Resistance/backlash/response to Supreme Court opinions

[DAVID E. BERNSTEIN]

It's not my rule of construction, it's my prediction of what would
happen if the issue came to the Supreme Court, i.e., you would lose at
least O'Connor's vote.  Also, for what its worth, Rehnquist voted with
the majority in Rotary International v. Duarte, so he is unlikely to be
especially radical on the issue, either.

Yes, for-profit corporations are protected by the First Amendment.
Perhaps my excerpt was unclear, but the protection corps. get from the
First Amendment does not mean, at least under a reasonable view of how
the current Supreme Court wiould vote, that a for-profit corporation can
successfully claim an expressive association right.  The reasoning
(which I don't necessarily endorse) is that the right of expressive
association exists for groups that come together primarily to express
themselves in some way.  For profit organizations are organized
primarily for profit.  Even a for profit organization selling white
supremacist literature arguably exists primarily to make a profit,
certainly the founders chose to organize themselves under the applicable
for-profit IRS rules.

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> Andrew Koppelman <akoppelman at NWU.EDU> 09/01/00 04:25PM >>>
 David's implicit rule of construction is that
a Supreme Court opinion cannot be read to adopt any rule of law that was
expressly repudiated by any member of the majority (or perhaps only of
the
5-4 majority, if that's the count) in an earlier decision.  Has any
court
ever adopted that rule of construction, however?  Weren't lower courts
expressly admonished not to do this kind of vote-counting in Agostini v.
Felton?

As for David's suggestion that only "expressive associations" are
protected
by the first amendment, this is nonsense.  Even for-profit corporations
have a right of free speech.

________________________________________

Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
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