Questions for John Roberts

The First Amendment and the Media

Do you believe limits on TV station ownership abridge the free speech rights of corporate broadcasters?

What is your view of the First Amendment rights of listeners being paramount to those of the broadcasters, as articulated by past Court decisions (e.g. Red Lion Broadcasting v. FCC)?

One of the issues at the forefront of current concerns about corporate claims to First Amendment rights is the question of media ownership and control. In its broadcast ownership Rule and Order of June 2, 2003, for example, FCC commissioners cited the need to protect the First Amendment rights of broadcast corporations.

Roberts played a role in developing the legal arguments for eliminating broadcast media ownership limits in Fox Stations v. FCC (2002), where he served as counsel to corporate conglomerates (News Corp./Fox, GE/NBC, Viacom/CBS) which argued that limits on television station ownership abridges the “free speech rights of broadcasters.”

The question here is, how does Roberts square his position on the rights of broadcasters with the rights of people to have their voices heard and not overwhelmed by commercial interests? How would Roberts protect the First Amendment rights of the public, the rightful owners of the broadcast airwaves, held in trust by the federal government and leased to the broadcasters for free?

Roberts' positions conflict with the Court's findings in Associated Press v. United States, 326 U.S. 1,20 (1945), where the Court held that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public,” and Red Lion Broadcasting v. FCC, 395 US 367 (1969), the Court elaborated that “the ‘public interest’ in broadcasting encompasses “the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences ... speech concerning public affairs is more than self-expression; it is the essence of self-government.”

These questions are still a matter of evolving law, and the quality of American freedom of expression in the digital age will continue to be heavily influenced by the U.S. Supreme Court’s views on these and other questions.

Political Speech Rights

Do you se a problem when corporations are treated as equal participants, with every right to use their First Amendment rights to dominate public policy debates such as those that occur in state and local referenda?

Do you believe the Court should uphold state and Congressional limits on corporate political expression in order to equalize contributions to public debates?

Another area of concern is the corporate claim to political speech rights. Here the Court has already tipped the balance in favor of corporations. E.g., in First National Bank v. Bellotti, 435 U.S. 765 (1978) Justice Lewis Powell placed the First Amendment in opposition to the democratic ideals of political equality and the right of states to restrict certain forms of corporate speech. In this case, the state of Massachusetts argued that it wanted to ensure that individual citizens, not corporations, should play the most active role in public discourse and the electoral process. The Court recognized that corporations can exercise unusual powers in political discourse compared to most individuals, but determined that the state should not discriminate against any speaker, no matter who that person is (in this case, a corporation).

As Roberts is no doubt aware, there is considerable evidence that corporate views can dominate political discourse and effectively squeeze out legitimate community and individual voices. It would be worth exploring Judge Roberts’ views of the Court’s decision in Belotti. Does he see a problem when corporations are treated as equal participants, with every right to use their First Amendment rights to dominate public policy debates such as those that occur in state and local referenda? Does he believe the Court should uphold state and Congressional limits on corporate political expression in order to equalize contributions to public debates?

Corporate speech does not derive from a human source of expression, and under principles of corporate law its motivation will inexorably be focused on increasing or maximizing the wealth of the company and that of its shareholders. Given these characteristics of corporate speech, how can placing the First Amendment protections of corporations on an even level with the people be justified?

The Legal Status of Corporations

Do you believe that a strict reading of the Constitution provides for the treatment of corporations as "persons" under the law for purposes of equal protection, freedom of speech or due process of law? If so, what in the Constitution provides a basis for this belief?

Roberts should also be asked about his views concerning the status of corporations under the law. Does he support the legal fiction known as “corporate personhood” where it is used to undermine regulation and democratic self-governance?

The Constitution does not outline the rights of corporations. No laws have ever been passed by Congress granting corporations the same rights as living, breathing human beings. The landmark Supreme Court case cited by those wishing to argue that corporations long ago acquired rights-bearing status under the law (the doctrine known as “corporate personhood”) is Santa Clara County v. Southern Pacific Railroad 118 U.S. 394 (1886). However, the statement relating to corporate personhood in this case is not found in the decision itself at all, but rather in the headnotes to the decision authored by the court reporter, which should not have been regarded as precedent-setting.

Moreover, it’s clear that the 14th amendment was not originally intended to provide corporations the same rights as average citizens or ex-slaves. (A jurist like Roberts with a tendency towards a strict reading of the law should be asked about his views here.)

While federal judges and federal judicial decisions have accepted the “legal fiction” of corporate personhood ever since as a matter of settled law, it is ironic that of the 307 Fourteenth Amendment cases brought before the Supreme Court in the years between Waite’s proclamation and 1910, only 19 dealt with African Americans – for whom the amendment was passed – while 288 suits were brought by corporations seeking the rights of natural persons.

From time to time, members of the court have recognized the mistaken impression left behind by the Santa Clara case and articulated a need for the court to reexamine the question of the status of corporations under the law. Fifty years after Santa Clara, for example, Justice Hugo Black wrote: “I do not believe the word ‘person’ in the Fourteenth Amendment includes corporations….Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection.” [Connecticut General Life Insurance Company v. Johnson303 U.S. 77 (1938)]

Roberts should be asked if he believes that a strict interpretation of the Constitution suggest that corporations should be treated as persons under the law?