Bench Memos

Professor Feldman Doubles Down on Folly

When I blogged here yesterday about Prof. Noah Feldman’s confused assertions that corporations cannot be protected by the freedom of speech and free exercise of religion clauses of the First Amendment, I then immediately tweeted a link to my post and included Prof. Feldman’s Twitter handle.  He of course saw it and—not unexpectedly—responded.  Our exchange unfolded yesterday evening on Twitter in an astonishing fashion.  Here it is, making allowances for the asymmetry of our responses to each other and fleshing out Twitter-style abbreviations (my handle is @MatthewJFranck and his is @NoahRFeldman, if you want to see our exchange on Twitter):

Feldman:  Matt in 900 word essay one doesn’t repeat the arguments of one’s 300 page book in church and state. But I wrote one.

Me: Both things true. But I still wait for an argument that states a recognizable legal principle.

Feldman: Artificial persons indeed. Artificial is the key word. I challenge you to name 1 Framer who favored corporate rights.

Me: Wrong question, as I pointed out in my post @NRO. On what principled basis does corporation have e.g. property rights but not religious liberty?

Feldman: I care about original meaning of Religion clauses!

Me: Me too. Question: Does Bloomberg [Feldman’s publisher] have free press rights? It’s a corporation!

Feldman: No. The individual writers do though.

Me: Therefore New York Times should have lost Sullivan [libel] & Pentagon papers [national security] cases? That follows from your view.

Feldman: [Now answering my question about property rights vs. religious liberty above:] Corporation can hold property but shouldn’t have 14th Amendment or 5th Amendment rights

Me: Hence no due process for corporations? No just compensation under eminent domain? That follows from your view.

What is astonishing is, well, the logical but foolish consistency of Feldman’s responses.  I had said yesterday in my original post that I was “sure Feldman would say” that an “artificial person” such as a corporation “was owed due process under the Fifth Amendment before its property was taken.”  But this appears to be just what he denies!  I say “appears” because Feldman’s last words in our exchanges last night were to deny that incorporated publishers have any First Amendment protection under freedom of the press, and that corporations generally can own property but have no protection of that property under the Fifth and Fourteenth Amendments.  When I pressed him on whether he really meant what would obviously follow from these bald assertions of his—assertions both historically and textually insupportable—he offered no replies.  He still hasn’t.  I expect that even in the liberal legal academy, these are decidedly idiosyncratic views.  Until seeing these tweets of his, I was sure he would have some more “creative” response about why religious freedom can’t be claimed by a corporation, or why some corporations but not others can make such claims, or the claim to freedom of speech.  But no, Professor Feldman went all-in on some pretty outlandish positions.  So if he would like to retract these preposterosities, I am all eyes. . . .

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