Corporations Cannot Have Natural Rights… Duh
yehudakatz.com
yehudakatz.com
The reason the court did not elaborate on its classification of corporations as "speakers" in the context of the First Amendment is that it's settled law, with a long history you could look up on Wikipedia, and none of the justices (even the dissenting ones) disagree with that classification. The dissent of the minority was based on the idea that even though corporations should enjoy a strong right to free political speech, the state's interest in preventing corruption and the appearance of corruption is great enough that it should be restricted in this case.
Addendum: No, I don't think this is a really good situation, although I doubt that the sky will fall; corporations already find ways to shovel about as much money as they might like at candidates. However, I think that it's just a consequence of two root problems -- the first being the great inequality of wealth (and therefore power) in our society, being nearly all concentrated in a rich elite; the second being the lack of serious and/or compulsory public financing for campaigns, so that wealth is usually a prerequisite to being elected.
Yes, the first is 'unreasonable search and seizure', the second is a 'bill of attainder', both things Congress is explicitly prohibited from enacting.
But the constitution doesn't establish a means for Congress to handle the creation of corporations: that's completely delegated to the states. While Congress can regulate their interstate actions (as if they were people), corporations don't really exist at a federal level. In early independent america they didn't exist at all.
This means that technically they cannot cast a vote in an election. But it also means that in practice the power they can exert to effect certain political outcomes must be constrained (otherwise votes of citizens will become even more meaningless because of the asymmetry of capital concentration).
You say "although I doubt that the sky will fall; corporations already find ways to shovel about as much money as they might like at candidates". Surely they were not actually able to push unlimited amounts of money to influence political outcomes, otherwise there would have been no reason for the Supreme Court to make the change. Or no?
I don't think that the Supreme Court decision to enable them to spend directly on candidates really took into account very much these existing abilities one way or the other, although I'm not a lawyer and I probably haven't studied it much more than you, so maybe I'm missing some chain of reasoning.
Lets look at the First Amendment, shall we?
"Congress shall make no law"..."abridging the freedom of speech, or of the press"
Hmm... doesn't say you have to be a person. In fact it seems to just say, Congress can't make a law... abridging speech. Not speech by people, or speech by companies, or speech by the media. Just speech. As in, anyone can say whatever. Especially about politics.
Justice Kennedy brilliantly points out: '"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." He also noted that since there was no way to distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs.' (via Wikipedia)
Honestly I'm not sure what's going to change... rich people and unions already dump money into politics, through various means.
1. The government could conduct searches and seizures at will of corporate property in disregard of the Fourth Amendment.
2. It could take corporate property without compensation in disregard of the Fifth.
3. It could deny the rights of free speech to the New York Times and other corporate entities in disregard of the First.
4. It could deny the right of religious expression to churches, synagogues and other religious organizations that are incorporated.
Nor, if the logic of this piece were to be followed that "state-created entities" should not be protected under the Bill of Rights, would any other legally-recognized entity be entitled to such protections.
How about:
1. Universities.
2. Schools.
3. Charities.
4. Partnerships, LLCs, trusts, and other business entities (want the government to confiscate the IP or other assets of your startup and say it owes you nothing because it is not you but a mere "state-created entity" from which it is taking the property?).
This list could go on and on at great length.
The analysis in this piece may be something that one may want to advocate as some sort of ideal but, in terms of law, history, etc., it is quite flawed. I think this is more a talking point in the recent uproar over the Citizens United case than it is a serious point of constitutional discussion.
In the case of corporation-owned property, the shareholders indirectly own the property itself. If the government takes away the property, the shareholders lose the property, and the government violates the takings clause insofar as individual humans have lost money.
In the case of corporate speech, the shareholders are not speaking at all. Instead, executives are speaking, protected from the consequences of their speech by the corporate shield. In comparison with the above case, nothing stops the individual executives or the individual shareholders from speaking, either by themselves or in concert with others.
What I'm suggesting is that the form of the corporation, which the government created to shield actors from the consequences of their actions, is not itself afforded the right to speech.
My comment was primarily directed to the concluding statements (quoted above) that posit a deductive argument in absolute terms and that conclude that the Bill of Rights "cannot apply" to corporations. This absolute position simply cannot be defended based on the law. I agree with you that the issue can get more complicated if the point is limited to the question of free speech. That doesn't mean, though, that the argument is not overstated, which I think it is.
By the way, the distinction you make between rights accorded to entities versus rights accorded to individuals through entities is an important one and a thoughtful discussion on this distinction may be found here: http://www.professorbainbridge.com/professorbainbridgecom/20....
The majority of shareholders selected the BOD, while the minority agreed to use their property (their share of the corporation) in furtherance of the goals of the majority as per the corporate charter.
To expand, corporations came into existence so that an entity other than an entity other than individuals could own property, and so that the individuals could take on risks without bankrupting themselves, right? Couldn't that be honored without treating corporations like individuals?
If corporations are so sanctioned, they must be given at least some enforceable rights by which they can legally protect and promote their interests (e.g., the right to sue). Were they denied such rights, then the only way, for example, that a corporate entity could sue to collect a debt would be for the lawsuit to be filed in the several names of the owners - a clearly unworkable way to proceed for any organization that becomes much more than a family-owned entity. Thus, the law creates what it clearly recognizes as a fiction and gives rights to the entities to act in their own names. The label put on this fiction is that of a "legal person" - that is, one that the law knows is not a living, breathing human being but that the law treats as having rights similar to those held by real individuals for the limited purposes for which this is needed.
As it does this sort of thing, the law does not treat corporations like individuals but only as "legal persons" insofar as that fiction is needed to give the entity rights consistent with its nature. But those rights certainly must include some of the constitutional rights that are needed to prevent the entity from having its property arbitrarily confiscated or its premises arbitrarily searched, etc., and that is why the law has always recognized such rights on behalf of the fictional "persons" it protects.
In other words, I think the law already does adapt the nature of the rights recognized to the nature of the "person" being protected and it is not therefore all or nothing (corporations cannot vote, for instance).
In theory, this "legal-personhood" method of protecting corporate rights could be scrapped in favor of another that did not call them "persons" but I think this would be a distinction without a difference as the goal of the law would remain trying to accord rights to legally-sanctioned entities consistent with their nature and nothing more.
What wasn’t legal was for another kind of corporation to use its general-treasury funds for the same purpose. The laws banning that kind of spending were based on the idea that when a for-profit corporation injects itself into the electoral process¹, it creates the appearance of political corruption if not actual corruption. After all, if the corporate directors authorizing the donation didn’t expect to get some kind of benefit from the politician in return, then they were wasting their stockholders’ money.
The majority in Citizens United acknowledged that preventing the appearance of corruption was a legitimate concern (which is why restrictions on direct donations to political parties and candidates were allowed to stand), but was so committed to the “treat corporations as people” principle that they didn’t see the point of restricting contributions from corporations.
¹I.e., corporations could run ads saying “nuclear energy is great”, but not “vote for Smith, because he supports nuclear energy”.
Of course. But, that thing in return might not be corrupt. Let's say you are a gun manufacturer and you give money to politicians who support the NRA. Corrupt? No more so than a gun owner making contributions for similar reasons. Beneficial? You bet.
I wasn't able to quickly determine if Citizens United itself is a 527, but they are affiliated with one (http://www.opensecrets.org/527s/527cmtes2.php?ein=&cycle...).
Corporations have separate rights and responsibilities from the people that own them.
No, but you can sue it and rule against it. Ever seen a ruling with a name like "Smith vs. Acme Inc."?
> Because corporations aren't people.
No, and corporations also can't speak. So free speech for corporations is an oxymoron if you don't mean free speech by the people that make up a corporation.
Not in a criminal court.
> No, and corporations also can't speak. So free speech for corporations is an oxymoron if you don't mean free speech by the people that make up a corporation.
The board of directors, actually, or, even more accurately, whoever holds a controlling share of the corporation.
Because a corporation isn't a person, and can't commit felonies. If it could, it'd be tried in criminal court.
> The board of directors, actually, or, even more accurately, whoever holds a controlling share of the corporation.
Yes, they have free speech, just as any minority shareholder as well and managers and all employees. The latter just don't have the same access to spend company resources on said speech.
And yet they should be granted all the rights of a person?
> Yes, they have free speech, just as any minority shareholder as well and managers and all employees. The latter just don't have the same access to spend company resources on said speech.
Any access to spend company resources. If you don't have a controlling interest, you can do just about jack and shit. I suppose you could embezzle or misuse funds though.
Its about money spent on speech. Free speech that you can't spend money on, isn't free speech. If a news paper was told that it was welcome to print a specific story, except you can't spend money on ink for it, it'd still be censorship.
> spend its money on political candidates, with a clear expectation of a positive ROI. How can that possible be legal
It's not, that's corruption. What you're referring to is rent-seeking, and it's been around as long as politics itself. The best solution is to give politicians less power, simply because there's less rent to seek.
You're also wrong about the draft bit: while the mechanism is different, private companies have found themselves taken over by the Federal government during e.g. WWII ... or at least the credible threat was made (most recently I read such a case WRT to the Manhattan Project, that threat was required to light a fire under one company that supplied them).
The point that I feel like those who are against it completely miss (and that anti-business people generally miss) is that corporations are just groups of people. It's people/turtles all the way down.
A quote that I found interesting, even though I do not agree 100%: "Until today, we had the right to free speech, and the right to assembly, but not the right to free speech when we were assembled. The Supreme Court has thankfully corrected that absurdity." http://www.coyoteblog.com/coyote_blog/2010/01/good-news-for-...
If the former is able to voice their political opinion without constraint (e.g. Enron spends, say $1 billion dollars in an election), they can effectively manipulate our democracy, drowning out citizens' political will. This is what just happened when the (conservative) Supreme Court overturned the limits on corporate spending in political campaigns.
Moreover, it now enables foreign corporations to manipulate election outcomes.
So it isn't so much "drowning out" citizen's political will as persuading them to exercise it in a certain way.
Consider the Prop 8 smear campaign in California by the Mormon Church.
Many of these people see exactly that point, and use it to assert that since corporations are just groups of people, and people have the right of free speech, no additional laws or protections are needed for corporations.
> However, corporations do not exist outside of government
If you take the "corporations are most certainly not people" position (and I do), then a corporation is an agreement between a group of people with a mutual economic interest. That's not a government creation, that's a naturally arising phenomenon. You don't need any sort of government to create a corporation, although contract law would help. But I don't think it's possible to have contracts without corporations arising naturally and organically.
Am I missing something? Obviously, the US has passed a lot of laws giving corporations particular rights, responsibilities, liabilities, privileges, etc. But that doesn't mean that corporations are government creations, in the same way that citizen's rights are natural right that are recognized rather than granted.
Corporation are special entities created by governments to shield the executives from persoanl responsibility for their actions as executives. In THAT capacity, I argue that the corporation does not inherit human rights because of the shield that protects the underlying individuals for responsibility for their actions.
A corporation is a legal person, but not a natural person. A corporation is not an agreement between a group of people. People can agree to form a corporation, but the corporation itself is not an agreement (merely the end result). For example, a corporation can act against the interests of the people who founded it.
The individual people involved, acting by themselves or as a group, are free to speak as much as they want, spending as much money as they want in the process. What they're not, I argue, is free to spend someone else's money through an artificial construct that shields them from all responsibility for their actions.
Rights and responsibilities are two sides of the same coin. If the human responsibilities assoiated with a han right are shielded, the human right is shielded too.
There are different lines of jurisprudence in First Amendment law depending upon the right implicated. A press case is going to be decided upon a different line of cases than a free speech case.
The corporate or non-corporate form is irrelevant. It's looking to the substance. There's a difference between freedom of the press and freedom of speech. Freedom of the press protects the ability to report the news. It's rooted in the the British government prosecuting those publishing stories critical of the government as seditious libel, giving rise to the maxim, "the greater the truth, the greater the libel."
Speech, in contrast, is the speaking of opinion. The Times did not do this in publishing the Pentagon Papers. There is a difference between a newspaper with corporate form publishing the news and a corporation such as ExxonMobil or Google effectively advocating for a specific candidate.
I think there's probably some way the other outcome could've been reached, but it would be trickier than I think a lot of people are arguing. It would have to be a narrow prohibition against direct electioneering by corporations, carved out as a First-Amendment exception due to the compelling government interest in free elections/etc. (similarly to how obscenity, libel, false advertising, and "false-light disclosure of private facts" are recognized exceptions). And then specific cases would have to be investigated to see which side of the line they fell on: for example, to determine whether Hillary: The Movie was a real movie, or pure electioneering disguised in a sham movie.
Corporations are not citizens.
There are other laws the government has passed that provide penalties as McCain-Feingold does. A key example is broadcast spectrum sales. The FCC has sold rights of public spectrum and provides criminal penalties for infringing on the use of that spectrum. This of course creates third party arbiters of content and has provably limited speech. Case in point: next week's SuperBowl will show an ad against abortion but has refused an ad for a gay dating site. Political ads are refused all the time by major broadcasters when they do not suit the content arbiters. I think the duplicity of the court lies in the cases they refuse to hear that should apply the same logic as this ruling. Does anyone know of examples of such cases that have been refused or ruled against?
1st amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
It is critical when we talk about free speech in the U.S. to understand that this freedom is limited to Congress not making laws restricting speech. It does not mean others cannot limit speech.
For example, the case with "Bong Hits for Jesus", the court did not have to rule in the same manner as Congress did not pass a law limiting this speech, but rather a specific school made the decision on controlling student behavior.
I've read that 28 or so states have laws which will come under wilting scrutiny now.
Where does it stipulate that this does not apply to groups with a shared financial interest? Why would anyone lean towards less free speech rather than more?
What "natural" rights do you have without government?