<< Apologies for the muddle. My q. is two fold. First, if 1A is the
withholding of the state's ability to censor, then where does the state get
the right/power to allow other institutions to censor [firms]? As in, "hi,
I'm the government. I can't censor your speech but I'm going to give these
other folks over here the power to censor your speech?"
Well, the govt "gives" corporations the power to censor their employees' speech (among others) by not prohibiting the corporations from exercising that power. One might have thought that corporations have that power in virtue of being, well, powerful. Part of the point of limited govt is that the govt does not have unlimited power to interfere with how nongovt entities and private persons exercise their powers. The govt has restricted to some degree the power of corporations to censor speech, for example, by passing whistle blower laws and other anti-retaliation statutes.
But look, if the problem is that "the only way to have freedom of the press is to own one" (A.J. Leiblling), don't balme the 1A or even the Constitution. The problem is private ownership of productive assets.
> Where in the
parchment does this power come from?
There is no such power as you ask about, but the llimitation on the govt's ability to regulate private behavior are in many ways the point of the document, and certainly of the Bill of Rights.
> If the 14th A constrains firms in
their hiring practices and HR policies with regard to race and sex, then why
isn't 1A accorded the same ability to constrain firms in their regulation of
speech?
This is real tricky. Private firms are not constrained by the 14A in any direct way from discriminating on the basis of race and sex. You cannot go against GM for race discrimination under the equal protection clause. Private entities are constrained by statutes like Title VII of the Civil Rights Act. Congress has the power to regulate privatre behavior by statute even though the Constitution does not regulate private behavior in the ordinary case. (The 13A is an exception.)
Of course Congress requires a constitutional basis to pass a statute. The Civil Rights Act as applied to private individuals was upheld under the Commerce Clause (Heart of Atlanta Motel is the case, if I recall correctly), giving Congress the power to regulate interstate commerce (a term that is very broadly construed). It is generally assumed that Congress also has the power to regulate private behavior under the 14A, but I don't think the S.Ct has expressly so held.
Now, how can Congress have the power to regulate private behavior under the 14A if the14A does not ban this behavior? There is a complicated set of doctrines evolved mainly through consideration of voting rioghts cases that holds that Congress has the power under the 14A to paint, essentially, with a
broad brush and ban things not banned by the 14A if it is also regulating things taht are constitutional violations. I am not sure the doctrine would withstand a hard look in llogic, but that is the law.
> To be cynical, the parchment sucks for dealing with labor relations
law. 1A forms part of the basis for the right of collective bargaining,
why not the right of speech?
Well, the parchment isn't supposed to do much in the law of labor relations. Leaving aside govt employees, that's a private matter between private parties, workers, unions, and private employers. It's regulated by the NLRA, passed under the Commerce Clause. You wouldn't expect the Constitution to do much work here. It does impinge here and there, but not a lot. Public employees have more in the way of constitutional rights of course, because their employer is the govt, which is restricted by the Constitution. GM can decide to fire all the socialsit workers (both of them), and they can't do a thing at law. If the state of Michigan does likewise, they can hale it into court.
Btw, getting the Constitution out of labor relations was a great victory of left and Progressive activism of the 1920s and 1930s. From the 1890s to 1937, the courts used the due process clause of the Constitution to attack any laws that regulated labor relations. Upholding the NLRA, which I think was done in 1940, was a final nail in the coffin of that sort of aggressively constitutional jurisprudence. Course the NLRA was a better law before Taft-Hartley.
> This "Massachusetts/Burma law" case is currently before the Supremes. One
of the issues Prof. Stumberg, who is arguing the case, related to me was
that if corporations have the right to use ethical criteria in their
purchasing decisions vis a vis other firms or govts., then states should
enjoy the same right since corporations exist by virtue of the states right
to grant a privilege to incorporate. MA wants to use ethical criteria in
deciding which firms to buy goods from based on whether they do business in
Myanmar. It is a law designed to sanction firm behavior, not the behavior of
Myanmar itself. Stumberg said he was counting on the conservatives on the
bench to be sympathetic to this line of argument [esp. C. Thomas].
Ah, interesting., I don't know anytthing about this. But a state's rights Court ought to be sympathetic to idiosncratic things state government want to do, and some of these will be good things.
--jks