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For your claim to be true money must in some way be related to the ability to exercise free speech. Consequently, an absolute interpretation of the 1st amendmen

by tsally 17y ago

For your claim to be true money must in some way be related to the ability to exercise free speech. Consequently, an absolute interpretation of the 1st amendment means taxation is a violation of free speech. Time to abolish taxes, then? In practice freedom of speech is a sliding scale. See the public school system. There we have determined that education of our youth is more important than absolute free speech. Perhaps democracy is more important as well? We make these pragmatic decisions about the 1st amendment all the time. The suggestion that it is an absolute is completely untenable. Further, if you continue to adhere to a strict constructionist interpretation of the constitution, will you make a public statement against hostile takeovers by shareholders? The text of the thirteenth amendment reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." If we really are treating corporations as people protected under the constitution, you shouldn't be able to take over a company against the management's wishes. I hope I've made it clear that absolute interpretation of the constitution in this case is not a valid interpretation. Regardless of the constitutionality of McCain-Feingold, literally interpreting the 1st amendment is an invalid argument against the legislation.

gojomo 17y ago
McCain-Feingold wasn't just about expenditures. The government argued it could ban or confiscate books/movies based on who paid for them, or a tiny proportion of candidate/issue advocacy during election season. The first three paragraphs of this piece, by a major McCain-Feingold opponent, capture the overbroad reach of the FEC's claims: http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform http://www.nationalaffairs.com/publications/detail/the-myth-...
- tsally 17y ago
  You're right. I am not trying to argue that McCain-Feingold is constitutional. Rather, I'm trying to point out that a literal interpretation of the constitution in this case is invalid. It's a simplistic argument that sounds good at first but doesn't hold up under critical analysis. I just did some recent edits to better express my point of view.
Semiapies 17y ago
"For your claim to be true money must in some way be related to the ability to exercise free speech." In a world where you have to pay for things, the ability to freely use your money is necessary for most rights. Unless everyone can will themselves TV and radio time and wish pamphlets and websites into existence, restriction of spending for political speech is a questionable proposition at best. "Consequently, an absolute interpretation of the 1st ammendment means taxation is a violation of free speech." Yes, it would, though the neutrality of most taxation can be used to argue it as a benign one. However, you're merely raising that as a strawman, as almost nobody cares about absolutist interpretations. "Perhaps democracy is more important as well?" Political speech has long been the type of speech jurists have been least willing to restrict because it is essential to democracy. You might as well say, "Perhaps the right to live is more important than the right to oxygen."
- amalcon 17y ago
  In a world where you have to pay for things, the ability to freely use your money is necessary for most rights. Unless everyone can will themselves TV and radio time and wish pamphlets and websites into existence, restriction of spending for political speech is a questionable proposition at best. Though, to be fair, everyone will likely be able to do these things (or their equivalents) in the distant-but-not-too-distant future.
  - Semiapies 17y ago
    At that point, they will use different justifications to try to restrict political speech.
  - joubert 17y ago
    And how will they be able to do these things? Using technology established with government funds perhaps?
    - Semiapies 17y ago
      I assume he means "nanotech makes everything happens with a poof of magic smoke."
yummyfajitas 17y ago
Taxation of certain viewpoints or topics but not others would, indeed, be a violation of free speech. I.e., a ban or tax on film reels would not be a violation of free speech. A ban or tax on film reels containing "Hillary: The Movie" would be. I also don't understand your "hostile takeover" argument. Who is being enslaved? The corporate officers who are free to quit at any time? The shareholders who voluntarily sell to the person taking over?
- argv_empty 17y ago
  If expending money is speech, taxes are compulsory speech, which is a pretty serious abridging of free speech.
  - Semiapies 17y ago
    Public campaign financing would be exactly that.
- tsally 17y ago
  Consider sin taxes, which Time Magazine calls "an established tactic" to reduce consumption of popular vices [1]. The hostile takeover argument isn't even necessary to make my point. Consider the fact that a corporation can own another corporation. Corporations are people under the law. Therefore, if we literally interpret the constitution, the ban on slavery makes a corporation owning another corporation illegal. Of course this is rather silly and shows why strict constructionist interpretations of the Constitution are irrelevant. I am not trying to make political statements. The one and only thing I want to point out is the flaw in the highest voted comment for this article that advocates a strict constructionist interpretation of the 1st amendment [2]. [1] http://www.time.com/time/magazine/article/0,9171,1889187,00.html http://www.time.com/time/magazine/article/0,9171,1889187,00.... [2] http://news.ycombinator.com/item?id=1098741 http://news.ycombinator.com/item?id=1098741
  - yummyfajitas 17y ago
    I think you are interpreting "legal personhood" in a manner that is incorrect. "Legal personhood" means that the corporate entity is a legal person in the matter of contracts and lawsuits. The "person" of the corporation is just a facade (in the design patterns sense) which provides useful simplifications in contracts and lawsuits. You could completely replace corporate personhood with contract law. You would just have 10,000 page contracts that would specify the liability of each individual shareholders is limited to X, a lawsuit must target all shareholders and damages/debts are limited to Y, etc. Basically, each contract would reproduce corporate law. Then whenever you wanted to collect a debt or sue the company, you'd need to dig into the contract to figure out how. Instead, we've created a useful simplification/standardization: you say "Company X owes me $50,000", and it's up to Company X to figure out internally how to deal with this. It's also standardized to a few specific forms (LLCs, LLPs, S-Corps, C-corps, etc). That's all corporate personhood is. A corporation has no inherent rights except those rights granted it by it's shareholders. Similarly, your computer has no rights, but that doesn't mean the government can pass a law saying "your computer may not criticize Obama." Such a law doesn't violate your computers rights, it violates your rights. Similarly, laws against political speech violate the rights of the owners of the corporation who are ordinary flesh and blood people (as opposed to legal facades to simplify lawsuits and contracts).
jacoblyles 17y ago
>"For your claim to be true money must in some way be related to the ability to exercise free speech." Do you think a law that forbid spending money to criticize government policy would be compatible with the first amendment? By your reasoning Congress would be restricting money and not speech.
- tsally 17y ago
  Excellent question. It would certainly violate free speech. I am not trying to make the claim that money is not related to speech. Instead, I am claiming that since money is related to speech, any government regulation of money is regulation of speech. Therefore, if we were to use "abridging the freedom of speech" as the major criteria for declaring laws unconstitutional, we would have to strike down many, many laws that relate to the collection and regulation of money. I point out the extreme case only to show that it is unreasonable. I instead advocate for a different approach where we interpret "abridging the freedom of speech" on a sliding scale. In doing so we can declare the more egregious laws unconstitutional while still allowing for some common sense regulation.
  - jacoblyles 17y ago
    I really don't see how your argument holds that income tax is a regulation of speech. You're arguing that income tax is a regulation of speech just like regulating the purchase of political advertising, so we either are allowed to have both or neither. It sounds like a really bad argument, or one that is too subtle for me to pick up the good points. And I'm guessing it's the first.

by tsally 17y ago

gojomo 17y ago

McCain-Feingold wasn't just about expenditures. The government argued it could ban or confiscate books/movies based on who paid for them, or a tiny proportion of candidate/issue advocacy during election season. The first three paragraphs of this piece, by a major McCain-Feingold opponent, capture the overbroad reach of the FEC's claims: http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform http://www.nationalaffairs.com/publications/detail/the-myth-...

tsally 17y ago
You're right. I am not trying to argue that McCain-Feingold is constitutional. Rather, I'm trying to point out that a literal interpretation of the constitution in this case is invalid. It's a simplistic argument that sounds good at first but doesn't hold up under critical analysis. I just did some recent edits to better express my point of view.

Semiapies 17y ago

"For your claim to be true money must in some way be related to the ability to exercise free speech." In a world where you have to pay for things, the ability to freely use your money is necessary for most rights. Unless everyone can will themselves TV and radio time and wish pamphlets and websites into existence, restriction of spending for political speech is a questionable proposition at best. "Consequently, an absolute interpretation of the 1st ammendment means taxation is a violation of free speech." Yes, it would, though the neutrality of most taxation can be used to argue it as a benign one. However, you're merely raising that as a strawman, as almost nobody cares about absolutist interpretations. "Perhaps democracy is more important as well?" Political speech has long been the type of speech jurists have been least willing to restrict because it is essential to democracy. You might as well say, "Perhaps the right to live is more important than the right to oxygen."

amalcon 17y ago
In a world where you have to pay for things, the ability to freely use your money is necessary for most rights. Unless everyone can will themselves TV and radio time and wish pamphlets and websites into existence, restriction of spending for political speech is a questionable proposition at best. Though, to be fair, everyone will likely be able to do these things (or their equivalents) in the distant-but-not-too-distant future.
- Semiapies 17y ago
  At that point, they will use different justifications to try to restrict political speech.
- joubert 17y ago
  And how will they be able to do these things? Using technology established with government funds perhaps?
  - Semiapies 17y ago
    I assume he means "nanotech makes everything happens with a poof of magic smoke."

yummyfajitas 17y ago

Taxation of certain viewpoints or topics but not others would, indeed, be a violation of free speech. I.e., a ban or tax on film reels would not be a violation of free speech. A ban or tax on film reels containing "Hillary: The Movie" would be. I also don't understand your "hostile takeover" argument. Who is being enslaved? The corporate officers who are free to quit at any time? The shareholders who voluntarily sell to the person taking over?

argv_empty 17y ago
If expending money is speech, taxes are compulsory speech, which is a pretty serious abridging of free speech.
- Semiapies 17y ago
  Public campaign financing would be exactly that.
tsally 17y ago
Consider sin taxes, which Time Magazine calls "an established tactic" to reduce consumption of popular vices [1]. The hostile takeover argument isn't even necessary to make my point. Consider the fact that a corporation can own another corporation. Corporations are people under the law. Therefore, if we literally interpret the constitution, the ban on slavery makes a corporation owning another corporation illegal. Of course this is rather silly and shows why strict constructionist interpretations of the Constitution are irrelevant. I am not trying to make political statements. The one and only thing I want to point out is the flaw in the highest voted comment for this article that advocates a strict constructionist interpretation of the 1st amendment [2]. [1] http://www.time.com/time/magazine/article/0,9171,1889187,00.html http://www.time.com/time/magazine/article/0,9171,1889187,00.... [2] http://news.ycombinator.com/item?id=1098741 http://news.ycombinator.com/item?id=1098741
- yummyfajitas 17y ago
  I think you are interpreting "legal personhood" in a manner that is incorrect. "Legal personhood" means that the corporate entity is a legal person in the matter of contracts and lawsuits. The "person" of the corporation is just a facade (in the design patterns sense) which provides useful simplifications in contracts and lawsuits. You could completely replace corporate personhood with contract law. You would just have 10,000 page contracts that would specify the liability of each individual shareholders is limited to X, a lawsuit must target all shareholders and damages/debts are limited to Y, etc. Basically, each contract would reproduce corporate law. Then whenever you wanted to collect a debt or sue the company, you'd need to dig into the contract to figure out how. Instead, we've created a useful simplification/standardization: you say "Company X owes me $50,000", and it's up to Company X to figure out internally how to deal with this. It's also standardized to a few specific forms (LLCs, LLPs, S-Corps, C-corps, etc). That's all corporate personhood is. A corporation has no inherent rights except those rights granted it by it's shareholders. Similarly, your computer has no rights, but that doesn't mean the government can pass a law saying "your computer may not criticize Obama." Such a law doesn't violate your computers rights, it violates your rights. Similarly, laws against political speech violate the rights of the owners of the corporation who are ordinary flesh and blood people (as opposed to legal facades to simplify lawsuits and contracts).

jacoblyles 17y ago

>"For your claim to be true money must in some way be related to the ability to exercise free speech." Do you think a law that forbid spending money to criticize government policy would be compatible with the first amendment? By your reasoning Congress would be restricting money and not speech.

tsally 17y ago
Excellent question. It would certainly violate free speech. I am not trying to make the claim that money is not related to speech. Instead, I am claiming that since money is related to speech, any government regulation of money is regulation of speech. Therefore, if we were to use "abridging the freedom of speech" as the major criteria for declaring laws unconstitutional, we would have to strike down many, many laws that relate to the collection and regulation of money. I point out the extreme case only to show that it is unreasonable. I instead advocate for a different approach where we interpret "abridging the freedom of speech" on a sliding scale. In doing so we can declare the more egregious laws unconstitutional while still allowing for some common sense regulation.
- jacoblyles 17y ago
  I really don't see how your argument holds that income tax is a regulation of speech. You're arguing that income tax is a regulation of speech just like regulating the purchase of political advertising, so we either are allowed to have both or neither. It sounds like a really bad argument, or one that is too subtle for me to pick up the good points. And I'm guessing it's the first.