Corporations are not people, but they have rights because people have rights
Rehashing a little bit an argument I had with Thimbles, wherein the main criticism of Citizens United is the idea that liberals find it insane that we could conceive of corporations as people. Anyway, came across this quote at Reason which makes my point—that corporations should be thought of more as associations than monolithic entities. Emphasis mine.
This line of attack demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”
Well of course they aren’t — but that’s constitutionally irrelevant: Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights. Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy.
Or how about Fifth Amendment rights? Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?
So corporations have to have some constitutional rights or nobody would form them in the first place. The reason they have these rights isn’t because they’re “legal” persons, however — though much of the doctrine builds on that technical point — but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.
That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection — that “real people” lose some of their rights when they join together in groups of two or ten or fifty or 100,000 — is legally baseless and has no grounding in the Constitution.
That’s manifestly untrue. There only has to be legal advantage.
Also, the Supreme Court didn’t unambiguously find that corporations have rights because people do, did they? Scalia, at least, claimed that the point was that the First Amendment didn’t specify who had the rights of speech and therefore it wasn’t limited to people (in that construction, people and corporations both have speech rights because of the First Amendment).
Of course, Corporations do effectively have some constitutional rights and some of them do descend from individual rights; after all, corporations are property, owned by people, and property rights have some constitutional protection. Whether it’s really a right of the corporation or of the people that own it is another matter, I guess.
Comment by Adam — 2/3/2010 @ 11:43 am
I don’t think anybody is contesting the right of the individuals who own stock in a corporation exercising their freedom of expression. My own objection is to the notion that the corporation–as a collective entity–has the right to free expression, using “its” money.
Corporations are a useful legal fiction of a person, but the above article concedes that not all Constitutional rights can or should apply to a corporation. Fourth amendment protections make sense, given that a corporation can have assets of value (indeed, that’s the whole point). Same for Fifth amendment protections. I’ll even go for Third–AT&T doesn’t have to put up the Marines in its broom closets.
On the other hand, do corporations have the right to keep and bear arms as a corporation? Seems to me that that right can only be legitimately exercised by individuals.
I would propose that, as a nonsentient collective legal fiction, corporations in and of themselves have no opinions to express, and thus should not be entitled to free expression. When “AT&T”–not any individual employed thereby or owning stock therein–can write an essay critical of a President, then I will defend its right to do so without fear of persecution. However, until that time, I don’t see why “AT&T” should get to spend money on political advertising.
Comment by Talarohk — 2/3/2010 @ 3:25 pm
If it’s OK with you for the government to ban newspaper editorials and publication of books on the grounds that they represent a paid political broadcast by a corporate entity, then I don’t really know what to tell you.
If that ISN’T ok, then I don’t know how on earth you draw a line regarding which corporations can and can’t issue such paid statements. The defendants in the SCOTUS case couldn’t, and weren’t especially interested in trying. They made explicitly clear, in the course of oral arguments, that their interpretation would make it legitimate for the government to literally prevent the publication of political books.
Four members of the SCOTUS heard this and said “sounds good to us,” so I suppose I shouldn’t be so staggered that many American citizens would accept the same line of reasoning.
Comment by Rojas — 2/3/2010 @ 3:42 pm
On the other hand…as arguments against corporate personhood go, I find this one pretty entertaining.
Comment by Rojas — 2/3/2010 @ 5:11 pm
It is an interesting thought experiment. If corporations have the right to free expressions, what rationale is there for denying them the right to vote?
I really don’t think that a publisher publishing books is the same as a corporation buying political advertising. Presumably, the publisher is paid to publish (or expects to make a profit from the sale of the books), and so it is a business decision. I suppose the same argument could be made for corporate free speech–they intend to profit from the expenditure–but I don’t know if that argument will draw much sympathy.
As to newspaper editorials, my impression is that the opinions expressed therein are the specific opinions of the editorial staff, not of the newspaper as a corporation. Thus, those individuals are exercising their right to free expression. I suppose the use of corporate assets to publish those opinions is more problematic. Tell you what–if the CEO or board of directors of a corporation want to clearly and personally provide the expression of the corporation, and publically acknowledge that it is THEIR opinion being expressed, not that of the corporation, then I would regard it as a comparable example.
It seems to me that when a publisher decides to publish a political book, it is a mutual agreement between the author (whose expression is the one being exercised) and the publisher (which is providing the vehicle for the expression). Again, that would be more comparable to the CEO of Pfizer personally recording his statement about prescription drug benefits and using Pfizer’s money to buy airtime to display it, rather than Pfizer–an impersonal corporation–using corporate assets to express an opinion on behalf of the entire corporation.
So I don’t think those examples–editorials and publishing–are comparable to corporations buying political ads.
Comment by Talarohk — 2/3/2010 @ 7:41 pm
I dunno, I think there is a pretty clear difference between Andrew Sullivan(basically an editorial) and Exxon-Mobile spending $10 million dollars on advertising to convince Americans that drilling in ANWR is a good idea. Is it difficult to make that line hard and fast? Sure it is, just like pretty much every *&^*#%$*^^%@*^#% line in existence. This is why we have courts in the first place.
Comment by Eric — 2/3/2010 @ 8:50 pm
The two of you just granted any corporation absolute free rein to run political ads–provided that they do so in the guise of operating a media company, and through an individual citizen willing to act as a corporate mouthpiece. You have conceded away a huge chunk of the first amendment, and you have not reduced the amount of corporate campaign spending by even one dollar.
The courts didn’t buy this argument, because they find the distinction silly and easily circumvented. And also because it creates a free speech dichotomy by which the right to engage in free expression is granted to those which incorporate a media operation, and denied to those which don’t do so. Which is a pretty arbitrary way of assigning constitutional rights.
Thimbles is at least consistent in his outlook: if you have to pay for it, it isn’t speech. Which denies the right to political speech to individual human citizens on a massive scale, but hey, again: he’s consistent.
Comment by Rojas — 2/3/2010 @ 8:56 pm
How have I conceded away any of the first amendment? I have simply refused to grant that protection to a legal fiction of a person, an entity with no ability even to have its own opinions, let alone express them. Nothing I have said could be used to deny any individual the right to express themselves. If you happen to have ten billion dollars, please feel free to buy political ad time; I agree that doing so should be regarded as protected speech.
I don’t particularly like the notion of corporations getting around this issue by shell media companies, but I would rather have that situation–with an actual human being taking the responsibility for an opinion expressed–than giving that protection to a nonsentient, faceless conglomeration with no conscience or motivation besides self-perpetuation and profit. (and no, I don’t think that description applies to people)
The Constitution does not guarantee that if a form of expression exists, all people must have equal access to it. If I am mute, I am not guaranteed technology which allows me to speak as you do. The government does not have to provide me internet access so I can post on message boards. What I am guaranteed is that nobody can arrest me due to the content of my expression in a public arena, or such is my understanding of the first amendment. Thus, the fact that only corporations which operate through a media division will have access to the media does not strike me as an unconstitutional abridgement of expression.
I’m interested in what arguments you see for denying corporations the right to vote, Rojas.
Comment by Talarohk — 2/3/2010 @ 10:23 pm
Actually, the more I think about it, the more my thoughts come along the following lines:
It is very dangerous to talk about corporations having only those Constitutional protections which “make sense”. If we are willing to do that, then would it be too unreasonable to conclude that certain individual people should have only those protections which “make sense” to someone else?
I guess to some degree, we already do; children do not enjoy the right to bear arms, for example. However, I don’t think anyone would support the ability of Congress or the courts to take away someone’s right to avoid unreasonable search because it doesn’t make sense that they should have it.
Given that, it seems that corporations should either be regarded as full legal persons–with all the Constitutional rights, including voting–or not persons in a Constitutional sense at all.
In the latter case, they should enjoy only those rights specifically granted to them by law. It seems to me to be reasonable to suppose that those who wrote the Constitution intended the Bill of Rights to point out those privileges which they regarded as fundamentally possessed by any person as a result of their possession of individual mind and soul, and that they wanted to underline them in such a way that government was unambiguously forbidden from abrogating them. However, corporations are not individuals–they are entities created by, and operating under, statutory law (I think).
To me, it seems unreasonable to ascribe any of the rights listed in the Bill of Rights to legally created fictional persons. Rather, it seems most logical to me that those created entities should have only those powers and privileges granted to them by law. Making laws which specify that certain protections (such as fourth amendment) apply would be reasonable, but I don’t see why they should be assumed to have any protections at all inherently upon creation.
Comment by Talarohk — 2/3/2010 @ 10:50 pm
I’ve got a question for you Tal. What do you think about the donations of corporate assets to charitable causes? There can be issues raised with charities. Some charities are ideological or religious in focus. Donation of money to that kind of charity isn’t much different from outright political donation.
As for voting, consider a partnership, which is basically a tiny corporate entity. There’s no defensible reason to grant each partner a partial bonus vote (their one normal vote plus their half vote in the combined partnership). That math still works with thousands of shareholders because of the bonus vote problem. Corporate personhood doesn’t increase the number of persons/citizens; it’s simply collusion between existing persons. It seems reasonable to me to allow the combined entity legal rights but wholly illogical to consider the right to vote.
Comment by Cameron — 2/3/2010 @ 11:53 pm
Interesting point about charitable donations. I suppose that if their ability to donate to political causes can’t be defended on first amendment grounds, neither can their donations to charitable causes.
Could such an issue still be decided on the basis of law, rather than Constitutional rights? I wouldn’t necessarily have a problem with laws being passed determining the ways in which corporations can and cannot act in terms of spending money, but I am very uncomfortable with framing what a corporation can do as a matter of Constitutional rights afforded to individuals.
I also agree with you on the second point; I have no problem with corporations having certain legal privileges, as set forth by law. That’s the whole point of a corporation. My suggestion is that, unlike a person whose rights are inherent in their personhood, a corporation should have only those rights specifically granted to it. That should probably include certain legal protections, but not voting or freedom of expression. And yes, I could accept that that might mean restrictions on where they can spend their money, if such restrictions were passed as laws.
Comment by Talarohk — 2/4/2010 @ 1:20 am
So how about it Rojas? Why can’t corporations vote?
Comment by Eric — 2/4/2010 @ 11:22 pm
I thought I addressed that. Bonus votes.
Comment by Cameron — 2/5/2010 @ 1:09 am
That does seem like a valid argument against giving a corporation a vote; it is based on the fact that the corporation has no “voice” of its own, and that a vote by the corporation is inherently a reiteration of the opinions of the members of the corporation.
For the same reason–because corporations in and of themselves have no opinion or voice–I oppose offering them inherent First Amendment protection.
Comment by Talarohk — 2/5/2010 @ 1:55 am
Hey, I like your explanation Cam, I just wanted to see how Rojas could explain disenfranchising the same corporations he insists are being censored. I think the two kinda go together.
Comment by Eric — 2/5/2010 @ 7:03 pm
I find Cam’s explanation more than satisfactory, which is why I’ve not seen fit to add to it. The right to vote is limited to the right to vote once. The right to express one’s self has no such limitation.
Comment by Rojas — 2/5/2010 @ 8:03 pm
But surely the corporation itself, as an independent entity with (according to you) censorable opinions and expression, has not yet voted even once?
If it has opinions worthy of first amendment protection, why would it not have the right to express its opinion by voting for a candidate?
Comment by Talarohk — 2/5/2010 @ 11:12 pm
Maybe I misread your comment. Are you saying that the individuals who own/run/hold stock in the corporation are expressing *their* opinion, using the corporation as a vehicle, and thus it is the expression of those individuals which is being protected?
Comment by Talarohk — 2/5/2010 @ 11:57 pm
That’s the position to which this thread is dedicated, yes.
Comment by Rojas — 2/6/2010 @ 12:31 am
I find that position untenable and insane.
Comment by Eric — 2/6/2010 @ 1:25 pm
My gut reaction is that for expressed opinion to fall under First Amendment protection, there needs to be an identifiable individual who can take responsibility for it. An opinion (or donation) expressed by “AT&T” has no such individual.
On the other hand, Rojas’s point about there being no statutory limit on freedom of expression has weight. Presumably, my ability to publish pamphlets using money I gain at my job is protected; should there be restrictions on my ability to do so if I create a corporation which is very successful?
Then again, I would be perfectly free to publish pamphlets with my salary from such a corporation. Whether I could use corporate money (which is separate from my own to provide me legal protection should someone sue my corporation) is more questionable.
Since the corporate resources are specifically separate from my own to protect me, should I be able to use them as a vehicle to express personal opinions in a protected manner?
Comment by Talarohk — 2/6/2010 @ 8:55 pm
So I’ve been thinking about this decision by the courts that free speech is sacrosanct and that not even campaign finance should stand in the path of free speech, speech defined as money and speaker defined as a non sentient corporate entity, and I’ve come to an interesting conclusion.
If we claim speech as sacrosanct and define speech as an excercise of personal expression, be that money or word, then copyright can no longer be enforced in the digital age. People should be free to express themselves in whatever form they choose, be that in the form of using Mickey Mouse without Disney’s license or in the form of the bittorrent distribution of one’s favorite movies and music.
It’s all a form of speech, isn’t it?
And if there are no barriers on one’s expression or use of other’s expression, then laws such as the DCMA, which exist to prevent programmers from expressing their skills through the circumvention of security and device limitations, must be rewritten or overturned in order to preserve the sacrosanct.
Patents lose their force, songs lose their royalties, when words lose their price. We cannot believe in unlimited free speech and expression as individual property at the same time. Expression has no physical being, therefore one cannot steal it nor be sanctioned for expressing it themselves in their own way.
Or is it true that words do have value and that expression is property and, if so, that the process by which the will of the people is expressed should belong to the people and not the corporations who seek to buy that process?
Are democratic politics more than just an expression of popular will? Are they a peculiar form of property that belongs to the electorate? Should that property be protected by law in the same ways we expect artists and corporations to have their non-physical property protected?
Or are we truly committed to freedom of speech? What be the position of the court on that count, I wonder?
Comment by thimbles — 2/8/2010 @ 11:31 am
A right to other people’s speech? That’s the first time I’ve heard such a right asserted. An original argument, though not a terribly reasonable one.
The repeated rhetoric about corporations “buying the process” is disturbing. Speech is not a good which is exclusively owned. The electorate is not composed of chimpanzees, and mass media are not the exclusive provenance of the wealthy. If you don’t like the arguments that some organizations are funding, you might consider countering them with more persuasive arguments of your own, perhaps through like-minded organizations.
Comment by Rojas — 2/8/2010 @ 11:55 am
This goes back, by the way, to my argument that it’s precisely a faith in people that most informs my libertarianism. I just don’t get this idea that speech in and of itself is a corruption, or corrupts the political process (of course, we only state that when we’re talking about speech that we disagree with—presumably the SEIU telling people that such and such an economic policy would screw service workers is just doing Humanist God’s work). Speech is just speech, and has no impact beyond whether individuals—whom our entire democratic system is predicated on believing are rational actors and whose opinions, whatever informs them, are sovereign—accepts or rejects its arguments or representations.
If we believe that an ad by Merrill Lynch against deregulating the financial sector inherently subverts (or “corrupts”) democracy because votes based on this or that reasoning and influences are pure but based on this or that reasoning and influences are corrupted, somehow un-democratic, and count as less inviolate as the former, that’s a pretty powerful argument against democracy itself. I have a hard time believing that any of you actually believe that, much less wish to try to codify that into a legislative morass defining which opinions or mechanisms/vehicles of disseminating them are simply too powerful to allow expression because…people might be persuaded to form an opinion based on them? That strikes me as a step away from disenfranchising stupid people or people who might be inclined to “vote wrong”.
Seconding Rojas, that is the interpretation that the law has more or less always had. Nobody has ever really said “corporations are individual citizens” and meant that as literally as you’re taking it—it’s more a metaphorical shorthand for the base idea that corporations are nothing more than collections of people associating for common purpose and, as such, that read of a corporation is no different from how you would legally interpret a union, a social club, a volunteer organization, an advocacy organization (say, the NRA, or the ACLU, or the Sierra Club), a media entity (newspaper, etc.), or any other organization in which people associate, organize, and then have that organization recognized as being such by the appropriate government agencies for the purposes of taxation and whatnot. All of that was barred by the provision struck down by Citizens United (remember, btw, that Citizens United was not GE—it was just a group of people associating together and pooling their money to produce a documentary in which they attempt to express a particular view of a candidate based on such and such issues). This blog, if it endorses or expresses a group opinion, could theoretically fall under the purview of a broadly-interpreted version of the provision struck down in CU. We are using servers and technology (paid for by money!) to associate and thus gain further influence and use all those things to express a POV meant to influence people’s political thinking. What separates us from Merril Lynch? They have a helluva lot more people backing their collective endeavor and a lot more financial support for it. But that is a difference in degree, not kind.
Comment by Brad — 2/8/2010 @ 12:28 pm
It’s only unreasonable if you believe that an individual’s free expression should be limited, and the court has already defined both individual and free expression more open than precedent allowed so that they can rule limits on individual expression as unconstitutional. If expression is free, I want to know how free. I want to know what laws this court deem valid and why.
I want to know how they reconcile the ideas of property law and the idea:
Speaking of which:
We just got through the most pro-corporate presidency in history in which the public was informed by a media that eliminated much of the opposition arguments against such folly as bankrupting tax cuts, financial deregulation, the Iraq War, etc… from serious discussion. Since the elimination of the fairness doctrine, we have seen how talk radio has become a right wing tool of disinformation which excludes liberal perspectives and, 3/4 of the time, the truth. So yes, ideally in an omniscient electorate which hears all sides equally “the electorate is not composed of chimpanzees, and mass media are not the exclusive provenance of the wealthy. If you don’t like the arguments that some organizations are funding, you might consider countering them with more persuasive arguments of your own,” is a valid practical argument.
But in the real world, the bull horn matters. Those who own the bull horn, and can purchase time on it to the exclusion of others, dominate the idea marketplace while the “more persuasive arguments” fester on the shelf in a small niche of the market.
It reminds me of the Roger Ailes argument http://www.youtube.com/watch?v=7PqHzVoTD5c
The argument, “the American people aren’t stupid” is not a reasonable one for allowing wealthy sides of a debate to dominate by using their money to buy the bull horn and spread supportive disinformation. On the internet, mass expression is practically free and therefore bull horn ownership is diversified and debate is lively.
The rest of the media doesn’t work that way and the myriad failures of that system are plain. One would think that we should move the rest of the media in the direction of the internet with more bull horn diversity.
This court decision doesn’t do that, which means the needs of the public will not be better served, be they chimpanzee or not.
Comment by thimbles — 2/8/2010 @ 10:27 pm