[p_eter_p]

His proposed amendment is here:

http://lessig.tumblr.com/post/14010963493/proposed-28th-amen...

And yeah, section 2: "The First Amendment shall not be construed to limit legislation enacted pursuant to this article, save to assure content and viewpoint neutrality. Neither shall the First Amendment be construed to limit the equivalent power of state or local legislation enacted to regulate elections of state or local officers. Nor shall the First Amendment be construed to vest in any non-natural person any unalienable constitutional rights."

[aetherson]

Oh good. So, to be clear, this proposed Amendment would legalize literally any burden on speech so long as the speech was not literally one person speaking alone using entirely their own money?

Like, under this Amendment, Congress passed a law saying "specifically the Democratic National Committee does not get to engage in any speech of any kind -- it may send no correspondence, buy no advertising, write no editorials," that'd be okay because the DNC is a non-natural person and as such has no rights under the First Amendment.

The extent to which people on the left have let the very words "corporate personhood," utterly divorced from any actual implications thereof, becomes a bugaboo that drives them to silly positions is really amazing.

[mosburger]

Wouldn't "save to assure content and viewpoint neutrality" cover the example you gave?

[aetherson]

Not as I read it. That clause is about natural persons.

Under this amendment, Congress could restrict the speech of natural persons according to article 1 of the amendment (that is: it could limit the expenditures of natural persons in support of a candidate within 90 days of an election). But it could not do so in ways that were non-neutral (so it could not say "Josiah Bartlett may not speak within 90 days of an election").

Similarly, state and local governments could also restrict speech of natural persons in this way.

But also: the First Amendment would just straight-up not apply at all to "non-natural persons." Not within the restrictions of article 1, but at all. Entirely.

This isn't quite as crazy as, for example, completely abolishing corporate personhood (which would pretty much upend civic life in America), but even if you think that Citizens United caused a watershed change in American politics (and, seriously: can anyone tell me they see a practical change in politics post-Citizens United?), removing ALL free speech protections for people who are channeling their speech through any kind of resource aggregation is an insane overreaction.

[dragonwriter]

> But also: the First Amendment would just straight-up not apply at all to "non-natural persons."

It doesn't say that. It doesn't say that the First Amendment does not provide Constitutional rights to non-natural persons, only that if it is construed to provide such rights, those rights cannot be construed as unalienable.

This is sort of odd language; and its not really clear what it means. The most likely interpretation I see is that it reduces potential intrusions on First Amendment rights of non-natural persons from the kinds of things judged under strict scrutiny (usually referred to as "fundamental" rather than "unalienable", though the terms are closely related in their general meaning and this seems to the most natural mechanism of giving effect to the language in the proposed amendment), even when the restrictions are not content-neutral; this would probably leave both content-specific and content-neutral regulation of speech that impacted only the rights of non-natural persons subject to intermediate scrutiny, but that's not entirely clear (and it would certainly lead to natural persons asserting that their rights were impinged by the restriction on the non-natural person that they control.)

> removing ALL free speech protections for people who are channeling their speech through any kind of resource aggregation is an insane overreaction.

But it certainly doesn't do that. If a natural person has a free speech interested affected by a law, the fact that they are channeling their speech through some mechanism of "resource aggregation" wouldn't prevent them from asserting their own First Amendment right, even if the amendment (as it does not) stripped all First Amendment protection from non-natural persons.

[aetherson]

Well, you sound like you're more versed in the language of Constitutional interpretation than I am.

But a few points:

1. I would continue to not be very happy with language abridging the First Amendment if it wasn't very clear what that language meant.

2. If indeed the intended purpose of that part of the proposed Amendment was to lower the level of scrutiny given to laws abridging the speech of non-natural persons, I guess I'd like someone to make the case that that's the reform that we need -- that the scrutiny level of such laws is the big deal in our political system.

3. And, look, all non-natural persons are ultimately owned by one or more natural persons. If natural persons continue to have free speech rights through corporations even if the corporations per se do not have free speech rights, I'd again like to hear someone make the argument that this is a positive change. My immediate takeaway is that this would create an incredibly complicated legal situation for the courts to adjudicate with uncertain results.

[selimthegrim]

Wouldn't it be a bill of attainder to point to a specific person, or company, or PAC like in the straw man above?