One of my all-time favorite Supreme Court decisions is West Virginia Board of Education vs. Barnette. That 1943 case was brought by Jehovah’s Witness families whose children had been punished by their public school for a refusal to salute the flag–a refusal based upon their religion, which forbids such a salute as idolatry. Despite the religious basis of their refusal, the case was decided on free speech grounds, with Justice Robert Jackson penning words that would would be repeatedly quoted.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . . We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. .
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
The case established the principle that freedom of speech includes freedom from government-compelled speech. Now, corporations opposed to disclosures mandated by agencies of government, are asserting that principle in order to avoid making required disclosures.
These companies are challenging regulations that require them to disclose emissions or inform the public of other data relevant to consumer and public health protections. They are claiming these regulations are unconstitutional–that they violate the compelled speech doctrine, which they assert protects them from government mandates forcing citizens to say something they disagree with.
Experts say the large corporations using this strategy are undermining efforts to regulate corporate behavior. They say these arguments limit states’ ability to act on matters not covered by federal law — and threaten everything from consumer warnings on toxic products to nutrition labels for restaurant food.
This argument is currently being used to challenge California’s emissions disclosure law, which requires companies doing business in the state to disclose how much pollution they create throughout their supply chain. Challengers argue that such laws unfairly compel them to engage in “controversial speech” — and argue that climate change is still controversial.
Right-wing groups have weaponized this “compelled speech” argument before, using it to defend organizations that refuse to give their employees adequate reproductive health care benefits and support unlicensed pregnancy centers that intentionally mislead their clients. The argument has impeded the government’s ability to investigate financial wrongdoing. Foreign kleptocrats and domestic companies have allegedly exploited this lack of transparency to launder money through real estate investments and shell companies.
Corporations are employing the argument in a wide variety of situations– from concealing the source of online political advertisements, to deterring states from addressing climate change. These efforts are being spearheaded by trade groups intent upon reducing or evading regulation, and the approach includes social media platforms.
A pending decision in the U.S. Supreme Court involving the strategy could decide the future of all social media platforms.
An advocacy group funded by Meta, Google, X (formerly Twitter), and other tech companies challenged a number of laws in Texas and Florida that would regulate how large social media companies control content posted on their sites. The companies argue that choosing the type of content that appears on their platforms is an editorial decision, and therefore protected by the First Amendment.
An amicus brief filed by the Knight First Amendment Institute at Columbia University, an educational organization that researches and promotes freedom of speech, points out that accepting the social media platforms’ argument would make it extremely difficult, if not impossible, for governments to govern user privacy, promote competition, and ensure smooth information exchange.
If the current Supreme Court majority included Justices who shared Robert Jackson’s intellect and ethical probity, rather than corrupt ideologues like Alito and Thomas, we could anticipate issuance of a decision carefully analyzing the difference between compelling the endorsement of beliefs and opinions, and requiring the disclosure of facts –the difference between respecting the integrity of conscience and facilitating the misleading of consumers.
The law often requires drawing intellectually-defensible lines–something the current Court majority seems incapable of understanding–or doing.
Speaking of free markets and speech, did you see the recent release of Trump’s Own Mar-a-Lago Sour Grapes and Bitters. When spread on BAGL (Busted America’s Greatest Loser), it will take MAGA by storm. 😇
I was just thinking this morning that what is needed to answer today’s question and many others in this chaotic election year and beyond is an Amendment requiring Ethical behavior, including speech, by all branches of this government. We have overshot the freedom of speech and freedom of religion to such a degree that we now cannot escape the terrorism and feared lawlessness of our elected officials and we need freedom FROM their speech and freedom FROM their personal religious based laws.
The Supreme Court has refused to set a list of ethical behaviors for themselves which allows their control of our physical, mental, emotional, sexual, financial and self-protection from their personal unethical behavior both on and off the bench.
“The law often requires drawing intellectually-defensible lines–something the current Court majority seems incapable of understanding–or doing.”
I have long thought that we give corporations more rights under the law than they are entitled to under our Federal Constitution and I have questioned the wisdom of doing so. Corporations of course are not natural persons and therefore were never endowed by our creator with the rights that are enshrined in our Constitution and bill of rights. Corporations in this country initially could be created only for civic or philanthropic purposes and this affected how they were operated once brought into existence. Now too many of them are monsters – creatures of law that we have endowed with the same rights given us by our creator and spelled out in the bill of rights, then turned loose on ourselves for purposes that many of us would consider antithetical to civic wellbeing or social good.
Judge Jackson’s decision was based on worship! The main reason for the case, was that people were giving allegiance to something other than God. They thought this was wrong. Romans the 13th chapter goes into this quite a bit. It says to obey the superior authorities, because they all were put in place by God.
If you go into the original decisions of the supreme Court case which was reversed by judge Jackson, You will see conversation about giving Caesars things to Caesar, and God’s things to God. Therefore you are bound by your Christian beliefs to pay your taxes, to obey the laws, to be respectful, resist subversive activity! Do no harm!
“Pay constant attention to yourself and to your teaching. Stay by these things, for by doing this you will save both yourself and those who listen to you.”—1st Timothy. 4:16.
“Christ Jesus was a perfect example of balance when he was on the earth. Note some of the things he said and agreed with: “It is Jehovah your God you must worship, and it is to him alone you must render sacred service.” (Matthew. 4:10) “Give us today our bread for this day.” (Matthew. 6:11) “Keep on, then, seeking first the kingdom.” (Matthew. 6:33) “My yoke is kindly and my load is light.” (Matthew. 11:30) “Pay back, therefore, Caesar’s things to Caesar, but God’s things to God.” (Matthew. 22:21) “You must love Jehovah your God with your whole heart and with your whole soul and with your whole mind.” (Matthew. 22:37) “You must love your neighbor as yourself.”? (Matthew. 22:39)
These things were all in Justice Jackson’s case and taken into account concerning his decision.
If corporations want to go by this route, then they shouldn’t complain about taxation, or, the welfare of Americans, or basically any regulation, whatever Caesar claims is his, is his! Except one’s worship. And last I figured, corporations don’t worship! Therefore this doesn’t apply to them. But if they want to be citizens, which they can hold sway, then they can be held strictly accountable to the government / Caesar for every single thing that they owe or whatever Caesar says they owe. Without recourse!
Mark,
Excellent points, I was working on my comment while you were posting yours I guess, I didn’t see it. But very excellent points. Thank you!
Mark,
And who can exclude the egregious miscarriage of interpretation known as Citizens United v. FEC. Yet another fundamentally corrupt justice of SCOTUS championed that idiocy – a Republican appointee, of course: Antonin Scalia. By ruling that corporations are people, frees them from any attachment they once had to ethics, truth and transparency.
The Republican tropes and memes surrounding their constant drumbeat of de-regulation is exactly what Karl Marx saw when he prophesied that capitalism will destroy itself from within if allowed to do so.
And here we are …
A corporation is as good or bad as the people running it. If the defining aim of a corporation is to provide profit to the stockholders, it is advantageous for the corporation to have all of the rights of personhood with none of the responsibilities. Under our laws, what are the responsibilities of a person? With the overwhelming attention we give our rights, do we even know, much less enforce, our responsibilities? And if corporations are deemed to share those rights, can’t they also be required to share the responsibilities? If it is illegal for a person to engage in fraud, can it be legal for corporation to do so?
Most corporations have strict guidelines and are moving in the vein of the cultural shift. Especially in regards to worker conduct within companies. Compelling corporations to maintain certain kinds of speech can come through bureaucratic agencies penalties and fines which is concerning.
The problem with free speech in corporations is that companies must follow the guidelines of the bill of rights to exist as corporations. Deeming something factual vs something that is not limits the body politic and violates speech rights in social media platforms as some are cancelled or slowed. This type of monitoring violates a companies need to uphold the bill of rights in order to operate as a corporation. Meta, Google and others that use fact checking ploys to do more than counter a pages content by slowing it down or censorship violates the bill of rights of people using said platforms.
The weaponization of the facist corporate structure has made huge opinion swings in the population, caused people to be dumbed down in critical thinking skills especially in regards to internet searches, caused people to not fully understand civil rights in dealing with a government on the local or federal level.
Liberal privilege is clearly on the rise in regards to corporate structure, civil protests, and media reporting.
The 21st century has not been kind to our country, the bill of rights and the structure of the Democratic Republic are under constant attack. Our children are being targeted sexually and politically. There is no safe space for them. Here the almighty dollar has caused Meta and Google to make judgements that have unfortunate consequences to tgem.
It may sound simplistic and uneducated, but the designation of corporations as people with basic Constitutional rights makes me wonder if they are subject to the same duties and responsibilities. Do we require them to sit on juries? Do we require them to do abide with the same Constitutional guarantees we as individuals are?
I don’t mean to be picky, but Citizens United did not rest on a novel premise that corporations are people. The majority held that the government’s rationale for the limits on corporate spending—to prevent corruption—was not persuasive enough to restrict political speech. Corporations have long been regarded as legal “persons,” which is the reason why they enjoy, for example, the right be be free from unreasonable searches and seizures. Otherwise, the government could waltz into the offices of Planned Parenthood and seize all their files on a whim.
The corrupt Scalia opened a can of worms for the oligarchy and government, didn’t he? Trust me, it was an intentional decision.
The most brazen presidential con man next to Trump was Obama. He reversed course on so many progressive issues that it created Trump and the Tea Party. He was given the Senate and House and screwed it up big time.
https://www.propublica.org/article/obamas-flip-flops-on-money-in-politics-a-brief-history
One of the links above, and an exception to oligarchic personhood, is the trade group for social media companies. They are fighting the Kids Online Safety Act (KOSA), which, as usual, is improperly named. How can you be against online safety for kids, right?
For instance:
“Under the current KOSA version, state AGs would be able to pressure private companies into removing content state politicians consider “harmful,” a HIGHLY subjective term.”
https://netchoice.org/updated-is-kosa-unconstitutional-what-the-netchoice-cases-say/
Can you imagine giving Todd Rokita and his fellow Red State AGs the power to censor free speech on the internet?
There is much more to write about regarding this subject because our society is closing down. The oligarchy and its political puppets have lost control of the narrative, so now they are attempting to regain control. The global citizenry has not been kind to the US. The light has exposed that our government and politicians are the primary sources of misinformation because they are controlled by the oligarchy. To control the people, you have to control the narrative. 😉
Over our lifetime the scientific/engineering community has literally exploded the magnitude of human knowledge and shrunk the world of opinions. There will always be hypotheses, informed opinions, and just guesses, myths, with little basis in fact. Is there a more treasured collection that provides the distinction between our species and all of the others than our bodies of knowledge?
The Internet and AI is the first opportunity in our history we have had to curate and catalog and systemitize our collection.
The only factual support for all law is that it’s all matters of opinion that take on the power of fact only after they become written and ratified and enforced.
Defendants like Trump cannot legitimately claim that the laws the jury found him guilty of breaking do not exist. He may disagree that there should be such laws but only a court trial and jury can decide if his behavior broke the law.
“Authority here is to be controlled by public opinion, not public opinion by authority.”
Authority here is the law. It’s as black and white as language allows. What public opinion determines is who makes the law and the processes involved in enforcing it. SCOTUS only has the power to reject attempts to create and enforce laws that run contrary to the Constitution.
Final authority is vested in the Constitution’s words.
Yes, corporations have long been regarded as legal “persons,” but the original SCOTUS holding to that effect, Santa Clara v. Southern Pacific (1886), was pure deliberate fraud. See YouTube “The Prosecution of Judge Waite.”
If government could compel “factual speech” we’d never have had more than 2 words from the rancid mouth of tfg, once he had lied while taking the oath of office.
As I heard frequently in my days at Purdue, we only enjoy the rights that the government chooses to give us. I know that’s not what the Declaration of Independence says and it’s not the point of the Constitution, but it is a realistic look at life. We thought that women had the right to determine what we do to our own bodies. Then came Dobbs and (in)Justice Alito and the gang of perjurers. Now only those who live in Blue States have that right. That’s not what “unalienable” means, but it’s what we have.
Citizens United deserves the same fate as Roe, but on different grounds. Corporations are not people, though we may (via chartering) endow them with certain rights enjoyed by people. If we follow Citizens to its logical end, then I think it’s just a matter of what rights are transferable in the public interest. Thus, for instance, can corporations vote (which they do anyway with funding of candidates who will vote for their profit-making irrespective of the harm done, e.g., fossil fuel companies vs. survival of humanity)? Can we regulate their speech measured by provable harm done? Don’t we have a right to protect life and limb of our citizenry? Isn’t such a right to survive one of the “inalienable” and untouchable rights left us by Jefferson beyond the reach of manipulation, political or otherwise?
Corporations are statutory creatures by charter. They don’t go to school and don’t visit Uncle Charley and Aunt Margaret on holidays. They are “artificial persons,” and their attempts to gain the benefits of humanhood while simultaneously attempting to distinguish themselves from humanhood for profit-making purposes should be carefully examined by largely state legislatures (notably Delaware and Oklahoma) in the chartering process, an examination which, in my opinion, should be carried out against a background of the public interest and not who (like those two states cited) can offer the most lenient rules in chartering that attract “corporate business,” “business” of the resulting one person home office designation largely designed to accept service of process and other such formal matter, a “home office” in name only.
Free market capitalism, unfettered capitalism, or whatever we wish to call it, has become what many of you describe because its agents, its lobbyists, are basically writing the rules for corporate conduct and the public interest is nowhere to be seen or valued. Milton Friedman, the god of stockholders, gave the corporations the opening(s) they needed, and the nation has suffered as a result. The balance required has yet to be approached, let alone close to being achieved. Occupy Wall Street certainly tried….but the forces against the people’s needs and wants get more entrenched as the GOP has embraced that which its members, the elected and appointed in any event, benefit from. The work we need to do is not for the faint-hearted.