Monthly Archives: January 2010

Corporations, Free Speech & Avocados

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January 24, 2010 – By Gregory Franklyn

This week the Supreme Court of the United States handed down a decision that removes any restrictions on the amount of money a corporation can expend in a political campaign. I was able to get through a small portion of the 183 page dissertation but had read enough to understand its fundamental flaw. As Supreme Court decisions are supposed to be, it was limited to very narrow considerations of intricately limited facts at issue based on an existing premise. The case involves a Documentary by Citizens United that is relentlessly critical of the Presidential Candidacy of then Senator Hillary Clinton.

The court ruled that previous restrictions on contributions to political elections by corporations were constitutionally faulted and made corrections to “Clean House” of conflicting rulings from the past as regards the First Amendment Right to free speech. They, in essence, threw out select decided law by choosing one, of two or more, conflicting decisions they preferred and overturning the ones that contradicted them. The decisions were subjective as evidenced by the split between conservatives and liberals on the court. There are more conservatives on the Court than liberals so the conservative subjective won. This is what is called Judicial Activism.

My argument with this decision is even more fundamental than anything the Court considered. The Court relied on a premise that a corporation, in the same way as a person, has first amendment protection of free speech. The Court appears to approach the First Amendment from the ethereal position that free speech is protected regardless of the identity of the speaker. Placing the protection before the protected. Another way of putting it would be that the Court sees the right as applying universally to all. Under this reasoning, if an avocado could communicate in a way that could be processed or understood, that avocado’s right to free speech would be protected by the Constitution. This is really good news for robots and droids and artificial life forms like corporations.

My disagreement with the Court is this. I approach the First Amendment from the position that the speaker, must have the capacity, of his or her own volition, to speak (or communicate in the case of someone who is differently abled) independently. The intent of the First Amendment is to allow and protect dissent. Dissent requires reasoning. The “protected” is the direct cause of the “protection”. In short, an avocado’s speech is not protected because an avocado cannot communicate in a manner that can be processed or understood.

I cannot conceptualize how an avocado has the capacity to dissent. It could be argued that an avocado dying because of global warming is a form of speech, of protest, if you will. But I argue that the avocado dies as a result of global warming and not out of reasoning to dissent against the forces causing global warming.

A corporation is a legal entity. It is created by law. It cannot vote, it cannot be arrested or put in jail, it cannot be counted in a census so as to be represented by a senator or representative. It is, at its core, ethereal. Its only existence is dependent upon our thoughts about it and, outside our thoughts, has no existence what-so-ever! Although a corporation IS a being, it is a purely artificial one, created out of nothing, that exists only because we say it exists. It does not have the capacity to reason or dissent independently.

I also disagree with the ruling that money is a form of speech protected by the First Amendment, but that’s a whole other discussion for another day and probably wouldn’t matter much if corporations were not protected by the First Amendment right to free speech. The Court has acknowledged the corruptive influence of money in politics. They limited the amount of money an individual can contribute to a political campaign to $2,500. That is unless you ‘re a corporation, in which case there is now, no limit. Although a legitimate tool of communication and advocacy, money should be considered different from other communication tools under the law because of that influence. Money impacts the affairs of state in a different manner than any other communication tool and should be considered differently under the law for that reason.

Here’s where this ruling gets REALLY crazy for me. The Court holds that a corporation, which is an artificial being, has the same rights as an individual, but I, who can vote, who can be arrested and put in jail, who can be counted in a census so as to be represented by a Senator and a Representative, who is, in fact a living breathing being that can reason and dissent independently, do not!

I ‘m a gay man and the Court still holds that I do not have the right or the freedom to marry whom I choose based solely upon my gender. If I’m not mistaken, gender is specifically spelled out in the Constitution as a protected class being singled out so there won’t be any gray area about the fact that I should be included in all rights and freedoms granted by our Constitution! WTF?

According to this Court, not only do I lack the same rights and freedoms as an ethereal concept, like a corporation, I don ‘t even have the same constitutional protection that this Court, by its own reasoning, gives to a frigging avocado!

Much Love,

Gregory