Chronicling the high cost of our legal system
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Is a pattern developing in North Carolina? First an official in that state sought an investigation of a man who prepared a traffic analysis for a neighborhood group agitating for traffic signals, on the grounds that he was practicing engineering without a license. [News & Observer] Now a blogger who offers dietary advice based on his own struggles against diabetes faces possible charges of practicing nutrition without a license [Diabetes Warrior; via Radley Balko, earlier]
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In the Washington Post, Boston College lawprof Kent Greenfield clears up some misconceptions:
Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations. … Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.
The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.
Another reason to protect corporate rights is to guard against the arbitrary and deleterious exercise of government power. If, for example, the Fifth Amendment’s ban on government “takings” did not extend to corporations, the nationalization of entire industries would be constitutionally possible. The Fourth Amendment prohibits the FBI from barging into the offices of Google without a warrant and seizing the Internet history of its users. A freedom of the press that protected only “natural persons” would allow the Pentagon to, say, order the New York Times and CNN to cease reporting civilian deaths in Afghanistan.
The actual Citizens United case, as distinct from the later caricature, was over whether the government had a constitutional right to punish private actors for distributing a video critical of a prominent politician (Hillary Clinton) before an election, which helps explain why the ACLU and many other civil libertarians took the pro-free-speech side. More: Caleb Brown at Cato.
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Economic liberty intertwined with civil liberty, part 7,914,886: “The paper used to produce newspapers came under government control in Argentina on Thursday, in a long-sought victory for President Cristina Fernandez in her dispute with the country’s opposition media,” reported AP last month. More from the BBC, and earlier from my Cato colleague Juan Carlos Hidalgo.
Independent papers in the South American republic are quite right to fear for their future, if earlier ventures into government newsprint control are any indication. Dictator Juan Peron used similar methods to muzzle the press, while in Mexico for decades governments of the ruling PRI closely controlled newsprint allocation, a power they were not hesitant to use to bring excessively independent publishers to heel. It came as an important move toward Mexican political liberalization in 1990 when the Salinas government did away with the controls, by allowing free importation of newsprint to any buyers subject to a modest tariff.
Significantly, the measure just signed by Argentine president Cristina Fernández de Kirchner inserts the government directly as a prospective owner of the business and contains provisions on newsprint imports as well. Per Impunity Watch:
Clarins newspaper notes that there are a number of disturbing aspects to the bill. First is the passage that allows for the state to unilaterally take a majority share of the company as the newsprint distribution is now classified a national interest. Also of concerns is the portion that would permit the Economy Minister to determine how much newsprint to import, establishing government quotas that have never before existed….
Concurrent with the media bill passage is a new anti-terrorism bill that classifies certain “economic crimes,” including certain actions taken by the media, as terrorist acts. The bill states that “economic terrorist acts” are those done with an intent to terrorize the general population.
Whether relatedly or not, the Argentine government last year launched prosecutions of independent economists who have asserted that the country’s actual inflation rate is higher than that reported by the government (& Coyote).
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“Rights-bearing individuals do not forfeit those rights when they associate in groups” argue my Cato colleagues Ilya Shapiro and Caitlyn McCarthy in the John Marshall Law Review [SSRN via Cato at Liberty]:
Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. … This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.
Meanwhile, Virginia blogger/attorney Doug Mataconis [via the much missed Larry Ribstein] analyzes a constitutional amendment advanced by a number of Democratic representatives and Sen. Bernie Sanders (I-Vt.) which would, among other provisions, propose to abolish the constitutional rights of incorporated businesses, with the possible exception of rights held by “the press.” The measure would also impose a constitutional prohibition on (not just authorize official regulation of) such businesses’ engagement in “expenditures,” such as buying newspaper ads expressing their views, during initiative and referendum campaigns as well as elections for office.
Along with abolishing incorporated businesses’ rights, the Sanders proposal contains a further provision of high importance (flagged by Eugene Volokh) that would abolish the constitutional rights of any and all non-profits and similar private entities that are “established … to promote business interests,” and would impose on them the same constitutionally mandated silence during initiatives, referenda and the like. Note the results of this language, which we must presume are intentional: in, say, a fight over a ballot measure that would increase some business tax, the citizens’ committee organized to agitate against the tax would be forbidden to expend money upon a determination that it had been “established … to promote business interests.” Such a private group would also be deemed to have no constitutional rights of any other sort — rights against, say, having its meetings stormed and broken up by police. Meanwhile, the citizens’ committee organized to agitate for the tax would retain not only its rights to speak and to spend money on behalf of its views but also all its other constitutional rights. Rarely do politicians, in this country at least, make it so clear in advance that their intent is to silence their opponents.
Who are the lawmakers who would propose such a measure? The House version was introduced by Rep. Theodore Deutch [FL] and its co-sponsors are Reps. Steve Cohen [TN], John Conyers, Jr. [MI], Peter DeFazio [OR], Keith Ellison [MN], Sam Farr [CA], Barney Frank [MA], Marcia Fudge [OH], Raul Grijalva [AZ], Alcee Hastings [FL], Sheila Jackson Lee [TX], “Hank” Johnson, Jr. [GA], Rick Larsen [WA], John Larson [CT], Barbara Lee [CA], Carolyn Maloney [NY], Jim McDermott [WA], Frank Pallone, Jr. [NJ], Chellie Pingree [ME], Charles Rangel [NY], Betty Sutton [OH], Chris Van Hollen [MD], and Peter Welch [VT].
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The proposed law is being promoted as a way of blocking piratical “rogue” sites, but once it’s up and working, and internet providers have begun automatically blocking sites from a list continually updated by the government, it won’t stop with copyright and trademark infringers. Extending the interdiction to other sorts of sites will be a relatively simple and straightforward matter:
With the legal framework in place, expanding it to cover other conduct — obscenity, defamation, “unfair competition,” patent infringement, publication of classified information, advocacy in support of terror groups — would be a matter of adding a few words to those paragraphs.
How long before a sentimental Congress yields to demands to block suicide- or anorexia-promotion sites, or perhaps those accused of glorifying the taking of illegal drugs or profiting from depictions of animal cruelty? [Julian Sanchez, Cato, more; earlier] More: Stephen DeMaura and David Segal, Roll Call (potential use against political candidates), Bill Wilson (ALG), The Hill, Stanford Law Review, “Don’t Break the Internet”.
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Popular commentator Andrew Bolt “was found guilty Wednesday of breaking Australian discrimination law by implying that fair-skinned Aborigines chose to identify as indigenous for profit and career advancement.” A judge “said he will prohibit reproduction of the offending articles,” and “Bolt and his publisher must meet with the plaintiffs to discuss appropriate court orders that would reflect the judgment.” [AP, earlier, Volokh](& Popehat)
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My new post at Cato at Liberty celebrates investigative journalist Carla Main’s substantial victory at a Texas appeals court against a Dallas developer who didn’t like what she’d written about him in her critique of eminent domain, Bulldozed. Ted at Point of Law rounds up more links and reactions and points out that Texas is fortunate to have a relatively strong “anti-SLAPP” law protecting those who speak out on public issues from intimidation through litigation.
Unfortunately, as Ted writes, “there are dozens of other states where those who criticize the rich face tremendous risk of meritless libel suits to shut down their free speech rights.” For example, to its shame, the state of Pennsylvania has a desperately weak anti-SLAPP law which per Harvard’s Citizen Media Law Project “only applies to those petitioning the government over environmental issues.” It’s past time for lawmakers in Harrisburg and other state capitols to take needed legislative action to protect free speech from the silencing threat of litigation.
P.S. Jacob Sullum has this to say:
In our system of justice, rich people with thin skins don’t need any evidence to drag their critics into an expensive, time-consuming, anxiety-provoking legal process that lasts for years. For any journalist who has ever wondered whether he could be sued over something he wrote that reflected badly on someone (which some of us do several times a day), the answer is yes: You can be sued over anything. The suit may not be legally successful, but if the plaintiff’s goal is to punish you for the offense you caused him and make you (and everyone else) think twice before writing about him again, he wins whether or not he ultimately can prevail in court.
How very true.
“A British judge has banned Twitter users from identifying a brain-damaged woman in one of the first attempts to prevent the messaging website from revealing sensitive information.” The woman’s mother wishes to cut off her life support. [Reuters, related]
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The so-called superinjunction is a gag order that “prevents the media from even reporting that an injunction was obtained,” and runs against the public generally rather than merely organizations named in the legal action. In Britain, which lacks a tradition equivalent to our First Amendment, courts regularly hand down these orders on the grounds of protecting litigants’ privacy, and controversy is mounting as a result. [Guardian and editorial, Kampfner/Independent, Katya Wachtel/Business Insider (on RBS executive case)]
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The First Amendment notwithstanding, wealthy and powerful litigants in this country often exercise the tactical power “to bully those who publicly criticize them into silence by filing frivolous lawsuits that the critics can’t afford to litigate,” with defamation lawsuits being a particularly favored means of such bullying. The majority of states have moved to enact “anti-SLAPP” laws aimed at curtailing this tactical exercise through the application of sanctions or otherwise, but such laws are often quite weak, sometimes applying only, for example, to speech aimed at petitioning the government on public matters. Now Texas lawmakers are considering what would be one of the nation’s strongest laws, protecting “communication made in connection with a matter of public concern” and including statements made in non-public forums, such as emails. The website SLAPPED in Texas has compiled a list of speech-chilling lawsuits in the Lone Star State, including the oft-criticized suit by a real estate developer against author and eminent domain critic Carla Main. [Arthur Bright/Citizen Media Law, Paul Alan Levy/CL&P]
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The latest round in the continuing quarrel between Simple Justice blogger Scott Greenfield and academic enthusiast for greater speech liability Danielle Citron. [Simple Justice]
A California court rules that attorneys who file unjustified suits aimed at speech or political activity can’t be made to pay the other side’s fees. If you’re a victim of such an action, you still might get lucky and collect from the client who instigated it. [Cal Attorneys Fees]
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Eugene Volokh, Michael Cannon and Ed Morrissey react to the Secretary’s announcement that her Department of Health and Human Services will show “zero tolerance” for regulated health insurers who inflict “misinformation” on the public in the course of blaming ObamaCare for rate increases. More: Monday WSJ editorial (”Zero tolerance for expressing an opinion, or offering an explanation to policyholders? They’re more subtle than this in Caracas.”) And Michael Cannon at Cato at Liberty has a further roundup post of reactions.
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Individual liberty, free markets, and peace: the world's premier libertarian think tank. Publishes Cato at Liberty, where I blog on contemporary policy issues.