Thursday, January 28, 2010

How badly does Volokh read the Supremes

He makes his argument on the Supremes by referring to the age old right to print stuff:

"None of these cases [guaranteeing the right to publish], of course, involved corporations. But they do show that “liberty of the press” was seen as a right to publish to the world at large using the technology of the “press” (including by using others’ presses, whether for pay or because they liked what you wrote), not as a right that belonged to members a particular industry. The institutional media and other people are on par for purposes of “the freedom of speech, or of the press.” The constitutional protections offered to the institutional media are no greater than those offered to others. And thus if ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations."

What liberties did the NY Times have that Citizens United did not have? The right to print stuff, whether movies or paper? They both have that right, as does Coca Cola. All three are barred from purchasing news political ads in a third party media, except as individuals.

The ruling on the Supreme Court was not about whether newspaper exemptions in the FEC rules we needed, they are not. When stripped of the unnecessary exemptions, the FEC rules were quite simple. If you publish political ads, outside of the corporation's normal function, then that exercise must be by individuals representing themselves as exercisers of free speech.

In other words, the FEC rules we legislated specifically to defend only the individual right to free speech. It was an attempt by Congress to tell the court that if these corporate charters are treated as people, then these corporate charters will be "dead letter". Justice Kennedy effectively killed the plantiff by ruling in its favor.

No comments: