Posted by Eugene Volokh:
What's Missing from This *New York Times* Editorial?

   Here's [1]an excerpt, though read the whole thing:

     The question at the heart of one of the biggest Supreme Court cases
     this year is simple: What constitutional rights should corporations
     have? To us, as well as many legal scholars, former justices and,
     indeed, drafters of the Constitution, the answer is that their
     rights should be quite limited -- far less than those of people....

     The Constitution mentions the rights of the people frequently but
     does not cite corporations. Indeed, many of the founders were
     skeptical of corporate influence.

     John Marshall, the nation�s greatest chief justice, saw a
     corporation as �an artificial being, invisible, intangible,� he
     wrote in 1819. �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.�

     That does not mean that corporations should have no rights. It is
     in society�s interest that they are allowed to speak about their
     products and policies and that they are able to go to court when
     another company steals their patents. It makes sense that they can
     be sued, as a person would be, when they pollute or violate labor

     The law also gives corporations special legal status: limited
     liability, special rules for the accumulation of assets and the
     ability to live forever. These rules put corporations in a
     privileged position in producing profits and aggregating wealth.
     Their influence would be overwhelming with the full array of rights
     that people have.

     One of the main areas where corporations� rights have long been
     limited is politics.... The founders of this nation knew just what
     they were doing when they drew a line between legally created
     economic entities and living, breathing human beings. The court
     should stick to that line.

   I discussed the [2]substantive matter below, but for now let me ask a
   different question: Where would the arguments in the New York Times
   editorial leave the New York Times itself? Shouldn't New York Times v.
   Sullivan (the landmark libel case) and New York Times v. United States
   (the Pentagon Papers case), for instance, have come out the opposite
   way under the Times' analysis? The corporation that owns the Times,
   like all corporations, has "limited liability, special rules for the
   accumulation of assets and the ability to live forever [in theory]."
   It is "in a privileged position in producing profits and aggregating
   wealth." It surely has tremendous "influence." It tries to participate
   in "politics," in its editorials and also, inevitably (whether
   intentionally or not) in its news coverage and choices of what to
   cover. It is a "legally created economic entit[y]."

   Now maybe the Times is implicitly suggesting that it's excluded from
   the analysis because of the proviso that it "is in society�s interest
   that they are allowed to speak about their products and policies." But
   the ads in New York Times v. Sullivan and the publication of the
   Pentagon Papers wasn't speech about its products and policies. The
   speech was its product, in the sense that it was produced by the Times
   in part -- not clear whether this was so in the ad in Sullivan but
   perhaps one might say so -- and it was something that the Times sold.

   But a political ad put out by a business corporation is also produced
   by the corporation; and though it isn't something that the corporation
   sells, why should that affect the corporation's rights? I agree that
   speech that one sells shouldn't be less constitutionally protected
   because it's sold rather than given away for free; but surely speech
   that a corporation gives away for free likewise shouldn't be less
   constitutionally protected than speech that is some other
   corporation's "product." Perhaps the Times is hinting at a distinction
   by quoting the "incidental to its very existence" language from Chief
   Justice Marshall, but it's hardly "incidental to [a newspaper's] very
   existence" for the newspaper to be able to publish political
   editorials, or endorse candidates. A newspaper certainly could exist
   without that power.

   Of course, one could say that the Free Press Clause protects
   newspapers but not other companies. But the Times editorial doesn't
   say that; and it's not clear why we should read the Free Press Clause
   as privileging a particular form of business, as opposed to a
   particular medium -- the press, which could be used both by its owners
   to publish newspapers (with political editorials in them), and by
   other people and companies to publish leaflets, books, political
   statements in others' newspapers, or (with technological changes)
   political Web sites, made-for-TV opinionated political documentaries,
   and the like.

   But in any event, my point here isn't so much the substantive point --
   it's that a business corporation is publishing a political message
   arguing that business corporations shouldn't have the constitutional
   right to publish political messages, without even (1) mentioning that
   its argument would apply to itself, and (2) explaining why, despite
   that, the argument should not apply to itself. (It's clear, after all,
   from its past statements and arguments in court that the Times does
   take the view that it indeed should continue to have constitutional



Volokh mailing list

Reply via email to