In Lorillard Tobacco Company v. Reilly, the Supreme Court struck down a Massachusetts ban on tobacco advertising on First Amendment grounds. In his concurring opinion, Clarence Thomas writes:
The State misunderstand the purpose of advertising. Promoting a product that is not yet pervasively used (or a cause that is not yet widely supported) is a primary purpose of advertising. Tobacco advertisements would be no more misleading for suggesting pervasive use of tobacco products than are any other advertisements that attempt to expand a market for a product, or to rally support for a political movement. Any inference from the advertisements that business would like for tobacco use to be pervasive is entirely reasonable, and advertising that gives rise to that inference is in now way deceptive. [Emphasis added.]
There’s so much—from the history of political thought, conservative thought, and free-market libertarianism—packed into these three sentences, one might be forgiven for missing the breadth and power of what Thomas is arguing.
First, notice the explicit comparison, the affinity, that Thomas draws between commercial advertising for a commodity or product and political advocacy and action for a cause.
Part of this comparison has to do with the ongoing effort by constitutional conservatives to draw ever wider First-Amendment boundaries around commercial speech: the more commercial speech can be elevated to the status of political speech, the stronger First Amendment protection it will have. In 44 Liquormart v. Rhode Island, Thomas had written:
I do not see a philosophical or historical basis for asserting that “commercial” speech is of “lower value” than “noncommercial” speech.
In Lorrilard, Thomas pursues that argument, insisting that commercial speech is of equal status with noncommercial speech and thus entitled to similar levels of First Amendment protection.
But there is something else going on with those clauses I’ve bolded above: “a cause that is not yet widely supported…or to rally support for a political movement.”
Thomas is here claiming that advertising is similar to political advocacy and action. Like the political activist or organizer who seeks to turn an unpopular, minority cause into a mass movement, the advertiser seeks to turn a niche product into a mass commodity.
In his Constitution of Liberty, Hayek makes a similar argument, claiming that throughout history, it has been the great men of money and property who have subsidized not only the development of mass commodities—turning previously expensive luxuries, which had been confined to the wealthy elite, into mass products and mass tastes—but also the cultivation of heterodox beliefs and minority persuasions.
Hayek identifies this process in the economic realm—
The important point is not merely that we gradually learn to make cheaply on a large scale what we already know how to make expensively in small quantities but that only from an advanced position does the next range of desires and possibilities become visible, so that the selection of new goals and the effort toward their achievement will begin long before the majority can strive for them. If what they will want after their present goals are realized is soon to be made available, it is necessary that the developments that will bear fruit for the masses in twenty or fifty years’ time should be guided by the views of people who are already in the position of enjoying them.
—as well as in the noncommercial realm of culture, ideas, morals and politics, where significant investments of money are required to support causes and beliefs that otherwise would have little material support:
The importance of the private owner of substantial property, however, does not rest simply on the fact that his existence is an essential condition for the preservation of the structure of competitive enterprise. The man of independent means is an even more important figure in a free society when he is not occupied with using his capital in the pursuit of material gain but uses it in the service of aims which bring no material return.
…
What little leadership can be expected from the majority is shown by their inadequate support of the arts wherever they have replaced the wealthy patron. And this is even more true of those philanthropic or idealistic movements by which the moral values of the majority are changed.
…
It is only natural that the development of the art of living and of the non-materialistic values should have profited most from the activities of those who had no material worries.
When I first proposed this line of argument about Hayek, it generated a considerable controversy. What perhaps got lost in that controversy was the notion that for theorists like Hayek, economic action can be understood as a transposition of—or at least bears a correspondence to—political action. This, I’ve argued more generally, is part of a larger move in modern thought, whereby the economy becomes the sublimated field of classic or heroic political action.
It’s interesting to see Clarence Thomas, who claims to have read Hayek (one of his biographers corroborates that claim, only he references Road to Serfdom rather than Constitution of Liberty), channeling a similar notion: that commercial action—in this case, advertising—should be understood in relationship to, or as a variant of, political action.
It puts his First Amendment commercial speech jurisprudence in a different light from how it is conventionally understood: not simply as an attempt to carve out more areas of the market for immunity from government control, but also as an effort to recreate, in the realm of the economy, a sphere for a particular kind of political action.
But there’s an additional element in Thomas’s argument here that bears noting.
The advertiser, for Thomas, is like the political actor insofar as she must use the instruments of persuasion and illusion to achieve her ends. What inspired Thomas’s claim, quoted above, was the State of Massachusetts’s argument that, according to Thomas, “the simple existence of tobacco advertisements misleads people into believing that tobacco use is more pervasive than it actually is.” It was this claim by Massachusetts—that advertising generates an illusory sense of tobacco’s popularity and widespread use—that led Thomas to make his comparison between advertising and political action.
Though Thomas does not explicitly spell this out, the comparison might go like this: Every organizer, activist, or political leader knows that she launches her political cause from a starting point of weakness. The very reason she must turn her issue into a cause is that not enough people support it and she needs that support if she is going to see that causes’s triumph. She has to generate that support. Part of the way she will generate that support is by claiming that in one way or another it’s already there: the masses are silently supportive of her position but are too afraid to act on its behalf; they will be supportive, once they see other people rallying around it. Inevitably, the political organizer or activist will try to nudge that support along, by telling their potential followers that all of their comrades are already out in the commons; they must merely join them to see.
When the First Amendment protects political speech—including, importantly, political speech that is false—it is precisely, Thomas seems to be suggesting, this dimension of speech that lies at the boundaries between fact and fiction that it is protecting.
At the heart of this kind of political action, then, is a straddling of that elusive space between what is, what is not, and what might be. Machiavelli understood that; Hobbes understood that (Leviathan’s massive power is generated in part, as I’ve argued, by healthy and alternating doses of illusion and reality); Nietzsche did, too.
In the modern era, however, no theorist explored that dimension of political action—in both its toxic and tamer variants—more than Hannah Arendt. The toxic variant was to be found in all manner of totalitarianism, as well as in the lies of Richard Nixon and Lyndon Johnson. The tamer variants, however, were found in that dimension of action that involved elements of novelty and initiation, in an appreciation that politics is not the realm of Platonic Truth, a deep structure of what is, beneath the surface or behind the scenes, but of multiple and dissonant perspectives on stage, which provide an occasion for persuasive speech and artfulness.
Though Arendt was not nearly as hostile to factual truth as some would have her be, she did offer, between the lines of some of her essays, an appreciation of the art of the liar, for she saw that art as related, in some ways, to the political arts more generally.
The liar is an actor, in the literal sense, and politics, as Arendt reminds us, is a theater of appearances.
But the liar is also an actor in the political sense: she seeks to change the world, turning what is into what isn’t and what isn’t into what is (this is the part that made Arendt so nervous, as it reminded her of the totalitarian ruler). By arraying herself against the world as it is given to us, the liar claims for herself the same freedom that the political actor claims when she brings something new into the world: the freedom to say no to the world as it is, the freedom to make the world into something other than it is.
It’s no accident that the most famous liar in literature is also an adviser to a man of power, for the adviser or counselor has often been thought of as the quintessential political actor. When Iago says to Roderigo, “I am not what I am,” he is affirming that the liar, the dramatic actor, and the political actor all subscribe to elements of the same creed.
The advertiser operates in a similar realm between truth and illusion. She, too, seeks to use the arts of illusion to create new realities. Thomas seems to be emphasizing that dimension of the advertiser’s art.
Whether and how he thinks it relates to these other political arts—Is it meant to be a substitution for those political arts, such that the First Amendment, in protecting commercial speech, finds or identifies a new realm of political action in the sphere of the economy?—remains to be seen.
{ 70 comments }
Paul Davis 06.10.16 at 6:29 pm
Is it conventional to treat “The State” as a plural form? (Thomas’ does this…)
Rich Puchalsky 06.10.16 at 6:37 pm
“By arraying herself against the world as it is given to us, the liar claims for herself the same freedom that the political actor claims when she brings something new into the world: the freedom to say no to the world as it is, the freedom to make the world into something other than it is.”
I’m convinced that this is why the well-known quote about the “reality-based community” has had such staying power. In hindsight, everyone took the wrong lesson from it: the GOP seems to have decided that this is how politics works even in cases where reality-based restrictions really do operate, such as in environmental issues: The Democrats seem to have decided that this isn’t how politics operates the rest of the time.
Kalkaino 06.10.16 at 7:23 pm
Granting that most politicians prevaricate sometimes, it still seems to me that right-wingers, now totally caught up in their unicorn-worship of “free markets,” speak Advertese, a tastes-great/less-filling sort of lingo that doesn’t really have any truth-value whatsoever. All noise and no signal, it’s meant to have an effect, to infatuate, inflame, distract, or make memorable, not to communicate fact. Truth has no meaning in Advertese; it can’t be missed or insisted upon. That’s one of the reasons that when you say to Foxitarians, “That’s false,” or “That’s a damned lie” — even if you have video evidence — they act like you’re speaking Swahili. False? Lie? These terms have no meaning in their world. That Clarence Thomas, a known perjurer, should want the whole world speaking Advertese and only Advertese seems hardly surprising. He’s as honest as the next guy in that conceptual system.
Lynne 06.10.16 at 8:51 pm
This is an appalling ruling, not only because it compares advertising to political speech but also it erases the difference between individual and corporate speech. Just awful and frightening.
Paul Davis 06.10.16 at 9:10 pm
Lynne @4 … one of the dilemmas that the court has at least tried to offer up as something that affects their rulings for Citizens United and related cases is that “corporate speech” in the US covers non-profit (501(c)3, 501(c)4 and other) corporations as well as for-profit corporations.
As appalling as CU was, ask yourself what restrictions you want to see placed on non-profit, perhaps even explicitly political corporations, and what legal justification you can offer for applying them unevenly to non- and for-profit entities.
Lynne 06.10.16 at 9:33 pm
Paul Davis, I am not an expert on the First Amendment (I am not even American) but my understanding of it as I learned in an American high school back in the Ice Age was that it was to enable people (men) to speak their thoughts freely without fear of persecution because speech by itself was not a crime. Since corporations are not people and do not have thoughts, I am amazed this amendment even applies to them, and doubtful that it was intended to when it was first written. Obviously I am open to correction on that.
J-D 06.10.16 at 10:19 pm
Tobacco advertisements would be no more misleading for suggesting pervasive self-poisoning than are any other advertisements that attempt to expand a market for a product, or to rally support for a political movement. Any inference from the advertisements that business would like for self-poisoning to be pervasive is entirely reasonable, and advertising that gives rise to that inference is in no way deceptive.
Paul Davis @5
Law that provides no justification for treating for-profit corporations differently from not-for-profit corporations is bad law and should be changed.
Paul Davis 06.10.16 at 11:23 pm
J-D @ 7 : I totally agree, but the SCOTUS doesn’t change laws.
Paul Davis 06.10.16 at 11:25 pm
Lynne @6: what happens when 6 people gather to speak their mind on a street corner or in a bar? what happens when they decide to appoint one person to speak for them? what happens when they decide to incorporate? what happens when they receive donations from other like-minded citizens? at what point does it stop being personal speech and start being corporate?
J-D 06.10.16 at 11:40 pm
Paul Davis @8: I am aware that many people hold that view; are you aware that many people hold a different view? As I understand it, Clarence Thomas is himself one of those people (I mean, he thinks the Court’s decisions should not change the law, but he also thinks that they have done so.)
Brett Dunbar 06.11.16 at 1:07 am
The free speech rights of a corporation are nothing much to do with corporate personhood, rather it is they are inheriting the rights of their members. Essentially as the individuals have a right to free speech they still have the same right when they act as a collective body.
Corporate personhood is that a class of legal body (called a corporation) can sue or be sued in it’s own right and therefore is able to be party to a contract in itself rather than the members being party to the contract as is the case with a partnership.
Bernard Yomtov 06.11.16 at 1:41 am
Essentially as the individuals have a right to free speech they still have the same right when they act as a collective body.
Except that describing the shareholders of a large public company as a “collective body” is silly. Worse than silly, actually. Out of touch with reality is more like it.
They don’t act as a a “collective body” when donating vast sums to PAC’s or whatever. The decisions are made by managers, and likely are not in the interests of a large percentage of the shareholders.
The notion that the shareholders of say, General Electric – a group whose composition changes many times per minute – form some sort of voluntary association is ludicrous. Only a lawyer could buy it.
Collin Street 06.11.16 at 2:14 am
The free speech rights of a corporation are nothing much to do with corporate personhood, rather it is they are inheriting the rights of their members.
Eh?
“Corporate personhood” means the corporation and its members are distinct legal entities, with distinct rights and obligations. The corporate veil isn’t a one-way mirror. We have company structures where the rights of the organisation derive from the rights of the members, they’re called “partnerships”… and in those, the obligations of the organisation are also the obligations of the members.
Brett Dunbar 06.11.16 at 10:46 am
The same rules apply howsoever the shareholding happens to be distributed. There isn’t really any way of making a clear division between a corporation with a small number of shareholders and one with a large number. The shareholders appoint directors to act on their behalf. If dissatisfied with the actions of the directors they are free to vote for different ones.
Corporate bodies are in the case of free speech inheriting the rights of the shareholders allowing them to act collectively in pursuit of a political objective. The fact that such objectives can also be pursued in other ways doesn’t affect that they can be pursued in a corporate form.
Paul Davis 06.11.16 at 11:10 am
Corporate bodies are in the case of free speech inheriting the rights of the shareholders
… but that’s the whole crux of the argument. Not whether they are doing this (thanks, Citizens United, thanks Hobby Lobby), but whether or not they should. And specifically whether a corporation whose explicit intent is profit should inherit such rights, and whether the same standard applies to other types of corporations.
The law also provides for various kinds of discrimination based on non-profit or for-profit status (tax status as the primary one). It isn’t clear to me what this implies as far as the constitutional right under discussion.
Lynne 06.11.16 at 11:33 am
Paul Davis @ 9, A few individuals are still speaking their minds. When they incorporate, they are an economic entity of some kind; a company/corporation, and no longer eligible for free speech protection, or shouldn’t be, IMO. I don’t care whether or not it is for profit, really. Corporations can’t think, so can’t express their thoughts, so don’t need protection for those thoughts.
That’s how I think it should be, though apparently it is not like that at all in the States. I don’t think we have that elision of individual/corporation up here. Sure hope not.
Collin Street 06.11.16 at 11:47 am
And specifically whether a corporation whose explicit intent is profit should inherit such rights,
See, the whole fucking point of “incorporation” is to draw harsh distinctions between the rights and obligations of the corporation and the shareholders. Thus, limited liability, or those weird-arsed cases where companies wind up suing their sole shareholders. Hard to see how that could happen if the shareholder and the company had an identity of interest, isn’t it.
So if the free speech rights of the company and shareholder are identical that’s a distinct special case that you’d really have to be well-prepped to argue for. A simple “they inherit it from their shareholders” is special pleading, doesn’t cut the mustard next to the vast things they don’t inherit from their shareholders.
I mean, does a corporation under US law have second amendment rights?
Paul Davis 06.11.16 at 12:05 pm
Collin @ 17 : although I agree with you, I think it is instructive to try to argue the opposite side. See my response to Lynne @ 9. At what point in that process should free speech rights be lost? How do PACs fit into whatever answer you may have?
Bernard Yomtov 06.11.16 at 12:55 pm
The same rules apply howsoever the shareholding happens to be distributed.
Ok, but the issue is what those rules are to be.
There isn’t really any way of making a clear division between a corporation with a small number of shareholders and one with a large number.
Of course there is. In the US such rules in fact exist, and affect some corporate regulations. Besides, as a very good rule of thumb it’s possible to distinguish between those which are public – implying rapid turnover of shareholders – and those that aren’t, where this much less turnover.
In any case, the distinction I think is important is between corporations that have shareholders and are profit-making and those that are membership organizations and have other purposes. It’s not hard at all.
Corporate bodies are in the case of free speech inheriting the rights of the shareholders allowing them to act collectively in pursuit of a political objective.
Begs the question. It is not the shareholders who are acting collectively. It is managers acting with shareholder money, in a situation where many of the shareholder will disagree specifically with the actions taken.
The shareholders appoint directors to act on their behalf. If dissatisfied with the actions of the directors they are free to vote for different ones.
You are clearly totally unfamiliar with how corporate governance actually works in the US. Board candidates are selected by management and the elections are uncontested well over 99% of the time. Mounting a challenge is a very difficult and extremely expensive proposition, impractical for anyone but a small handful of extremely wealthy investors.
Brett Dunbar 06.11.16 at 1:06 pm
Citizens United specifically concerned a non profit corporation. A class which includes such things as unions.
The shareholders appoint the board to act as their agents to advance their interests in various matters. One of these may be political lobbying. The corporation is a tool by which the shareholders are exercising their right of free speech.
Collin Street 06.11.16 at 1:18 pm
At what point in that process should free speech rights be lost?
This reflects somewhat of a misconception: corporations and their shareholders are different persons and have, and act under, different rights.
If I act, I act with my personal individual rights. If my mate Bob acts, he acts with his individual rights. If I get my mate Bob to act for me, then the action is done by Bob — obviously — and — equally obviously — it’s Bob’s rights that are in play, not mine.
I haven’t lost my rights. They’re still exactly the same. It’s just I’m not using them, because I’m not doing anything. It’s Bob that’s doing the doing, and it’s Bob’s rights that we look at.
Rich Puchalsky 06.11.16 at 1:30 pm
Paul Davis: “At what point in that process should free speech rights be lost? How do PACs fit into whatever answer you may have?”
There’s no reason to answer this question — unless you’re a lawyer arguing a case before the SC — because the question presupposes the frame for the answer. There is no reason why PACs, unions, non-profit environmental organizations, churches, and business corporations should all be considered to be the same kind of entity such that a general rule has to be made for them all and that a general theory of how individual rights apply to groups that people are in has to be made. There’s not even a reason stemming from American political tradition, or something like that, because traditionally and theoretically different kinds of groups were considered to be different kinds of cases.
Paul Davis 06.11.16 at 4:16 pm
Rich @ 22: you say that there “is no reason why [ X, Y and Z ] should all be considered the same kind of entity ( [ A, B, C] ) such that a general rule has to made for them all”.
But isn’t that precisely the opposite of what the SCOTUS said in Citizens United?
Moreover, there is a great deal of overlap in the regulations that cover corporations of any kind. What specifically is the basis, other than a hand-waving appeal to tradition, for differentiating Greenpeace, the Salvation Army, National Nurses United for Patient Protection, Center for Medical Progress and Walmart when it comes to free speech rights? On what grounds can one of them campaign for an issue or a candidate, while others cannot?
I’d like the answer to be for-profit status. But I’ve never really heard a solid answer of any kind.
Paul Davis 06.11.16 at 4:21 pm
Collin @ 22 : that seems clear at first. But then after some reflection, I think you’re evading the question. I do not ask Bob to act for me, Bob and I get together and we act for common cause in which we both believe. Then we add Alice, and later Jane. Then we incorporate, and then we …
It sounds as if you are saying that the act of incorporation changes things, because at that point, it is the corporation that acts, albeit via the behaviour of its officers/employees. At that point, I think you’re saying, it is the corporation that acts, and thus the corporation’s rights that are in effect. That seems reasonable, at least superficially.
But if that is true, how to differentiate a for-profit from a non-profit corporation? And should we?
Watson Ladd 06.11.16 at 4:27 pm
Lynne, do you think the government should say what the New York Times can print?
mrearl 06.11.16 at 4:31 pm
The corporation is not the agent of the shareholders. That’s a contradiction in terms.
ZM 06.11.16 at 4:32 pm
I think there are some interesting things in the case, one is that it was a 2001 case which preceded the 2005 World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) , which “aims to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by its Parties at the national, regional and international levels. ”
In Australia we currently have stronger laws developed after the FCTC , The Tobacco Plain Packaging Act 2011, passed into law on 1 December 2011, and required all tobacco products sold in Australia to be sold in plain packaging from 1 December 2012.
Tobacco advertising has been subject to control here since the Tobacco Advertising Prohibition Act 1992 took effect, and legislation in 2012 extended restrictions on tobacco advertising to the internet and other electronic media in Australia.
In the decision I think one thing the justices considered was how the State law interacted with Federal law, and they also looked at consistency with case law from Central Hudson Gas & Electric Corp. v. Public Service Commission, which is a case looking at First Ammendment rights and Commercial Advertising and the limits that the government can impose.
This is quite interesting case law, and apparently one of the most important legal precedents in the area.
“The court instituted a four-step analysis for commercial speech to the Commission’s arguments in support of its ban on promotional advertising:
1. Is the expression protected by the First Amendment? For speech to come within that provision, it must concern lawful activity and not be misleading.
2. Is the asserted governmental interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest?
There must be a “reasonable fit” between the government’s ends and the means for achieving those ends.”
1. looks at whether the speech is legal, or the product is legal. In this case tobacco is a legal product, and it’s not illegal to produce tobacco products or sell tobacco to people.
2. I think the government interest is substantial in the case of tobacco, due to health consequences. In Australia healthcare has been universal since Medicare was developed in the 1970s (I think it was then). The USA governments are obviously intetested in conventional public health issues such as sanitation, but has only recently seen the healthcare of citizens as a public health issue, remedied by the Affordable Care Act, which is somewhat different from Australia’s Medicare system. In 2001 I don’t know the government would have had strong grounds to argue to the Court that tobacco advertising was appropriate target for tighter regulation….? I think the Federal government would now be in a stronger position to regulate tobacco advertising based on the WHO FCTC and Affordable Care Act.
3. Again, I think the regulation would be seen to advance government interest more now, than in 2001.
4. The government needs to show the court that the regulations it has enacted are only as extensive as necessary to serve the governments interest. Again, the Federal government would be in a stronger position now to regulate advertising than the Massachusetts State government was in 2001.
I think there are good reasons the Federal government could regulate this under its interstate commerce powers, and a better chance reasonable regulations would be upheld in court now than the Massachusetts regulations in 2001.
Also the Australian policy could be looked at as an example, there is a study on the effects of Australian regulations by the British Medical Journal. See eg, http://www.health.gov.au/internet/main/publishing.nsf/Content/tobacco-plain-packaging-evaluation
I think one very important thing in any new regulations and relitigation of this in the courts, would be to stress the exceptional nature of tobacco as a product. Tobacco consumption presents a threat to people’s health, and increases rates of disease in the population.
Possibly with over consumption of products being an environmental issue, you might want more regulations on all advertising to reduce consumption, but that is a different issue to governments having an interest in decreasing the consumption of tobacco products due to health effects, and having an interest therefore in the control of the advertising of tobacco.
BBA 06.11.16 at 4:55 pm
ZM: even before the ACA, governmental expenditures on health care were higher per capita than in most countries with “universal” services. Medicaid spending on lung cancer patients was a major factor in the 1990s state government lawsuits against tobacco manufacturers that led to the Master Settlement Agreement of 1998. One component of the MSA was that tobacco makers would voluntarily agree to restrictions on advertising that would’ve been unconstitutional if unilaterally imposed by government.
ZM 06.11.16 at 5:06 pm
Why do you say the restrictions on advertising would be unconstitutional if imposed by government BBA?
Looking at the 4 things that the court has to take into account, they don’t seem to think regulations on advertising are unconstitutional per se.
I think there is a strong chance the Federal government could control tobacco advertising now and relitigate this in the courts.
BBA 06.11.16 at 6:22 pm
The MSA eliminated all cigarette billboards, a much greater restriction than the “no billboards near schools” law found unconstitutional in 2001. If you disagree with the decision, go ahead disagreeing, but it’s still the law of the land.
ZM 06.11.16 at 6:25 pm
I think the issue could be relitigated, I haven’t read the full decision. I’m not American.
How come if the MSA eliminated all cigarette billboards, Massachusetts had a law prohibiting them from near schools?
pnee 06.11.16 at 6:42 pm
This is quite a messy decision, with all the justices concurring with at least parts of it. It was no 5-4 nailbiter. In that sense, I’m not sure how good a candidate for re-litigation this is.
As is common in these cases, Thomas wrote an extreme opinion that no one else joined in.
If one wants to understand the legal reasoning that won the day as far as why this was decided the way it was, Thomas’ concurrence is probably the worst place to start.
If one just wants to understand what makes Thomas tick, there are probably dozens of opinions like this one from him.
ZM 06.11.16 at 7:12 pm
I think relitigation is possible at the Federal level , given the WHO FCTC and Affirdable Care Act, if the Federal government wanted to enact further controls on the tobacco industry. I am not suggesting that this particular Massachusetts case be relitigated.
LFC 06.11.16 at 8:12 pm
@Ze K
And that’s all there is to it.
This is a typically reductive comment by Ze K. Everything is reduced to one monocausal explanation: property, property, property. Nothing else matters to capitalist govts, which act exclusively in the interest of property owners. A bit hard to explain parts of the New Deal by this logic, but never mind.
I wonder if Ze K is aware of how intensely FDR was hated by some business owners. Some of them hated FDR with a loathing that rivals the almost pathological hatred that Ze K bears for HRC.
Ze K’s reductive approach to history and politics (except perhaps in the case of the couple of regions of the world he actually knows something about) is breathtaking in its simplicity.
Rich Puchalsky 06.11.16 at 8:55 pm
Paul Davis: “But isn’t that precisely the opposite of what the SCOTUS said in Citizens United?”
Why should we care what SCOTUS said in Citizens United? It’s a corrupt court populated by ideologues. As I wrote above, if you’re a lawyer arguing before the SC you have to care. If you”re not, then there’s no point in pretending that there’s any kind of principle involved.
Paul Davis: “I’d like the answer to be for-profit status. But I’ve never really heard a solid answer of any kind.”
You dismiss appeals to tradition as hand-waving, but there never was a simple binary based on non-profit status. Historically, different kinds of organizations were treated in different ways depending on what the purposes and organizational forms of those organizations were. Asking people to squeeze this all into a binary is asking for a dumbing-down, not a “solid answer”.
Bernard Yomtov 06.11.16 at 10:17 pm
Brett Dunbar @20,
The shareholders appoint the board to act as their agents to advance their interests in various matters.
Once again, you are quoting 7th grade textbooks rather than describing anything that really happens in large corporations. Boards are selected by managers, by and large. The average shareholder has no say.
One of these may be political lobbying.
But we are not talking about lobbying, which generally deals with very specific matters, but election campaigns, which deal with a huge range of issues.
The corporation is a tool by which the shareholders are exercising their right of free speech.
No. It’s not. No one ever bought a share of Microsoft so that Bill Gates could speak on their behalf. The very notion that corporate managers speak for their shareholders when they make large contributions is ridiculous.
Paul Davis 06.11.16 at 11:04 pm
Rich Pulasky @ 36 : the reason we have to care even if we’re not lawyers arguing in front of the SCOTUS is that there are other lawyers arguing in front of SCOTUS.
Imagine for a moment that CU had gone the other way. It would have been a mere blink in the passage of time before some conservative group brought a lawsuit to stop some progressive non-profit corporation from political speech. And how would that have turned out?
You don’t get to live the world you want, you get to live in the world partially shaped by SCOTUS. Blithely dismissing their existence and their positions as “corrupt” doesn’t really help much with that.
Rich Puchalsky 06.12.16 at 2:41 am
“the reason we have to care even if we’re not lawyers arguing in front of the SCOTUS is that there are other lawyers arguing in front of SCOTUS.”
And do we have any influence over those lawyers? No, I don’t think so. So why not just tell the truth, which is that the attempt to transform this into some kind of logical binary won’t work. Actual life is more complicated than that and the only point of having some kind of bright line around for-profit vs non-profit is to try to defend some traditional arrangements that were in actuality more complicated. But those arrangements aren’t being destroyed because there isn’t a good logical case for them: they are being destroyed because they are not in the interest of elites. Let’s not dignify this process by trying to rationalize it when we have no actual power to affect it in any case.
Collin Street 06.12.16 at 3:36 am
@Paul
[snip]
Correct. Except for the “superficially” and all that; that’s just your inability to admit to error. But no matter.
But if that is true, how to differentiate a for-profit from a non-profit corporation? And should we?
Rich and Bernard are dealing with the “should we” fairly comfortably, but the “how” seems to be giving you trouble. So. Do you know much about companies law, incorporations, that sort of thing?
When you’re setting up an incorporated enterprise you need to say — legally required — what the purpose of the enterprise is, and what the enterprise is permitted to do in order to achieve that purpose. It’s one of the boxes in the forms the government requires you to fill out before they register the incorporation. If you want it to be for-profit, you need to say so; if you want to engage in political lobbying, you need to say so.
So it’s not that hard. We look at the paperwork that’s lodged with the corporations registrar.
Collin Street 06.12.16 at 3:56 am
To unpack/explain some of what I wrote.
Incorporated entities are created by the State. Back in the day you needed primary legislation, a private act; you petitioned the legislature and you got your charter written and passed. These days, like everything else that used to require direct legislation [divorce!] it’s all done by orders under delegations from framework legislation, but that’s just an administrative convenience, not a fundamental change.
[even today entities are created under direct primary legislation from time to time; usually messy cases where you need a made-to-measure solution rather than an off-the-rack incorporation under one of the framework acts.]
Because it’s the state that does the creation, it means that the members need to tell the state what sort of incorporated entity they want, so that the state can create an entity to fit. Which means you need to tell the state what you want the entity to be able to do.
[and also that the abilities an incorporation can be created with are set by the legal system of the state and not entirely by the will of the members; it’s the state that’s in control of the process.]
SamChevre 06.12.16 at 11:34 am
If I get my mate Bob to act for me, then the action is done by Bob — obviously — and — equally obviously — it’s Bob’s rights that are in play, not mine.
This makes sense at first glance, but gets less right every time I read it.
If I’m making and putting up flyers advertising my band, and I go to a copy shop to get them copied–and find out that all the copy shops have been forbidden to copy fliers for my band, specifically–I think this is a violation of MY rights, not the COPY SHOP’s rights.
Paul Davis 06.12.16 at 12:32 pm
rich @39: i don’t think there’s an effort here to transform it into a binary. in fact, that was precisely what SCOTUS was avoiding with CU and other similar cases. they refused to try to draw the sorts of distinctions that many of us would like to see between the rights of individuals and the rights of any sort of corporation.
I am also not trying to make it a binary choice. I am trying to understand how we might have a reasonable, defensible rationale for when and how we ascribe the rights of individuals to a group of individuals. I don’t believe that a group of individuals organized into a for-profit corporation should have the rights of the individuals that make up the group. I do think that various other kinds of groups of individuals probably should have all or most of the rights of the individuals that make up the group. I doubt that this applies to all other kinds of groups of individuals. But I can’t defend this position without an essentially faith-based statement that I don’t think that organizing a for-profit corporation should grant that entity any of the rights in the constitution, and I find such a rationale troubling. I have yet to see any rationale from anyone that does any better.
Paul Davis 06.12.16 at 12:35 pm
collin @ 41: yes, sure, I understand all that. But you’re still (to me) doing an end-run around the fundamental question.
We are in violent agreement that it is the state that defines what rights a corporation has and does not have, and thus what activities it may and may not legally participate in. Therefore the state certainly has the power to say “corporations of type X do not have free speech rights, and may not participate in ….”. And I believe that the state should utilize this power.
But how should they utilize it? What types of corporations (if any) should be stripped of the ability to participate in “political speech” ? Why?
LFC 06.12.16 at 1:20 pm
I’ve only read the entire OP just now. I understand the argument, but I don’t find it — for reasons I’m having trouble putting my finger on — all that persuasive. In particular, the attempt to draw connections between Thomas on advertising-as-political-action and Arendt on the liar in politics seems somewhat strained to me. Though I suppose this could be partly my problem in that I may have some — perhaps not wholly defensible — resistance to turning Thomas into a political theorist, which is what the OP seems to be doing at some level.
Re Arendt’s view of “politics as a theater of appearances” — this is very much, as the OP suggests with the passing reference to Machiavelli, what M. says in The Prince (e.g. the well-known passage on the lines of “Everyone sees what you appear to be, few touch what you are” — etc.).
p.s. Haven’t closely read most of the comment thread, which seems to have gone off on something of a tangent (i.e. the proper legal status of corporations) relative to the OP.
Paul Davis 06.12.16 at 1:25 pm
LFC @ 46: i don’t see it as much of a tangent. From the OP:
We’re not discussing the “proper legal status of corporations”, but rather the distinction between “commercial speech” and “noncommercial speech” and how or if to differentiate the two.
LFC 06.12.16 at 1:39 pm
Paul Davis @47
Well, as I understand it (and I may be wrong), the current state of First Amendment doctrine as articulated by SCOTUS is that ‘commercial speech’ such as advertising gets some First Amendment protection but not as much as ‘political speech,’ which is at ‘the core’ of the First Amendment. Thomas has long been, apparently, unhappy with this distinction.
As far as I can tell, this has relatively little to do with the Citizens United case that I think has been mentioned upthread. Citizens United is about (what the Court majority at any rate saw as) political speech not commercial speech — it’s about political speech by corporate-like entities. What distinguishes commercial speech from political speech is not *who* says it but the content: e.g. advertising is commercial speech, political ads sponsored by corporate entities is not commercial speech. I admit the lines can get blurry, but I think the distinction holds.
So there are two separate issues here: (1) whether commercial speech shd get, as Thomas believes, the same level of First Am. protection as political speech; and (2) whether the First Am. political speech rights of wealthy individuals and corporations and corporate-like entities such as superpacs shd trump the public interest in regulating the amt of money in electoral politics. My answers wd be: (1) commercial speech shd get a lower level of protection and (2) the interest in regulating money in politics to prevent corruption and excessive concentrations of power outweighs the First Am right to pour as much money as one can into campaigns.
Collin Street 06.12.16 at 2:02 pm
We’re not discussing the “proper legal status of corporationsâ€,
We kind of had to, because you badly misunderstood it and it was crippling your thinking. Now — and only now, after I’ve sunk some hours of effort and what must be half a cask of nasty cask sav blanc and an ok-ish cask shiraz — now you can talk about the proper understandings of rights of an incorporated entity &c and be on the same page as everyone else. Before you couldn’t do that.
And you don’t notice, of course. Learning — this isn’t a dig at you, this is true for everyone — is like that.
[1] 2L casks, and the half-cask is combined, not each. But the sav blanc — checks to be sure — really is nasty. Maybe I should go to bed.
Paul Davis 06.12.16 at 2:05 pm
LFC @ 48: the constitution doesn’t differentiate “political” and “commercial speech”. The SCOTUS has done that in various rulings, which define commercial speech and give it reduced first amendment protection.
The SCOTUS has also not been exactly supportive that there is any interest in regulating money in politics, and specifically spoke to this in CU within the context of “speech”, saying point blank that there was no risk of corruption or even appearance of corruption arising from corporate spending on political speech.
SCOTUS has been heading in the opposite direction than you (or I) would prefer, and offering more protection to commercial speech (though likely still less than political speech.) The OP is partially centered on Thomas’ opinion that he sees no real reason to treat them differently at all.
Theres the separate question, which CU speaks to but Lorillard doesn’t, about the status of political speech by a corporation. Conservatives appear to want corporations to have essentially all/most of the rights of individuals, and SCOTUS seems rather approving of this concept at present.
So for quite a lot of people, I believe, the fundamental question is prior to any attempt to differentiate commercial from political (or other) speech. That question is: which of the rights granted to individuals by the constitution apply to various types of corporations (if any) ?
Paul Davis 06.12.16 at 2:09 pm
collin @ 49: i think you missed the ballmer peak, and probably need better wine.
https://xkcd.com/323/
The fact that I didn’t explicitly talk about the origin of corporate status wasn’t a reflection of my knowledge. As stated @47, we are and always were in violent agreement about that; I just see it as a prior to the more interesting and consequential question/problem.
LFC 06.12.16 at 2:37 pm
Paul Davis @50
So for quite a lot of people, I believe, the fundamental question is prior to any attempt to differentiate commercial from political (or other) speech. That question is: which of the rights granted to individuals by the constitution apply to various types of corporations (if any) ?
Ok, one could approach it by asking that question first.
The OP certainly raises all these issues — I didn’t mean to imply otherwise — but its main focus seems to be a particular reading of Thomas that situates him w.in C. R.’s argument about “a larger move in modern thought, whereby the economy becomes the sublimated field of classic or heroic political action.” Which I don’t really have anything to say about at the moment.
Brett Dunbar 06.12.16 at 7:15 pm
The shareholders often fail to actively exercise their power to elect the directors. That doesn’t mean they don’t have it, merely that they are not significantly dissatisfied with the performance of the management.
Shareholder activism has become more common of late notably on the part of pension funds.
Kurt Schuler 06.12.16 at 11:37 pm
Since the First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press,” I do not see how one gets to a position that Congress may make a law abridging the freedom of speech, whether of bloggers, bridge clubs, corporations, or the United Nations.
Rich Puchalsky 06.13.16 at 12:01 am
One last time: are you a politically powerful person who is, for some reason, publicly working out SC argumentative strategy? In that case I fully approve of the attempt to keep the SC from declaring that corporations have all the rights of individuals by inventing some BS binary around non-profit status.
Or are you a more or less powerless person like the rest of us? In that case, the only power that we have is to tell the truth. And the truth is that a binary around nonprofit status is fake. Churches are nonprofits and have long-standing limits on political speech: trade associations are nonprofits and have long-standing expectations that they can hire lobbyists: government contractors are for-profits and are banned from making political contributions, etc. There is no reason to invent a new lie unless it’s arguably a lesser-evil lie that you have the power to put in place instead of a greater evil. But if you don’t have that power, it isn’t a lesser evil, it’s just an additional evil.
Brett Dunbar 06.13.16 at 12:21 am
The problem is that the first amendment doesn’t give any explicit grounds for exceptions to free speech. The ECHR does give explicit grounds.
Exceptions must be explicitly legislated, meet one of a fairly short list of grounds and must satisfy the courts that that are necessary in a democratic society. An explicit prohibition on advertising tobacco would come under protection of health.
You could really do with a new constitution.
Bill Murray 06.13.16 at 1:08 am
The problem is that the first amendment doesn’t give any explicit grounds for exceptions to free speech.
The first amendment doesn’t have to because the whole of the Constitution is made for and by
We the People of the United States, …, do ordain and establish this Constitution for the United States of America.
Therefore, it’s provisions only apply to the people of the United States except as noted. Therefore, the 1st Amendment would need to include corporations to have it apply to them
Collin Street 06.13.16 at 1:25 am
> You could really do with a new constitution.
This. The US first amendment is terrible law; if you interpret it as written you get horrible stupid no-good very bad outcomes, and if you hammer the text to get some sort of reasonable conclusions you’re shitting all over the plain text on the basis of higher, unwritten principles, and you may as well not have a written formal constitution at all.
The US, in its infinite wisdom, has chosen “both!”.
[which ties in pretty closely with Rich’s “why are you bothering asking these questions” point, also.]
Paul Davis 06.13.16 at 2:11 am
rich @55:
although telling the truth does indeed have remarkable power (c.f. occupy), i think this is an unnecessarily dismal view of the human condition. it certainly flies in the face of the famous margaret mead quote about small groups of people (unless you actually think that all they do too is to “tell the truth”, which is certainly possible).
I really don’t understand why you think I’m insisting on a binary. You’d provided a short list of different types of corporations and their various free speech limitations: this is great! This still leaves out the question: what rationale are you offering anyone (from Clarence Thomas down to the powerless) on why there should be specific restrictions on for-profit corporations (which I get the sense that you feel there should be) that would not apply to some other types of corporations? Or are you just washing your hands of any responsibility to provide such a rationale, with the claim the “telling the truth” (not quite sure what truth that is in this case) is all we can do?
ZM 06.13.16 at 3:15 am
Brett Dunbar,
“The problem is that the first amendment doesn’t give any explicit grounds for exceptions to free speech.”
Well the Supreme Court interprets the First Amendment as not being absolute and having exceptions. And if you go to the framers intentions, the Congress who passed it contained people who also passed the Alien and Sedition Acts which obviously shows they saw the First Amendment as limited at the time.
From Wikipedia:
“Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. The freedom of speech is not absolute; the Supreme Court of the United States has recognized several categories of speech that are excluded from the freedom, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech.”
The most protected speech is political speech, since that was the purpose of the Amendment.
Types Of Speech Restrictions include :
1. Content Based Restrictions — “The Court pointed out in Snyder v. Phelps (2011) that one way to ascertain whether a restriction is content-based versus content-neutral is to consider if the speaker had delivered a different message under exactly the same circumstances: “A group of parishioners standing at the very spot where Westboro stood, holding signs that said ‘God Bless America’ and ‘God Loves You,’ would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.””
2. Time, Place, and Manner Restrictions
3. Incidental Burdens On Speech
4. Prior Restraint
Exclusions to Freedom Of Speech are:
1. Inciting Imminent Lawless Action
2. Fighting Words
3. True Threats
4. Obscenity
5. Child Pornography
Torts include.
1. Defamation and libel and slander
2. Invasion of Privacy
ZM 06.13.16 at 3:24 am
I think if a corporation’s speech falls within the speech which is lawful for a person, it would be sort of difficult to argue the corporation shouldn’t be able to have that freedom of speech.
I think corporations can make political donations in Australia but we have not had a court case to see what the justices say are the reasons.
There are good reasons to limit corporations donations to politics, but this also applies to individuals. If you think of a an amount you would like to say is the limit for corporate political donations, you may as well make this the limit for individual’s political donations as well. Then individuals and corporations still have the same rights.
Z 06.13.16 at 12:14 pm
When Iago says to Roderigo, “I am not what I am,†he is affirming that the liar, the dramatic actor, and the political actor all subscribe to elements of the same creed […] Whether and how he thinks it relates to these other political arts
But isn’t it the case historically that the relation is one of genealogy, with the central myths of most cultures conceptualizing the liar (or trickster) whose symbolic manipulations threaten the very existence of the distinction between illusions and reality as the ancestor of the political actor? If that is correct, then Thomas’s interpretation and the analysis it relies on (according to the OP) would appear to me to be more suited to a pre-political mode of exercise of power and to be in a deep sense antithetic to well functioning political institutions (including a constitution and constitutional court).
Anecdotally and to tie this with cultural criticism, I believe that such a pre-political mode of exercise of power is on the verge of becoming dominant in the US (in no small part because of the inexorable rise of inequality of condition) and that the truly frightening obsession american cultural products with mass appeal display towards violent individual exercise of power by extraordinary individuals (deemed extraordinary by narrative fiat) cannot be considered entirely benign in that respect.
Rich Puchalsky 06.13.16 at 2:39 pm
“This still leaves out the question: what rationale are you offering anyone (from Clarence Thomas down to the powerless) on why there should be specific restrictions on for-profit corporations […]”
Because everything else today is kind of depressing, I guess I’ll answer this: I don’t need to offer a rationale. People don’t need high modernist rationalization of evolved societal mechanisms. (Read, for instance, Scott’s _Seeing Like A State_.) I’m aware that this is a profoundly conservative statement (for a certain meaning of conservatism, unlike what Corey Robin describes as reactionary conservatism) and that there are some societal mechanisms that people think there are good reasons to overturn. So is this one?
I don’t want businesses to have “free speech rights” because I don’t want elites to have more power in our society. The SC wants businesses to have “free speech rights” because they do want elites to have more power in our society. So there’s going to be a power struggle. It has little to do with the text of the First Amendment — people should wonder how e.g. if the First Amendment is so cut-and-dried, how are churches prevented from using political free speech to campaign for candidates. (Proximate answer: they’d lose 501(c)3 status.) There is always a way of getting around whatever the Constitution says, because sort of like the Bible, it says lots of things.
To repeat myself: examination of our current, Constitutional arrangements will reveal that historically, we have made different kinds of agreements for different kinds of organizations. That’s the general rule. When society changes, these arrangements change, after a power struggle.
You keep asking why I think that you’re suggesting a binary. Up at #23, you asked what differentiated various kinds of organizations, and answered your own question “I’d *like* the answer to be for-profit status.” That’s why. But that answer really doesn’t cover current complexity.
Corey Robin 06.13.16 at 2:45 pm
Z at 62: “conceptualizing the liar (or trickster)…as the ancestor of the political actor?… more suited to a pre-political mode of exercise of power…”
I can’t speak to the question of the central myths of most cultures, but if we take Machiavelli as the founder of modern political thought, which most of us in the field of political theory conventionally do, he certainly thought of deception as one of the key political arts, as did Guicciardini, who’s another figure credited with the invention of modern political thought . It also plays a big role in Plato’s Republic. As it does, at least on my interpretation, in Hobbes’s Leviathan. Not to mention Nietzsche or Strauss or Arendt.
If you take the western political canon to be at some level a representation of what politics is, I don’t think you can consign deception to the pre-political, at least not at the level of a culture’s self-understanding and representation.
bianca steele 06.13.16 at 3:02 pm
Do you take Iago to be more famous than Odysseus? (About to test my alumni access to Project MUSE to see whether Strauss says something about this, it seems he would.)
Corey Robin 06.13.16 at 3:38 pm
bianca steele at 65: “Do you take Iago to be more famous than Odysseus?”
I really don’t know. Though I would venture that the identification of “liar” with Iago is stronger than it is with Odysseus. But again, I don’t know.
That said, it doesn’t really change my point: Odysseus was also a preeminently political man, often serving in the Iliad as a counselor to Agamemnon.
AcademicLurker 06.13.16 at 3:43 pm
Though I would venture that the identification of “liar†with Iago is stronger than it is with Odysseus.
But the important question is, who would win in a fight?
bianca steele 06.13.16 at 3:46 pm
Rich @ 63: I don’t need to offer a rationale. People don’t need high modernist rationalization of evolved societal mechanisms.
Well, Catarina Dutilh Novaes, not I think a high modernist rationalizer, suggests you should offer one anyway, it seems.
bianca steele 06.13.16 at 3:49 pm
Corey, we cross-posted, and I don’t disagree, “famous” just struck me as odd because what I was first reminded of was someone in college who insisted Odysseus was most notably a terrible liar and cheat to get his way (and worried she was too much like that too).
Z 06.13.16 at 7:16 pm
Corey
I don’t think you can consign deception to the pre-political, at least not at the level of a culture’s self-understanding and representation.
Just to be clear, my comment was in no way intending as a disagreement either with the OP or with the above. In fact, I found the OP very thought provoking and I was (and still am) grappling with it. Here are a few scattered thoughts.
-First, to reiterate, perhaps more straightforwardly, my original point: at least at “the level of a culture’s self-understanding and representation”, the liar is indeed the original politician (but this should not be read as precluding the existence of more contemporary relations). As you mention, Hobbes and Machiavelli (I would also throw in La Boetie, with the reference to Ulysses in the incipit of La Servitude volontaire) understood this perfectly, if only because their respective cultural environments was not yet completely severed from such mythical representations.
-A moment of importance in the articulation between deception and political power is, as was recently and brilliantly emphasized by Patrick Boucheron in his College de France inaugural lesson, is the gregorian reform (and now I see that you cosigned a book with Boucheron; didn’t know that).
-Continuing on the Shakespeare connection, Shakespeare seems to enjoy the trope of the deceitful counselor quite a lot. Not only Iago, but also Portia as judge in the Merchant and Measure for measure‘s Angelo. Interestingly, and in my mind not coincidentally, there is a very palpable element of moral panic in the three plays, as if the deceitful wielder of political power was a reaction to some threatening otherness.
-Yet I would hope, on a normative level, that our understanding of political power could move beyond such representations and so admit in having felt a shiver down my spine at Thomas’s quote.
-Finally, I wonder if capitalism in its contemporary american version, in which every interpersonal relationship is to be conceptualized as a contract to be enforced with boundless authority on behalf of the stronger party, can function without an extensive symbolic apparatus of illusions and deceits, starting with the central inversion between the liberty it celebrates as its core value and the tyrannical authority on which it rests (or at least on which its ideal society would rest).
Anyway, thanks for the post.
Brett Dunbar 06.13.16 at 7:23 pm
Prohibiting using a corporation to aggregate the political donations of a large number of individuals without limiting spending by rich individuals would leave the financial influence of the super rich largely unaffected while greatly limiting that of those on a more ordinary income. Incorporation is easy and readily available to anyone. Corporations mostly have a very vague charter as it is hard to either predict how your business may develop over time or amend the charter as it develops. So the most convenient thing is have a charter that leaves the company broad freedom of action.
The supreme court has come up with a number of fairly arbitrary exceptions to the first amendment, but the lack of any textual support for them means that they are vulnerable to the court making equally arbitrary changes to what it deems acceptable.
Collin Street 06.13.16 at 8:41 pm
Prohibiting using a corporation to aggregate the political donations of a large number of individuals without limiting spending by rich individuals would leave the financial influence of the super rich largely unaffected while greatly limiting that of those on a more ordinary income.
This is only true, in any real-world-meaningful sense, for non-profits. For-profit companies don’t go around leveraging the free-speech rights of their poorer shareholders because, bluntly, there’s no money in it.
Comments on this entry are closed.