing view "bizzarro logic" without actually giving any logic of your own, particularly when you admit that it is a separate entity.

    WHY does a corporation have the same rights, but none of the same responsibilties? A reason, please, and not just "because it's made of people", because, again, it is not just a "group of people pooling money", it is its own, legal entity that is not a citizen.

    For the record, though I get heated often, I bear no ill will towards anyone. I will almost always hear a person out. That said:

    In response to your question: I believe that they do not have any rights inherent to themselves except those granted by legislation. It is my opinion that corporations have no constitutional rights. However, their individual reporters do.

    And more to the point, there is an implication that news is speech proper, as opposed to advertising. Political speech is not significantly different from commercial speech, which we allow to be controlled even in the case of individuals, provided the control has justification.

    The rule that Citizen's United overturned was established to prevent corporations from having too much voice in the electoral process. Individuals, as voting parties with full constitutional, citizen rights, have the ability to have as much speech as they want. And groups of individuals may pool their money.

    But once they form a new entity, an actual corporation, they are not just a group of individuals. They've created a monster, if you will, and when they give that entity money, that money isn't theirs. It's no longer their speech at all, if money is speech.

    Instead, it's the speech of the corporation, a fictional entity that is not a citizen, and we're being told that they have all the rights of the constitution, because that's the logic of the ruling: that they have all the rights that the people who created them have.

  47. Milhouse  •  Sep 13, 2012 @11:54 pm

    A corporation's separate personhood is a legal fiction. It's just a convenient way of addressing a large and ever-changing set of people; but at any moment the corporation is just its current members. And how exactly do you propose people pool their money to make movies or publish newspapers, or run candidates for office, except by forming corporations? Very few individuals have the means to do so themselves. The Republican and Democratic Parties are corporations; it's the height of absurdity to suggest that they do not have the constitutional right to free speech!

  48. Milhouse  •  Sep 13, 2012 @11:55 pm

    Universities are corporations. So are churches. Going to tell me they're not protected either?!

  49. Demosthenes  •  Sep 14, 2012 @12:17 am

    The problem is that the reason I would give, which I thought was implicit in my last post, has already been dismissed (and rather unfairly, I would say) by you. In order to hold the position you want to hold, you have to believe the following: That individuals acting alone have the right to free speech; that individuals acting jointly have the right to "pool" their speech, so to speak, and raise their voices together; but also that a corporation formed by those individuals has no derivative right to speak.

    I'm sorry if you don't like the characterization, but yes, that is bizarro-logic. You have no adequate principle on which to stand, in order to say what you need to say: that individuals acting by extra-legal agreement can speak jointly as much as they wish, but that a corporation formed by those same individuals for the same purpose of speaking jointly can have its speech regulated to a greater degree than could the individuals themselves acting privately.

    You insist on treating a corporation as a legal construction completely alienated from people or their rights…which doesn't take into account that people formed the corporation, gave it its initial resources, and guide its activities. If they choose to invest the corporation with the rights they possess (the ones they could exercise in common, I mean), then it is so invested. Period. Any attempt to deny that denies the freedom of association we all have. You don't get to restrict whom I may associate with, or how, or for what purpose…not without a very good reason. And "I don't like the effect you're having on the political scene" isn't nearly a good enough reason. If it were, I'd be shutting the Ku Klux Klan down tomorrow.

  50. Demosthenes  •  Sep 14, 2012 @12:25 am

    "It is my opinion that corporations have no constitutional rights. However, their individual reporters do."

    Hardly satisfactory. If we accept your version of corporate rights theory for the moment, the intrepid girl reporter Lois Lane would have the individual right to freedom of the press, but the Daily Planet would not, unless given it by the government. So, assuming the government wanted to censor her article series about "Superman's Real Identity," presumably it would be entitled to do so. It can't constitutionally stop her from publishing (by, say, running off handbills from her own printer and passing them out on street corners), but since the Daily Planet has no protections except what the government chooses to grant it, it can certainly affect what she chooses to publish there.

    Clark Kent might be pleased as punch about that…but me, not so much. As Citizens United correctly noted, it is precisely because individuals have the rights to speak and to publish that the corporations they form and join have those rights. This construction is necessary to preserve our broadest possible exercise of our natural freedoms. Under your theory, in fact, I wonder just how much power Leon Panetta would have to deal with the publication of "One Easy Day"…or, as Milhouse noted, how much power the government might have to police universities, and the publications issuing therefrom. That's a chilling thought.

    "And more to the point, there is an implication that news is speech proper, as opposed to advertising. Political speech is not significantly different from commercial speech, which we allow to be controlled even in the case of individuals, provided the control has justification."

    This distinction between "speech proper" and speech you appreciate less is not very persuasive. What exactly is "speech proper"? If I advertise something, am I not speaking? Moreover, to the extent I agree with your second sentence here, you're misstating Citizens United. There are still restrictions, believe it or not, on political advertisements — it's not a no-holds-barred world out there.

    "But once they form a new entity, an actual corporation, they are not just a group of individuals."

    A corporation can be as little as one individual. I know several people (my barber, for example) who have incorporated themselves to run a personal-services business. Extending your argument, I necessarily have the right to free speech, but Demosthenes, Inc. would not. I necessarily have the right to publish freely, but Demosthenes, Inc. would not. I necessarily have the right to be secure in my property and effects absent reasonable suspicion, but the government might be able to come poke around in the offices of Demosthenes, Inc. whenever they liked. (And what if those offices were in my home?) I necessarily have the right to be as protected as any other individual in my jurisdiction with respect to the law, but Demosthenes, Inc. might be at the mercy of any serial litigator with a grudge.

    That may be fine with you, as long as you manage to avoid noticing the obvious fact that in this case, I AM DEMOSTHENES, INC. I own it. I operate it. I am its sole employee. You may feel justified in railing against big corporations, but not all corporations are big. Take this case…how do you propose to separate me from myself?

  51. anoNY  •  Sep 14, 2012 @4:31 am

    "Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, called Jones on Wednesday to ask him to stop promoting Bacile's film."

    Why is a general making contact with a civilian like this? It is incredibly scary to have the military getting involved in a civilian's life in this way…

  52. Grifter  •  Sep 14, 2012 @6:23 am

    @Demosthenes:

    Your argument might hold some water if it weren't for the fact that, again, corporations have limited liability. They are their own separate entity and cannot be held accountable in the same way as a citizen can. If you and Darius form a corporation, and the corporation does something wrong, I can't hold you and Darius accountable, I can only hold the corporation. Again, it's an entity separate from you, so it does not necessarily follow that it has your rights.

    In the case of "Demosthenes Inc", you've shielded yourself by creating a wholly new entity. That's the reason you created a corporation, isn't it, to limit your liability? Otherwise it wouldn't be necessary. You created a legal fiction to distance yourself from your own business decisions. The contracts that "Demosthenes Inc" enters into can't screw you over personally, the company can just "close" and you're personally safe.

    Your argument is that there should be an entity with all the rights of a citizen, but none of the responsibility whatsoever, and I reject that. It can't serve jury duty, be drafted, be sued, or be jailed; I don't think it gets to say "I have all these rights the constitution grants!"

  53. Grifter  •  Sep 14, 2012 @6:25 am

    @Demosthenes:

    And my "speech proper" is probably poor phrasing. However, we already limit advertising speech in a myriad of ways, do we not?

  54. Dan Weber  •  Sep 14, 2012 @7:02 am

    it does not follow that corporations as entities have the same rights as human citizens of the United States. That's where the Supreme Court made a horrible mistake

    Other people have already addressed this, but I have to pile on:

    This didn't happen.

    The same SCOTUS that some people think "made corporations into people" or "same corporations the same rights as human citizens" explicitly said, unanimously, that corporations do not have all the rights of physical persons.

    You can have issues with Citizens United but it's critical you understand what it actually said, not what some biased party did to sum it up for you.

  55. Andro  •  Sep 14, 2012 @7:39 am

    This is a comment on the OT about Citizens United.

    With respect to the individuals behind the corporation being responsible or not responsible for the speech of the corporation, they can be liable for defamation as a tort. I believe it is true in most US jurisdictions that you can bring an action against any person who makes a defamatory statement. In addition, if that person speaks through a corporation, then the corporation also can be liable, as long as the corporation endorsed the speech as well.

    For example, Perry White writes and editorial in the Daily Planet accusing Superman of actually having a loathsome disease, e.g. cooties (in the State where Gotham is located, that is per se defamation). In that case, Supes has the ability to sue Perry (who made the statement) AND the Planet (by respondeat superior). The Planet is a good target because many times corporations have deep pockets.

    In real life, like a movie for example, figuring out what individual or individuals were the original publishers of the statement may be difficult, between employees, shareholder, directors and the fact that people like to pass the buck makes that pretty difficult, but someone signs off on the final product and that's a great place to start. But no corporation, in the history of existence, ever originated a statement.

    In the situation we have here, a small film production, the producer probably has a good deal of civil liability. The director? the actors? maybe. The shareholders (particularly if it is a close corp and there were shareholder meetings)? maybe. The best boy and gaffer? not likely.

    IMHO, constructively Citizens United was not wrong. It was however, very poorly phrased.

  56. Dan Weber  •  Sep 14, 2012 @7:58 am

    It's not that hard to pierce the corporate veil. In the United States, it's probably easier than meeting the very high bar for defamation, especially since one of the tests for piercing is "wrongful conduct" and if you've proved defamation you've almost assuredly proved that.

    Back on the original topic, on the Diane Rehm show this morning (not 20 minutes ago) they said that the Justice Department was looking into the filmmaker to see if he can be prosecuted for a hate crime. I can't find a reference to this elsewhere at the moment — most sources say it's "uncertain" if the DoJ is going after the filmmaker.

  57. Grifter  •  Sep 14, 2012 @8:12 am

    @Dan Weber:

    Perhaps you can explain to me how their ruling on the subject could be limited?

    They said that corporations have free speech, because they are made of people. So, if you can explain to me (I am certainly no legal scholar) the logic that would take that ruling and say "There are, however, some rights corporations don't have", please can you explain it, preferably using small words? Because it seems to me as though the next case will just extend the logic, and it would be hard to fight it considering the precedent.

  58. Dan Weber  •  Sep 14, 2012 @8:47 am

    They said that corporations have free speech, because they are made of people

    No, they said that the people within the corporation have free speech rights to express their speech through the corporation.

    Maybe you think this is just word games, but it's not. It's the critical part of the argument.

    If you think you can talk about them as being the same thing because in one circumstance they seem to have the same result, that's an error in logic.

  59. Grifter  •  Sep 14, 2012 @8:54 am

    @Dan Weber:

    In the first place, you didn't explain to me how the logic would not be continued (though, of course, you don't owe me anything, but I think it's relevant to the discussion). In the second, the problem with that is, again, that the corporation is its own entity.

    Example:

    Let's say we both like Barack Romney. We want him elected. But we differ on a woman't right to bodily autonomy. You're anti-choice, I'm pro-choice. The corporation runs an ad supporting BR that talks about how he's fantastic because he protects the rights of fetuses. I don't like that ad, but you have more clout in the organization, so I lose. Now, the entity has said something I don't like. I can't get a refund of my money, since it's not my money. It's the corporation's money. I can withdraw my support moving forward, but I have still said something with "my speech", which is what you're claiming thew money given to the corporation is, that I did not want to say. So clearly, it's not just an extension of their previous rights.

  60. Jeremy  •  Sep 14, 2012 @8:56 am

    It's a good thing Mormons aren't as insanely uptight about their own beliefs as Muslims. Or else our entire country would likely have been nuked from the inside by now…. It's amazing that a college professor can be so blind to how much bashing of belief goes on every day in America, and most of us deal with it just fine. Hell, the Jews of America bash themselves.

  61. Dan Weber  •  Sep 14, 2012 @9:25 am

    you didn't explain to me how the logic would not be continued

    Why would it? If a person is found to have right X, that doesn't mean right Y follows, because they're both rights.

    We still don't know exactly the complete extent of how the Fourteenth Amendment applies to the ability of states to regulate their citizens. It was almost a century and a half after it was ratified that we finally figured out if the Second Amendment restricted states. The court didn't just say "well, we said the First Amendment restricted states, so this must work, too." The Amendments are different and they had to be analyzed separately.

    We know that organizations do have some rights due to the rights of their members, such as speech. We know that organizations do not have some rights afforded people, such as the right to privacy. Anyone who isn't playing stupid knows that organizations don't have the right to vote, and SCOTUS would p

    If an organization to which you have contributed starts doing speech you don't like, too bad. This has nothing to do with corporations. If I donate to Joe Blow because I've liked his previous political messages, and he starts saying things I don't like, I don't get my money back. (Unless you can specifically show you had entered into a contract.)

    Or should Charles Carreon get veto rights over contributing $10 to a charity campaign?

  62. Dan Weber  •  Sep 14, 2012 @9:28 am

    Submitted too soon, dang it.

    Anyone who isn't playing stupid knows that organizations don't have the right to vote, and SCOTUS would soundly bring the hammer down on a case like this, even they saw fit to even hear it in the first place.

  63. NM  •  Sep 14, 2012 @11:12 am

    @Ken:
    Regarding violations, are federal parole/probation officers that lenient?
    I just watched a state parole (California) revocation hearing where a guy was imprisoned for buying a lottery ticket. He had a condition to not enter a business where alcohol was the main item of sale and had bought the ticket at a liquor store. Both sides agreed that he did not buy alcohol.
    I work mainly on state revocation stuff and if he was California, I wouldn't be shocked if his PO recommended pretty stiff punishment based on this conduct even if they ignore the embassy (though PO are always trying to make supervised persons look worse by bringing up actions that don't violation any terms). Now in reality he probably wouldn't do much time, but about a month or two if he's had no prior violations and depending on the court/hearing officer. (Though under the bad old parole system, he'd probably be doing months in state, but that changed about a year ago with AB109).

  64. Coyote  •  Sep 14, 2012 @11:55 am

    Irony: FIRE recently listed Penn as one of their top 10 campus supporters of free speech.

  65. CTD  •  Sep 14, 2012 @12:15 pm

    …mocking the prophet Mohammed…

    My tweets reflected my exasperation that as a religion professor, it is difficult to teach the facts when movies such as Bacile's Innocence of Muslims are taken as both truth and propaganda, and used against innocent Americans.

    You mean "facts" like Mohammed being a "prophet?" Or facst like there being no such things a prophecy?

  66. Grifter  •  Sep 14, 2012 @1:34 pm

    @Dan Weber:

    The fact that we would have to have that debate to recognize the logic's applicability does not change whether it can be applied, so "well, we had to argue the amendments individually when we did it before" is not a convincing argument to me, particularly since eventually it was recognized in your example that the logic was to be applied across the board.

  67. Random Encounter  •  Sep 14, 2012 @1:50 pm

    When the corporate veil can be pierced for any offence, then a corporation can reasonably be considered to be equivalent to the people that compose it.

    Until then it is a super-person that can shield people from the consequences of their actions and it should be treated as such.

  68. M.  •  Sep 14, 2012 @3:23 pm

    I'm positive I've quoted this before on Popehat, but it still amuses me: "I'll believe corporations are people when Texas executes one."

  69. Grifter  •  Sep 14, 2012 @3:35 pm

    @M.:

    I'm positive of that too, because it's the first time I'd heard it, and I LOL'd.

    So I did a quick google search and…

    http://www.popehat.com/2012/07/28/the-freedom-not-to-participate/

    M. • Jul 30, 2012 @5:20 am

    As we Texas liberals are fond of quipping, "I'll believe corporations are people when Texas executes one."

    Bam!

  70. M.  •  Sep 14, 2012 @3:48 pm

    @Grifter: Thanks! Then again, Texas loves a challenge. Someday that'll really happen, and said liberals will be standing around making fish out of water faces and going "OMG it was wry humor!"

  71. discretionary docket  •  Sep 14, 2012 @9:08 pm

    Except Texas does execute corporations, so your point collapses.

  72. M.  •  Sep 14, 2012 @9:13 pm

    @discretionary docket: If Texas has ever literally rounded up all the people in a corporation and executed them, I missed the news report.

  73. Hess  •  Sep 14, 2012 @10:11 pm

    Great post! Thanks. Freedom of speech needs to be defended with our lives!

  74. Andro  •  Sep 15, 2012 @4:14 am

    Except in cases of very small corporations, when would "everybody" in a corporation be responsible for a bad act? Should the Enron janitorial staff be guilty of securities fraud?

  75. Henry  •  Sep 15, 2012 @6:00 am

    I don't really have anything substantive to add, but since I'm a regular Popehat reader who's also a Penn logic professor, I feel I should say something. I'm not surprised that some idiot decided to use the embassy attacks as an excuse to go off against free speech, but I'm quite embarrassed that it turned out to be someone from Penn. (I don't know what to make of the fact that I haven't heard anyone here mention it; the campus paper has an article about being given a high rank by FIRE, but no mention of this that I've seen.)

  76. Caleb  •  Sep 15, 2012 @7:32 am

    @M

    I'll believe corporations are people when Texas executes one.

    In the corporate law world, that's called revoking a charter. And yes it does happen.

    @ Grifter

    So, if you can explain to me (I am certainly no legal scholar) the logic that would take that ruling and say "There are, however, some rights corporations don't have", please can you explain it, preferably using small words?

    There is little substitute to actually reading the opinion. If you do so, you will see that Dan Weber is absolutely right. The entire ruling takes place solely within the universe of the First Amendment. The doctrines of stare decisis and narrowest grounds mean that any precedential value of Citizens United outside of the First Amendment context is minimal. The notion that Citizens United will lead to undesirable precedent in other, unrelated areas of the law is just as big
    a straw-man as saying that Roe v. Wade could be used to support Nazi-regime style genocide.

    I'd pay particular attention to Scalia's concurrence, where he addresses corporate law in the context of the Constitution more broadly than the majority. Here, he a good textual reason for applying the First Amendment to corporations:

    The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals…

  77. AlphaCentauri  •  Sep 15, 2012 @7:37 am

    If folks want Ken to keep blogging, maybe we need to keep ourselves on topic. Moderating the discussions here has got to be really time consuming for him.

  78. Grifter  •  Sep 15, 2012 @8:52 am

    @Caleb:

    "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

    A corporation is a separate legal entity, and is not simply an "association of citizens". And again, we can say, "If the X Amendment has any force…" etc., so I fail to see how, from a logical standponit, it couldn't be extended. Of course, it would have to be taken to court, but again, I do not see the logical basis.

    @AlphaCentauri:

    I didn't think our generous hosts minded off-topicness, but rather degenerating. I definitely don't want to bother them!

  79. Ken  •  Sep 15, 2012 @11:06 am

    @Henry: I could apologize for the cheap shot, but that would be dishonest. So I will say that if you read my blog you know I didn't single you out for a cheap shot.

    @Alpha: I'm fine with frolics and detours, so long as they aren't frolics and detours into abject d-baggery.

  80. Jules  •  Sep 15, 2012 @11:39 am

    There is nothing more important to civilization than safeguarding our civil liberties. It's shocking how short sighted so many have become. I fear for the future of our country if so many so-called liberals cannot support our civil freedoms. We are the only country left that has the freedom to speak without government interference. And now those who support this notion are an ever shrinking minority.

  81. M.  •  Sep 15, 2012 @12:53 pm

    @Caleb: Oh, sure, ruin all my fun by being technical rather than literal.

  82. Joe Pullen  •  Sep 15, 2012 @4:50 pm

    @Grifter @M – well you know how it is here in Texas. We don't just believe in the death penalty – Hell we've put in an express lane. Aka Ron White comedian.

  83. Caleb  •  Sep 15, 2012 @6:49 pm

    @ Grifter

    A corporation is a separate legal entity, and is not simply an "association of citizens".

    In this context, "association" is simply the broadest term available for a corpus of citizens acting in a collective way. It includes everything from loose ad-hoc gatherings to religious organizations to incorporated legal entities. Legally incorporated entities are a subclass of association, not an entirely different category.

    I fail to see how, from a logical standponit, it couldn't be extended.

    Because that is not how the law works. Free speech is an entirely different thing from any other right. How it interacts with corporate law, criminal law, tort, contracts, ect. is different from every other area. Just because a principle holds in one area of the law does not mean it holds in the other. The syllogism you are implying is absurd. Just because [Persons can hold property]=>[corporations can hold property] does not imply [persons can vote]=>[corporations can vote].

  84. Grifter  •  Sep 15, 2012 @7:17 pm

    @Caleb:

    Your breakdown of the syllogism fails completely. Property owning is not a constitutional right, but rather a common-law presupposition. So, no, that's not the logic I've applied at any point, and it is indeed absurd, but then, it was disingenuous of you to break it down the way you did.

    I said Corporations are separate entitties from the persons that make them up, therefore I need a reason to give that separate legal entity the rights that I give a person. To flatly state "they just do" is not to apply logic. To state "well, it's just a group of people, they're just exercising their collective rights together!" is to ignore the reality of the corporation's place in society. The corporation's speech is not identical to the speech of its constituents.

    You, and others, keep saying that a corporation is just an association. It is more than that. It is a separate legal entity. Unincorporated entities are not.

    We can play the semantics game all day, but the fact of the matter is that a corporation is separate from its constituent members, and is an entity in its own right. To give it the rights of its constituent members is to give the corporation more rights than the average citizen. A corporation cannot be jailed, nor even prosecuted for misconduct, yet it has its own right to free speech? That is a ludicrous proposition to me. And the idea that it's nothing more than an extension of the rights of its constituent members is also laughable on its face; the corporation makes its own speech wholly separate and distinct from the speech of its members. I can assure you, nothing my company says is what I want it to say. Rather, the corporation has its own rules, its own interests.

    I believe we are very unlikely to agree on this subject, because you will not convince me that corporations are people, and I will not convince you that corporations are separate legal entities who must be handled separately from their constituents.

  85. M.  •  Sep 16, 2012 @12:26 am

    @Joe Pullen: He's very much an older, male, smoking version of me. "I had the right to remain silent, but I did not have the ability" – story of my life. Perhaps being an evil snarky jerk is especially Texan.

  86. Andro  •  Sep 16, 2012 @3:51 am

    Grifter, you are still ignoring the fact that being an employee, shareholder or officer of a corporation is not a shield to individual liability in terms of criminal acts or personal injury, whether by defamation or otherwise. It is a shield to breach of contract, but not much else.

    OTOH, a corporation is often a deep pocket in civil litigation, for the recovery of damages. So, if the corporation as a whole publishes a individual's defamatory speech the corp is liable also, as an enabler and publisher of the speech, but not the originator of the speech.

  87. Grifter  •  Sep 16, 2012 @8:46 am

    @Andro:

    You, and others, are ignoring the Corporation's separate legal identity. So, though I disagree with you, I guess we're even.

  88. Andro  •  Sep 16, 2012 @10:11 am

    What am I ignoring. Civilly, both the corp and the individual are liable. Criminally, the individual can be fined or go to prison and a corp can be fined or be dissolved. All for the same acts. Explain what needs to be different. For the types of acts you are concerned with there is no protection merely because you are acting as the agent of a company.

  89. Grifter  •  Sep 16, 2012 @10:23 am

    Andro:

    The logic of applying the right of free speech to corporations was that it was because they are made of people, and those people have free speech rights. I have rejected that for the reasons above.

    And give me some examples of behavior being punished in the way you describe, please. Some corporations who were criminally negligent being appropriately punished, like BP…oh, wait, they weren't. Had that been a person, he'd be in jail. As a coporation, they pay what they want, and otherwise get off.

    Actually, don't. Because, 1, you won't be able to, or at least not enough to wash out the number that we know of where horrible, criminal behavior hasn't been punished, but rather some token fines assessed, and because 2, as I said, you see a corporation as a person because it's made of people. The assumption in the discussion has been that the rights of the people are being expressed by the corporation, but we know that's not the case as a general rule for corporations. I find the logic flawed. You are unlikely to convince me that corporations are more responsible for their actions, which argument you seem to be turning towards, because I know that to be a laughable falsehood.

  90. Andro  •  Sep 16, 2012 @10:47 am

    I cannot be responsible for government not performing the way that you want it to. I can assure you that if the government wanted to prosecute or sue individuals who made decisions or committed acts which were criminal or tortious it could. What you want is different government priorities, not different laws. That is where your argument gets confounded.

  91. Grifter  •  Sep 16, 2012 @11:02 am

    @Andro:

    Corporations are a wholly governmental creation. To try to wash their hands of how they tart them is laughable. You say its a matter of priorities, I say its interpretation, which matters a great deal since that's what gave this created entity the rights of people. Madoff is in jail, and the money had been seized…how's the banking industry don't? If I fraudulently signed documents, I'd be in jail.

    I guesses by type logic, the government is acting like a racist town sheriff? That's not kosher either.

  92. Caleb  •  Sep 16, 2012 @2:50 pm

    @ Grifter

    Property owning is not a constitutional right, but rather a common-law presupposition.

    Common law rights are constitutional rights. They were subsumed and incorporated into the constitution. Remember that many Federalist founding fathers did not approve of the Bill of Rights – not because they disagreed with the rights expressed therein, but because they thought it was redundant. In their minds, the rights flowing from common law and those explicitly protected in the Constitution were one in the same. Could you explain how the difference affects the syllogism?

    So, no, that's not the logic I've applied at any point, and it is indeed absurd, but then, it was disingenuous of you to break it down the way you did.

    Very well then. How about this: Corporations have long had limited protection under the 4th Amendment from unreasonable searches and seizures, much like private citizens. (The protection is lower, but still applies.) If the authorities want to search corporate property outside of the scope of an administrative search, they must proceed according to the dictates of the 4th Amendment.

    This fact, however, had no bearing on the Citizens United decision. The fact that the 4th Amendment applied (in a limited capacity) to corporations was not even mentioned when the Court discussed applying the 1st.

    The corporation's speech is not identical to the speech of its constituents.

    No group (incorporated or not) has speech identical to the speech of its constituents. That is simply the logic of groups. Within any group, there will be factions, subsets, holdouts, leaders, followers, deals, compromises, ect. To the degree that a group acts with unitary cohesion, there will be members within that group who are not fully represented by that action. (Unless the group in question is the Borg.)

    I said Corporations are separate entitties from the persons that make them up, therefore I need a reason to give that separate legal entity the rights that I give a person.

    Yet without those persons that make up the corporation, it would not exist. So it is not entirely separate. The reason for giving the entity the right is simple: We as a society value speech, regardless of the speaker. To the degree that incorporation allows persons to speak more effectively, that is a good thing. If you disagree with this speech, the remedy is more speech, not state regulation.

    A corporation cannot be jailed, nor even prosecuted for misconduct, yet it has its own right to free speech? That is a ludicrous proposition to me.

    Look up corporate veil-piercing. As Dan Weber correctly said, it is not that hard to accomplish. Especially in the case of criminal wrongdoing. There are other legal resources against misbehaving corporations: asset seizure, charter revocation, SEC penalties, ect.

    …the corporation makes its own speech wholly separate and distinct from the speech of its members. I can assure you, nothing my company says is what I want it to say. Rather, the corporation has its own rules, its own interests.

    The corporation's speech comes from somewhere. It reflects someones' interests. Not yours, obviously. Start your own corporation. That corporation's speech most certainly will reflect yours. But argument 'I think corporate speech should be limited because I don't control it and I don't like it' is a bad one.

    I believe we are very unlikely to agree on this subject, because you will not convince me that corporations are people, and I will not convince you that corporations are separate legal entities who must be handled separately from their constituents.

    Because those are two different, unrelated, and irrelevant propositions. Neither have anything to do with what I'm saying. I'm not arguing that corporations are people. I'm arguing that speech, especially political speech, should be protected regardless of the speaker.

    That corporations are treated differently in the law than individuals is a blindingly obvious proposition. No one need not convince me of that. But that is not the end of inquiry. If it were, then corporations would be some sort of weird anti-person. (Unable to hold property, unable to contract, unable to sue and be sued, ect.) What rights and obligations we apply to corporations goes beyond simplistic analogies to person-hood.

  93. Grifter  •  Sep 16, 2012 @4:13 pm

    @Caleb:

    I have lost patience with what I perceive to be your disingenuousness.

    Not all common-law rights are "subsumed and incorporated into the constitution." A trivial example would be common-law marriage, which is not recognized federally, and not recognized by every state. Since you have expressed enough knowledge on law that I expect you to know that, I will go so far as to say that is a lie on your part. Common-law is often nebulous.

    The courts rule using the laws and using precedent. Common-law items are enshrined in precedent, but generally lack expressed precision. The constitution enshrines specific things as rights; their very explicitness has protected these rights from dilution (if you think property laws are inviolate, look at eminent domain sometime, and the state defenses thereof, despite the 5th amendment). It affects the syllogism because the fact that they aren't in the document we're discussing makes them irrelevant to the discussion at hand, which is about whether the protections inherent to the document apply to a specific separate legal entity that is not mentioned in the document. The court said the rights enumerated in the constitution applied to things the founding fathers would never have approved of. Do you really think the federalists would have been okay with corporations driving politics?

    There are specific rights enumerated in the constitution. Those are the only ones that are in the constitution. There are certain rights that are implied due to language (property rights are implied), or known due to common law. But only the rights written down have the full force of "meaning what they mean". We can't argue over whether corporations should or should not have property rights, since there's no language there. We can argue philosophy or legal precedent, but there's no "source" to go to.

    As regards to the Court using the 4th amendment protections in the CU case: That is disingenuous of you as well. The Court has a history and generally mandates itself to be as narrow as possible. They often won't bring in precedent they don't have to, unless one of them has a bug up their butt about it, and obviously they had a legal theory that worked already, so they didn't need to bring it in; thus, their failure to bring it in doesn't mean they necessarily didn't think it relevant. That argument fails completely on its merits, and since I believe you know that, I believe it is disingenuous of you to use.

    It is this disingenuousness that makes me say: Good day sir. For once (which I'm sure will shock Gavin at least), I am done. I will not debate someone who I feel does not debate honestly, because that is a waste of mine and their time. If you ignore the points you don't like (such as my BP point…they really pierced the veil there!), and are willing to make arguments that you know fail on their merits, you are being dishonest in our debate. You may well be right (legally or philsophically), but bullshitting doesn't make it so.

  94. Caleb  •  Sep 16, 2012 @6:11 pm

    @ Grifter

    I must admit to being perplexed by your perception of ingenuousness. Not only because I think my propositions are not exactly highly controversial, but because you seem to be agreeing with me on several key points. I will elaborate:

    Not all common-law rights are "subsumed and incorporated into the constitution."

    I did not say "all." But I was ambiguous, and I apologize. Let me clarify:

    The Supreme Court interprets all rights exercised by citizens pursuant to common law as flowing, not from common law directly, but through the Constitution as the Supreme Law of the land. Those rights not explicitly enumerated by the Constitution are given Constitutional authority and effect by virtue of their implicit incorporation. This is due to the doctrine of enumerated powers: Those rights exercised by sovereign individuals prior to entering into a social contract with each other are absolute. They may only be removed by social contract and placed in a separate sovereign authority. Those powers not explicitly removed are retained, either by the people themselves, or given by the people to other subordinate political entities. This is why the Federalists did not see the need for the Bill of Rights. They thought it was obvious that those rights were protected.

    Common-law items are enshrined in precedent, but generally lack expressed precision. The constitution enshrines specific things as rights; their very explicitness has protected these rights from dilution (if you think property laws are inviolate, look at eminent domain sometime, and the state defenses thereof, despite the 5th amendment).

    From a historical standpoint, you are right. The explicitness of the Bill of Rights has been a godsend. Thank God for George Mason and Patrick Henry. The Federalists were wrong, structural controls in the Constitution were not sufficient to protect our rights from the government.

    But from a legal standpoint, you are wrong. All rights, enumerated and not, are given the same effect. Their enumeration may help in interpreting their specific application, or maybe not. As Dan Weber pointed out, we just recently resolved whether the 2nd Amendment is a personal right. We've had the equivalent fundamental questions of right to contract figured out for a few centuries now.

    But there is no substantive difference between enumerated and non-enumerated rights. Common law informs the parameters of unenumerated rights, agreed. But it also informs the parameters of enumerated rights. (If you don't believe me, read Murray's Lessee v. Hoboken Land and Improvement Co). There is also no ordinal difference. Unenumerated rights are given the same authority and effect as enumerated rights. (If you don't believe me, read Giswold v. Connecticut.)

    if you think property laws are inviolate, look at eminent domain sometime, and the state defenses thereof, despite the 5th amendment

    Agreed. And i think this gives credence to my point. Despite a textual anchor for the right, the Court used other sources as an interpretative lens for the right. This means that a textual anchor is not dispositive towards interpreting the right, which increases its similarity to rights which do not have a textual anchor.

    The Court has a history and generally mandates itself to be as narrow as possible.

    Exactly. You will recall this was one of my first points:

    The doctrines of stare decisis and narrowest grounds mean that any precedential value of Citizens United outside of the First Amendment context is minimal.

    They often won't bring in precedent they don't have to, unless one of them has a bug up their butt about it, and obviously they had a legal theory that worked already, so they didn't need to bring it in; thus, their failure to bring it in doesn't mean they necessarily didn't think it relevant.

    By that argument, anything not addressed by the Court is potentially relevant. Which is true, but also meaningless. You might as well argue that I'm being disingenuous by saying fluffy bunnies are not relevant to this inquiry because the Court could well be assuming a legal theory which involves fluffy bunnies but is not including it. The fact that the Court did not address the 4th Amendment in Citizens United is probative evidence that it is in fact not relevant. You are free to rebut that evidence with some of your own. But citing the doctrine of narrow grounds then pearl-clutching about disingenuousness is not going to cut it.

    If you ignore the points you don't like (such as my BP point…they really pierced the veil there!)

    I did not ignore them, you did not direct that argument to me. Since you have done so, I will address it:

    Easy. Two wrongs do not make a right. I may (in fact I do) agree with you that the corporate governance laws relevant to BP's spill are atrocious. We should remedy the situation…by fixing those laws! But just because the law is broken in one area does not justify breaking it in another. Just because financial laws may allow CEOs to cheat on their taxes does not mean we are justified in not allowing them to plead the 5th.

    Other than that, what other points did I ignore? I will address them.

    If you ignore the points you don't like…

    Speaking of, you did not address my core argument of protecting speech rather than speakers. Nor did you address my re-framing of the issue away from person-hood analogies. Nor did you address my point about the fundamental logic of groups.

    you are being dishonest in our debate.

    I sincerely regret that perception. Please tell me which facts are false, and I will correct them immediately.

  95. Gobsmacked  •  Sep 17, 2012 @5:52 am

    So let me get this straight. I have free speech unless and until I make a maniac mad enough to go commit violence. So, does that mean that if I stand up in a bar and proclaim how great the Auburn football team is and a 'Bama fan in the room procedes to beat the tar out of everyone in the place who's wearing an orange shirt, I should be arrested? (And don't tell me it's different because football isn't a religion. If you've lived in Alabama, you know what I mean.)

  96. discretionary docket  •  Sep 18, 2012 @2:42 am

    @M

    If Texas has ever literally rounded up all the people in a corporation and executed them, I missed the news report.

    Don't be sad. Involuntary dissolution of a corporation under state law for "felonious conduct" is so commonplace that it likely doesn't make the nightly news. See, passim, Texas Business Corporation Act, Part 7.

  97. M.  •  Sep 18, 2012 @2:46 am

    @discretionary docket: Yes, I get it. The distinction is that I was envisioning something entirely different and more amusing, as my original reply to you suggests.

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