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Sun Jan 6, 2013, 04:57 PM

Was Citizens United Correct? [View all]

Perhaps I should not have been, but I was surprised at several recent posts that seemed to support the Citizens United decision based on what I presume to be first amendment absolutism. It has been pointed out that the first amendment protects freedom of the press, and "the press" certainly covers organizations, not just individuals. Was Citizens United the correct decision in support of first amendment rights? Are corporations people, my friend?

Corporations are chartered for specific purposes and their owners are granted significant privileges, notably limited liability, and in some cases non-profit status. Some are chartered specifically for religious purposes, and their owners receive some protection, for that reason, under the first amendment. Some are chartered specifically for the purpose of publishing news and political opinion, and their owner may receive some protection, for that reason, under the first amendment.

Many others are chartered for purposes other than religion or providing information to the public. For instance, selling soap or manufacturing, say, cars. These purposes are NOT protected under the constitution. Even providing entertainment, which sometimes gets a pass under the first amendment, is not, strictly speaking, protected.

In either case, the privilege of limited liability is a privilege, not a right. This privilege is granted by the government at its discretion to serve a public good and may be denied or revoked in the public interest. No one has the right to incorporate. The same may be said, of course, of tax-exemption

So here are some thoughts:

When a corporation is specifically chartered for the purpose of a religious or political agenda, or for the purpose of providing information and news to the public, it is reasonable to assume that the owners are aware of and approve of this purpose. Coupled with the specific protections afforded these activities by the first amendment, there is good reason to protect the owners' first amendment rights by providing some protection to the corporation.

When a corporation is chartered for some purpose other than one protected by the first amendment it isn't quite so reasonable to assume that the corporation speaks for the owners or that the owners approve of or support the corporation's political or religious positions and activities. Under these circumstances, protection is problematic, since it involves speaking on behalf of those owners who may NOT endorse or approve of the message or the activity. This then, would be a violation of the (perhaps minority) owners' rights to speak freely on their own behalf.

Under the second circumstance, it would be more than reasonable to make restrictions on an organization's public advocacy a condition for the privilege of limited liability. This privilege is granted by the government conditions may be placed on it. No one has the right to incorporate - regardless of the purpose or activity that is to be undertaken. Those owners who want to engage in religious or political speech as something other than the PRIMARY purpose of the organization should organize as a partnership and should assume liability for their economic activities. Under those circumstances, it is much more assured that all owners have made a considered choice and are in basic agreement with the positions and the activity itself.

This would ensure that first amendment rights are reasonably honored and that they are not abused by a plutocracy that is indifferent or even hostile to honest, robust public discourse.

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