First Amendment

by Jeremy Leaming

The state that gave the country one of the harshest anti-immigrant laws, spurring an even nastier measure, the one Alabama produced, is now contemplating a sweeping bill aimed at curtailing free speech at the state’s public schools and universities.

As The Daily Agenda’s Anthony Badami reports the Arizona state senate is considering SB 1467 “that would require schools and universities to refrain from engaging in ‘speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio.’”

Badami notes that such a measure if adopted could jeopardize teaching literature or history “that include offensive, derogatory, and/or lewd language, creating a special difficulty for the examination of free speech/obscenity cases, esp. in constitutional law courses.” The bill, if enacted, could, as Badami correctly notes, make it incredibly thorny for educators to teach certain works of fiction, say D.H. Lawrence’s Lady Chatterley’s Lover.

The Republic, a Phoenix daily, reports that the bill is supported by Republican state lawmakers who want to “require teachers to limit their speech to words that comply with the Federal Communications Commission regulations on what can be said on TV or radio.”  

By Jeffrey D. Clements, the co-founder and general counsel of Free Speech for People and founder of Clements Law Office, LLC. Clements is author of the new book Corporations Are Not People, which explores the disastrous impact of the Citizens United opinion on democracy and proposes a constitutional amendment to restore government to the people.

As the nation increasingly embraces the constitutional amendment solution to Citizens United v. FEC, a new proposition regarding so-called “corporate personhood” is emerging. It’s a proposition, which the notorious Citizens United decision actually had nothing to do with.

Last week, for example, my friend Kent Greenfield cast a skeptical eye, in an op-ed for The Washington Post, on the “anti-corporate activists” who support a constitutional amendment to reverse Citizens United. (My own view competed the next day in a Boston Globe op-edwith Congressman Jim McGovern, the lead sponsor of the People’s Rights Amendment.)

As an initial matter, no one should assume that the 79 percent of Americans who favor a constitutional amendment to reverse Citizens United are “anti-corporate,” whatever that means. After all, 1,000 business leaders have called for a constitutional Amendment, as have legal scholars, lawyers, former state attorneys general, serving attorneys generals, dozens of cities and town representative bodies and millions of Americans.

The argument that corporations in fact are “people” under the Constitution, or at least that we ought to continue the tacit amendment of the Constitution that pretends that they are, at least has the virtue of frankness. Less credible, is the argument that Citizens United and the larger “corporate speech” theory under the First Amendment is not really about corporate rights at all, but merely about protecting associational rights of people.

Professor Greenfield argues that the Supreme Court in Citizens United got “the result” wrong but at least it asked “the right question.”  No, the Court got the result wrong because the Court asked the wrong question. The actual question before the Court in Citizens United should have been the question posed by a challenge to the corporate regulation component of the federal Bipartisan Campaign Reform Act (BCRA) – Can Congress create different election spending rules for human beings than for corporations?