by NewKid » Fri Jun 16, 2006 12:26 am
Alice, if you're interested in the Supreme Court's thinking, that case I cited has the probably the most thorough debate among the Supreme Court members about corporate protection of the bill of rights in relation to the first amendment. (Needless to say, tremendous amounts have been written on the subject by legal scholars.)<br><br><br>From Justice Powell's majority (note he's the author of the infamous "Powell memo"<br><br><!--EZCODE LINK START--><a href="http://reclaimdemocracy.org/corporate_accountability/powell_memo_lewis.html" target="top">reclaimdemocracy.org/corporate_accountability/powell_memo_lewis.html</a><!--EZCODE LINK END-->)<br> <br> <br> <br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>The court below framed the principal question in this case as whether and to what extent corporations have First Amendment [435 U.S. 765, 776] rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether 8 abridges expression that the First Amendment was meant to protect. We hold that it does. <br><br><br>A <br><br>The speech proposed by appellants is at the heart of the First Amendment's protection. <br><br><br>"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 101 -102 (1940). <br><br>The referendum issue that appellants wish to address falls squarely within this description. In appellants' view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State. See n. 4, supra. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement. <br>As the Court said in Mills v. Alabama, 384 U.S. 214, 218 (1966), "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free [435 U.S. 765, 777] discussion of governmental affairs." If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 11 and this is no less true because the speech comes from a corporation rather than an individual. 12 The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual. <br><br>The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation's business interests. In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment's protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment. 13 [435 U.S. 765, 778] The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection. We turn now to that question. <br><br><br>B <br>The court below found confirmation of the legislature's definition of the scope of a corporation's First Amendment rights in the language of the Fourteenth Amendment. Noting that the First Amendment is applicable to the States through the Fourteenth, and seizing upon the observation that corporations "cannot claim for themselves the liberty which the Fourteenth Amendment guarantees," Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), the court concluded that a corporation's First Amendment rights must derive from its property rights under the Fourteenth. 14 [435 U.S. 765, 779] <br><br>This is an artificial mode of analysis, untenable under decisions of this Court. <br><br><br>"In a series of decisions beginning with Gitlow v. New York, 268 U.S. 652 (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. That principle has been followed and reaffirmed to the present day." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500 -501 (1952) (footnote omitted) (emphasis supplied). [435 U.S. 765, 78<!--EZCODE EMOTICON START 0] --><img src=http://www.ezboard.com/images/emoticons/alien.gif ALT="0]"><!--EZCODE EMOTICON END--> <br><br>Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, see Gitlow v. New York, 268 U.S. 652, 666 (1925) (opinion of the Court); id., at 672 (Holmes, J., dissenting); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (195<!--EZCODE EMOTICON START 8) --><img src=http://www.ezboard.com/images/emoticons/glasses.gif ALT="8)"><!--EZCODE EMOTICON END--> ; Stromberg v. California, 283 U.S. 359, 368 (1931); De Jonge v. Oregon, 299 U.S. 353, 364 (1937); Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv. L. Rev. 431 (1926), and the Court has not identified a separate source for the right when it has been asserted by corporations. 15 See, e. g., Times Film Corp. v. Chicago, 365 U.S. 43, 47 (1961); Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688 (1959); Joseph Burstyn, supra. In Grosjean v. American Press Co., 297 U.S. 233, 244 (1936), the Court rejected the very reasoning adopted by the Supreme Judicial Court and did not rely on the corporation's property rights under the Fourteenth Amendment in sustaining its freedom of speech. 16 [435 U.S. 765, 781] <br><br>Yet appellee suggests that First Amendment rights generally have been afforded only to corporations engaged in the communications business or through which individuals express themselves, and the court below apparently accepted the "materially affecting" theory as the conceptual common denominator between appellee's position and the precedents of this Court. It is true that the "materially affecting" requirement would have been satisfied in the Court's decisions affording protection to the speech of media corporations and corporations otherwise in the business of communication or entertainment, and to the commercial speech of business corporations. See cases cited in n. 14, supra. In such cases, the speech would be connected to the corporation's business almost by definition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation's business. <br><br>The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate. 17 Mills v. Alabama, 384 U.S., at 219 ; see [435 U.S. 765, 782] Saxbe v. Washington Post Co., 417 U.S. 843, 863 -864 (1974) (POWELL, J., dissenting). But the press does not have a monopoly on either the First Amendment or the ability to enlighten. 18 Cf. Buckley v. Valeo, 424 U.S., at 51 n. 56; [435 U.S. 765, 783] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389 -390 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964); Associated Press v. United States, 326 U.S. 1, 20 (1945). Similarly, the Court's decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas. 19 See Red Lion Broadcasting Co. v. FCC, supra; Stanley v. Georgia, 394 U.S. 557, 564 (1969); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967). Even decisions seemingly based exclusively on the individual's right to express himself acknowledge that the expression may contribute to society's edification. Winters v. New York, 333 U.S. 507, 510 (194<!--EZCODE EMOTICON START 8) --><img src=http://www.ezboard.com/images/emoticons/glasses.gif ALT="8)"><!--EZCODE EMOTICON END--> . <br><br>Nor do our recent commercial speech cases lend support to appellee's business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to the seller's business as because it furthers the societal interest in the "free flow of commercial information." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 764 (1976); see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 95 (1977). 20 [435 U.S. 765, 784] <br><br><br>C <br>We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The "materially affecting" requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication. <br><br> . . .<br><br><br>Preserving the integrity of the electoral process, preventing corruption, and "sustain[ing] the active, alert responsibility [435 U.S. 765, 789] of the individual citizen in a democracy for the wise conduct of government" 27 are interests of the highest importance. Buckley, supra; United States v. Automobile Workers, 352 U.S. 567, 570 (1957); United States v. CIO, 335 U.S. 106, 139 (194<!--EZCODE EMOTICON START 8) --><img src=http://www.ezboard.com/images/emoticons/glasses.gif ALT="8)"><!--EZCODE EMOTICON END--> (Rutledge, J., concurring); Burroughs v. United States, 290 U.S. 534 (1934). Preservation of the individual citizen's confidence in government is equally important. Buckley, supra, at 27; CSC v. Letter Carriers, 413 U.S. 548, 565 (1973). <br><br>Appellee advances a number of arguments in support of his view that these interests are endangered by corporate participation in discussion of a referendum issue. They hinge upon the assumption that such participation would exert an undue influence on the outcome of a referendum vote, and - in the end - destroy the confidence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee's arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, 28 or that [435 U.S. 765, 79<!--EZCODE EMOTICON START 0] --><img src=http://www.ezboard.com/images/emoticons/alien.gif ALT="0]"><!--EZCODE EMOTICON END--> there has been any threat to the confidence of the citizenry in government. Cf. Wood v. Georgia, 370 U.S. 375, 388 (1962). <br><br>Nor are appellee's arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections, e. g., United States v. Automobile Workers, supra; United States v. CIO, supra, simply is not present in a popular vote on a public issue. 29 To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution "protects expression which is eloquent no less than that which is unconvincing." Kingsley Int'l Pictures Corp. v. Regents, 360 U.S., at 689 . We noted only recently that "the concept that government may restrict the speech of some elements of our society in order [435 U.S. 765, 791] to enhance the relative voice of others is wholly foreign to the First Amendment . . . ." Buckley, 424 U.S., at 48 -49. 30 Moreover, the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. 31 They may consider, in making their [435 U.S. 765, 792] judgment, the source and credibility of the advocate. 32 But if there be any danger that the people cannot evaluate the information and arguments advanced by appellants, it is a danger contemplated by the Framers of the First Amendment. Wood v. Georgia, supra. In sum, "[a] restriction so destructive of the right of public discussion [as 8], without greater or more imminent danger to the public interest than existed in this case, is incompatible with the freedoms secured by the First Amendment." 33 <hr></blockquote><!--EZCODE QUOTE END--><br><br><br><br>Here's Burger (note he rejects my reading of Tornillo above, but this is highly debated in first amendment circles.)<br> <br> <!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>MR. CHIEF JUSTICE BURGER, concurring. <br><br>I join the opinion and judgment of the Court but write separately to raise some questions likely to arise in this area in the future. [435 U.S. 765, 796] <br><br>A disquieting aspect of Massachusetts' position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form - as most do - to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case. <br><br>Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related - and some not - to their publishing and broadcasting activities. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248 -254 (1974). Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries to a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its "special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets . . . ." Post, at 809 (WHITE, J., dissenting). <br><br>In terms of "unfair advantage in the political process" and "corporate domination of the electoral process," post, at 809-810, it could be argued that such media conglomerates as I describe [435 U.S. 765, 797] pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo, supra; ante, at 791 n. 30. In Tornillo, for example, we noted the serious contentions advanced that a result of the growth of modern media empires "has been to place in a few hands the power to inform the American people and shape public opinion." 418 U.S., at 250 . <br><br>In terms of Massachusetts' other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally. 1 Nor can it be said, even if relevant to First Amendment analysis - which it is not - that the former are more virtuous, wise, or restrained in the exercise of corporate power than are the latter. Cf. Columbia Broadcasting System v. Democratic National Comm., 412 U.S. 94, 124 -125 (1973); 14 The Writings of Thomas Jefferson 46 (A. Libscomb ed. 1904) (letter to Dr. Walter Jones, Jan. 2, 1814). Thus, no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence. <br><br>Despite these factual similarities between media and nonmedia corporations, those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the "institutional press" - which are not extended to those [435 U.S. 765, 798] who wish to express ideas other than by publishing a newspaper - might perceive no danger to institutional media corporations flowing from the position asserted by Massachusetts. Under this narrow reading of the Press Clause, government could perhaps impose on nonmedia corporations restrictions not permissible with respect to "media" enterprises. Cf. Bezanson, The New Free Press Guarantee, 63 Va. L. Rev. 731, 767-770 (1977). 2 The Court has not yet squarely resolved whether the Press Clause confers upon the "institutional press" any freedom from government restraint not enjoyed by all others. 3 <br><br>I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a "special" or "institutional" privilege. See Lange, The Speech and Press Clauses, 23 UCLA L. Rev. 77, 88-99 (1975). The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group: <br><br><br>"But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of [435 U.S. 765, 799] Religion and Government; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. . . . <br><br>"This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy . . . ." A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford's The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734). <br><br>Indeed most pre-First Amendment commentators "who employed the term `freedom of speech' with great frequency, used it synonomously with freedom of the press." L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960). <br>Those interpreting the Press Clause as extending protection only to, or creating a special role for, the "institutional press" must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. Lange, supra, at 89-91; (b) argue that events after 1791 somehow operated to "constitutionalize" this interpretation, see Bezanson, supra n. 3, at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See Nimmer, supra n. 3, at 640-641. <br><br>To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs, 4 while the Press Clause [435 U.S. 765, 80<!--EZCODE EMOTICON START 0] --><img src=http://www.ezboard.com/images/emoticons/alien.gif ALT="0]"><!--EZCODE EMOTICON END--> focuses specifically on the liberty to disseminate expression broadly and "comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. Griffin, 303 U.S. 444, 452 (193<!--EZCODE EMOTICON START 8) --><img src=http://www.ezboard.com/images/emoticons/glasses.gif ALT="8)"><!--EZCODE EMOTICON END--> . 5 Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order - political and religious - devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally [435 U.S. 765, 801] were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication. <br><br>The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange, supra, at 100-107. The very task of including some entities within the "institutional press" while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England - a system the First Amendment was intended to ban from this country. Lovell v. Griffin, supra, at 451-452. Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court's opinions supports such a confining approach to the scope of Press Clause protection. 6 Indeed, the Court has plainly intimated the contrary view: <br><br><br>"Freedom of the press is a `fundamental personal right' which `is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' . . . The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow [435 U.S. 765, 802] of information to the public . . . ." Branzburg v. Hayes, 408 U.S. 665, 704 -705 (1972), quoting Lovell v. Griffin, supra, at 450, 452. <br><br>The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts' position poses serious questions. The evolution of traditional newspapers into modern corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court's refusal to sustain 8's serious and potentially dangerous restriction on the freedom of political speech. <br><br>Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. "[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. `. . . the liberty of the press is no greater and no less . . .' than the liberty of every citizen of the Republic." Pennekamp v. Florida, 328 U.S. 331, 364 (1946) (Frankfurter, J., concurring). <br><br>In short, the First Amendment does not "belong" to any definable category of persons or entities: It belongs to all who exercise its freedoms. <hr></blockquote><!--EZCODE QUOTE END--><br><br>Here are the non-Rehquist dissents (mostly liberal justices) <br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting. <br><br><br> <br> . . .<br><br>I <br><br>There is now little doubt that corporate communications come within the scope of the First Amendment. This, however, is merely the starting point of analysis, because an examination of the First Amendment values that corporate expression furthers and the threat to the functioning of a free society it is capable of posing reveals that it is not fungible with communications emanating from individuals and is subject to restrictions which individual expression is not. Indeed, what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all [435 U.S. 765, 805] furthered by corporate speech. 3 It is clear that the communications of profitmaking corporations are not "an integral part of the development of ideas, of mental exploration and of the affirmation of self." 4 They do not represent a manifestation of individual freedom or choice. Undoubtedly, as this Court has recognized, see NAACP v. Button, 371 U.S. 415 (1963), there are some corporations formed for the express purpose of advancing certain ideological causes shared by all their members, or, as in the case of the press, of disseminating information and ideas. Under such circumstances, association in a corporate form may be viewed as merely a means of achieving effective self-expression. But this is hardly the case generally with corporations operated for the purpose of making profits. Shareholders in such entities do not share a common set of political or social views, and they certainly have not invested their money for the purpose of advancing political or social causes or in an enterprise engaged in the business of disseminating news and opinion. In fact, as discussed infra, the government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena. <br><br>Of course, it may be assumed that corporate investors are united by a desire to make money, for the value of their investment to increase. Since even communications which have no purpose other than that of enriching the communicator have some First Amendment protection, activities such as advertising and other communications integrally related to the operation of the corporation's business may be viewed as a means of furthering the desires of individual shareholders. 5 This unanimity of purpose breaks down, however, when corporations make expenditures or undertake activities designed [435 U.S. 765, 806] to influence the opinion or votes of the general public on political and social issues that have no material connection with or effect upon their business, property, or assets. Although it is arguable that corporations make such expenditures because their managers believe that it is in the corporations' economic interest to do so, there is no basis whatsoever for concluding that these views are expressive of the heterogeneous beliefs of their shareholders whose convictions on many political issues are undoubtedly shaped by considerations other than a desire to endorse any electoral or ideological cause which would tend to increase the value of a particular corporate investment. This is particularly true where, as in this case, whatever the belief of the corporate managers may be, they have not been able to demonstrate that the issue involved has any material connection with the corporate business. Thus when a profitmaking corporation contributes to a political candidate this does not further the self-expression or self-fulfillment of its shareholders in the way that expenditures from them as individuals would. 6 <br><br>The self-expression of the communicator is not the only value encompassed by the First Amendment. One of its functions, often referred to as the right to hear or receive information, is to protect the interchange of ideas. Any communication of ideas, and consequently any expenditure of funds which makes the communication of ideas possible, it [435 U.S. 765, 807] can be argued, furthers the purposes of the First Amendment. This proposition does not establish, however, that the right of the general public to receive communications financed by means of corporate expenditures is of the same dimension as that to hear other forms of expression. In the first place, as discussed supra, corporate expenditures designed to further political causes lack the connection with individual self-expression which is one of the principal justifications for the constitutional protection of speech provided by the First Amendment. Ideas which are not a product of individual choice are entitled to less First Amendment protection. Secondly, the restriction of corporate speech concerned with political matters impinges much less severely upon the availability of ideas to the general public than do restrictions upon individual speech. Even the complete curtailment of corporate communications concerning political or ideological questions not integral to day-to-day business functions would leave individuals, including corporate shareholders, employees, and customers, free to communicate their thoughts. Moreover, it is unlikely that any significant communication would be lost by such a prohibition. These individuals would remain perfectly free to communicate any ideas which could be conveyed by means of the corporate form. Indeed, such individuals could even form associations for the very purpose of promoting political or ideological causes. 7 <br><br>I recognize that there may be certain communications undertaken by corporations which could not be restricted without impinging seriously upon the right to receive information. In the absence of advertising and similar promotional activities, for example, the ability of consumers to obtain information relating to products manufactured by corporations [435 U.S. 765, 808] would be significantly impeded. There is also a need for employees, customers, and shareholders of corporations to be able to receive communications about matters relating to the functioning of corporations. Such communications are clearly desired by all investors and may well be viewed as an associational form of self-expression. See United States v. CIO, 335 U.S. 106, 121 -123 (194<!--EZCODE EMOTICON START 8) --><img src=http://www.ezboard.com/images/emoticons/glasses.gif ALT="8)"><!--EZCODE EMOTICON END--> . Moreover, it is unlikely that such information would be disseminated by sources other than corporations. It is for such reasons that the Court has extended a certain degree of First Amendment protection to activities of this kind. 8 None of these considerations, however, are implicated by a prohibition upon corporate expenditures relating to referenda concerning questions of general public concern having no connection with corporate business affairs. <br><br> . . .<br><br> The governmental interest in regulating corporate political communications, especially those relating to electoral matters, also raises considerations which differ significantly from those governing the regulation of individual speech. Corporations are artificial entities created by law for the purpose of furthering certain economic goals. In order to facilitate the achievement of such ends, special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets are normally applied to them. States have provided corporations with such attributes in order to increase their economic viability and thus strengthen the economy generally. It has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process. Although Buckley v. Valeo, 424 U.S. 1 (1976), provides support for the position that the desire to equalize the financial resources available to candidates does not justify the limitation upon the expression of support which a restriction upon individual contributions entails, 9 the interest of Massachusetts and the many other States which have restricted corporate political activity is quite different. It is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process, especially where, as here, the issue involved has no material connection with the business of the corporation. The State need not permit its own creation to consume it. Massachusetts could [435 U.S. 765, 81<!--EZCODE EMOTICON START 0] --><img src=http://www.ezboard.com/images/emoticons/alien.gif ALT="0]"><!--EZCODE EMOTICON END--> permissibly conclude that not to impose limits upon the political activities of corporations would have placed it in a position of departing from neutrality and indirectly assisting the propagation of corporate views because of the advantages its laws give to the corporate acquisition of funds to finance such activities. Such expenditures may be viewed as seriously threatening the role of the First Amendment as a guarantor of a free marketplace of ideas. Ordinarily, the expenditure of funds to promote political causes may be assumed to bear some relation to the fervency with which they are held. Corporate political expression, however, is not only divorced from the convictions of individual corporate shareholders, but also, because of the ease with which corporations are permitted to accumulate capital, bears no relation to the conviction with which the ideas expressed are held by the communicator. 10 <br><br>The Court's opinion appears to recognize at least the possibility that fear of corporate domination of the electoral process would justify restrictions upon corporate expenditures and contributions in connection with referenda but brushes this interest aside by asserting that "there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts," ante, at 789, and by suggesting that the statute in issue represents an attempt to give an unfair advantage to those who hold views in opposition to positions which would otherwise be financed by corporations. Ante, at 785-786. It fails even to allude to the fact, however, that Massachusetts' most recent experience with unrestrained corporate expenditures in connection [435 U.S. 765, 811] with ballot questions establishes precisely the contrary. In 1972, a proposed amendment to the Massachusetts Constitution which would have authorized the imposition of a graduated income tax on both individuals and corporations was put to the voters. The Committee for Jobs and Government Economy, an organized political committee, raised and expended approximately $120,000 to oppose the proposed amendment, the bulk of it raised through large corporate contributions. Three of the present appellant corporations each contributed $3,000 to this committee. In contrast, the Coalition for Tax Reform, Inc., the only political committee organized to support the 1972 amendment, was able to raise and expend only approximately $7,000. App. to Jurisdictional Statement 41; App. to Record 48-84. Perhaps these figures reflect the Court's view of the appropriate role which corporations should play in the Massachusetts electoral process, but it nowhere explains why it is entitled to substitute its judgment for that of Massachusetts and other States, 11 as well as the United States, which have acted to correct or prevent similar domination of the electoral process by corporate wealth. <br><br>This Nation has for many years recognized the need for measures designed to prevent corporate domination of the political process. The Corrupt Practices Act, first enacted in 1907, has consistently barred corporate contributions in connection [435 U.S. 765, 812] with federal elections. This Court has repeatedly recognized that one of the principal purposes of this prohibition is "to avoid the deleterious influences on federal elections resulting from the use of money by those who exercise control over large aggregations of capital." United States v. Automobile Workers, 352 U.S. 567, 585 (1957). See Pipefitters v. United States, 407 U.S. 385, 415 -416 (1972); United States v. CIO, 335 U.S., at 113 . Although this Court has never adjudicated the constitutionality of the Act, there is no suggestion in its cases construing it, cited supra, that this purpose is in any sense illegitimate or deserving of other than the utmost respect; indeed, the thrust of its opinions, until today, has been to the contrary. See Automobile Workers, supra, at 585; Pipefitters, supra, at 415-416. <br><br><hr></blockquote><!--EZCODE QUOTE END--> <br><br>And Reqhnquist (note FN 1 here) :<br><br><br> <!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>MR. JUSTICE REHNQUIST, dissenting. <br> <br> <br><br>This Court decided at an early date, with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396 (1886). Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Smyth v. Ames, 169 U.S. 466, 522 (189<!--EZCODE EMOTICON START 8) --><img src=http://www.ezboard.com/images/emoticons/glasses.gif ALT="8)"><!--EZCODE EMOTICON END--> . Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Northwestern Nat. Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906). Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, Grosjean v. American Press Co., 297 U.S. 233, 244 (1936), and that a nonprofit membership corporation organized for the purpose of "achieving . . . equality of treatment by all government, federal, state and local, for the members of the Negro community" enjoys certain liberties of political expression. NAACP v. Button, 371 U.S. 415, 429 (1963). <br><br>The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court. 1 However, the General Court [435 U.S. 765, 823] of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I think it quite probable that their judgment may properly be reconciled with our controlling precedents, but I am certain that under my views of the limited application of the First Amendment to the States, which I share with the two immediately preceding occupants of my seat on the Court, but not with my present colleagues, the judgment of the Supreme Judicial Court of Massachusetts should be affirmed. <br><br>Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law: <br><br><br>"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). <br><br>The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their charters and regulated by [435 U.S. 765, 824] state law. 2 Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United States v. White, 322 U.S. 694, 698 -701 (1944) (corporations do not enjoy the privilege against self-incrimination), our inquiry must seek to determine which constitutional protections are "incidental to its very existence." Dartmouth College, supra, at 636. <br>There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business. 3 Grosjean so held, and our subsequent cases have so assumed. E. g., Time, Inc. v. Firestone, 424 U.S. 448 (1976); New York Times Co. v. Sullivan, [435 U.S. 765, 825] 376 U.S. 254 (1964). 4 Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 -770 (1976). Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation. <br><br>It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. 5 A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as [435 U.S. 765, 826] an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed. 6 I would think that any particular form of organization [435 U.S. 765, 827] upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation. <br><br>One need not adopt such a restrictive view of the political liberties of business corporations to affirm the judgment of the Supreme Judicial Court in this case. That court reasoned that this Court's decisions entitling the property of a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expression [435 U.S. 765, 828] by a corporation "when a general political issue materially affects a corporation's business, property or assets." 371 Mass. 773, 785, 359 N. E. 2d 1262, 1270 (1977). <br><br>I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid. <br><br>It is true, as the Court points out, ante, at 781-783, that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity. Cf. Maher v. Roe, 432 U.S. 464, 474 (1977). <br><br>I would affirm the judgment of the Supreme Judicial Court. <br><br><br>[ Footnote 1 ] Our prior cases, mostly of recent vintage, have discussed the boundaries of protected speech without distinguishing between artificial and natural persons. See, e. g., Linmark Associates, Inc. v. Willingboro, [435 U.S. 765, 823] 431 U.S. 85 (1977); Buckley v. Valeo, 424 U.S. 1 (1976). Nevertheless, the Court today affirms that the failure of those cases to draw distinctions between artificial and natural persons does not mean that no such distinctions may be drawn. The Court explicitly states that corporations may not enjoy all the political liberties of natural persons, although it fails to articulate the basis of its suggested distinction. Ante, at 777-778, n. 13. <br><br><hr></blockquote><!--EZCODE QUOTE END--><br><br> <p></p><i></i>
