-
1
-
-
1542662292
-
Two Wilson Hearings before Senate Committee on Defense Appointments
-
Jan. 24
-
Wilson made this statement before the Senate Armed Services Committee during his confirmation hearing to the position of Secretary of Defense. See Excerpts from Two Wilson Hearings Before Senate Committee on Defense Appointments, N.Y. TIMES, Jan. 24, 1953, at 8.
-
(1953)
N.Y. Times
, pp. 8
-
-
-
2
-
-
0003759668
-
-
Cf. HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW, 1836-1937, at 3 (1991) ("Classical political economy purported to develop rules for evaluating a legal regime's justice or fairness without regard to how its wealth happened to be distributed. As a political and legal doctrine, classicism identified the best regime as the one that maximized total wealth.")
-
(1991)
Enterprise and American Law, 1836-1937
, pp. 3
-
-
Hovenkamp, H.1
-
3
-
-
1542767633
-
-
See infra notes 106-109 and accompanying text
-
See infra notes 106-109 and accompanying text.
-
-
-
-
5
-
-
0642357069
-
-
130 U. PA. L. REV. 646, 652 (1982) (asserting that corporate speech is undeserving of protection because it "does not derive from the values or political commitments of any individuals"); see also infra notes 126-130 and accompanying text
-
See, e.g., C. Edwin Baker, Realizing Self-Realization: Corporate Political Expenditures and Redish's The Value of Free Speech, 130 U. PA. L. REV. 646, 652 (1982) (asserting that corporate speech is undeserving of protection because it "does not derive from the values or political commitments of any individuals"); see also infra notes 126-130 and accompanying text.
-
Realizing Self-Realization: Corporate Political Expenditures and Redish's the Value of Free Speech
-
-
Baker, C.E.1
-
6
-
-
1542767626
-
-
91 YALE L.J. 235, 294-95
-
See Victor Brudney, Business Corporations and Stockholders' Rights Under the First Amendment, 91 YALE L.J. 235, 294-95 (1981); Charles R. O'Kelley, Jr., The Constitutional Rights of Corporations Revisited: Social and Political Expression and the Corporation After First National Bank v. Bellotti, 67 GEO. L.J. 1347, 1382-83 (1979); David Shelledy, Autonomy, Debate, and Corporate Speech, 18 HASTINGS CONST. L.Q. 541, 576-77, 584 (1991).
-
(1981)
Business Corporations and Stockholders' Rights under the First Amendment
-
-
Brudney, V.1
-
7
-
-
1542452755
-
-
First National Bank v. Bellotti, 67 GEO. L.J. 1347, 1382-83
-
See Victor Brudney, Business Corporations and Stockholders' Rights Under the First Amendment, 91 YALE L.J. 235, 294-95 (1981); Charles R. O'Kelley, Jr., The Constitutional Rights of Corporations Revisited: Social and Political Expression and the Corporation After First National Bank v. Bellotti, 67 GEO. L.J. 1347, 1382-83 (1979); David Shelledy, Autonomy, Debate, and Corporate Speech, 18 HASTINGS CONST. L.Q. 541, 576-77, 584 (1991).
-
(1979)
The Constitutional Rights of Corporations Revisited: Social and Political Expression and the Corporation after
-
-
O'Kelley Jr., C.R.1
-
8
-
-
1542452760
-
-
18 HASTINGS CONST. L.Q. 541, 576-77, 584
-
See Victor Brudney, Business Corporations and Stockholders' Rights Under the First Amendment, 91 YALE L.J. 235, 294-95 (1981); Charles R. O'Kelley, Jr., The Constitutional Rights of Corporations Revisited: Social and Political Expression and the Corporation After First National Bank v. Bellotti, 67 GEO. L.J. 1347, 1382-83 (1979); David Shelledy, Autonomy, Debate, and Corporate Speech, 18 HASTINGS CONST. L.Q. 541, 576-77, 584 (1991).
-
(1991)
Autonomy, Debate, and Corporate Speech
-
-
Shelledy, D.1
-
9
-
-
1542767632
-
-
See infra notes 126-149, 196-196 and accompanying text
-
See infra notes 126-149, 196-196 and accompanying text.
-
-
-
-
10
-
-
1542452758
-
-
435 U.S. 765 (1978)
-
435 U.S. 765 (1978).
-
-
-
-
11
-
-
1542662295
-
-
See id. at 777; infra notes 29-41 and accompanying text
-
See id. at 777; infra notes 29-41 and accompanying text.
-
-
-
-
12
-
-
84865902696
-
-
See, e.g., Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 8 (1986) (plurality opinion) ("Corporations . . . contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster." (internal quotation marks omitted)).
-
See, e.g., Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 8 (1986) (plurality opinion) ("Corporations . . . contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster." (internal quotation marks omitted)).
-
-
-
-
13
-
-
0642265124
-
-
507 U.S.
-
See, e.g, id. at 8-9 (holding that a corporate newsletter receives the full protection of the First Amendment); infra notes 43-43 and accompanying text. In the context of commercial speech protection, it should be noted, the Court routinely has extended First Amendment protection to corporations without any discussion of the point. See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430-31 (1993); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 657-60 (1980). Traditionally, however, such protection has been at a somewhat reduced level. See Discovery Network, 507 U.S. at 422;
-
Discovery Network
, pp. 422
-
-
-
14
-
-
1542661356
-
-
447 U.S.
-
Central Hudson, 447 U.S. at 563.
-
Central Hudson
, pp. 563
-
-
-
15
-
-
1542452629
-
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657-60 (1990); infra notes 50-77 and accompanying text
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657-60 (1990); infra notes 50-77 and accompanying text.
-
-
-
-
16
-
-
0005401534
-
-
See C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 219 (1989) (asserting that corporate political speech is unprotected because the "speech cannot be attributed to the choice of a free agent"); Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735, 739 (1995) (defining corporate speech as "institutional speech," undeserving of First Amendment protection because it lacks a speaker); infra notes 126-130, 170-172 and accompanying text.
-
(1989)
Human Liberty and Freedom of Speech
, pp. 219
-
-
Baker, C.E.1
-
17
-
-
1542453763
-
-
80 IOWA L. REV. 735, 739
-
See C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 219 (1989) (asserting that corporate political speech is unprotected because the "speech cannot be attributed to the choice of a free agent"); Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735, 739 (1995) (defining corporate speech as "institutional speech," undeserving of First Amendment protection because it lacks a speaker); infra notes 126-130, 170-172 and accompanying text.
-
(1995)
Institutional Speech
-
-
Bezanson, R.P.1
-
18
-
-
0010747832
-
-
See, e.g., MEIR DAN-COHEN, RIGHTS, PERSONS, AND ORGANIZATIONS 179-84 (1986); OWEN FISS, LIBERALISM DIVIDED 15-16 (1996); infra notes 340-354 and accompanying text.
-
(1986)
Rights, Persons, and Organizations
, pp. 179-184
-
-
Dan-Cohen, M.1
-
19
-
-
0040512020
-
-
infra notes 340-354 and accompanying text
-
See, e.g., MEIR DAN-COHEN, RIGHTS, PERSONS, AND ORGANIZATIONS 179-84 (1986); OWEN FISS, LIBERALISM DIVIDED 15-16 (1996); infra notes 340-354 and accompanying text.
-
(1996)
Liberalism Divided
, pp. 15-16
-
-
Fiss, O.1
-
20
-
-
1542452740
-
-
See Brudney, supra note 6, at 268
-
See Brudney, supra note 6, at 268.
-
-
-
-
21
-
-
1542557287
-
-
See infra notes 231-354 and accompanying text
-
See infra notes 231-354 and accompanying text.
-
-
-
-
22
-
-
1542557286
-
-
See infra notes 83-230 and accompanying text
-
See infra notes 83-230 and accompanying text.
-
-
-
-
23
-
-
1542452737
-
-
See infra notes 131-149 and accompanying text
-
See infra notes 131-149 and accompanying text.
-
-
-
-
24
-
-
1542452748
-
-
See infra notes 149-151 and accompanying text
-
See infra notes 149-151 and accompanying text.
-
-
-
-
25
-
-
1542452727
-
-
See infra notes 126-151 and accompanying text
-
See infra notes 126-151 and accompanying text.
-
-
-
-
26
-
-
1542767616
-
-
See infra notes 151-179 and accompanying text
-
See infra notes 151-179 and accompanying text.
-
-
-
-
27
-
-
1542452743
-
-
See infra notes 193-196 and accompanying text
-
See infra notes 193-196 and accompanying text.
-
-
-
-
28
-
-
1542767614
-
-
See infra notes 199-204 and accompanying text
-
See infra notes 199-204 and accompanying text.
-
-
-
-
29
-
-
1542452764
-
-
See infra notes 205-196 and accompanying text
-
See infra notes 205-196 and accompanying text.
-
-
-
-
30
-
-
0004048289
-
-
The concept is drawn, by analogy, from JOHN RAWLS, A THEORY OF JUSTICE 136-42 (1971).
-
(1971)
A Theory of Justice
, pp. 136-142
-
-
Rawls, J.1
-
32
-
-
1542557299
-
-
note
-
See infra notes 355-370 and accompanying text. It should be noted that although this critique may well be appropriate when applied to academic attacks on corporate speech's protection, it would be difficult to suggest that many of the current members of the Supreme Court are guilty of ulterior, left-wing ideological motivations for their hesitancy to extend full protection to corporate speech. In light of this fact, the inescapable conclusion we reach is that the Court's approach is wholly defenseless, even on ulterior ideological motivations, and can therefore be attributed simply to an insensitivity to important free speech values. See infra notes 210-230 and accompanying text.
-
-
-
-
33
-
-
1542767629
-
-
note
-
See, e.g., Linmark Assocs. v. Willingboro, 431 U.S. 85, 97 (1977) (striking down a restriction on posting "For Sale" signs); Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (striking down a state law requiring newspapers to print replies to editorials); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (striking down an injunction against newspaper publication of government documents); Kingsley Int'l Pictures Corp. v. Regents of the Univ., 360 U.S. 684, 688-90 (1959) (finding unconstitutional the denial of a permit to show a nonobscene movie); Grosjean v. American Press Co., 297 U.S. 233, 240, 251 (1936) (striking down a state law requiring a license tax on all publishers, including corporations, that had publications with circulations over 20,000).
-
-
-
-
34
-
-
1542662287
-
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 777, 784 (1978); infra Part I.A.1
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 777, 784 (1978); infra Part I.A.1.
-
-
-
-
35
-
-
1542557302
-
-
435 U.S. 765 (1978)
-
435 U.S. 765 (1978).
-
-
-
-
36
-
-
1542557303
-
-
Id. at 768. The statute also provided that no question submitted to voters dealing with taxation could materially affect the corporation. See id.
-
Id. at 768. The statute also provided that no question submitted to voters dealing with taxation could materially affect the corporation. See id.
-
-
-
-
37
-
-
1542452757
-
-
See id. at 778, 784
-
See id. at 778, 784.
-
-
-
-
38
-
-
1542557306
-
-
See id. at 769
-
See id. at 769.
-
-
-
-
39
-
-
1542767630
-
-
Id. at 777
-
Id. at 777.
-
-
-
-
40
-
-
1542452762
-
-
Id.
-
Id.
-
-
-
-
41
-
-
1542662290
-
-
Id. at 783
-
Id. at 783.
-
-
-
-
42
-
-
1542662291
-
-
Id. at 785; see also id. at 784 (noting that it is impermissible to prohibit speech based on the identity of the speaker's interests)
-
Id. at 785; see also id. at 784 (noting that it is impermissible to prohibit speech based on the identity of the speaker's interests).
-
-
-
-
43
-
-
1542452759
-
-
See id. at 789-90. The Court also rejected the state's paternalistic belief that it had to suppress advocacy that might persuade the voters. See id. at 791-92 & n.31
-
See id. at 789-90. The Court also rejected the state's paternalistic belief that it had to suppress advocacy that might persuade the voters. See id. at 791-92 & n.31.
-
-
-
-
44
-
-
1542452761
-
-
Id. at 791 (citing Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (per curiam)) (internal quotation marks omitted)
-
Id. at 791 (citing Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (per curiam)) (internal quotation marks omitted).
-
-
-
-
45
-
-
1542662293
-
-
See id. at 792-93
-
See id. at 792-93.
-
-
-
-
46
-
-
1542662289
-
-
See id. at 793
-
See id. at 793.
-
-
-
-
47
-
-
1542662288
-
-
475 U.S. 1 (1986) (plurality opinion)
-
475 U.S. 1 (1986) (plurality opinion).
-
-
-
-
48
-
-
84865892986
-
-
See id. at 5-6. The utility company had long distributed its own monthly newsletter called "Progress" with its monthly statements. See id. at 5
-
See id. at 5-6. The utility company had long distributed its own monthly newsletter called "Progress" with its monthly statements. See id. at 5.
-
-
-
-
49
-
-
1542452735
-
-
See id. at 6
-
See id. at 6.
-
-
-
-
50
-
-
1542767622
-
-
See id. at 8
-
See id. at 8.
-
-
-
-
51
-
-
1542452742
-
-
Id.
-
Id.
-
-
-
-
52
-
-
1542557285
-
-
See id. at 12
-
See id. at 12.
-
-
-
-
53
-
-
1542557298
-
-
See id. at 13
-
See id. at 13.
-
-
-
-
54
-
-
1542452744
-
-
See id. at 18. The Court relied on this point in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)in which the Court struck down a state law granting a right-of-reply to newspaper editorials. See id. at 258. The Court emphasized that First Amendment concerns, such as protection from forced speech, applied to all corporations, not only the institutional press. See id.
-
See id. at 18. The Court relied on this point in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), in which the Court struck down a state law granting a right-of-reply to newspaper editorials. See id. at 258. The Court emphasized that First Amendment concerns, such as protection from forced speech, applied to all corporations, not only the institutional press. See id.
-
-
-
-
55
-
-
1542557292
-
-
479 U.S. 238 (1986)
-
479 U.S. 238 (1986).
-
-
-
-
56
-
-
84865889454
-
-
See id. at 241. MCFL was incorporated as a nonprofit, nonstock corporation to perform educational, political, and other activities to "foster respect for human life and to defend the right to life of all human beings, born and unborn." Id. (citation omitted)
-
See id. at 241. MCFL was incorporated as a nonprofit, nonstock corporation to perform educational, political, and other activities to "foster respect for human life and to defend the right to life of all human beings, born and unborn." Id. (citation omitted).
-
-
-
-
57
-
-
1542662280
-
-
See id.
-
See id.
-
-
-
-
58
-
-
1542452749
-
-
See id. at 243-44
-
See id. at 243-44.
-
-
-
-
59
-
-
1542662283
-
-
Id. at 252
-
Id. at 252.
-
-
-
-
60
-
-
1542767624
-
-
See id. at 254
-
See id. at 254.
-
-
-
-
61
-
-
1542557289
-
-
Id. at 255; see also id. at 254 (noting the disincentive for organizations to engage in political speech)
-
Id. at 255; see also id. at 254 (noting the disincentive for organizations to engage in political speech).
-
-
-
-
62
-
-
1542557291
-
-
See id. at 257-58
-
See id. at 257-58.
-
-
-
-
63
-
-
1542557301
-
-
See id. at 259
-
See id. at 259.
-
-
-
-
64
-
-
1542767621
-
-
See id.
-
See id.
-
-
-
-
65
-
-
1542662284
-
-
See id. at 241
-
See id. at 241.
-
-
-
-
66
-
-
1542452753
-
-
Id. at 263
-
Id. at 263.
-
-
-
-
67
-
-
1542662286
-
-
See id. at 263-64
-
See id. at 263-64.
-
-
-
-
68
-
-
1542452752
-
-
494 U.S. 652 (1990)
-
494 U.S. 652 (1990).
-
-
-
-
69
-
-
1542662285
-
-
See id. at 656
-
See id. at 656.
-
-
-
-
70
-
-
1542557297
-
-
See id. at 714 (appendix to opinion of Kennedy, J., dissenting)
-
See id. at 714 (appendix to opinion of Kennedy, J., dissenting).
-
-
-
-
71
-
-
1542452756
-
-
See id. at 654-55
-
See id. at 654-55.
-
-
-
-
72
-
-
1542767618
-
-
See id. at 657
-
See id. at 657.
-
-
-
-
73
-
-
1542767620
-
-
Id.
-
Id.
-
-
-
-
74
-
-
1542767625
-
-
See id. at 658
-
See id. at 658.
-
-
-
-
75
-
-
84865892983
-
-
Id. at 660; see also id. at 666 (describing the state's interest in "eliminating from the political process the corrosive effect of political 'war chests'")
-
Id. at 660; see also id. at 666 (describing the state's interest in "eliminating from the political process the corrosive effect of political 'war chests'").
-
-
-
-
76
-
-
1542557305
-
-
See id. at 658-59
-
See id. at 658-59.
-
-
-
-
77
-
-
1542662282
-
-
See id. at 660
-
See id. at 660.
-
-
-
-
78
-
-
1542452746
-
-
Id.
-
Id.
-
-
-
-
79
-
-
1542452747
-
-
See id. at 661
-
See id. at 661.
-
-
-
-
80
-
-
1542557295
-
-
See id. at 662
-
See id. at 662.
-
-
-
-
81
-
-
1542452750
-
-
See id. at 662-63
-
See id. at 662-63.
-
-
-
-
82
-
-
1542662281
-
-
See id. at 663
-
See id. at 663.
-
-
-
-
84
-
-
84985337969
-
-
1977 AM. B. FOUND. RES. J. 521
-
See generally Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521 (emphasizing the value of free speech in checking abuse of power in a democratic society).
-
The Checking Value in First Amendment Theory
-
-
Blasi, V.1
-
85
-
-
1542557290
-
-
See id. at 538-43.
-
See id. at 538-43.
-
-
-
-
86
-
-
0642326331
-
-
85 COLUM. L. REV. 449, 449-50
-
See, e.g., Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449, 449-50 (1985) (positing a "pathological perspective" to adjudicating First Amendment disputes that protects the integrity of "core" speech from societal intolerance).
-
(1985)
The Pathological Perspective and the First Amendment
-
-
Blasi, V.1
-
87
-
-
1542662279
-
-
38 CASE W. RES. L. REV. 618, 621, 627
-
See generally Martin H. Redish, The Role of Pathology in First Amendment Theory: A Skeptical Examination, 38 CASE W. RES. L. REV. 618, 621, 627 (1988) (rejecting Blasi's pathological perspective and explaining that the decision whether to protect speech is related to the values served by free speech).
-
(1988)
The Role of Pathology in First Amendment Theory: A Skeptical Examination
-
-
Redish, M.H.1
-
88
-
-
1542767617
-
-
Id. at 627
-
Id. at 627.
-
-
-
-
89
-
-
84865892980
-
-
The First Amendment provides in relevant part: "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. CONST. amend. I, cl. 1
-
The First Amendment provides in relevant part: "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. CONST. amend. I, cl. 1.
-
-
-
-
90
-
-
1542452626
-
-
See, e.g., BAKER, supra note 13, at 3 (focusing on the liberty value that free speech protection fosters); THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 3 (1963) (recognizing a combination of four values that free speech fosters); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 263 (recognizing how free speech benefits the democratic process).
-
(1963)
Toward a General Theory of the First Amendment
, pp. 3
-
-
Emerson, T.I.1
-
91
-
-
0039097850
-
-
1961 SUP. CT. REV. 245, 263
-
See, e.g., BAKER, supra note 13, at 3 (focusing on the liberty value that free speech protection fosters); THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 3 (1963) (recognizing a combination of four values that free speech fosters); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 263 (recognizing how free speech benefits the democratic process).
-
The First Amendment is an Absolute
-
-
Meiklejohn, A.1
-
93
-
-
1542662276
-
-
Id. at 21
-
Id. at 21.
-
-
-
-
94
-
-
1542452736
-
-
See id. at 22
-
See id. at 22.
-
-
-
-
95
-
-
0040607483
-
-
47 IND. L.J. 1, 25
-
For criticism of the self-realization theory, see Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 25 (1971) (noting that the benefits of self-realization do not distinguish speech from other freedoms); Frederick Schauer, Codifying the First Amendment: New York v. Ferber, 1982 SUP. CT. REV. 285, 312 (highlighting the lack of predictability in using the self-realization principle to foster free speech protection).
-
(1971)
Neutral Principles and Some First Amendment Problems
-
-
Bork, R.H.1
-
96
-
-
1542662277
-
-
New York v. Ferber, 1982 SUP. CT. REV. 285, 312
-
For criticism of the self-realization theory, see Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 25 (1971) (noting that the benefits of self-realization do not distinguish speech from other freedoms); Frederick Schauer, Codifying the First Amendment: New York v. Ferber, 1982 SUP. CT. REV. 285, 312 (highlighting the lack of predictability in using the self-realization principle to foster free speech protection).
-
Codifying the First Amendment
-
-
Schauer, F.1
-
97
-
-
0040267387
-
-
Oxford Univ. Press
-
See, e.g., ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM 27 (Oxford Univ. Press 1965) (1960) (asserting that freedom of speech originated from self-government); Bork, supra note 89, at 26 (stating that speech functions to deal with politics and government).
-
(1965)
Political Freedom
, pp. 27
-
-
Meiklejohn, A.1
-
98
-
-
1542662273
-
-
note
-
One of the key arguments used against corporate speech protection is that corporations are incapable of personal self-realization. Under a communitarian model, however, even if true, this factor would be irrelevant because corporate speech is consistent with the democratic political process. See infra notes 113-113 and accompanying text.
-
-
-
-
99
-
-
0000445322
-
-
See, e.g., C. B. MACPHERSON, THE LIFE AND TIMES OF LIBERAL DEMOCRACY 51 (1977) ("Democracy would . . . make people more active, more energetic . . . ."); Jack L. Walker, A Critique of the Elitist Theory of Democracy, 60 AM. POL. SCI. REV. 285, 288 (1966) ("The most distinctive feature, and the principal orienting value, of classical democratic theory was its emphasis on individual participation in the development of public policy . . . . [A]bove all else they were concerned with human development, the opportunities which existed in political activity to realize the untapped potentials of men . . . .").
-
(1977)
The Life and Times of Liberal Democracy
, pp. 51
-
-
Macpherson, C.B.1
-
100
-
-
0000445322
-
-
60 AM. POL. SCI. REV. 285, 288
-
See, e.g., C. B. MACPHERSON, THE LIFE AND TIMES OF LIBERAL DEMOCRACY 51 (1977) ("Democracy would . . . make people more active, more energetic . . . ."); Jack L. Walker, A Critique of the Elitist Theory of Democracy, 60 AM. POL. SCI. REV. 285, 288 (1966) ("The most distinctive feature, and the principal orienting value, of classical democratic theory was its emphasis on individual participation in the development of public policy . . . . [A]bove all else they were concerned with human development, the opportunities which existed in political activity to realize the untapped potentials of men . . . .").
-
(1966)
A Critique of the Elitist Theory of Democracy
-
-
Walker, J.L.1
-
101
-
-
1542557283
-
-
For a more detailed explanation of this intersection, see REDISH, supra note 86, at 22-26
-
For a more detailed explanation of this intersection, see REDISH, supra note 86, at 22-26.
-
-
-
-
102
-
-
1542452628
-
-
See id.
-
See id.
-
-
-
-
103
-
-
1542557192
-
-
See supra note 92
-
See supra note 92.
-
-
-
-
104
-
-
1542452630
-
-
See Meiklejohn, supra note 85, at 263
-
See Meiklejohn, supra note 85, at 263.
-
-
-
-
105
-
-
1542767503
-
-
See supra note 92
-
See supra note 92.
-
-
-
-
106
-
-
1542662161
-
-
See infra notes 106-109 and accompanying text
-
See infra notes 106-109 and accompanying text.
-
-
-
-
107
-
-
84865892981
-
-
See LINDBLOM, supra note 4, at 172-73 (noting that "economic distress can bring down a government")
-
See LINDBLOM, supra note 4, at 172-73 (noting that "economic distress can bring down a government").
-
-
-
-
109
-
-
0004099892
-
-
See id. at 201 (recognizing that "corporate activity has broad social and political ramifications"); see also JAMES WILLARD HURST, THE LEGITIMACY OF THE BUSINESS CORPORATION IN THE LAW OF THE UNITED STATES 162 (1970) (recognizing the "idea that the corporation's utility served the general economy"); LINDBLOM, supra note 4, at 175 (viewing businesses as performing "indispensable" functions).
-
(1970)
The Legitimacy of the Business Corporation in the Law of the United States
, pp. 162
-
-
Hurst, J.W.1
-
110
-
-
1542557195
-
-
See supra note 1 and accompanying text
-
See supra note 1 and accompanying text.
-
-
-
-
111
-
-
1542452631
-
-
See HURST, supra note 101, at 58-59 (arguing that performing socially useful and responsible functions legitimizes corporations' use of the facilities that the law provides)
-
See HURST, supra note 101, at 58-59 (arguing that performing socially useful and responsible functions legitimizes corporations' use of the facilities that the law provides).
-
-
-
-
112
-
-
0003952377
-
-
PETER BACHRACH, THE THEORY OF DEMOCRATIC ELITISM: A CRITIQUE 80 (1967). Professor Bachrach cites United States Steel Corporation's response to the civil rights struggle in Birmingham in 1963: "Under pressure, it declared its neutrality and thus was forced to admit to itself and to the nation that it is a separate political institution." Id.
-
(1967)
The Theory of Democratic Elitism: A Critique
, pp. 80
-
-
Bachrach, P.1
-
113
-
-
1542452627
-
-
ADOLF A. BERLE, JR., THE 20TH CENTURY CAPITALIST REVOLUTION 60 (1954); see also id. at 181 (asserting that "the corporation, almost against its will, has been compelled to assume in appreciable part the role of conscience-carrier of twentieth-century American society").
-
(1954)
The 20TH Century Capitalist Revolution
, pp. 60
-
-
Berle Jr., A.A.1
-
115
-
-
1542662160
-
-
See LINDBLOM, supra note 4, at 201-21
-
See LINDBLOM, supra note 4, at 201-21.
-
-
-
-
116
-
-
1542767508
-
-
FISS, supra note 14, at 10
-
FISS, supra note 14, at 10.
-
-
-
-
117
-
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1542767505
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-
note
-
See, e.g., S. 5148, 104th Cong. § 671 (1995) (discussing a later-rejected proposal on punitive damages); H.R. 161, 104th Cong. (1995) (discussing a later-rejected proposal to reform product liability law); 21 C.F.R. § 897.1-.34 (1997) (regulating the sale, distribution, advertising, and labeling of tobacco).
-
-
-
-
118
-
-
0347549167
-
-
25 WM. & MARY L. REV. 189, 231-33
-
See generally Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 231-33 (1983) (distinguishing between content-based and content-neutral restrictions on speech and emphasizing the unique risks inherent in viewpoint-based restrictions); see also infra notes 355-370 and accompanying text. It should be emphasized that Professor Lindblom did not purport to draw First Amendment implications from his observation. Professor Fiss, however, does appear to do so. See FISS, supra note 14, at 10-12.
-
(1983)
Content Regulation and the First Amendment
-
-
Stone, G.R.1
-
119
-
-
0005247962
-
-
See LINDBLOM, supra note 4, at 178-79. Actually, Professor Lindblom emphasizes business officials' role in public policy. See id. at 179. Because the official does not necessarily speak or act on the corporation's behalf, however, we can extend Lindblom's idea to the corporation. Cf. HENRY N. BUTLER & LARRY E. RIBSTEIN, THE CORPORATION AND THE CONSTITUTION 63-64 (1995) (explaining that regulation of officials' speech creates First Amendment concerns because such speech is seen as the individual manager's speech); Manuel F. Cohen, The Corporation within the Community, in THE CORPORATION IN A DEMOCRATIC SOCIETY 28, 34 (Edward J. Bander ed., 1975) (address to the Economic Club of Detroit) (noting that the "corporation as an institution is, in fact, invested with political powers").
-
(1995)
The Corporation and the Constitution
, pp. 63-64
-
-
Butler, H.N.1
Ribstein, L.E.2
-
120
-
-
1542452625
-
The Corporation within the Community
-
Edward J. Bander ed.
-
See LINDBLOM, supra note 4, at 178-79. Actually, Professor Lindblom emphasizes business officials' role in public policy. See id. at 179. Because the official does not necessarily speak or act on the corporation's behalf, however, we can extend Lindblom's idea to the corporation. Cf. HENRY N. BUTLER & LARRY E. RIBSTEIN, THE CORPORATION AND THE CONSTITUTION 63-64 (1995) (explaining that regulation of officials' speech creates First Amendment concerns because such speech is seen as the individual manager's speech); Manuel F. Cohen, The Corporation within the Community, in THE CORPORATION IN A DEMOCRATIC SOCIETY 28, 34 (Edward J. Bander ed., 1975) (address to the Economic Club of Detroit) (noting that the "corporation as an institution is, in fact, invested with political powers").
-
(1975)
The Corporation in a Democratic Society
, pp. 28
-
-
Cohen, M.F.1
-
121
-
-
1542452728
-
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 694 (1990) (Scalia, J., dissenting) (noting the significance of the fact that private associations owning and operating much of the state's business believe that a particular candidate is important to the state's prosperity)
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 694 (1990) (Scalia, J., dissenting) (noting the significance of the fact that private associations owning and operating much of the state's business believe that a particular candidate is important to the state's prosperity).
-
-
-
-
122
-
-
1542557282
-
-
Cf. Meiklejohn, supra note 85, at 255-56 (stating that the First Amendment dictates absolute protection of expression that aids the citizenry in making governing choices)
-
Cf. Meiklejohn, supra note 85, at 255-56 (stating that the First Amendment dictates absolute protection of expression that aids the citizenry in making governing choices).
-
-
-
-
123
-
-
1542452731
-
-
LINDBLOM, supra note 4, at 172
-
LINDBLOM, supra note 4, at 172.
-
-
-
-
124
-
-
1542452732
-
-
See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (plurality opinion) (asserting that speech damaging to a corporation's reputation is unwarranting of special protection)
-
See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (plurality opinion) (asserting that speech damaging to a corporation's reputation is unwarranting of special protection).
-
-
-
-
125
-
-
1542557284
-
-
See HURST, supra note 101, at 162
-
See HURST, supra note 101, at 162.
-
-
-
-
126
-
-
1542662270
-
-
See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 489-90 (1984) (adopting a district court finding that the corporation was a public figure) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)); see also Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1329 (5th Cir. 1993) (applying a three-part analysis to determine whether a corporation is a public or private figure). But see Dun & Bradstreet, 472 U.S. at 753 (plurality opinion) (treating action involving a plaintiff corporation as governed by the standards for a private individual)
-
See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 489-90 (1984) (adopting a district court finding that the corporation was a public figure) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)); see also Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1329 (5th Cir. 1993) (applying a three-part analysis to determine whether a corporation is a public or private figure). But see Dun & Bradstreet, 472 U.S. at 753 (plurality opinion) (treating action involving a plaintiff corporation as governed by the standards for a private individual).
-
-
-
-
127
-
-
84865889452
-
-
New York Times, 376 U.S. at 279-80 (setting the fault standard for a suit by a public official). The Court later extended this standard to so-called "public figures." See Curtis Publ'g v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J., concurring); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 336 n.7 (1974) (noting that a majority of Justices in Curtis Publishing agreed that the New York Times test applies to public figures as well as public officials)
-
New York Times, 376 U.S. at 279-80 (setting the fault standard for a suit by a public official). The Court later extended this standard to so-called "public figures." See Curtis Publ'g v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J., concurring); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 336 n.7 (1974) (noting that a majority of Justices in Curtis Publishing agreed that the New York Times test applies to public figures as well as public officials).
-
-
-
-
128
-
-
1542767608
-
-
New York Times, 376 U.S. at 270
-
New York Times, 376 U.S. at 270.
-
-
-
-
129
-
-
84865894061
-
The Corporate Defamation Plaintiff as First Amendment "Public Figure": Nailing the Jellyfish
-
See Patricia Nassif Fetzer, The Corporate Defamation Plaintiff as First Amendment "Public Figure": Nailing the Jellyfish, 68 IOWA L. REV. 35, 85 (1982) (asserting that "[f]ew would dispute . . . that a Ford Motor Company or an IBM command at least the same name recognition" as most public figures); Norman Redlich, The Publicly Held Corporation as Defamation Plaintiff, 39 ST. LOUIS U. L.J. 1167, 1172 (1995) ("[A] corporation that has become a 'household name' in the relevant community will be deemed an 'all purpose' public figure . . . .").
-
(1982)
Iowa L. Rev.
, vol.68
, pp. 35
-
-
Fetzer, P.N.1
-
130
-
-
1542662251
-
The Publicly Held Corporation as Defamation Plaintiff
-
See Patricia Nassif Fetzer, The Corporate Defamation Plaintiff as First Amendment "Public Figure": Nailing the Jellyfish, 68 IOWA L. REV. 35, 85 (1982) (asserting that "[f]ew would dispute . . . that a Ford Motor Company or an IBM command at least the same name recognition" as most public figures); Norman Redlich, The Publicly Held Corporation as Defamation Plaintiff, 39 ST. LOUIS U. L.J. 1167, 1172 (1995) ("[A] corporation that has become a 'household name' in the relevant community will be deemed an 'all purpose' public figure . . . .").
-
(1995)
St. Louis U. L.J.
, vol.39
, pp. 1167
-
-
Redlich, N.1
-
131
-
-
1542662271
-
-
418 U.S. 323 (1974)
-
418 U.S. 323 (1974).
-
-
-
-
132
-
-
84865889453
-
-
Id. at 344. The second reason for the distinction between public and private plaintiffs in Gertz was the fact that public officials and public figures voluntarily had sought to enter the public eye and thus ran the risk of closer public scrutiny and possible defamation. See id. at 345; see also Redlich, supra note 120, at 1173 (noting that advertising may "thrust" a corporation into some controversy).
-
Id. at 344. The second reason for the distinction between public and private plaintiffs in Gertz was the fact that public officials and public figures voluntarily had sought to enter the public eye and thus ran the risk of closer public scrutiny and possible defamation. See id. at 345; see also Redlich, supra note 120, at 1173 (noting that advertising may "thrust" a corporation into some controversy).
-
-
-
-
133
-
-
84865889449
-
-
Fetzer, supra note 120, at 54. This ability to respond to a falsehood is derived from the decision in Bellotti and the expansive protection given to commercial speech. See id. at 54-55; see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 (1983) (holding that mailing contraceptive advertisements is "clearly protected by the First Amendment"); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561-62 (1980) (reasoning that commercial speech is protected because it "furthers the societal interest in the fullest possible dissemination of information"); Virginia Bd. of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748, 770 (1976) (rejecting the argument that the flow of price information on prescription drugs is not protected by the First Amendment)
-
Fetzer, supra note 120, at 54. This ability to respond to a falsehood is derived from the decision in Bellotti and the expansive protection given to commercial speech. See id. at 54-55; see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 (1983) (holding that mailing contraceptive advertisements is "clearly protected by the First Amendment"); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561-62 (1980) (reasoning that commercial speech is protected because it "furthers the societal interest in the fullest possible dissemination of information"); Virginia Bd. of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748, 770 (1976) (rejecting the argument that the flow of price information on prescription drugs is not protected by the First Amendment).
-
-
-
-
134
-
-
84865889450
-
-
See O'Kelley, supra note 6, at 1360 (arguing that corporations possess "the constitutional rights necessary to protect their business[es]"); cf. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 678 (1990) (Stevens, J., concurring) (noting the vast difference between political campaigns and other speech)
-
See O'Kelley, supra note 6, at 1360 (arguing that corporations possess "the constitutional rights necessary to protect their business[es]"); cf. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 678 (1990) (Stevens, J., concurring) (noting the vast difference between political campaigns and other speech).
-
-
-
-
135
-
-
1542452632
-
-
See LINDBLOM, supra note 4, at 172-75; supra notes 113-105 and accompanying text
-
See LINDBLOM, supra note 4, at 172-75; supra notes 113-105 and accompanying text.
-
-
-
-
136
-
-
84865889451
-
-
See generally BAKER, supra note 13, at 219 (arguing that corporate speech "does not depend on either individual or collective visions about what humanity should be" and "need not reflect anyone's substantive political views"); Bezanson, supra note 13, at 739 (asserting that "institutional speech . . . has nothing to do with liberty and no necessary relationship to freedom")
-
See generally BAKER, supra note 13, at 219 (arguing that corporate speech "does not depend on either individual or collective visions about what humanity should be" and "need not reflect anyone's substantive political views"); Bezanson, supra note 13, at 739 (asserting that "institutional speech . . . has nothing to do with liberty and no necessary relationship to freedom").
-
-
-
-
137
-
-
84865892979
-
-
See BAKER, supra note 13, at 218 (arguing that "business considerations may dictate the content of the company's political speech")
-
See BAKER, supra note 13, at 218 (arguing that "business considerations may dictate the content of the company's political speech").
-
-
-
-
138
-
-
1542767507
-
-
See id. at 219; Bezanson, supra note 13, at 755-56
-
See id. at 219; Bezanson, supra note 13, at 755-56.
-
-
-
-
139
-
-
1542452638
-
-
Bezanson, supra note 13, at 779
-
Bezanson, supra note 13, at 779.
-
-
-
-
140
-
-
1542557197
-
-
For a detailed critique, see REDISH, supra note 86, at 29-36
-
For a detailed critique, see REDISH, supra note 86, at 29-36.
-
-
-
-
141
-
-
84865892974
-
-
See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 466 (1958) (holding that forced disclosure of the association's membership list would violate the First Amendment's guarantee of freedom of association); id. at 460 ("[I]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.")
-
See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 466 (1958) (holding that forced disclosure of the association's membership list would violate the First Amendment's guarantee of freedom of association); id. at 460 ("[I]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.").
-
-
-
-
143
-
-
1542452636
-
-
Id. at 129; see also id. at 140-41 (discussing the link between the existence of political and other civil associations)
-
Id. at 129; see also id. at 140-41 (discussing the link between the existence of political and other civil associations).
-
-
-
-
144
-
-
84865889443
-
-
See id. at 140-41; see also id. at 130 (describing the American view of association as "the only means they have of acting")
-
See id. at 140-41; see also id. at 130 (describing the American view of association as "the only means they have of acting").
-
-
-
-
145
-
-
1542452635
-
-
See REDISH, supra note 86, at 20; supra notes 86-97 and accompanying text
-
See REDISH, supra note 86, at 20; supra notes 86-97 and accompanying text.
-
-
-
-
146
-
-
84865902685
-
-
See HURST, supra note 101, at 32 (describing the corporation as historically "a useful instrument of regular business.")
-
See HURST, supra note 101, at 32 (describing the corporation as historically "a useful instrument of regular business.").
-
-
-
-
147
-
-
1542662163
-
-
Cf. TOCQUEVILLE, supra note 132, at 129 (noting that almost all Americans took part in commercial and manufacturing companies)
-
Cf. TOCQUEVILLE, supra note 132, at 129 (noting that almost all Americans took part in commercial and manufacturing companies).
-
-
-
-
148
-
-
0039361806
-
-
According to one commentator, the Jacksonian period was marked by "the transfer of economic primacy from an old and conservative merchant class to a newer, more aggressive, and more numerous body of business men and speculators of all sorts." BRAY HAMMOND, SOVEREIGNTY AND AN EMPTY PURSE: BANKS AND POLITICS IN THE CIVIL WAR (1970), reprinted in CONFLICT AND CONSENSUS IN EARLY AMERICAN HISTORY 216, 218 (Allen F. Davis & Harold D. Woodman eds., 1984). Hammond notes that the period "produced a dazzling democratic expansion experienced nowhere else," and that "the Jacksonian revolution signified that a nation of democrats was tired of being governed, however well, by gentlemen from Virginia and Massachusetts." Id. at 217. Jacksonianism, he states, "opened economic advantages to those who had not previously had them." Id.
-
(1970)
Sovereignty and an Empty Purse: Banks and Politics in the Civil War
-
-
Hammond, B.1
-
149
-
-
1542767604
-
-
Allen F. Davis & Harold D. Woodman eds.
-
According to one commentator, the Jacksonian period was marked by "the transfer of economic primacy from an old and conservative merchant class to a newer, more aggressive, and more numerous body of business men and speculators of all sorts." BRAY HAMMOND, SOVEREIGNTY AND AN EMPTY PURSE: BANKS AND POLITICS IN THE CIVIL WAR (1970), reprinted in CONFLICT AND CONSENSUS IN EARLY AMERICAN HISTORY 216, 218 (Allen F. Davis & Harold D. Woodman eds., 1984). Hammond notes that the period "produced a dazzling democratic expansion experienced nowhere else," and that "the Jacksonian revolution signified that a nation of democrats was tired of being governed, however well, by gentlemen from Virginia and Massachusetts." Id. at 217. Jacksonianism, he states, "opened economic advantages to those who had not previously had them." Id.
-
(1984)
Conflict and Consensus in Early American History
, pp. 216
-
-
-
150
-
-
8344269886
-
-
RONALD E. SEAVOY, THE ORIGINS OF THE AMERICAN BUSINESS CORPORATION, 1784-1855, at 256 (1982). According to Professor Hovenkamp, [c]lassical political economy in the United States is a Jacksonian phenomenon . . . . Andrew Jackson was an entrepreneurial president. His terms of office -or, in political economic terms, his regime - stood for economic growth, unobstructed by "artificial" constraints. The two greatest classical legal institutions in the United States - the modern business corporation and the constitutional doctrine of substantive due process - are both distinctively Jacksonian products. The modern business corporation had its origin in the general corporation acts, one of the most important legal accomplishments of a regime bent on democratizing and deregulating American business. HOVENKAMP, supra note 2, at 2 (emphasis added).
-
(1982)
The Origins of the American Business Corporation
, pp. 1784-1855
-
-
Seavoy, R.E.1
-
151
-
-
1542452639
-
-
HURST, supra note 101, at 32
-
HURST, supra note 101, at 32.
-
-
-
-
152
-
-
84865888254
-
-
Id; see also SEAVOY, supra note 139, at 256 (arguing that general incorporation laws "helped equalize the opportunities to get rich")
-
Id; see also SEAVOY, supra note 139, at 256 (arguing that general incorporation laws "helped equalize the opportunities to get rich").
-
-
-
-
153
-
-
1542767605
-
-
See HURST, supra note 101, at 120 (citing the common example of the New York constitutional convention of 1846); see also SEAVOY, supra note 139, at 255 (noting that Connecticut was the first state to adopt a policy of granting charters to any legitimate business)
-
See HURST, supra note 101, at 120 (citing the common example of the New York constitutional convention of 1846); see also SEAVOY, supra note 139, at 255 (noting that Connecticut was the first state to adopt a policy of granting charters to any legitimate business).
-
-
-
-
154
-
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84865902684
-
-
HURST, supra note 101, at 120; see also id. at 32 (noting that the "individualistic egalitarian objection passed out of [the] Jacksonian [arguments] against corporations"). Professor Hovenkamp asserted that [t]o be a classicist was to be opposed to state intervention on behalf of the rich and the politically powerful. Classicism achieved its popularity in the United States in a political movement, Jacksonianism, that was heavily supported by society's disfavored classes. The issues were not welfare and subsidized education. Rather, they were special corporate charters or licenses that gave unique privileges to engage in business to certain favored people, while denying access to others. When Federalists intervened in the market, the immediate beneficiaries were generally people of property
-
HURST, supra note 101, at 120; see also id. at 32 (noting that the "individualistic egalitarian objection passed out of [the] Jacksonian [arguments] against corporations"). Professor Hovenkamp asserted that [t]o be a classicist was to be opposed to state intervention on behalf of the rich and the politically powerful. Classicism achieved its popularity in the United States in a political movement, Jacksonianism, that was heavily supported by society's disfavored classes. The issues were not welfare and subsidized education. Rather, they were special corporate charters or licenses that gave unique privileges to engage in business to certain favored people, while denying access to others. When Federalists intervened in the market, the immediate beneficiaries were generally people of property.
-
-
-
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155
-
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1542452640
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HOVENKAMP, supra note 2, at 4
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HOVENKAMP, supra note 2, at 4.
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156
-
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84865891208
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The "Responsible" Corporation: Benefactor or Monopolist?
-
Nov.
-
Milton Friedman & Eli Goldston, The "Responsible" Corporation: Benefactor or Monopolist?, FORTUNE, Nov. 1973, at 56, reprinted in THE CORPORATION IN A DEMOCRATIC SOCIETY, supra note 111, at 43, 44 (statement of Goldston).
-
(1973)
Fortune
, pp. 56
-
-
Friedman, M.1
Goldston, E.2
-
157
-
-
1542662166
-
-
supra note 111
-
Milton Friedman & Eli Goldston, The "Responsible" Corporation: Benefactor or Monopolist?, FORTUNE, Nov. 1973, at 56, reprinted in THE CORPORATION IN A DEMOCRATIC SOCIETY, supra note 111, at 43, 44 (statement of Goldston).
-
-
-
-
158
-
-
84865888253
-
-
See id. (statement of Goldston) (describing large publicly held corporations as "social aggregations of talent"); cf. Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 189 (1888) (noting that "corporations are merely associations of individuals united for a special purpose")
-
See id. (statement of Goldston) (describing large publicly held corporations as "social aggregations of talent"); cf. Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 189 (1888) (noting that "corporations are merely associations of individuals united for a special purpose").
-
-
-
-
159
-
-
1542767603
-
-
Cf. TOCQUEVILLE, supra note 132, at 131-32 (reasoning that individuals gain power and independence from the ability to form associations)
-
Cf. TOCQUEVILLE, supra note 132, at 131-32 (reasoning that individuals gain power and independence from the ability to form associations).
-
-
-
-
160
-
-
84865902683
-
-
See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) ("Effective advocacy . . . is undeniably enhanced by group association . . . .")
-
See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) ("Effective advocacy . . . is undeniably enhanced by group association . . . .").
-
-
-
-
161
-
-
1542767602
-
-
See generally Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (describing the common trust fund concept)
-
See generally Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (describing the common trust fund concept).
-
-
-
-
162
-
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1542767509
-
-
See NAACP, 357 U.S. at 460
-
See NAACP, 357 U.S. at 460; see also MARK G. YUDOF, WHEN GOVERNMENT SPEAKS 161-62 (1983) (asserting that organizations represent the mass of individuals who rarely can provide a powerful voice on their own); Victor Brudney, Association, Advocacy, and the First Amendment, 4 WM. & MARY BILL RTS. J. 1, 79 (1995) ("[A]ssociations are essentially amplifiers . . . or in any event communicators, of individual expressive interests . . . ."); Meir Dan-Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 CAL. L. REV. 1229, 1249 (1991) (arguing that individuals speak through organizations knowing that their "views will gain greatly in audibility").
-
-
-
-
163
-
-
0003704541
-
-
See NAACP, 357 U.S. at 460; see also MARK G. YUDOF, WHEN GOVERNMENT SPEAKS 161-62 (1983) (asserting that organizations represent the mass of individuals who rarely can provide a powerful voice on their own); Victor Brudney, Association, Advocacy, and the First Amendment, 4 WM. & MARY BILL RTS. J. 1, 79 (1995) ("[A]ssociations are essentially amplifiers . . . or in any event communicators, of individual expressive interests . . . ."); Meir Dan-Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 CAL. L. REV. 1229, 1249 (1991) (arguing that individuals speak through organizations knowing that their "views will gain greatly in audibility").
-
(1983)
When Government Speaks
, pp. 161-162
-
-
Yudof, M.G.1
-
164
-
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1542557191
-
Association, Advocacy, and the First Amendment
-
See NAACP, 357 U.S. at 460; see also MARK G. YUDOF, WHEN GOVERNMENT SPEAKS 161-62 (1983) (asserting that organizations represent the mass of individuals who rarely can provide a powerful voice on their own); Victor Brudney, Association, Advocacy, and the First Amendment, 4 WM. & MARY BILL RTS. J. 1, 79 (1995) ("[A]ssociations are essentially amplifiers . . . or in any event communicators, of individual expressive interests . . . ."); Meir Dan-Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 CAL. L. REV. 1229, 1249 (1991) (arguing that individuals speak through organizations knowing that their "views will gain greatly in audibility").
-
(1995)
WM. & Mary Bill Rts. J.
, vol.4
, pp. 1
-
-
Brudney, V.1
-
165
-
-
84928438875
-
Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State
-
See NAACP, 357 U.S. at 460; see also MARK G. YUDOF, WHEN GOVERNMENT SPEAKS 161-62 (1983) (asserting that organizations represent the mass of individuals who rarely can provide a powerful voice on their own); Victor Brudney, Association, Advocacy, and the First Amendment, 4 WM. & MARY BILL RTS. J. 1, 79 (1995) ("[A]ssociations are essentially amplifiers . . . or in any event communicators, of individual expressive interests . . . ."); Meir Dan-Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 CAL. L. REV. 1229, 1249 (1991) (arguing that individuals speak through organizations knowing that their "views will gain greatly in audibility").
-
(1991)
Cal. L. Rev.
, vol.79
, pp. 1229
-
-
Dan-Cohen, M.1
-
166
-
-
1542452642
-
-
See REDISH, supra note 86, at 19-22
-
See REDISH, supra note 86, at 19-22.
-
-
-
-
167
-
-
1542557200
-
-
But see supra notes 144-150 and accompanying text
-
But see supra notes 144-150 and accompanying text.
-
-
-
-
168
-
-
1542662165
-
-
See supra notes 90-97 and accompanying text; see also Meiklejohn, supra note 85, at 256-57 (describing how the enjoyment of art, literature, and education cultivates citizens' values, independence, and wisdom); id. at 263 (arguing that novels, dramas, paintings, and poems enhance people's ability to vote)
-
See supra notes 90-97 and accompanying text; see also Meiklejohn, supra note 85, at 256-57 (describing how the enjoyment of art, literature, and education cultivates citizens' values, independence, and wisdom); id. at 263 (arguing that novels, dramas, paintings, and poems enhance people's ability to vote).
-
-
-
-
169
-
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84865888252
-
-
REDISH, supra note 86, at 30; see id. at 50; see also MEIKLEJOHN, supra note 90, at 27 (arguing that the result will be "ill-considered, ill-balanced planning for the general good" if citizens must decide an issue with less than complete information)
-
REDISH, supra note 86, at 30; see id. at 50; see also MEIKLEJOHN, supra note 90, at 27 (arguing that the result will be "ill-considered, ill-balanced planning for the general good" if citizens must decide an issue with less than complete information).
-
-
-
-
170
-
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0346703553
-
Persuasion, Autonomy, and Freedom of Expression
-
See David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 371 (1991) (arguing that "freedom of expression is designed to protect the autonomy of potential listeners").
-
(1991)
Colum. L. Rev.
, vol.91
, pp. 334
-
-
Strauss, D.A.1
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171
-
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1542452643
-
-
note
-
MEIKLEJOHN, supra note 90, at 26; see id. ("It does not require that, on every occasion, every citizen shall take part in public debate. Nor can it even give assurance that everyone shall have opportunity to do so."). This is not to endorse entirely this aspect of Professor Meiklejohn's theory because in many ways his theory is too limiting, most notably in his argument that the same message should not be repeated, see id., and his limitation of speech protection only to public, or political, speech. See id. at 83; REDISH, supra note 86, at 14-15 (critiquing the Meiklejohnian approach).
-
-
-
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172
-
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1542767512
-
-
Meiklejohn, supra note 85, at 255
-
Meiklejohn, supra note 85, at 255.
-
-
-
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173
-
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84865889442
-
-
Id.; see also id. at 263 (arguing that the "judgment-making of the people must be self-educated in the ways of freedom")
-
Id.; see also id. at 263 (arguing that the "judgment-making of the people must be self-educated in the ways of freedom").
-
-
-
-
174
-
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1542557279
-
-
MEIKLEJOHN, supra note 90, at 27; see also Meiklejohn, supra note 85, at 256-57 (arguing that the spreading of information and ideas must be unabridged)
-
MEIKLEJOHN, supra note 90, at 27; see also Meiklejohn, supra note 85, at 256-57 (arguing that the spreading of information and ideas must be unabridged).
-
-
-
-
175
-
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1542662267
-
-
See MEIKLEJOHN, supra note 90, at 27; Meiklejohn, supra note 85, at 256-57
-
See MEIKLEJOHN, supra note 90, at 27; Meiklejohn, supra note 85, at 256-57.
-
-
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176
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0347584539
-
-
17 HASTINGS COMM. & ENT. L.J. 17, 30-31 & n.58
-
Board of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) (stating that "[i]t is now well established that the Constitution protects the right to receive information and ideas"); Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring) ("The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them."); Burt Neuborne, Speech, Technology, and the Emergence of a Tricameral Media: You Can't Tell the Players Without a Scorecard, 17 HASTINGS COMM. & ENT. L.J. 17, 30-31 & n.58 (1994) (stating that "[e]ntire categories of speech arose where the principal justification for First Amendment protection was the hearer's right to know," including corporate and commercial speech); Strauss, supra note
-
(1994)
Speech, Technology, and the Emergence of a Tricameral Media: You Can't Tell the Players Without a Scorecard
-
-
Neuborne, B.1
-
177
-
-
84865889438
-
-
at 371 ("[F]reedom of expression is designed to protect the autonomy of potential listeners . . . .")
-
at 371 ("[F]reedom of expression is designed to protect the autonomy of potential listeners . . . .").
-
-
-
-
178
-
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1542767510
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-
note
-
See Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 8 (1986) (plurality opinion) ("First Amendment protects the public's interest in receiving information."); see also DAN-COHEN, supra note 14, at 109 (arguing that business corporations have a right to speak derived from the public's right to listen); Dan-Cohen, supra note 149, at 1245 (protecting corporate speech because the corporation is a "source of communication to which the public is entitled to listen"); Shelledy, supra note 6, at 571 (arguing that corporate speech can add to the "limited range of views given widespread dissemination").
-
-
-
-
179
-
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1542662159
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82 COLUM. L. REV. 609, 641
-
First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978); see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 706 (1990) (Kennedy, J., dissenting) (rejecting the suggestion that government has an interest in shaping debate by insulating the electorate from certain views); id. at 695 (Scalia, J., dissenting) ("The premise of our system is that there is no such thing as too much speech . . . ."). But see J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609, 641 (1982) (arguing that Bellotti "paid only lip service to the rights of listeners" and really was more concerned with protecting "the privileged few who can spend unlimited amounts of money to purchase political effectiveness").
-
(1982)
Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?
-
-
Wright, J.S.1
-
180
-
-
1542767511
-
-
City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994)
-
City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994).
-
-
-
-
181
-
-
0009944778
-
-
See Bellotti, 435 U.S. at 791-92 (stating that the people in a democracy "may consider . . . the source and credibility of the advocate"); RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 235 (1992) ("The effectiveness of speech is often connected to the identity of the speaker."); see also Austin, 494 U.S. at 684 (Scalia, J., dissenting) (arguing that listeners will consider the "self-interested and probably uncongenial source" in evaluating a message); YUDOF, supra note 149, at 161 (arguing that sources of information must have "high claims to legitimacy in the public mind"); C. Edwin Baker, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 SUP. CT. REV. 57, 65. ("Many listeners find that the identity of the source affects the worth or at least their evaluation of the speech."); Martin H. Redish, Product Health Claims and the First Amendment: Scientific Expression and the Twilight Zone of Commercial Speech, 43 VAND. L. REV. 1433, 1456-57 (1990) (arguing that a listener may be more skeptical of a claim made by a business corporation than by an objective observer).
-
(1992)
Free Speech in an Open Society
, pp. 235
-
-
Smolla, R.A.1
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182
-
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1542767588
-
-
1994 SUP. CT. REV. 57, 65.
-
See Bellotti, 435 U.S. at 791-92 (stating that the people in a democracy "may consider . . . the source and credibility of the advocate"); RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 235 (1992) ("The effectiveness of speech is often connected to the identity of the speaker."); see also Austin, 494 U.S. at 684 (Scalia, J., dissenting) (arguing that listeners will consider the "self-interested and probably uncongenial source" in evaluating a message); YUDOF, supra note 149, at 161 (arguing that sources of information must have "high claims to legitimacy in the public mind"); C. Edwin Baker, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 SUP. CT. REV. 57, 65. ("Many listeners find that the identity of the source affects the worth or at least their evaluation of the speech."); Martin H. Redish, Product Health Claims and the First Amendment: Scientific Expression and the Twilight Zone of Commercial Speech, 43 VAND. L. REV. 1433, 1456-57 (1990) (arguing that a listener may be more skeptical of a claim made by a business corporation than by an objective observer).
-
Turner Broadcasting: Content-Based Regulation of Persons and Presses
-
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Baker, C.E.1
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183
-
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0642357148
-
-
43 VAND. L. REV. 1433, 1456-57
-
See Bellotti, 435 U.S. at 791-92 (stating that the people in a democracy "may consider . . . the source and credibility of the advocate"); RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 235 (1992) ("The effectiveness of speech is often connected to the identity of the speaker."); see also Austin, 494 U.S. at 684 (Scalia, J., dissenting) (arguing that listeners will consider the "self-interested and probably uncongenial source" in evaluating a message); YUDOF, supra note 149, at 161 (arguing that sources of information must have "high claims to legitimacy in the public mind"); C. Edwin Baker, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 SUP. CT. REV. 57, 65. ("Many listeners find that the identity of the source affects the worth or at least their evaluation of the speech."); Martin H. Redish, Product Health Claims and the First Amendment: Scientific Expression and the Twilight Zone of Commercial Speech, 43 VAND. L. REV. 1433, 1456-57 (1990) (arguing that a listener may be more skeptical of a claim made by a business corporation than by an objective observer).
-
(1990)
Product Health Claims and the First Amendment: Scientific Expression and the Twilight Zone of Commercial Speech
-
-
Redish, M.H.1
-
184
-
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1542662175
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-
note
-
Gilleo, 512 U.S. at 56-57. "A sign advocating 'Peace in the Gulf' in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a 10-year-old child's bedroom window . . . ." Id. at 56.
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185
-
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1542662174
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-
note
-
See Bellotti, 435 U.S. at 782 n.18 ("Certainly there are voters . . . who would be as interested in hearing appellants' views on a graduated tax as the views of media corporations that might be less knowledgeable on the subject."); see also Austin, 494 U.S. at 699 (Kennedy, J., dissenting) (noting that "corporations . . . [may] have unique views of vital importance to the electorate" that should not be muted); cf. Redish, supra note 164, at 1456-57 (describing different, more skeptical reactions to a statement when coming from a business corporation).
-
-
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-
186
-
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1542557204
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note
-
Cf. Austin, 494 U.S. at 684 (Scalia, J., dissenting) (arguing that listeners will consider the corporate source of the message and might find it uncongenial).
-
-
-
-
187
-
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1542767516
-
-
See infra notes 305-354 and accompanying text
-
See infra notes 305-354 and accompanying text.
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-
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188
-
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1542557206
-
-
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)
-
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
-
-
-
-
189
-
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1542662269
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-
note
-
See Baker, supra note 164, at 73; Bezanson, supra note 13, at 739; see also id. at 740 (calling the First Amendment the "guarantee of individual freedom to speak"). But see Meiklejohn, supra note 85, at 255 ("The First Amendment does not protect a 'freedom to speak.'").
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-
-
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190
-
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1542452646
-
-
See Bezanson, supra note 13, at 739
-
See Bezanson, supra note 13, at 739.
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-
-
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191
-
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1542662170
-
-
note
-
See Baker, supra note 164, at 73 ("[W]ithout speakers, listeners' autonomy is irrelevant. . . . [T]he listener's desire to hear something seldom gives her the right to hear it unless some speaker has both the right (or bureaucratically defined duty) and desire to talk."); id. at 78 (arguing that "listener autonomy offers very little protection without prior invocation of speaker autonomy"); Brudney, supra note 149, at 68 ("If there exists a right to hear, it is only the right to hear what others can and wish to say."); id. at 72-73 (arguing that where no speaker exists, "the audience has lost nothing to which it is entitled"); Brudney, supra note 6, at 247 (arguing that the listener's interests are not independent of the speaker's ability and desire to speak).
-
-
-
-
192
-
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1542662168
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note
-
See supra note 43 and accompanying text; cf. Wooley v. Maynard, 430 U.S. 705, 714 (1977) (recognizing a First Amendment right against governmentally-compelled speech); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 633-34, 642 (1943) (holding a compulsory flag salute unconstitutional under the First Amendment).
-
-
-
-
193
-
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1542767515
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-
See supra notes 126-131 and accompanying text
-
See supra notes 126-131 and accompanying text.
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-
-
-
194
-
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1542662169
-
-
Baker, supra note 164, at 78 (citations omitted)
-
Baker, supra note 164, at 78 (citations omitted).
-
-
-
-
195
-
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1542662172
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-
note
-
See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (stating that decisions about what expressions to make, hear, or adopt rest with each individual), aff'd after remand, 117 S. Ct. 1174 (1997); R.A.V. v. City of St. Paul, 505 U.S. 377, 414 (1992) (White, J., concurring in the judgment) ("The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected."); Texas v. Johnson, 491 U.S. 397, 418 (1989) (upholding flag burning as protected speech, because although national unity is a proper official end, the government may not achieve this end by arresting those who express disagreement); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 55 (1988) (rejecting the "outrageousness" standard as the boundary of actionable political speech); Cohen v. California, 403 U.S. 15, 25 (1971) ("[O]ne man's vulgarity is another's lyric.").
-
-
-
-
196
-
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1542767523
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-
note
-
See Redish, supra note 164, at 1435 (discussing the "epistemological humility" concept); Redish & Lippman, supra note 26, at 281 (connecting the Court's prohibition of viewpoint regulation with the construct of epistemological humility).
-
-
-
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197
-
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1542452719
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BAKER, supra note 13, at 55
-
BAKER, supra note 13, at 55.
-
-
-
-
198
-
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1542452725
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See Baker, supra note 164, at 78-79
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See Baker, supra note 164, at 78-79.
-
-
-
-
199
-
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1542557278
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See supra notes 86-97 and accompanying text
-
See supra notes 86-97 and accompanying text.
-
-
-
-
200
-
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1542452723
-
-
See Blasi, supra note 79, at 527
-
See Blasi, supra note 79, at 527.
-
-
-
-
201
-
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1542557209
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-
note
-
See Stanley v. Georgia, 394 U.S. 557, 565 (1969) ("Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.").
-
-
-
-
202
-
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1542557210
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Blasi, supra note 79, at 527
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Blasi, supra note 79, at 527.
-
-
-
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203
-
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1542557208
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Id.
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Id.
-
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204
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1542662178
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Id. at 541
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Id. at 541.
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-
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206
-
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1542662181
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-
THE FEDERALIST No. 51, at 160 (James Madison) (Roy P. Fairfleld ed., 2d ed. 1966)
-
THE FEDERALIST No. 51, at 160 (James Madison) (Roy P. Fairfleld ed., 2d ed. 1966).
-
-
-
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207
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1542452651
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Id
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Id.
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-
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208
-
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1542452647
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See Redish & Cisar, supra note 186, at 462
-
See Redish & Cisar, supra note 186, at 462.
-
-
-
-
209
-
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1542662183
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-
note
-
Compare Redish & Cisar, supra note 186, at 476 (arguing that separation of powers must operate before one branch has acquired an undue amount of power), with Blasi, supra note 79, at 541 (calling for "well-organized, well-financed, professional critics to serve as a counterforce . . . to pass judgment on the actions of government").
-
-
-
-
210
-
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1542662207
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note
-
For a detailed critique of Professor Blasi's explication of the checking function, see REDISH, supra note 86, at 41-45.
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-
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211
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1542767532
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Blasi, supra note 79, at 538
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Blasi, supra note 79, at 538.
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-
-
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212
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1542662208
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See LINDBLOM, supra note 4, at 173
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See LINDBLOM, supra note 4, at 173.
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-
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213
-
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84865902681
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YUDOF, supra note 149, at 161; see also id. (stating that checking institutions must be "establishment organizations," with "high claims to legitimacy in the public mind")
-
YUDOF, supra note 149, at 161; see also id. (stating that checking institutions must be "establishment organizations," with "high claims to legitimacy in the public mind").
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-
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214
-
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1542767530
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Blasi, supra note 79, at 541
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Blasi, supra note 79, at 541.
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-
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215
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84865902680
-
-
YUDOF, supra note 149, at 161; Shelledy, supra note 6, at 573 (arguing that the "existence of distinct corporate views and the ability of corporations to compete with government and press for public attention support the conclusion that corporate speech can enrich public debate")
-
See YUDOF, supra note 149, at 161; Shelledy, supra note 6, at 573 (arguing that the "existence of distinct corporate views and the ability of corporations to compete with government and press for public attention support the conclusion that corporate speech can enrich public debate").
-
-
-
-
216
-
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1542767527
-
-
TOCQUEVILLE, supra note 132, at 133; see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 693-94 (1990) (Scalia, J., dissenting) (quoting larger passage of de Tocqueville's argument)
-
TOCQUEVILLE, supra note 132, at 133; see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 693-94 (1990) (Scalia, J., dissenting) (quoting larger passage of de Tocqueville's argument).
-
-
-
-
217
-
-
84865892969
-
-
Shelledy, supra note 6, at 571 ("[C]ompetition among three loud voices will provide a more diverse discourse than a debate dominated by two . . . ."); cf. Redish & Cisar, supra note 186, at 463 (describing the separation of powers in which each of the three branches possesses the tools to restrict the other two in a prophylactic manner)
-
See Shelledy, supra note 6, at 571 ("[C]ompetition among three loud voices will provide a more diverse discourse than a debate dominated by two . . . ."); cf. Redish & Cisar, supra note 186, at 463 (describing the separation of powers in which each of the three branches possesses the tools to restrict the other two in a prophylactic manner).
-
-
-
-
218
-
-
1542557199
-
-
7 HOFSTRA L. REV. 563, 585
-
See BAKER, supra note 13, at 231-33 ("[T]he role of the press in exposing abuses of power is likely to be central . . . ."); Floyd Abrams, The Press Is Different: Reflections on Justice Stewart and the Autonomous Press, 7 HOFSTRA L. REV. 563, 585 (1979) (arguing that the ability to be an independent check on government is "unique to the press"); id. at 592 ("[T]he press is the only institution that can serve on a continuing basis as an open eye of the public . . . ."); Randall P. Bezanson, The New Free Press Guarantee, 63 VA. L. REV. 731, 735 (1977) (asserting that the press is a "check on government that no other institution could provide").
-
(1979)
The Press is Different: Reflections on Justice Stewart and the Autonomous Press
-
-
Abrams, F.1
-
219
-
-
1542662167
-
-
63 VA. L. REV. 731, 735
-
See BAKER, supra note 13, at 231-33 ("[T]he role of the press in exposing abuses of power is likely to be central . . . ."); Floyd Abrams, The Press Is Different: Reflections on Justice Stewart and the Autonomous Press, 7 HOFSTRA L. REV. 563, 585 (1979) (arguing that the ability to be an independent check on government is "unique to the press"); id. at 592 ("[T]he press is the only institution that can serve on a continuing basis as an open eye of the public . . . ."); Randall P. Bezanson, The New Free Press Guarantee, 63 VA. L. REV. 731, 735 (1977) (asserting that the press is a "check on government that no other institution could provide").
-
(1977)
The New Free Press Guarantee
-
-
Bezanson, R.P.1
-
220
-
-
1542767529
-
-
First Nat'l Bank v. Bellotti, 435 U.S. 765, 782-83 (1978); see also Abrams, supra note 199, at 587 (arguing that recognizing the press's unique role and status is not inconsistent with granting broad First Amendment protections to others)
-
First Nat'l Bank v. Bellotti, 435 U.S. 765, 782-83 (1978); see also Abrams, supra note 199, at 587 (arguing that recognizing the press's unique role and status is not inconsistent with granting broad First Amendment protections to others).
-
-
-
-
221
-
-
1542452673
-
-
Bellotti, 435 U.S. at 782 n.18
-
See Bellotti, 435 U.S. at 782 n.18.
-
-
-
-
223
-
-
1542452722
-
-
YUDOF, supra note 149, at 37
-
YUDOF, supra note 149, at 37.
-
-
-
-
224
-
-
1542557201
-
-
69 IND. L.J. 689, 708-09
-
See Steven Shiffrin, The Politics of the Mass Media and the Free Speech Principle, 69 IND. L.J. 689, 708-09 (1994) (noting that during the first month of the war's coverage, Nightline failed to feature any guest who opposed the government's actions). Political scientist Benjamin Page has documented this charge. His empirical study demonstrates that the actual level of opposition to the war was never accurately reflected in either news or editorial coverage. See BENJAMIN I. PAGE, WHO DELIBERATES?: MASS MEDIA IN MODERN DEMOCRACY 26-37 (1996).
-
(1994)
The Politics of the Mass Media and the Free Speech Principle
-
-
Shiffrin, S.1
-
225
-
-
0003491190
-
-
See Steven Shiffrin, The Politics of the Mass Media and the Free Speech Principle, 69 IND. L.J. 689, 708-09 (1994) (noting that during the first month of the war's coverage, Nightline failed to feature any guest who opposed the government's actions). Political scientist Benjamin Page has documented this charge. His empirical study demonstrates that the actual level of opposition to the war was never accurately reflected in either news or editorial coverage. See BENJAMIN I. PAGE, WHO DELIBERATES?: MASS MEDIA IN MODERN DEMOCRACY 26-37 (1996).
-
(1996)
Who Deliberates?: Mass Media in Modern Democracy
, pp. 26-37
-
-
Page, B.I.1
-
227
-
-
84865892970
-
-
YUDOF, supra note 149, at 164 ("[I]t is incumbent upon the courts to cultivate the ability of all institutions to counter government and one another.")
-
Cf. YUDOF, supra note 149, at 164 ("[I]t is incumbent upon the courts to cultivate the ability of all institutions to counter government and one another.").
-
-
-
-
228
-
-
1542662184
-
-
1981 SUP. CT. REV. 1, 4
-
See, e.g., Miranda v. Arizona, 384 U.S. 436, 448 (1966) (allowing defendants to challenge improper custodial interrogation procedures as violative of their Fifth Amendment privilege against self-incrimination). Another example is the First Amendment's overbreadth doctrine. Cf. Henry P. Monaghan, Overbreadth, 1981 SUP. CT. REV. 1, 4 (stating that, in arguing a statute's overbreadth, "claimant is asserting his own right not to be burdened by an unconstitutional rule of law, though naturally the claim is not one which depends on the privileged character of his own conduct" (footnote and internal quotation marks omitted)).
-
Overbreadth
-
-
Monaghan, H.P.1
-
229
-
-
1542452671
-
-
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964) (allowing, but rejecting on the merits, a corporation's challenge to the 1964 Civil Rights Act on Commerce Clause grounds)
-
See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964) (allowing, but rejecting on the merits, a corporation's challenge to the 1964 Civil Rights Act on Commerce Clause grounds).
-
-
-
-
230
-
-
1542767550
-
-
Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 289 (1920) (allowing a corporation to present a procedural due process challenge to the fixing of maximum rates chargeable without an independent judicial determination)
-
See, e.g., Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 289 (1920) (allowing a corporation to present a procedural due process challenge to the fixing of maximum rates chargeable without an independent judicial determination).
-
-
-
-
231
-
-
1542557277
-
-
Stanley v. Georgia, 394 U.S. 557, 565 (1969) (recognizing a right to possess obscene materials in the home)
-
Stanley v. Georgia, 394 U.S. 557, 565 (1969) (recognizing a right to possess obscene materials in the home).
-
-
-
-
232
-
-
84865888251
-
-
REDISH, supra note 86, at 47; Strauss, supra note 154, at 355-56; see also 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1515-16 (1996) (Thomas, J., concurring in part and concurring in the judgment) (stating that the First Amendment rejects any attempt to keep people "ignorant in order to manipulate their choices")
-
See REDISH, supra note 86, at 47; Strauss, supra note 154, at 355-56; see also 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1515-16 (1996) (Thomas, J., concurring in part and concurring in the judgment) (stating that the First Amendment rejects any attempt to keep people "ignorant in order to manipulate their choices").
-
-
-
-
233
-
-
84865892966
-
-
Texas v. Johnson, 491 U.S. 397, 414 (1989); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-36 (1992) (striking down a law that allowed higher permit fees for speech likely to arouse public hostility); Cohen v. California, 403 U.S. 15, 21 (1971) (placing the burden on unwilling listeners to "avert[] their eyes" to avoid objectionable or offensive speech); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe . . . ."); Stone, supra note 110, at 214-15 & n.98 (citing cases in arguing that the First Amendment does not permit government to prohibit unpopular views)
-
Texas v. Johnson, 491 U.S. 397, 414 (1989); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-36 (1992) (striking down a law that allowed higher permit fees for speech likely to arouse public hostility); Cohen v. California, 403 U.S. 15, 21 (1971) (placing the burden on unwilling listeners to "avert[] their eyes" to avoid objectionable or offensive speech); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe . . . ."); Stone, supra note 110, at 214-15 & n.98 (citing cases in arguing that the First Amendment does not permit government to prohibit unpopular views).
-
-
-
-
235
-
-
84865902677
-
-
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990); see also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 258 (1986) ("The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.")
-
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990); see also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 258 (1986) ("The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.").
-
-
-
-
236
-
-
1542557232
-
-
Abrams, 250 U.S. at 630 (Holmes, J., dissenting)
-
Abrams, 250 U.S. at 630 (Holmes, J., dissenting).
-
-
-
-
237
-
-
84865902678
-
-
Austin, 494 U.S. at 659-60; see also MCFL, 479 U.S. at 257 (expressing concern over the "corrosive influence of concentrated corporate wealth")
-
See Austin, 494 U.S. at 659-60; see also MCFL, 479 U.S. at 257 (expressing concern over the "corrosive influence of concentrated corporate wealth").
-
-
-
-
238
-
-
1542452698
-
-
10 BYU J. PUB. L. 1, 21
-
See Austin, 494 U.S. at 661; see also Paul S. Edwards, Defining Political Corruption: The Supreme Court's Role, 10 BYU J. PUB. L. 1, 21 (1996) (arguing that the Austin Court's view of corruption may be understood as reflecting a Rawlsian view of political equality according to which corporations should not be permitted to control the course of public debate).
-
(1996)
Defining Political Corruption: The Supreme Court's Role
-
-
Edwards, P.S.1
-
239
-
-
1542767598
-
-
Austin, 494 U.S. at 706 (Kennedy, J., dissenting) (stating that insulating voters from access to ideas is incompatible with the First Amendment); see also REDISH, supra note 86, at 113 (arguing that decreasing the flow of available information undermines important First Amendment values)
-
See Austin, 494 U.S. at 706 (Kennedy, J., dissenting) (stating that insulating voters from access to ideas is incompatible with the First Amendment); see also REDISH, supra note 86, at 113 (arguing that decreasing the flow of available information undermines important First Amendment values).
-
-
-
-
240
-
-
1542452675
-
-
Austin, 494 U.S. at 684 (Scalia, J., dissenting)
-
Austin, 494 U.S. at 684 (Scalia, J., dissenting).
-
-
-
-
242
-
-
1542767528
-
-
1982 SUP. CT. REV. 243, 283
-
L.A. Powe, Jr., Mass Speech and the Newer First Amendment, 1982 SUP. CT. REV. 243, 283; see also id. (illustrating that unpopular "mass speech" reaches a wider audience and thus is potentially more effective than unpopular speech on a soapbox).
-
Mass Speech and the Newer First Amendment
-
-
Powe Jr., L.A.1
-
243
-
-
1542452721
-
-
Strauss, supra note 154, at 334
-
See Strauss, supra note 154, at 334.
-
-
-
-
244
-
-
84865892967
-
-
id.; see also First Nat'l Bank v. Bellotti, 435 U.S. 765, 790 (1978) ("[T]he fact that advocacy may persuade the electorate is hardly a reason to suppress it . . . .")
-
See id.; see also First Nat'l Bank v. Bellotti, 435 U.S. 765, 790 (1978) ("[T]he fact that advocacy may persuade the electorate is hardly a reason to suppress it . . . .").
-
-
-
-
245
-
-
1542557234
-
-
74 VA. L. REV. 519, 519
-
David L. Shapiro, Courts, Legislatures, and Paternalism, 74 VA. L. REV. 519, 519 (1988); see also id. at 542-43 (discussing the Supreme Court's emphasis on the idea that the First Amendment "outlaws a paternalist[ic] approach to the messages a person may receive"); Stone, supra note 110, at 212 ("The Court has long embraced an 'antipaternalistic' understanding of the first amendment."). This anti-paternalism concept is clearest in the Court's commercial speech cases. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1508 (1996) (rejecting a restriction on liquor price advertising designed to "keep people in the dark for what the government perceives to be their own good"); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (searching for an "alternative to this highly paternalistic approach" of banning advertisements). For a discussion of the paternalistic and antipaternalistic strains in commercial speech, see Redish, supra note 213, at 611-12 (discussing commercial speech decisions upholding an antipaternalistic view of the First Amendment).
-
(1988)
Courts, Legislatures, and Paternalism
-
-
Shapiro, D.L.1
-
246
-
-
84865889434
-
-
Strauss, supra note 154, at 335; see also REDISH, supra note 86, at 47 (arguing that because the government may not determine what life-affecting decisions an individual can make, it cannot suppress the information on which those decisions are based); Stone, supra note 110, at 213 ("The point, rather, is that the government ordinarily may not restrict the expression of particular ideas, viewpoints, or items of information because it does not trust its citizens to make wise or desirable decisions . . . .")
-
Strauss, supra note 154, at 335; see also REDISH, supra note 86, at 47 (arguing that because the government may not determine what life-affecting decisions an individual can make, it cannot suppress the information on which those decisions are based); Stone, supra note 110, at 213 ("The point, rather, is that the government ordinarily may not restrict the expression of particular ideas, viewpoints, or items of information because it does not trust its citizens to make wise or desirable decisions . . . .").
-
-
-
-
247
-
-
1542662210
-
-
Redish, supra note 213, at 636
-
Redish, supra note 213, at 636.
-
-
-
-
248
-
-
1542662209
-
-
64 U. COLO. L. REV. 935, 949
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659 (1990) (restricting corporate speech because "the power of the corporation may be no reflection of the power of its ideas" (citation omitted)); see also Frederick Schauer, The Political Incidence of the Free Speech Principle, 64 U. COLO. L. REV. 935, 949 (1993) (suggesting that "resources have more explanatory power than truth in determining which propositions a population will accept and which it will reject"); Wright, supra note 162, at 638 (stating that government regulation is necessary "so that the wealthiest voices may not dominate the debate by the strength of their dollars rather than their ideas").
-
(1993)
The Political Incidence of the Free Speech Principle
-
-
Schauer, F.1
-
249
-
-
0347645925
-
-
71 IOWA L. REV. 1405, 1412
-
See Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1412 (1986) (noting that opportunities for speech are "limited . . . by our capacity to digest or process information"); Shelledy, supra note 6, at 575-76 (arguing that "selective reception of messages" limits the amount of information that individuals can process, thus enabling the wealthy advocate's views to exert greater influence).
-
(1986)
Free Speech and Social Structure
-
-
Fiss, O.M.1
-
250
-
-
1542662215
-
-
supra notes 86-97 and accompanying text
-
See supra notes 86-97 and accompanying text.
-
-
-
-
251
-
-
1542557237
-
-
Shelledy, supra note 6, at 574; see also Austin, 494 U.S. at 684 (Scalia, J., dissenting) (arguing that speech is effective only to the extent it strikes someone as true)
-
Shelledy, supra note 6, at 574; see also Austin, 494 U.S. at 684 (Scalia, J., dissenting) (arguing that speech is effective only to the extent it strikes someone as true).
-
-
-
-
252
-
-
1542452718
-
-
supra notes 126-129 and accompanying text
-
See supra notes 126-129 and accompanying text.
-
-
-
-
253
-
-
1542557230
-
-
supra notes 130-135 and accompanying text
-
See supra notes 130-135 and accompanying text.
-
-
-
-
254
-
-
0013530546
-
-
97 YALE L.J. 1539, 1550
-
Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1550 (1988) ("[I]n their capacity as political actors, citizens and representatives are not supposed to ask only what is in their private interest . . . .").
-
(1988)
Beyond the Republican Revival
-
-
Sunstein, C.R.1
-
255
-
-
1542557235
-
-
See id. at 1564-65
-
See id. at 1564-65.
-
-
-
-
256
-
-
1542662216
-
-
note
-
See, e.g., Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 53 (1988) (arguing that, although relevant for tort liability, motive is irrelevant for First Amendment purposes).
-
-
-
-
257
-
-
1542662219
-
-
note
-
See Redish, supra note 164, at 1456-57; supra notes 163-163 and accompanying text; see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 684 (1990) (Scalia, J., dissenting) (noting that corporate advocacy's effectiveness is impacted by considering the "invariably self-interested and probably uncongenial source").
-
-
-
-
258
-
-
1542557238
-
-
See supra note 92 and accompanying text
-
See supra note 92 and accompanying text.
-
-
-
-
259
-
-
1542767551
-
-
note
-
Warth v. Seldin, 422 U.S. 490, 498 (1975) (internal quotation marks omitted); see also Allen v. Wright, 468 U.S. 737, 751 (1984) ("A plaintiff must allege personal injury . . . ."). Other constitutional requirements are that the injury be "fairly traceable to the defendant's allegedly unlawful conduct" and that judicial relief likely will redress the injury. See id. at 751.
-
-
-
-
260
-
-
1542662217
-
-
note
-
Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464; 472 (1982) (internal quotation marks omitted).
-
-
-
-
261
-
-
0005400482
-
-
2d ed.
-
See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 56 (2d ed. 1994); see also Baker v. Carr, 369 U.S. 186, 204 (1962) (requiring "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions"). Compare Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV. 297, 309 (1979) (expressing concern for existence of the "ideological plaintiff"), with Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV. L. REV. 1698, 1708-09 (1980) (suggesting a rule that grants standing to those who are part of an "institution with a continuing concern for the relevant substantive law"). Note, however, that even under Dean Tushnet's more relaxed standing rule, some personal interest for some issue or area of the law remains necessary.
-
(1994)
Federal Jurisdiction
, pp. 56
-
-
Chemerinsky, E.1
-
262
-
-
84865890704
-
-
93 HARV. L. REV. 297, 309
-
See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 56 (2d ed. 1994); see also Baker v. Carr, 369 U.S. 186, 204 (1962) (requiring "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions"). Compare Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV. 297, 309 (1979) (expressing concern for existence of the "ideological plaintiff"), with Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV. L. REV. 1698, 1708-09 (1980) (suggesting a rule that grants standing to those who are part of an "institution with a continuing concern for the relevant substantive law"). Note, however, that even under Dean Tushnet's more relaxed standing rule, some personal interest for some issue or area of the law remains necessary.
-
(1979)
The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement
-
-
Brilmayer, L.1
-
263
-
-
1542557236
-
-
93 HARV. L. REV. 1698, 1708-09
-
See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 56 (2d ed. 1994); see also Baker v. Carr, 369 U.S. 186, 204 (1962) (requiring "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions"). Compare Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV. 297, 309 (1979) (expressing concern for existence of the "ideological plaintiff"), with Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV. L. REV. 1698, 1708-09 (1980) (suggesting a rule that grants standing to those who are part of an "institution with a continuing concern for the relevant substantive law"). Note, however, that even under Dean Tushnet's more relaxed standing rule, some personal interest for some issue or area of the law remains necessary.
-
(1980)
The Sociology of Article III: A Response to Professor Brilmayer
-
-
Tushnet, M.V.1
-
264
-
-
1542557233
-
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 782 n.18 (1978)
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 782 n.18 (1978).
-
-
-
-
265
-
-
1542662214
-
-
note
-
See DAN-COHEN, supra note 14, at 108-09 (discussing the argument that shareholders are forced to contribute to the expression of views they do not hold); Brudney, supra note 6, at 247 ("A's right to receive information does not require the state to permit B to steal from C the funds that alone will enable B to make the communication."); see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 675 (1990) (Brennan, J., concurring) ("State surely has a compelling interest in preventing a corporation it has chartered from exploiting those who do not wish to contribute to the [corporation's] political message."); Bellotti, 435 U.S. at 812 (White, J., dissenting) (discussing the overriding governmental interest in "assuring that shareholders are not compelled to support and financially further beliefs with which they disagree").
-
-
-
-
266
-
-
1542452677
-
-
See infra note 273 and accompanying text
-
See infra note 273 and accompanying text.
-
-
-
-
267
-
-
1542767552
-
-
note
-
See, e.g., Simon & Schuster, Inc. v. Members of the N.Y. Crime Victims Bd., 502 U.S. 105, 120 (1991) (rejecting selective application of state's compelling interest); infra notes 275-275 and accompanying text.
-
-
-
-
268
-
-
1542452670
-
-
See supra note 173 and accompanying text
-
See supra note 173 and accompanying text.
-
-
-
-
269
-
-
1542452713
-
-
note
-
Brudney, supra note 6, at 238; see also Bellotti, 435 U.S. at 814 (White, J., dissenting) ("States have always been free to adopt measures designed to further rights protected by the Constitution even when not compelled to do so."); id. at 813-14 (discussing cases protecting individuals from forced speech).
-
-
-
-
270
-
-
1542767553
-
-
See supra note 242 and accompanying text
-
See supra note 242 and accompanying text.
-
-
-
-
271
-
-
1542767600
-
-
note
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 670 (1990) (Brennan, J., concurring); Bellotti, 435 U.S. at 812 (White, J., dissenting) (arguing for protecting shareholders if the issue does not materially affect business of the corporation).
-
-
-
-
272
-
-
1542662252
-
-
note
-
See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 260-61 (1986); see also supra notes 58-58 and accompanying text.
-
-
-
-
273
-
-
1542452715
-
-
MCFL, 479 U.S. at 260-61
-
MCFL, 479 U.S. at 260-61.
-
-
-
-
274
-
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1542662213
-
-
Id. at 263
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Id. at 263.
-
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275
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1542557241
-
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note
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See id. at 263-64 (describing three features of such political organizations); see also BAKER, supra note 13, at 220 (arguing that modern corporations are not oriented towards "associative value goals"); Bezanson, supra note 13, at 778-81 (distinguishing types of organizations based on the degree of connection between its members and the corporate statements); Brudney, supra note 149, at 74 (distinguishing business corporations from other voluntary associations); Dan-Cohen, supra note 149, at 1248 (distinguishing the type of speech rights held by business corporations as opposed to other organizations).
-
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-
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276
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1542767554
-
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note
-
See O'Kelley, supra note 6, at 1365-66 (describing the "associational rationale" for protecting some corporate speech); see also Brudney, supra note 149, at 75 (describing individuals who join organizations in order to support their advocacy activities).
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277
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1542767555
-
-
See MCFL, 479 U.S. at 241-42 (explaining the corporate purpose)
-
See MCFL, 479 U.S. at 241-42 (explaining the corporate purpose).
-
-
-
-
278
-
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1542662244
-
-
note
-
Cf. Glickman v. Wileman Bros. & Elliott, Inc., 117 S. Ct. 2130, 2135 & n.3 (1997) (providing an example that fruit growers share the same basic aim as government-controlled advertising campaign - namely, increasing sales - even though they might differ over specific strategies as to how to accomplish that goal).
-
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279
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1542557239
-
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note
-
SMOLLA, supra note 164, at 239; see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 687 (1990) (Scalia, J., dissenting) ("Would it be any more upsetting to a shareholder of General Motors that it endorsed the election of Henry Wallace (to stay comfortably in the past) than it would be to a member of the [ACLU] that it endorsed the election of George Wallace?"). But see Dan-Cohen, supra note 149, at 1249 (arguing that members maintain affiliation with expressive organizations precisely because of the communicative activity and despite potential disparity between the organization's views and the individual's views on some issues).
-
-
-
-
280
-
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1542662221
-
-
note
-
See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (striking down an ordinance banning racially motivated hate speech).
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-
-
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281
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1542767557
-
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See, e.g., EDWARD J. CLEARY, BEYOND THE BURNING CROSS: THE FIRST AMENDMENT AND THE LANDMARK R.A.V. CASE 96 (1994) (describing People for the American Way's positions supporting the hate speech ordinance but opposing efforts to ban violent rap songs); see also id. at 199-200 (discussing the positions of the ACLU, which had defended the Nazis' right to march in Skokie, Illinois: lukewarm opposition to the hate speech ordinance and support for sentence enhancement for racially motivated crimes).
-
(1994)
Beyond the Burning Cross: The First Amendment and the Landmark R.A.V. Case
, pp. 96
-
-
Cleary, E.J.1
-
282
-
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1542767558
-
-
note
-
See Friedman & Goldston, supra note 144, at 44; see also supra 131-150 and accompanying text.
-
-
-
-
283
-
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1542767559
-
-
note
-
See Brudney, supra note 149, at 58-60 (discussing the need to protect individual shareholders).
-
-
-
-
284
-
-
1542767592
-
-
note
-
Brudney, supra note 6, at 268; see also First Nat'l Bank v. Bellotti, 435 U.S. 765, 818 (1978) (White, J., dissenting) (noting a state interest in ensuring that "citizens are not forced to choose between supporting the propagation of views with which they disagree and passing up investment opportunities").
-
-
-
-
285
-
-
1542662248
-
-
note
-
See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-36 (1977) (requiring that expenditures for political expression be financed from dues "paid by employees who do not object to advancing those ideas"); Pipefitters Local 562 v. United States, 407 U.S. 385, 414-15 (1972) (holding that political funds must be separate from union dues and must indicate their political purpose); International Ass'n of Machinists v. Street, 367 U.S. 740, 768-69 (1961) (denying unions, "over an employee's objection, the power to use his exacted funds to support political causes which he opposes").
-
-
-
-
286
-
-
1542452716
-
-
note
-
See Abood, 431 U.S. at 212 (requiring union-shop and "service charge" by nonmembers); Street, 367 U.S. at 746-47 (providing an example of federal law permitting union-shop agreements).
-
-
-
-
287
-
-
1542662247
-
-
note
-
See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 260 (1986) (distinguishing union cases from corporations); Cohen, supra note 111, at 33 ("Individuals are increasingly dependent upon memberships and participation in organizations such as labor unions . . . to practice their trades . . . .").
-
-
-
-
288
-
-
1542662249
-
-
note
-
See BUTLER & RIBSTEIN, supra note 111, at 65; see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 687 (1990) (Scalia, J., dissenting) (arguing that selling stock "does not ordinarily involve the severe psychic trauma or economic disaster that Justice Brennan's opinion suggests").
-
-
-
-
289
-
-
1542557272
-
-
note
-
See BUTLER & RIBSTEIN, supra note 111, at 65-66; see also Austin, 494 U.S. at 691 (Scalia, J., dissenting) ("General Motors, after all, will risk a stockholder suit if it makes a political endorsement that is not plausibly tied to its ability to make money for its shareholders.").
-
-
-
-
290
-
-
1542662246
-
-
note
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 794-95 n.34 (1978); cf. Austin, 494 U.S. at 710 (Kennedy, J., dissenting) (stating that "[o]ne need not become a member of the Michigan Chamber of Commerce or the Sierra Club in order to earn a living").
-
-
-
-
291
-
-
1542767590
-
-
note
-
See Austin, 494 U.S. at 709-10 (Kennedy, J., dissenting); Brudney, supra note 6, at 270 ("[T]he freedom to refrain from working is not equally as exercisable as the freedom to refrain from investing . . . .").
-
-
-
-
292
-
-
1542662242
-
-
note
-
But see Bellotti, 435 U.S. at 818 (White, J., dissenting) (arguing that employees in the union cases were free to seek other employment); Brudney, supra note 6, at 270 (arguing that the "freedom of investors to go elsewhere would be costly, if not wholly illusory").
-
-
-
-
293
-
-
1542452679
-
-
See DAN-COHEN, supra note 14, at 108-09
-
See DAN-COHEN, supra note 14, at 108-09.
-
-
-
-
294
-
-
1542662220
-
-
See id. at 109
-
See id. at 109.
-
-
-
-
295
-
-
1542557242
-
-
note
-
Obviously an individual is free to reach a private agreement with the businessman stating that the businessman not use the loan for his fascist speech. Likewise, one can employ private shareholder agreements to restrict the corporation's speech. Neither implicates the First Amendment because the government does not compel the restriction. See BUTLER & RIBSTEIN, supra note 111, at 65 (arguing that such private contracts restricting corporate speech "do not raise significant First Amendment concerns").
-
-
-
-
296
-
-
84865892962
-
-
Cf. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 686-87 (1990) (Scalia, J., dissenting) ("[M]anagement may take any action that is ultimately in accord with what the majority . . . of the shareholders wishes, so long as that action is designed to make a profit."); cf. Fred D. Baldwin, Conflicting Interests 3-4 (1984) (discussing corporate governance reform and the controversy surrounding the "proper relation between private business interests and other social concerns")
-
Cf. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 686-87 (1990) (Scalia, J., dissenting) ("[M]anagement may take any action that is ultimately in accord with what the majority . . . of the shareholders wishes, so long as that action is designed to make a profit."); cf. Fred D. Baldwin, Conflicting Interests 3-4 (1984) (discussing corporate governance reform and the controversy surrounding the "proper relation between private business interests and other social concerns").
-
-
-
-
297
-
-
1542662222
-
-
See BUTLER & RIBSTEIN, supra note 111, at 59-60
-
See BUTLER & RIBSTEIN, supra note 111, at 59-60.
-
-
-
-
298
-
-
84865902670
-
-
502 U.S. 105 (1991). The Court invalidated New York's "Son of Sam" law, which required anyone convicted of a crime to surrender to the state, and then to the victim or victim's family, any income earned from books relating to the crime. See id. at 123
-
502 U.S. 105 (1991). The Court invalidated New York's "Son of Sam" law, which required anyone convicted of a crime to surrender to the state, and then to the victim or victim's family, any income earned from books relating to the crime. See id. at 123.
-
-
-
-
299
-
-
84865902671
-
-
See id. at 116 (classifying law as "content-based")
-
See id. at 116 (classifying law as "content-based").
-
-
-
-
300
-
-
1542767564
-
-
See id. at 124 (Kennedy, J., concurring in the judgment). The weaker version, from the majority opinion, is that such a direct burden is subject to strict scrutiny, requiring a compelling state interest and narrow tailoring of the law. See id. at 120-21. The majority opinion recognized a compelling state interest in compensating crime victims but held that the statute was not narrowly tailored as required by strict scrutiny. See id. at 120-23
-
See id. at 124 (Kennedy, J., concurring in the judgment). The weaker version, from the majority opinion, is that such a direct burden is subject to strict scrutiny, requiring a compelling state interest and narrow tailoring of the law. See id. at 120-21. The majority opinion recognized a compelling state interest in compensating crime victims but held that the statute was not narrowly tailored as required by strict scrutiny. See id. at 120-23.
-
-
-
-
301
-
-
1542662223
-
-
See Austin, 494 U.S. at 675 (Brennan, J., concurring); First Nat'l Bank v. Bellotti, 435 U.S. 765, 812 (1978) (White, J., dissenting); see also Brudney, supra note 6, at 256-57 (discussing how political science and economic theory justify state interest as compelling)
-
See Austin, 494 U.S. at 675 (Brennan, J., concurring); First Nat'l Bank v. Bellotti, 435 U.S. 765, 812 (1978) (White, J., dissenting); see also Brudney, supra note 6, at 256-57 (discussing how political science and economic theory justify state interest as compelling).
-
-
-
-
302
-
-
84865902673
-
-
See Bellotti, 435 U.S. at 794-95 n.34 (stating that no one has explained "why the dissenting shareholder's wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made")
-
See Bellotti, 435 U.S. at 794-95 n.34 (stating that no one has explained "why the dissenting shareholder's wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made").
-
-
-
-
303
-
-
1542767565
-
-
See supra note 173 and accompanying text
-
See supra note 173 and accompanying text.
-
-
-
-
304
-
-
1542662245
-
-
See supra notes 245-246 and accompanying text
-
See supra notes 245-246 and accompanying text.
-
-
-
-
305
-
-
1542557269
-
-
See Austin, 494 U.S. at 676-77 (Brennan, J., concurring); see also Neuborne, supra note 160, at 31 (noting that there is no metric to determine who wins when the interests of speaker and listener diverge)
-
See Austin, 494 U.S. at 676-77 (Brennan, J., concurring); see also Neuborne, supra note 160, at 31 (noting that there is no metric to determine who wins when the interests of speaker and listener diverge).
-
-
-
-
306
-
-
84865902674
-
-
See HOVENKAMP, supra note 2, at 42 ("The doctrine that a corporation is a constitutional person meant that the corporation's directors or managers had the power to assert the corporation's constitutional claims. The far less cited corollary was that the shareholders lacked standing to assert these rights.")
-
See HOVENKAMP, supra note 2, at 42 ("The doctrine that a corporation is a constitutional person meant that the corporation's directors or managers had the power to assert the corporation's constitutional claims. The far less cited corollary was that the shareholders lacked standing to assert these rights.").
-
-
-
-
307
-
-
1542703731
-
-
See generally STEPHEN B. PRESSER, PIERCING THE CORPORATE VEIL ' 1.01 (1991) (discussing the distinction between the corporate entity and individual shareholders for purposes of liability).
-
(1991)
Piercing the Corporate Veil ' 1.01
-
-
Presser, S.B.1
-
308
-
-
1542557244
-
-
See supra notes 275-279 and accompanying text
-
See supra notes 275-279 and accompanying text.
-
-
-
-
309
-
-
84865888244
-
-
The Court, in fact, recently has construed broadly the "common view" concept. See Glickman v. Wileman Bros. & Elliott, Inc., 117 S. Ct. 2130, 2139-40 (1997)
-
The Court, in fact, recently has construed broadly the "common view" concept. See Glickman v. Wileman Bros. & Elliott, Inc., 117 S. Ct. 2130, 2139-40 (1997).
-
-
-
-
310
-
-
84865892961
-
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 794-95 n.34 (1978) (expressing concern that the majority will be completely silenced because a "hypothetical minority might object")
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 794-95 n.34 (1978) (expressing concern that the majority will be completely silenced because a "hypothetical minority might object").
-
-
-
-
311
-
-
1542452683
-
-
See id. at 794
-
See id. at 794.
-
-
-
-
312
-
-
1542662225
-
-
See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 240 (1977)
-
See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 240 (1977).
-
-
-
-
313
-
-
84865889432
-
-
See Brudney, supra note 6, at 271 (discussing "least restrictive means" of furthering compelling state interest). But see Bellotti, 435 U.S. at 818 (White, J., dissenting) (suggesting that such a refund system is unworkable for corporations and does not solve the problem of investors who are deterred from investing)
-
See Brudney, supra note 6, at 271 (discussing "least restrictive means" of furthering compelling state interest). But see Bellotti, 435 U.S. at 818 (White, J., dissenting) (suggesting that such a refund system is unworkable for corporations and does not solve the problem of investors who are deterred from investing).
-
-
-
-
314
-
-
1542557245
-
-
note
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990) (holding that the law is narrowly tailored because it eliminates distortion of wealth while allowing corporate views to be expressed); id. at 669 (Brennan, J., concurring) (noting that the law is not an "across-the-board prohibition on political participation by corporations"); see also SUNSTEIN, supra note 220, at 238 (distinguishing the "mere segregation requirement" of Austin from the "flat ban" of Bellotti); Brudney, supra note 6, at 272 (suggesting a segregated fund as an acceptable alternative); Shelledy, supra note 6, at 577 (arguing in favor of restrictions that "leave some outlet for corporate points of view," as did the segregated fund in Austin). 292 See SMOLLA, supra note 164, at 236-37; see also Austin, 494 U.S. at 681 n.* (Scalia, J., dissenting) ("Just as political speech by [John D. Rockefeller's] association is not speech by John D. Rockefeller, so also speech by a corporate PAC . . . is not speech by the corporation itself."); BUTLER & RIBSTEIN, supra note 111, at 63-64 ("[P]olitical speech by managers of publicly held firms can generally be considered the expression of the individual managers from whom the speech originates . . . .").
-
-
-
-
315
-
-
84865892958
-
-
See Austin, 494 U.S. at 709 (Kennedy, J., dissenting); see also DAN-COHEN, supra note 14, at 108 (arguing that individuals cannot produce speech that is "irreducibly 'corporate' in nature")
-
See Austin, 494 U.S. at 709 (Kennedy, J., dissenting); see also DAN-COHEN, supra note 14, at 108 (arguing that individuals cannot produce speech that is "irreducibly 'corporate' in nature").
-
-
-
-
316
-
-
1542557246
-
-
note
-
According to Hurst, Corporation law early favored business arrangements which centralized decision making, gave it considerable assurance of tenure, and armed it for vigorous maneuver. Shareholder decisions, it was soon established, should normally be by simple majority. Active management should be concentrated in a board of directors; stockholders did not have owners' rights over the particular assets of a going corporate enterprise; unless exhibiting gross abuse of power or breach of faith, directors' decisions governed the regular course of the business. [Furthermore, corporate law] favored strong central direction of pooled assets; capacity for indefinite life, uninterrupted by change of shareholders . . . . A board of directors must do its business as a body, not as individuals. HURST, supra note 101, at 25.
-
-
-
-
317
-
-
84865889427
-
-
Brudney, supra note 6, at 243-44; see also O'Kelley, supra note 6, at 1362 (arguing that the corporation must assert its rights "in connection with a form of expression that is a part of the corporation's business")
-
Brudney, supra note 6, at 243-44; see also O'Kelley, supra note 6, at 1362 (arguing that the corporation must assert its rights "in connection with a form of expression that is a part of the corporation's business").
-
-
-
-
318
-
-
84865892959
-
-
See Brudney, supra note 6, at 254; see also BALDWIN, supra note 273, at 112 (discussing a different suggestion for a unanimity requirement). Note, of course, that this would virtually halt all corporate operations because any individual or group could purchase a veto in the form of one share of stock. See id. at 112; Brudney, supra note 6, at 272 (noting that a unanimous shareholder requirement for corporate political speech "would effectively prohibit political speech by the corporation")
-
See Brudney, supra note 6, at 254; see also BALDWIN, supra note 273, at 112 (discussing a different suggestion for a unanimity requirement). Note, of course, that this would virtually halt all corporate operations because any individual or group could purchase a veto in the form of one share of stock. See id. at 112; Brudney, supra note 6, at 272 (noting that a unanimous shareholder requirement for corporate political speech "would effectively prohibit political speech by the corporation").
-
-
-
-
319
-
-
1542452686
-
-
Brudney, supra note 6, at 254
-
Brudney, supra note 6, at 254.
-
-
-
-
320
-
-
1542452685
-
-
See supra notes 275-279 and accompanying text
-
See supra notes 275-279 and accompanying text.
-
-
-
-
321
-
-
1542452684
-
-
391 U.S. 367 (1968) (upholding law prohibiting burning of draft cards)
-
391 U.S. 367 (1968) (upholding law prohibiting burning of draft cards).
-
-
-
-
322
-
-
84865889428
-
-
See id. at 376-77. The Court reasoned that [G]overnment regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377. Professor Stone refers to this as a "no gratuitous inhibition approach." Stone, supra note 110, at 190-91 n.5 (internal quotation marks omitted)
-
See id. at 376-77. The Court reasoned that [G]overnment regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377. Professor Stone refers to this as a "no gratuitous inhibition approach." Stone, supra note 110, at 190-91 n.5 (internal quotation marks omitted).
-
-
-
-
323
-
-
84865892960
-
-
But see REDISH, supra note 86, at 100-01 (describing O'Brien as the "most troubling illustration of the Court's modern approach to content-neutral restrictions"). The Court has continued to employ the O'Brien test. See, e.g., Turner Broad. Sys., Inc. v. FCC, 117 S. Ct. 1174, 1183 (1997) (upholding "must-carry provisions" under the intermediate scrutiny standard announced in O'Brien); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566-68 (1991) (plurality opinion) (holding a public indecency statute valid under O'Brien, "despite its incidental limitations on some expressive activity"); id. at 582 (Souter, J., concurring in the judgment) (agreeing with the plurality opinion's use of the O'Brien test to determine the required degree of First Amendment protection)
-
But see REDISH, supra note 86, at 100-01 (describing O'Brien as the "most troubling illustration of the Court's modern approach to content-neutral restrictions"). The Court has continued to employ the O'Brien test. See, e.g., Turner Broad. Sys., Inc. v. FCC, 117 S. Ct. 1174, 1183 (1997) (upholding "must-carry provisions" under the intermediate scrutiny standard announced in O'Brien); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566-68 (1991) (plurality opinion) (holding a public indecency statute valid under O'Brien, "despite its incidental limitations on some expressive activity"); id. at 582 (Souter, J., concurring in the judgment) (agreeing with the plurality opinion's use of the O'Brien test to determine the required degree of First Amendment protection).
-
-
-
-
324
-
-
1542662228
-
-
Brudney, supra note 6, at 244
-
Brudney, supra note 6, at 244.
-
-
-
-
325
-
-
84865889429
-
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 768 (1978) (internal quotation marks omitted); see also id. at 785 (rejecting legislature's requirement that corporation "stick to business")
-
See First Nat'l Bank v. Bellotti, 435 U.S. 765, 768 (1978) (internal quotation marks omitted); see also id. at 785 (rejecting legislature's requirement that corporation "stick to business").
-
-
-
-
326
-
-
1542662229
-
-
See supra notes 275-279 and accompanying text
-
See supra notes 275-279 and accompanying text.
-
-
-
-
327
-
-
84865902666
-
-
See Dan-Cohen, supra note 149, at 1245-46 (criticizing the Bellotti Court for rejecting the concern that "corporate wealth and power may be used to 'drown out other points of view'" (citation omitted)); Shelledy, supra note 6, at 575 ("[W]ealth gives some advocates exposure to more voters and thereby gives them an opportunity to persuade a larger part of the electorate . . . as a result of selective reception of messages . . . ."); Wright, supra note 162, at 637 ("Unchecked political expenditures . . . may drown opposing beliefs . . . .")
-
See Dan-Cohen, supra note 149, at 1245-46 (criticizing the Bellotti Court for rejecting the concern that "corporate wealth and power may be used to 'drown out other points of view'" (citation omitted)); Shelledy, supra note 6, at 575 ("[W]ealth gives some advocates exposure to more voters and thereby gives them an opportunity to persuade a larger part of the electorate . . . as a result of selective reception of messages . . . ."); Wright, supra note 162, at 637 ("Unchecked political expenditures . . . may drown opposing beliefs . . . .").
-
-
-
-
328
-
-
84865892954
-
-
See Wright, supra note 162, at 637 ("Limiting the amount that wealthy interests may spend to publicize their views enhances the self-expression of individual citizens . . . furthering the values of freedom of speech.")
-
See Wright, supra note 162, at 637 ("Limiting the amount that wealthy interests may spend to publicize their views enhances the self-expression of individual citizens . . . furthering the values of freedom of speech.").
-
-
-
-
329
-
-
84865888243
-
-
SMOLLA, supra note 164, at 237 ("proportional leveling"); Powe, supra note 221, at 267 ("enhancement")
-
SMOLLA, supra note 164, at 237 ("proportional leveling"); Powe, supra note 221, at 267 ("enhancement").
-
-
-
-
330
-
-
84865892956
-
-
Reynolds v. Sims, 377 U.S. 533, 565 (1964) (discussing the Equal Protection Clause's dictate of "one person, one vote")
-
Reynolds v. Sims, 377 U.S. 533, 565 (1964) (discussing the Equal Protection Clause's dictate of "one person, one vote").
-
-
-
-
331
-
-
1542452688
-
-
See Wright, supra note 162, at 610, 642
-
See Wright, supra note 162, at 610, 642.
-
-
-
-
332
-
-
1542662232
-
-
Sunstein, supra note 233, at 1552
-
Sunstein, supra note 233, at 1552.
-
-
-
-
334
-
-
1542452690
-
-
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974)
-
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
-
-
-
-
335
-
-
1542452691
-
-
note
-
See Redish & Lippman, supra note 26, at 282 (classifying viewpoint regulation as "inherently boundless").
-
-
-
-
336
-
-
1542557248
-
-
note
-
A governmentally provided right of access conceivably could give rise to problems of compelled speech. See supra note 173 and accompanying text.
-
-
-
-
337
-
-
1542557249
-
-
note
-
Perhaps one could argue that a speaker's prior success and public notoriety - no matter how unrelated to her expression's subject - conceivably might provide a listener with a distinct rational basis for giving that speaker's expression greater weight. Even if one were to accept such reasoning, one could fashion a similar argument about wealth's advantages: the very fact that the speaker has had the ingenuity to access or retain such financial resources arguably may provide greater legitimacy to the speech, at least in certain recipients' minds.
-
-
-
-
338
-
-
1542452692
-
-
note
-
See generally §§ 26 U.S.C. 2001, 2010 (1994) (establishing rules for taxes and tax credits on estates).
-
-
-
-
339
-
-
84865889421
-
-
See id. § 501 (exempting certain corporations from taxation)
-
See id. § 501 (exempting certain corporations from taxation).
-
-
-
-
340
-
-
1542662230
-
-
See supra notes 275-279 and accompanying text
-
See supra notes 275-279 and accompanying text.
-
-
-
-
341
-
-
1542452693
-
-
note
-
See United States v. O'Brien, 391 U.S. 367, 377 (1968); see also supra notes 299-301 and accompanying text.
-
-
-
-
342
-
-
1542767571
-
-
note
-
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990); see FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 258 (1986) (arguing that resources make a corporation formidable "even though the power of the corporation may be no reflection of the power of its ideas"). For a discussion of the invalidity of reducing speech to be proportionate with its popular support, see supra notes 210-220 and accompanying text.
-
-
-
-
343
-
-
1542767573
-
-
note
-
Wright, supra note 162, at 631; see also Austin, 494 U.S. at 660-61 ("Corporate wealth can unfairly influence elections . . . and present[s] the potential for distorting the political process."); MCFL, 479 U.S. at 257 ("Th[e] concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas."); SUNSTEIN, supra note 220, at 239 (arguing that equality of speech is a legitimate goal, but the state should not be selective by limiting corporations without limiting the speech of others); id. at 235 (arguing that restricting corporate speech alone cannot achieve political equality).
-
-
-
-
344
-
-
1542557253
-
-
note
-
See SUNSTEIN, supra note 220, at 20-21 (arguing for a theory of the First Amendment based on the ideal of "deliberative democracy," including a commitment to equality and diversity of views); Wright, supra note 162, at 636 ("[T]he truth-producing capacity of the marketplace of ideas is not enhanced if some are allowed to monopolize the marketplace by wielding excessive financial resources.").
-
-
-
-
345
-
-
1542557254
-
-
424 U.S. 1, 48-49 (1976) (per curiam)
-
424 U.S. 1, 48-49 (1976) (per curiam).
-
-
-
-
346
-
-
1542662243
-
-
note
-
See SUNSTEIN, supra note 220, at 238 (suggesting it is improper to restrict only the speech of wealthy corporations but not of wealthy individuals).
-
-
-
-
347
-
-
1542452696
-
-
First National Bank of Boston v. Belotti, 59 S. CAL. L. REV. 1227, 1280
-
See Powe, supra note 221, at 275 (noting the privilege of wealth in purchasing more of a consumption item - media advertisements); Carl E. Schneider, Free Speech and Corporate Freedom: A Comment on First National Bank of Boston v. Belotti, 59 S. CAL. L. REV. 1227, 1280 (1986) (arguing that the power to purchase access to the media is "not a fair test of either an argument's truth or its innate popular appeal" (citation omitted)); Shelledy, supra note 6, at 575 ("[W]ealth gives some advocates exposure to more voters . . . ."); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001, 1019 (1976) (arguing that money is merely the idea's intensity, not the idea itself); id. at 1019 n.70 ("[J]ust as the volume of sound may be limited by law, so the volume of dollars may be limited, without violating the First Amendment.").
-
(1986)
Free Speech and Corporate Freedom: A Comment
-
-
Schneider, C.E.1
-
348
-
-
1542767567
-
-
85 YALE L.J. 1001, 1019
-
See Powe, supra note 221, at 275 (noting the privilege of wealth in purchasing more of a consumption item - media advertisements); Carl E. Schneider, Free Speech and Corporate Freedom: A Comment on First National Bank of Boston v. Belotti, 59 S. CAL. L. REV. 1227, 1280 (1986) (arguing that the power to purchase access to the media is "not a fair test of either an argument's truth or its innate popular appeal" (citation omitted)); Shelledy, supra note 6, at 575 ("[W]ealth gives some advocates exposure to more voters . . . ."); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001, 1019 (1976) (arguing that money is merely the idea's intensity, not the idea itself); id. at 1019 n.70 ("[J]ust as the volume of sound may be limited by law, so the volume of dollars may be limited, without violating the First Amendment.").
-
(1976)
Politics and the Constitution: Is Money Speech?
-
-
Skelly Wright, J.1
-
349
-
-
1542557251
-
-
note
-
See Bezanson, supra note 13, at 778 ("[D]ominant economic power has at best an uncertain relationship to persuasion of the electorate through advertisements . . . ."); Shelledy, supra note 6, at 574 ("[I]t is not so readily apparent how a corporation's advocacy could exert an influence on elections that exceeds public support for its ideas."); see also Austin, 494 U.S. at 684 (Scalia, J., dissenting) (arguing that corporate advocacy will be accepted only to the degree that the message strikes voters as true).
-
-
-
-
350
-
-
1542767570
-
-
Wright, supra note 162, at 623
-
Wright, supra note 162, at 623.
-
-
-
-
351
-
-
1542662233
-
-
See id. at 623-24
-
See id. at 623-24.
-
-
-
-
352
-
-
1542662227
-
-
Id. at 624-25
-
Id. at 624-25.
-
-
-
-
353
-
-
1542557255
-
-
Id. at 625
-
Id. at 625.
-
-
-
-
354
-
-
1542452701
-
-
See id.
-
See id.
-
-
-
-
355
-
-
1542767572
-
-
See Shelledy, supra note 6, at 574; supra notes 86-97 and accompanying text
-
See Shelledy, supra note 6, at 574; supra notes 86-97 and accompanying text.
-
-
-
-
356
-
-
1542557258
-
-
note
-
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 684 (1990) (Scalia, J., dissenting) (emphasis omitted); see also Shelledy, supra note 6, at 574 ("[W]e must generally assume that speech affects voting behavior only when it persuades . . . .").
-
-
-
-
357
-
-
1542767593
-
-
Wright, supra note 162, at 632
-
Wright, supra note 162, at 632.
-
-
-
-
358
-
-
1542662236
-
-
note
-
Karst, supra note 311, at 21-23. This theory, based on the Court's decision in Police Department v. Mosley, 408 U.S. 92, 94 (1972), in which the Court struck down a law permitting all picketing except labor picketing outside a school, provides a strong theoretical justification for the First Amendment's content distinction. See REDISH, supra note 86, at 110.
-
-
-
-
359
-
-
1542557268
-
-
note
-
See Karst, supra note 311, at 29; Mosley, 408 U.S. at 96 (stating that the First Amendment requires "an equality of status in the field of ideas" and that all viewpoints be heard equally (internal quotation marks and citation omitted)).
-
-
-
-
360
-
-
1542452695
-
-
See supra notes 311-313 and accompanying text
-
See supra notes 311-313 and accompanying text.
-
-
-
-
361
-
-
1542767577
-
-
Karst, supra note 311, at 28
-
Karst, supra note 311, at 28.
-
-
-
-
362
-
-
1542557257
-
-
See id. at 35
-
See id. at 35.
-
-
-
-
363
-
-
1542452699
-
-
FISS, supra note 14, at 15
-
FISS, supra note 14, at 15.
-
-
-
-
364
-
-
1542767587
-
-
Id. at 15-16
-
Id. at 15-16.
-
-
-
-
365
-
-
1542452707
-
-
Id. at 16
-
Id. at 16.
-
-
-
-
366
-
-
1542767581
-
-
note
-
DAN-COHEN, supra note 14, at 109 (citation omitted); see Dan-Cohen, supra note 149, at 1245-46 (criticizing the Bellotti Court for rejecting this argument); Shelledy, supra note 6, at 576 ("[C]oncentrated wealth may enable corporations to reduce the likelihood that individual voices will be heard . . . ."); Wright, supra note 162, at 625 ("Regardless of their message, [corporations] simply drown out their opponents when they have the wherewithal to outspend them by margins of up to fifty to one."); id. at 637 ("Unchecked political expenditures . . . may drown opposing beliefs . . . .").
-
-
-
-
367
-
-
1542767589
-
-
See supra notes 311-339 and accompanying text
-
See supra notes 311-339 and accompanying text.
-
-
-
-
368
-
-
1542452710
-
-
note
-
See Powe, supra note 221, at 280 (noting the absence of proof that counterspeech to economically powerful interests' expression will not be forthcoming).
-
-
-
-
369
-
-
1542767591
-
-
note
-
First Nat'l Bank v. Bellotti, 435 U.S. 765, 789-90 (1978); see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 706 (1990) (Kennedy, J., dissenting) ("[E]ven were we to assume that some record support . . . would make a constitutional difference . . . [t]he majority provides only conjecture."); Shelledy, supra note 6, at 576-77 (requiring record evidence or legislative findings that corporate speech was dominating and therefore impoverishing public debate, and arguing that such evidence was lacking in both Bellotti and Austin). 347 See FISS, supra note 14, at 15 (asserting that "in politics, scarcity is the rule").
-
-
-
-
370
-
-
1542767582
-
-
See Shelledy, supra note 6, at 575
-
See Shelledy, supra note 6, at 575.
-
-
-
-
371
-
-
1542767585
-
-
See id.
-
See id.
-
-
-
-
372
-
-
1542452711
-
-
note
-
These proposals, of course, raise their own First Amendment issues, which are beyond this Article's scope.
-
-
-
-
373
-
-
1542557267
-
-
note
-
Shelledy, supra note 6, at 575-76; see also Fiss, supra note 228, at 1412 (noting that opportunities for speech are limited "by our capacity to digest or process information"); Schneider, supra note 325, at 1283 (noting that the Bellotti statute restricted only media advertisements, which present no information at all).
-
-
-
-
374
-
-
1542557265
-
-
See supra notes 315-315 and accompanying text
-
See supra notes 315-315 and accompanying text.
-
-
-
-
375
-
-
1542767583
-
-
See supra notes 340-347 and accompanying text
-
See supra notes 340-347 and accompanying text.
-
-
-
-
376
-
-
1542452708
-
-
note
-
See supra notes 86-97 and accompanying text; see also REDISH, supra note 86, at 21-22 (arguing that free speech fosters self-realization by promoting the development of one's "uniquely human faculties" and by facilitating one's ability to make life-affecting decisions); Wright, supra note 325, at 1020 ("The play of ideas, the sifting of good ideas from bad, of truth from falsehood, of justice from injustice - all these are essential parts of our system as well.").
-
-
-
-
377
-
-
1542767584
-
-
note
-
See Schauer, supra note 227, at 938 (providing an example of alcohol and tobacco industries opposing "encroaching restrictions or outright prohibitions on advertising their products"); Shiffrin, supra note 204, at 689-90 (discussing the conservative position taken by corporations).
-
-
-
-
378
-
-
1542662238
-
-
See Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 13-14 (1986) (plurality opinion)
-
See Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 13-14 (1986) (plurality opinion).
-
-
-
-
379
-
-
0346680888
-
Some Realism about Pluralism: Legal Realist Approaches to the First Amendment
-
J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 383.
-
(1990)
DUKE L.J.
, vol.375
, pp. 383
-
-
Balkin, J.M.1
-
380
-
-
1542767576
-
-
note
-
See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 701 (1990) (Kennedy, J., dissenting); see Redish, supra note 164, at 1449-50 (describing a "supposedly politically neutral free speech theory").
-
-
-
-
381
-
-
1542557256
-
-
note
-
Balkin, supra note 357, at 384; see Schauer, supra note 227, at 942 (discussing the "noticeable rightward movement in the political center of gravity of free speech argumentation").
-
-
-
-
382
-
-
1542767574
-
-
Shiffrin, supra note 204, at 689
-
Shiffrin, supra note 204, at 689.
-
-
-
-
383
-
-
1542452697
-
-
note
-
See Schauer, supra note 227, at 955 (noting the "affinity between economic libertarians, most of whom vote Republican, and the principle of free speech"); Shiffrin, supra note 204, at 712 (noting that it is "relevant that the [corporate] owners of the press are largely conservative" and that it is natural for their speech "to reflect their general view"); Mark Tushnet, Corporations and Free Speech, in THE POLITICS OF LAW 253, 259 (David Kairys ed., 1982) (noting that "nominally independent expenditures are made with a heavy tilt toward the right wing"); see also FISS, supra note 14, at 10-11 (assuming that allowing unlimited speech of economically powerful interests will "impoverish rather than enrich public debate"); LINDBLOM, supra note 4, at 201-21 (expressing concern over the principle of "circularity," i.e., that the very corporate interests that the state is supposed to regulate dominate the political agenda); Wright, supra note 162, at 636 (assuming that the expression of economically powerful interests will be dominated by lies, half-truths, and innuendos). Professor Fiss openly advocates the use of viewpoint-based discrimination to determine the First Amendment's reach when he argues that the "program advanced by Ralph Nader and other consumer advocates might have a First Amendment basis, because in fighting 'agency capture' we might be increasing the independence of the state from the market and thus enhancing its capacity to correct for the constraints that social structure imposes on public debate." FISS, supra note 14, at 44.
-
-
-
-
384
-
-
1542662240
-
-
Tushnet, supra note 361, at 260
-
Tushnet, supra note 361, at 260.
-
-
-
-
385
-
-
1542767579
-
-
See Shiffrin, supra note 204, at 719
-
See Shiffrin, supra note 204, at 719.
-
-
-
-
386
-
-
1542452702
-
-
Id
-
Id.
-
-
-
-
387
-
-
84865889419
-
-
See 21 C.F.R. § 897.1-.34 (1997) (establishing regulations applicable to the tobacco industry)
-
See 21 C.F.R. § 897.1-.34 (1997) (establishing regulations applicable to the tobacco industry).
-
-
-
-
388
-
-
1542452706
-
-
See LINDBLOM, supra note 4, at 201-06; supra notes 105-109 and accompanying text
-
See LINDBLOM, supra note 4, at 201-06; supra notes 105-109 and accompanying text.
-
-
-
-
389
-
-
1542662239
-
-
note
-
Wright, supra note 162, at 636; see also Tushnet, supra note 361, at 257 (noting that the First Amendment normally is a vehicle to give power to the powerless).
-
-
-
-
390
-
-
1542557250
-
-
Professor Shiffrin has argued that speakers in cases such as United States v. O'Brien, 391 U.S. 367, 369 (1968), in which an individual burned a draft card to protest the war, and FCC v. Pacifica Foundation, 438 U.S. 726, 729-30 (1978), in which comedian George Carlin made obscenity-laced social commentary, are at the center of constitutional protection. See STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE 80-81 (1990).
-
(1990)
The First Amendment, Democracy, and Romance
, pp. 80-81
-
-
Shiffrin, S.H.1
-
391
-
-
1542662241
-
-
See supra notes 311-339 and accompanying text
-
See supra notes 311-339 and accompanying text.
-
-
-
-
392
-
-
1542452705
-
-
note
-
Similar free speech problems inhere in the arguments of civic republican scholars such as Professor Sunstein, although he never singles out corporate speech for special negative treatment. See SUNSTEIN, supra note 220, at 239. His theory relies on a belief, however, that "[d]ramatic differences in wealth and power are . . . inconsistent with the underlying premises of a republican polity," Sunstein, supra note 233, at 1552, combined with a general opposition to individuals acting in their private interests, see id. at 1550. Logically, this would eliminate the corporate speaker, which is often powerful and usually motivated by economic self-interest. This theory fails, because of the same problem of viewpoint bias, by suggesting the possibility of an objective common good that overrides individual self-interest. See Redish & Lippman, supra note 26, at 295. If we imagine a candidate with strong anti-corporate views, the result under Professor Sunstein's theory is that those who possess the most powerful incentive to support that candidate may speak in support, but those who oppose him - including corporations whose business might be harmed, a clear example of private interest - cannot voice their opposition.
-
-
-
-
393
-
-
1542452703
-
-
See supra notes 132-150 and accompanying text
-
See supra notes 132-150 and accompanying text.
-
-
-
-
394
-
-
1542557263
-
-
See supra notes 151-179 and accompanying text
-
See supra notes 151-179 and accompanying text.
-
-
-
-
395
-
-
1542557262
-
-
See supra notes 131, 249-259, 316-316 and accompanying text
-
See supra notes 131, 249-259, 316-316 and accompanying text.
-
-
-
-
396
-
-
0347841617
-
Government Subsidies and Free Expression
-
This does not mean, it should be emphasized, that in its own expression the government must be neutral among competing philosophies and ideas. See Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 565-66 (1996) (noting the constitutionality of
-
(1996)
80 Minn. L. Rev.
, vol.543
, pp. 565-566
-
-
Redish, M.H.1
Kessler, D.I.2
-
397
-
-
1542452704
-
-
See supra notes 351-354 and accompanying text
-
See supra notes 351-354 and accompanying text.
-
-
-
-
398
-
-
84865889420
-
-
See REDISH, supra note 86, at 50 (arguing that the individual needs "all possible information" in making life decisions)
-
See REDISH, supra note 86, at 50 (arguing that the individual needs "all possible information" in making life decisions).
-
-
-
-
399
-
-
1542557260
-
-
See supra notes 340-354 and accompanying text
-
See supra notes 340-354 and accompanying text.
-
-
-
-
400
-
-
1542557261
-
-
note
-
Although several commentators have argued that at some point the sum total of available expression could amount to an information overload on the populace, there exists neither empirical support for such a notion nor any workable means for determining whether such a point had ever been reached. See supra notes 345-345 and accompanying text.
-
-
-
-
401
-
-
1542452700
-
-
note
-
See supra note 345 and accompanying text. One could say the same for the argument that corporate speech may interfere with the free speech rights of dissenting shareholders. See supra notes 288-288 and accompanying text.
-
-
-
-
402
-
-
1542767580
-
-
note
-
See generally New York v. Ferber, 458 U.S. 747, 771 (1982) (holding that a statute may be invalidated as overbroad when it "reaches a substantial number of impermissible applications"); Monaghan, supra note 207, at 4 (describing the overbreadth doctrine as protecting the plaintiffs right not to be burdened by an unconstitutional rule of law).
-
-
-
-
403
-
-
1542662237
-
-
See supra notes 324-324, 355-370 and accompanying text
-
See supra notes 324-324, 355-370 and accompanying text.
-
-
-
|