Legal Commentary

Stripping Most Institutional Media of Constitutional Protection?

By Eugene Volokh

Several Washington State legislators have proposed a resolution that would ?urge[] Congress to propose an amendment to the United States Constitution for the states? consideration which provides that corporations are not persons under the laws of the United States or any of its jurisdictional subdivisions.? It?s pretty clear from context that they mean corporations aren?t supposed to have constitutional rights, and that they are asking for the amendment because they want to overturn Citizens United.

But of course the proposed amendment, to the extent it strips business corporations of First Amendment rights, would also strip media corporations of First Amendment rights. It would also strip nonprofit corporations ? such as the ACLU, NRA, etc. ? of First Amendment rights. And it would let government take corporate property without just compensation, and more.

Now I don?t know whether the state legislators actually want this to happen, and actually want the government to have the power to, say, censor the New York Times (or the Seattle Times). But that?s precisely what they are asking for.

And I take it that there?s a reason such proposals are cast at such a general level (other than just lack of thinking). The proposal sounds logically appeal at an abstract level ? corporations aren?t people, so they shouldn?t have human rights; corporations aren?t voters, so they shouldn?t be able to influence elections; corporations are big and powerful, so we should restrain them. (All of these themes are present in the ?whereas? clauses of this particular resolution.)

But once one starts narrowing this, to something like ?nonmedia business corporations are not persons,? or ?nonmedia business corporations do not have First Amendment rights,? then even casual listeners might start noticing some problems. Media and nonprofit corporations aren?t humans, either; they?re not voters, either; many of them are powerful, too. Plus of course one would then have to explain which corporations are media corporations and which aren?t, especially given the reality (recognized in the resolution) that many nonmedia corporations own media corporations. The proposal doesn?t sound quite as appealing any more.

So the proposers stick with the appealing generality ? appealing, that is, until one realizes that it would let the government censor most of the most important institutional speakers in the country today. (But, hey, The Volokh Conspiracy would still be free!)

For some broader thoughts on corporations and constitutional rights, see this post of mine from 2009. Thanks to Bill Maurer (IJ?s Make No Law blog) for the pointer.

Full post as published by The Volokh Conspiracy on February 18, 2011 (boomark / email).