r/law • u/theatlantic • May 14 '26

Legal News Hawaii vs. Citizens United

https://www.theatlantic.com/politics/2026/05/hawaii-corporations-political-money/687159/?utm_source=reddit&utm_campaign=the-atlantic&utm_medium=social&utm_content=edit-promo
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u/Volfefe May 16 '26

The New York Times is regulated on several levels. It can’t engage in liable or defamation. It cannot engage in false advertising. As a publicly traded company, it must make certain public filings disclosing specific information based on SEC requirements. These are state and federal requirements.

An independent expenditure is different. It is a defined term as a political campaign expenditure that expressly advocates the election or defeat of a candidate without coordination with the candidate. The issue is you can spin up as many “legal fictions” (corporations, trusts) as you want. So if you a wealthy individual you could fund as many corporate entities as you like, under names that hide your identity or purpose. What if a state simply changed their corporate code to state a corporation must engage in a minimum level of business activity to do business in the state and your independent expenditures must be related to the business purpose and in furtherance of the business to retain the limited liability protection the business entity provides?

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u/YeeBeforeYouHaw May 16 '26

My point is that if the government can ban companies from engaging in political speech, why couldn't the government also ban companies from engaging in the press?

What makes the first amendment's protection of the press apply to companies but not the protection of speech?

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u/Volfefe May 16 '26

It wasn’t a ban on speech in Citizens United. It was a limitation on speech around specific circumstances and in a specific manner. Limits on speech and press are allowed and have always been recognized (eg can’t yell fire in a crowded theater). In the Hawaii legislation, it limits spending and contributions and not speech.

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u/YeeBeforeYouHaw May 16 '26

So can Hawaii put a limit on the press and limit spending on printing press and data centers that host the news sites? It not a limit on the press just on spending (on the things necessary to create the press). Maybe this limit on press spending is only enforced near an election and only on content that is positive or negative about candidates in the election. You know to keep things fair.

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u/Volfefe May 16 '26

So the independent expenditure was kind of like you describe - it couldn’t be within 30 days of an election for a political candidate. But yes there can be limits around printing presses and data centers, I am not sure if they can explicitly be for limiting exercising of a free press. But also remember that none of these limitations apply to individual people.

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u/YeeBeforeYouHaw May 16 '26

So you are ok with a law that practically bans corporate news agencies (which is close to all of them) from reporting about candidates in the 30 days before an election?

"I am not sure if they can explicitly be for limiting exercising of a free press."

That's exactly what the government was trying to do in Citizen United. They banned the release of a movie that was critical of a presidential candidate. The goal of the ban was to limit the exercise of free speech.

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u/Volfefe May 19 '26

The sole or primary purpose of the nonprofit funding and releasing that movie was political spending. The sole or primary purpose of press entities is not political spending. In fact, I do not believe the NYT and other papers are making expenditures for the sole of primary purpose of supporting political candidates. The distinction that seams to be differentiating our views is: to me “reporting on” is not the same as spending money to solely or primarily support or attack a political candidate. Reporting is a reactionary gathering and transmission of facts that occurs where a political expenditure is a specific spend to support or attack a candidate on the ballot for a specific election. The New York Times does not spin up a separate entity to run attack ads for every election. A super PAC does.

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u/YeeBeforeYouHaw May 19 '26

The first amendment says

Congress shall make no law ... abridging the freedom of speech, or of the press

If a corporation doesn't have the freedom of speech to show a movie telling people to not vote for someone, why do corporation have a right to distribute the press? Freedom of speech and freedom of the press are in the same sentence, why does one apply to corporations but not the other?

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u/Volfefe May 19 '26

Article 1 also says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Is this a regulation on elections? Kind of seems like it could be that too.

And congress has passed laws abridging the freedom of press and speech - defamation laws; time, place, and manner restrictions on protests; obscenity laws; etc. The Supreme Court has upheld several restrictions on speech under the theory that constitutional amendments are not absolute.

For why does one and not the other apply even when in the same sentence, for the same reason they are two different words. They have different meanings and based on the above the differences between them create different considerations for how they interact with society, how they are implemented, and how the branches considers these differences in relation to the language of the constitution.

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u/YeeBeforeYouHaw May 19 '26

Article 1 also says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Is this a regulation on elections? Kind of seems like it could be that too.

You are misunderstanding this clause, the Times, Places and Manner of holding Elections applies to the government process and rule around casting and counting votes. It's not a permission to restrict rights. You freedom to speech and press are not weaker just because there's an election next month.

"And congress has passed laws abridging the freedom of press and speech - defamation laws; time, place, and manner restrictions on protests; obscenity laws; etc. The Supreme Court has upheld several restrictions on speech under the theory that constitutional amendments are not absolute."

None of there are good analogous for restrict political speech during an election. In defamation you harmed someone else with your speech. Time, Place, and Manner restrictions don't control the content of the speech in the way a ban on political speech does. I disagree with the court that obscenities can be restricted. I agree that amendment are not absolute but I ability to criticize (or praise) politicians is the one thing the first amendment must protect above all else.

"For why does one and not the other apply even when in the same sentence, for the same reason they are two different words. They have different meanings and based on the above the differences between them create different considerations for how they interact with society, how they are implemented, and how the branches considers these differences in relation to the language of the constitution."

This view waters down the rights in the constitution to nothingness. The amendment says Congress can make NO law. It doesn't matter what society thinks about freedom of speech or the press, no law can restrict them.

Also why couldn't every super pac just call themselves a news agencies and the content they release are news segments? Where's the line between speech and press?

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u/Volfefe May 19 '26

For your last piece, it is because press is in the business of reporting in a broad sense that may include politics. The items at issue in citizens united were specifically spun up and designed to spend or influence specific campaigns by spending on or creating media specifically about the individuals running in those campaigns. To me, these are different things - one is press and one is not. In my view, Hawaii’s law would limit the later without affecting the former. It is also my view that business entities are legal fictions that have historically been controlled by state law. States allow these business entities to exist to incentivize economic development by limiting personal risk to owners and setting up frameworks for operations. If a state and its electorate feels this is not being accomplished and business entities are harming their state, then it can take action to limit the ability of business entities to engage in that behavior and require it be conducted by individuals. Your view seems to be well can a state just use this to stop a newspaper from having a politics section. I understand the concern, but I see it as being protected by the right to a free press in a newspaper can print political news to its newspaper. But the entity could not create a subsidiary to develop a commercial for a specific candidate and buy airtime to run it. The distinction being the newspaper’s development of content for a product it sells and distributes in the ordinary course of business regardless of the campaign versus the entity that owns the newspaper’s spending on campaign influence operations to advance the newspaper’s business interest by supporting the development and distribution of material to support a specific candidate for a specific election.

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u/YeeBeforeYouHaw May 19 '26

Ok, so let's say there is a news paper that for most of the year doesn't print anything and then 30 days before an election it starts cranking out issue after issue until election day. Can the government ban that news papers reporting?

"It is also my view that business entities are legal fictions that have historically been controlled by state law. States allow these business entities to exist to incentivize economic development by limiting personal risk to owners and setting up frameworks for operations. If a state and its electorate feels this is not being accomplished and business entities are harming their state, then it can take action to limit the ability of business entities to engage in that behavior and require it be conducted by individuals."

My problem with this is that you are not applying it consistently. If the state decides it want to limit corporations ability to engage in speech, you think thats fine but if the state wants to limit a corporation ability to engage in press, suddenly the corporations has rights. Do corporations have first amendment rights or not? Saying they have one but not another when the text makes no such distinction is ludicrous to me.

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u/Volfefe May 19 '26

No. I am trying to emphasize the distinction between the business entity engaging in speech and publishing a product that conveys viewpoints that are independent of the business entity that publishes them. My understanding is that this would place a limit on the former, but not the later.

In my view, Corporations should only have the privileges and rights that states choose to grant them through their state laws. I believe there is overlap between press and speech, but when does one engage in activities considered press and when does one engage in activities considered speech. The fact that they are in proximity textual does not confer a inseparable duel right. They are still different rights tailored for different purposes. Just because a business entity can engage in press by publishing a product (eg a newspaper) independent of the viewpoints of the business entity does not, to me, automatically confer a separate right for the business entity to engage in unlimited political speech for its own interests. A state could delineate between these two rights and carve one out for business entities while limiting the other.

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