Once again, Citizens United is in the news. A constitutional originalist Representative has introduced yet another bill to overturn Citizens United. The lie they tell is that corporations are NOT people and therefore do NOT have First Amendment rights. There are several reasons why this is a lie.
What parents must understand is how child support is speech and state censorship.
1. Negative Rights
The constitution does NOT actually say you have free speech rights and does NOT positively provide a constitutional guarantee for free speech. The United States Constitution provides a negative protection for your right to speak freely. The right to speak is a natural right that far predates the existence of any government anywhere. What the federal constitution holds is that “Congress shall make no law… abridging the freedom of speech.”
You can contrast this with the Texas Constitution that has both a similar negative protection and an affirmative protection stating “every person will be at liberty to speak.”
Whether or not corporations are people is irrelevant to Congress’ power to regulate speech. Congress has NO such power and those court opinions insinuating that Congress or any part of the government may regulate speech of nonpersons simply cannot survive an originalist interpretation of the Constitution because the First Amendment does NOT say that people have an individual right to speak other than in petition to the government.
What the Supreme Court actually held was directly tied to this negative inference of the free speech right. The Court held:
The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity.
2. Natural Right of Free Speech
The First Amendment recognizes, NOT establishes, the right of people to “assemble” or in modern terms to “associate” for among other purposes to speak with one another or to others with one associational voice. It recognizes the preexisting right and protects it from government interference. Speech is NOT a right created by the constitution but rather a natural right recognized by the constitution as being in need of protection from the evils of government.
A corporation is nothing more than an association of individuals organized for a common purpose under civil laws providing a legal means of governing that interaction between individuals. Corporations are a government-created body that is NOT beholding to the government’s political agenda but rather the agenda of its members as stated in its official charter. The nature of the corporation depends upon the agenda around which it is formally organized.
It is the civil law that defines how corporations will be recognized and how the interactions of all the individuals will be governed, how agreements will be reached and how disagreements will be settled. Civil law also defines how that association will and may interact with all the laws the association will encounter in its business.
Husband and wife often create corporations to gain government benefits for their joint business ventures as do larger groupings of family members such as in Hobby Lobby. These associations hold associational free speech rights that are very closely tied to the closeness of the association and joint purposes of the marital association. Remember, for most of history, marriage was a business association for a great many people.
Cities are corporations organized for political purposes. Some corporations are organized around non-profit goals or goals unrelated to earning financial profits. Other corporations are organized for financial profit and include a large number of associates who do NOT necessarily share any other associational interests. Therefore, they do NOT enjoy any protections associated with those “other associational interests.”
Publicly traded companies, while technically privately owned companies, are associations of individuals organized only around the corporation’s asserted reason for existence and no other. They do NOT receive the same form of speech protections as do sole proprietorships where there is a single individual owner.
The right of corporations to speak does NOT arise because the corporation is an individual person for it is NOT. A corporation is an association of individuals and each of those individuals has a right to assemble with the others to speak in one voice. It is the one voice of the association that is protected. The degree of that protection is tied to the nature of all the associational interests involved.
A sole proprietorship has all the free speech protections of its sole owner. With each additional owner, the nature of that free speech protection grows just a little more distant from the sole intent of the sole proprietorship and its protections of the individual.
The logic of this is more fully discussed in Hobby Lobby. There the corporation Hobby Lobby is a closely held corporation where only family members are members of the association. Even further, the corporate charter includes joint commitment of all of those association members as to the larger moral interests the corporation pursues. It is this narrow ownership and the documented joint pursuit of other moral interests that provided Hobby Lobby with constitutional protections than a publicly traded corporation would enjoy.
The publicly traded corporation is an association where the only issue holding the individuals together in common cause are the specific business interests defined in the corporation’s charter. Primarily their interest is in making money from the investment of their own money. More narrowly they may have deeper interests in the means by which the corporation seeks to make money but that is generally the limit of the combined interests.
The closer and more varied the association of corporate owners the less authority the government can assert to regulate their speech. The looser the association and the more singular the associations stated goals are to the forming of the association of corporate owners the more the government is entitled to regulate the corporation as a business entity rather than a speaker of common cause.
Where there are no other bonds between owners other than the corporate charter, the government has a much greater interest in seeing that individual owners are protected from the concentrated power of the corporation’s management. The speech of publicly traded companies is much closer to the speech of its management than it is to the speech of its owners.
The government’s regulation is targeted to the professional management class that the civil law establishes and that can only exist because of the civil law. The government seeks less to regulate the voices of the owners and more to protect the owners from being compelled to pay for speech for which they may not agree.
What this means in practice is that publicly traded companies can speak freely on interests that can be closely tied to the corporate charter and achieving its ends but may face significantly more regulation over the manner in which it operates as a business and where its speech may be seen to be at odds with the speech of its owners.
None of this turns on whether the corporation is a “person.” Any politician who tells you that Citizens United is about declaring corporations to be individuals is lying to you for their own benefit.
The Truth About Originalism
If we were to follow an originalist interpretation of our constitution, our freedoms would unravel quickly because originalism, in its current form, is just a fancy way to say statism. I have never heard of an originalist who has made individual freedom central to his argument. I hear only the power of government to rule over others unless our founding fathers wrote down a specific limitation. They claim to faithfully read and apply the constitution, but they completely eliminate the Ninth Amendment and treat it as if it doesn’t exist at all. This is a lie that sits at the very heart of their interpretation claims.
A true originalist interpretation would hold that our founding fathers having only ten years previously won a terrible war for FREEDOM against a British King. That war was NOT for an American government or for any state government. It was a war for FREEDOM. Those founding fathers created a confederation of states under Articles of Confederation that made the federal government so weak that it could not survive.
Those founding fathers feared government and knew government to be an evil but a necessary evil. They intended to keep that government evil as small and as under control as possible. Our constitution provides more power to the federal government than did the Articles of Confederation, but the intent was still the same, to keep the evil as small as possible while benefiting from the necessities it provides.
That constitution established principles of freedom designed to protect us from the evils of government, and nowhere does it ever even begin to imply that the government has any rightful authority to rule over anyone. Government serves the people, or it is invalid. Free people have NO rulers and are NOT ruled over by their government. This is the only legitimate originalist interpretation of our constitution.
Conclusion: Citizens United
Why Citizens United Matters to Parents in Family Law
Why should parents care about the rights of corporations? They shouldn’t. But Citizens United is simply NOT about just the rights of corporations. Citizens United is about the government’s authority to regulate speech through controlling money.
States control the speech of parents and children through the seizure of money from one parent and the granting of that money to the other parent.
The speech and parental authority of the parent whose money was seized is diminished in direct proportion to how much money was seized and how that parent spends that money to convey values to the child. This becomes crucial when children become teenagers and parental control is often limited to that parent’s ability to provide for the child’s teenage activities. It is by withholding funds that parents can most often get teenagers to obey parental authority.
When the state uses the seizure of money to diminish the speech of one parent and enhance the speech of the other parent, the state censors the speech that the child can receive and censors the value the child places on the parent’s speech. Protections against censorship are more directly tied to the negative First Amendment protections of speech than from the right of speech directly.
Child support then is government censorship of speech through its civil laws which is exactly what the First Amendment prohibits. Citizens United tells us Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 904, 905, 908 (Supreme Court 2010):
The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment… All speakers… use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech… under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment… When Government seeks to use its full power… to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
Every parent subject to child support should be singing the praises of Citizens United in their highest voices at every opportunity because it loudly proclaims that child support as we know it today is nothing less than unlawful state censorship of parent-child speech.