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Ok. This is fair and I understand your position. To summarize, it doesn't matter that the framers did not explicitly include corporations in the First Amendment. What matters is that they aimed to protect free speech, and both individuals and corporations fall under the free speech umbrella. Correct?
Yes, what matters is that they did not explicitly exclude corporations from the Congressional prohibition. Actually (and I make this point more fully below) I think a for-profit corporation that produces political content would have been considered part of "the press" regardless of whether it was in that business full-time or not.
I would also point out that in Virginia State Pharmacy Board, which you cited below, Blackmun expressly notes that the First Amendment is as much about the right to hear what someone wants to say as it is the right say it. As I said, it's a huge bias in favor of the free flow of opinions/information.
if corporations were not contemplated, which I do not believe they were, then even if we do accept your theory that I summarized, then corporations would not have the absolute (not entirely absolute but close enough) protections of individual free speech, but a lesser right. Where do you come out on that theory?
I'm confused. My theory is that they are covered, therefore their rights would not be lesser.
It is why Congress can limit and compel corporate speech in a way that would never be acceptable to individuals. The Court held so in Virginia State Pharmacy Board.
I disagree. I think Virginia State Pharmacy Board turned on the fact that the speech was commercial, not that the speaker was a corporation. I think you'd get the same result whether you were talking about the commercial speech of an individual proprietor, partnership, unincorporated association, or corporation. Or at least, you should get the same result.
Again back to Citizens United. I anticipate your response is that we are not talking about commercial speech, but political speech, and there should be a blanket ban on said limitation.
I do not take the position that there should be a blanket ban on any limitations on political speech. But I do take the position that whatever limitations exist on political speech should apply equally to individuals and corporations.
Congress is well within its power to narrowly tailor laws to limit corporate speech around elections in order to ensure a fair political process by delegating regulatory authority to the FEC.
Okay, and I still don't see the basis for that leap, nor do I see the connection between political speech and a "fair political process" The idea that a for-profit, non-media corporation buying a one minute ad threatens a fair political process, but a 24/7 for-profit media corporation blasting politics does not, strikes me as absurd. As far as I'm concerned, it is blatant free-speech favoritism of one source of opinions versus others.
I mentioned this before, but I think the core analytical problem has become the "press" distinction. The "press" used to be identified by the fact that it produced information for mass dissemination, in contrast to "speech", which was the spoken words of individuals heard by a smaller group.
But with modern media and communications, almost anyone can produce information for mass dissemination. In essence, I think "press" should be determined what you are doing rather than by who you are. And I think that is more consistent with the original intent of the words. Many early newspapers/pamphlets were published by individuals who did it more as a hobby, or at least in addition to other things. What made them "press" was that they printed the paper.
So, I'd say that if a corporation 1) produces an ad and buys air time for that ad, or 2) gives money to someone else to produce the commercial and buy the air time, it is acting as a member of the press, and should be considered as such in terms of constitutional protections with respect to those actions.
Even now, we're starting to get into squirrely stuff with respect to whether bloggers are members of the press, and I think that's ridiculous. I don't think the freedoms of speech or of the press were even intended to be fundamentally different at al. So, if you're giving me that for-profit media corporations are covered by freedom of the press, I think that should apply to any corporation as it engaged in similar activity, no matter how large or small a part of the "business" it is.
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