Others, such as senior Conspirator Eugene Volokh, are much better qualified than I am to comment on today’s important free speech decision striking down restrictions on campaign-related speech by corporations. I want to focus on the common claim that corporations aren’t entitled to free speech rights (and perhaps other constitutional rights) because they aren’t “real people.” That argument was reiterated in Justice John Paul Stevens’ dissenting opinion today:
Stevens hammers, more than once this morning from the bench on the principle that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
It’s true, of course, that corporations “are not human beings.” But their owners (the stockholders) and employees are. Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on. In this context, it’s important to emphasize that most media organizations and political activist groups also use the corporate form. As Eugene points out, most liberals accept the idea that organizational form is irrelevant when it comes to media corporations, which were exempt from the restrictions on other corporate speech struck down by the Court today. The Supreme Court (including its most liberal justices) has repeatedly recognized that media corporations have First Amendment rights just as broad as those extended to media owned by individuals. Yet the “corporations aren’t people” argument applies just as readily to media corporations as to others. After all, newspapers, radio stations, and TV stations “are not human beings” and they too “have no consciences, no beliefs, no feelings, no thoughts, no desires.” We readily reject this reasoning in the case of media corporations because we recognize that even though the corporations in question are not people, their owners and employees are. The same point applies to other corporations.
There are various other arguments for treating political speech by people organized as corporations differently from that by people using other organizational forms. I’m not going to try to address them all here. We can discuss them more productively if we first dispense with the weak but popular claim that corporations aren’t entitled to freedom of speech because they aren’t people.
UPDATE: I should mention that it’s irrelevant that the First Amendment specifically protects the freedom of “the press.” It does not specifically mention “press” entities organized as corporations. So if you believe that freedom of speech doesn’t apply to corporations because they “aren’t people,” the same point applies to freedom of the press. As co-blogger Eugene explains, “freedom of the press” is not a constitutional right for a particular group of people or organizations. Rather it is a right to engage in a certain class of activities (such as publishing newspapers and pamphlets), whether the person doing so is a professional member of the media or not.
Bruce McCullough says:
I certainly agree that if people who organize through unions are allowed to participate in the political process, through the actions of duly elected union leaders and their designates, then people who organize through corporations also should be allowed to participate in the political process through the actions of duly elected corporate board members and their designates.
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January 21, 2010, 5:16 pmIlya Somin says:
I certainly agree that if people who organize through unions are allowed to participate in the political process, through the actions of duly elected union leaders and their designates, then people who organize through corporations also should be allowed to participate in the political process through the actions of duly elected corporate board members and their designates.
Today’s decision applies to unions as well as business corporations. In fact, most unions are legally organized as corporations.
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January 21, 2010, 5:20 pmTTC says:
So there is no collective right to free speech or something? Might be interesting to square this with his dissent in Heller.
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January 21, 2010, 5:23 pmTTC says:
Did the ban apply to the various flavors of partnerships and LLC’s too?
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January 21, 2010, 5:24 pmJ. Aldridge says:
The trouble I think is coroprations are fictional entities with limited liabilities that are a creature of state law. The judicial power is silent on corporations even though they were well known.
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January 21, 2010, 5:26 pmTatil says:
However,the first amendment specifically mentions the press, not the other kinds of corporations. How is exempting “media” from restrictions have any bearing on how we should treat corporations in general?
I don’t know which side of this issue I would support, but it seems Supreme Court has just extended the definition of people to corporate entities. (The groups of people organizing themselves into corporations still had their own free speech rights.) I wonder if the “conservatives” will be attacking this decision as judicial activism and condemn it as another judicial intervention in legislation.
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January 21, 2010, 5:35 pmbyomtov says:
My feeling is that this overlooks the major agency problem associated with some forms of speech by some corporations.
A public for-profit corporation with lots of shareholders is sort of a voluntary association, true, but those who form it didn’t join for political purposes. My condo association is voluntary too, but I don’t want it endorsing political candidates, even candidates who support ordinances that make condos more valuable. I can do that myself, if I feel like it. So can shareholders.
Besides, the corporation is a “voluntary association” only in a very general sense. The “membership” changes every second, and lots of the members are unaware of their membership. Further, given the realities of corporate governance, the members have no meaningful control of the organization, so the speech decisions are made, not by the members, but by a small group of managers. To say that corporate speech is simply the speech of shareholders channeled through the corporation is just not true.
I think this is a case of trying hard to find a category two different things can both be shoved into, and then claiming that they are the same because there is a label that can be affixed to both.
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January 21, 2010, 5:37 pmObserver says:
Tatil beat me to it — the reason why “most liberals accept the idea that organizational form is irrelevant when it comes to media corporations” is because media is already protected by freedom of the press. Unless you’re arguing that freedom of the press should encompass non-media corporations, I just don’t see the logic of your argument.
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January 21, 2010, 5:38 pmJ. Aldridge says:
Remember Madison said Freedom of Speech and of the Press was not a “right” for anyone but to prove no power was delegated to Congress on the subject.
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January 21, 2010, 5:40 pmlibarbarian says:
Ok, we can dispense with that stupid argument and go on to others.
The simple fact is that getting the money necessary for re-election is the number one cause of the “corruption” in government. To get the money needed to run, a politician must give away many times that amount in public funds. Anyone who has the personal integrity to refuse to play ball soon finds that there is no shortage of potential challengers who are willing to sell out and that it’s hard to win when your opponent outspends you by wide margins.
How do you avoid bailouts of an industry that can elect or defeat candidates almost at will by virtue of their deep pockets?
I don’t know how to fix the problem„ but as long as the current dynamic prevails periodically “throwing the bums out” amounts to no more than bailing water on leaky ship.
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January 21, 2010, 5:40 pmsounds better in writing says:
Not interesting at all. The 2nd Amendment has the preamble, the 1st Amendment does not.
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January 21, 2010, 5:41 pmAnderson says:
Solution: equal donation limits for everyone, humans *and* corporations. No discrimination!
Why should I be less concerned about Bill Gates’s giving $100M to a campaign than about Microsoft’s doing the same thing?
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January 21, 2010, 5:42 pmlibarbarian says:
Further, given the realities of corporate governance, the members have no meaningful control of the organization, so the speech decisions are made, not by the members, but by a small group of managers.
Seconded.
Furthermore, we’ve seen how, in conflicts of interests between stockholders and management, the government routinely prioritizes the interests of management over the interests of stockholders. That should tell you whose interests are being advanced by the donations.
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January 21, 2010, 5:47 pmsounds better in writing says:
1. “Press” refers to the printing press, not to media corporations. Volokh has an article on this somewhere.
2. If the people have a right to “peaceably . . . assemble, and to petition the Government for a redress of grievances” then they arguably have a right to make such petitions as a collective. An assembly is by definition a collective.
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January 21, 2010, 5:48 pmsounds better in writing says:
Freedom of the printing press should encompass non-media corporations, yes.
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January 21, 2010, 5:51 pmPaul Zrimsek says:
If you believe that corporations can’t have free speech rights because they’re not people and therefore can’t have constitutional rights, then you must also believe that only the freedom of the non-corporate press is protected.
If you don’t believe that, then Prof. Somin isn’t talking to you at the moment.
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January 21, 2010, 5:52 pmObserver says:
Freedom of the printing press should encompass non-media corporations, yes.
Is there any authority from the past 100 years or so on this point? Eugene references authorities from the 18th and early 19th century, but I’m more interested in current Supreme Court doctrine (notwithstanding Citizens United) on the outer boundaries of “the press.”
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January 21, 2010, 5:57 pmIlya Somin says:
However,the first amendment specifically mentions the press, not the other kinds of corporations. How is exempting “media” from restrictions have any bearing on how we should treat corporations in general?
Yes, but it doesn’t specifically mention “press” entities that are organized as corporations. So if you believe that the freedom of speech applies only to “real people” and not corporations, the same can be said for freedom of the press.
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January 21, 2010, 5:58 pmbyomtov says:
2. If the people have a right to “peaceably . . . assemble, and to petition the Government for a redress of grievances” then they arguably have a right to make such petitions as a collective.
But corporations are not a collective for these purposes. Sure, if the neighborhood association wants to ask city hall to install a traffic light they can do that. But that is a very narrow issue, and presumes that the members approve of the idea. What if the head of the association starts spending association funds, against the wishes of some members, to print posters in support of a city council candidate?
There are two responses, I suppose: You can vote him out, and you can try somehow to recover the money. But neither of these is available in the corporate setting, and even if you could recover the funds the political damage would be done.
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January 21, 2010, 5:59 pmGordo says:
Let’s engage in a little “original intent” here.
Does anyone seriously think that the drafters of the bill of rights thought that the First Amendment should apply to corporations as well as individuals?
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January 21, 2010, 6:02 pmKen Chestek says:
“Does anyone seriously think that the drafters of the bill of rights thought that the First Amendment should apply to corporations as well as individuals?”
Quite to the contrary. Our Republic was founded in revolution against corporate power.
Does anybody remember the proximate cause of the Boston Tea Party?
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January 21, 2010, 6:10 pmJames N. Gibson says:
I remind the world (tilting at my windmill) that in “Heller” Steven’s stated that there are no individual rights in the first ten amendments to the Constitution, that they were collective in nature.
Steven’s Dissent Heller, Page 10
In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in the amendment it is only the right peaceably to assemble, and to petition the government for a redress of grievances, that is described as a right of “the people.” These rights contemplate a collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual.
How does he go from requiring there be a group of people to have merit/right to disavowing the group has any rights in just over one year.
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January 21, 2010, 6:13 pmIlya Somin says:
Does anyone seriously think that the drafters of the bill of rights thought that the First Amendment should apply to corporations as well as individuals?
That’s the wrong question. The right one is whether they thought that First Amendment should not apply to individuals using the corporate form just as much as it does to other individuals. Neither the text of the Amendment nor anything in the original intent and meaning distinguishes between the two categories of individuals. Rather, the First Amendment applies to all freedom of speech and press, regardless of the organizational forms used by those who engage in it.
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January 21, 2010, 6:17 pmTTC says:
Ayup, my thoughts exactly.
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January 21, 2010, 6:17 pmsounds better in writing says:
Also see Edward Lee, Freedom of the Press 2.0, 42 GA. L. REV. 308 (2008):
“Indeed, the freedom of the press historically meant the freedom of the printing press. In seventeenth and eighteenth century England, “press” referred to the technology of the printing press or, more generally, to the publishing of any material by the printing press….Samuel Johnson’s Dictionary of the English Language, for example, defined “press” in 1778 as “[t]he instrument by which books are printed.” No definition included any reference to the modern understanding of the press as agents who report news.
[. . .]
“At the time of the Framing, the term “the press” referred to the printing press. In fact, it was common to refer to the printing press simply as “the press.” Thomas Sheridan’s dictionary defined the press in 1780 as “the instrument by which books are printed”; no
definition of “press” included journalists or news reporters as a collective group or institution.”
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January 21, 2010, 6:17 pmIlya Somin says:
Our Republic was founded in revolution against corporate power.
Does anybody remember the proximate cause of the Boston Tea Party?
The cause of the Boston Tea Party was trade regulations enacted by the British government. Some corporations benefited from those regulations, others were harmed by them. There is no evidence that the Tea Partiers opposed corporations as such, or that they would have been less angry had the beneficiaries of the British regulations been sole proprietors rather than corporations (as in fact most of them were).
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January 21, 2010, 6:19 pmBlue Neponset says:
Can’t the freedom of the press refer to the employees of the corporation and not the corporation itself? After all the New York Times Corporation doesn’t write articles, its employees do.
Political speech of corporations isn’t funneled through individuals like that.
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January 21, 2010, 6:20 pmCrunchy Frog says:
Oh, I dunno... the Stamp Act?
The real reason being that the founders were pissed off at English mercantilism and were looking for an excuse for rabble-rousing.
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January 21, 2010, 6:20 pmRecovering Law Grad says:
“Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on.”
Human beings do not evolve into corporations, as if corporations were some sort of naturally occurring phenomena. Corporations did not come from God or nature — they came from human beings and, more specifically, from the statutory schemes created by state governments.
It’s even absurd and tautological to ponder what rights corporations should have — since the term “corporation” is simply representative of the bundle of rights put together by man. Corporations “should” have the rights they are given by statutes.
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January 21, 2010, 6:20 pmsounds better in writing says:
Nice catch. I withdraw my earlier response to TTC that it wasn’t “interesting” (or inconsistent) of Justice Stevens to flip-flop in such a telling manner.
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January 21, 2010, 6:22 pmTTC says:
The tea party was a tax revolt, a revolt against government power. Maybe you’re thinking of the Coercive Acts, but that was to secure compensation of damages for the East India Company’s drowned tea, but it had little to do with the corporate form or power inherent only to corporations.
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January 21, 2010, 6:24 pmDon Miller says:
If we are going to remove free speech from corporations, but exempt media corporations,
Give me a working definition of a media corporation.
How often do they have to publish, what percentage of their business needs to be media related, does entertainment media count or only news organizations? If it is only news organizations, can they be specialized?
For example the NRA is organized as a corporation. They have two magazines that they distribute. Can the government regulate the content of the magazines prior to an election? Any election or only Federal elections? Or are their magazines exempt because it is Press?
What if the corporation runs a website that publishes only news. Can they run political advertising or make preferences known on their website? What if they use a Facebook account for that type of communication?
Do they only count as a media corporation if that is how they make their money? What if they don’t make money anymore? Is the New York Times a media corporation anymore? They haven’t made a dime in years
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January 21, 2010, 6:27 pmIlya Somin says:
Can’t the freedom of the press refer to the employees of the corporation and not the corporation itself? After all the New York Times Corporation doesn’t write articles, its employees do.
Political speech of corporations isn’t funneled through individuals like that.
Business corporations typically pay other people to do the actual speaking and writing. The same is true of the New York Times. I don’t see why it should matter whether those people are employees or independent contractors. In any event, the corporation-employee distinction doesn’t make sense as an organizing principle for First Amendment law. After all, both the NY Times and other corporations only pay for their employees to engage in such speech as the owners are willing to finance.
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January 21, 2010, 6:27 pmIlya Somin says:
I should note that even the NY Times and other media firms also pay independent contractors to write some of their pieces. I’m one such person myself, having written numerous op eds for newspapers even though I wasn’t one of their employees.
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January 21, 2010, 6:29 pmTTC says:
Re your earlier comment, the free press clause is sure behaving like the preamble in the 2cnd in this debate.
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January 21, 2010, 6:29 pmJ. Aldridge says:
England attempted to raise revenue through the “Regulation of Commerce” which the regulation of commerce was not understood to permit.
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January 21, 2010, 6:30 pmIlya Somin says:
If the neighborhood association wants to ask city hall to install a traffic light they can do that. But that is a very narrow issue, and presumes that the members approve of the idea. What if the head of the association starts spending association funds, against the wishes of some members, to print posters in support of a city council candidate?
There are two responses, I suppose: You can vote him out, and you can try somehow to recover the money. But neither of these is available in the corporate setting, and even if you could recover the funds the political damage would be done.
Actually, shareholders do in fact have the power to vote out corporate board members. They also have the power to invest only in those corporations that either don’t engage in political speech, or only engage in speech that the investor in question approves of. In that respect, they are no different from other organizations that people can contribute money to, and that may engage in political speech the contributors don’t like. Indeed, it is actually easier for corporate stockholders to change board policies than it is for contributors to charities and political action committees to change their political positions.
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January 21, 2010, 6:32 pmBlue Neponset says:
Despite being an independent contractor you are still a person. Your work, the work of a person, is what is being protected.
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January 21, 2010, 6:32 pmArthurKirkland says:
If corporations are to be treated as people, why not treat people as corporations? I’ll take limited liability for life, Alex.
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January 21, 2010, 6:33 pmMike McDougal says:
I will now proceed to form 1,000 LLCs.
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January 21, 2010, 6:34 pmKen Chestek says:
The East India Trading Company was a front for the British government. Everybody understood that at the time. The actions of that trading company were seen as part and parcel of the British power over the colonies.
Corporations were pretty much reviled at the time of the Revolution.
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January 21, 2010, 6:42 pmBrian says:
I think this post transforms the point that “corporation are not people” into a straw man. This point is necessary for establishing the discretion to limit corporate rights under the First Amendment, but it is not sufficient to establish a rationale for doing so. Yet I think this post interprets this argument as a reason, in and of itself, for limiting corporate speech rights. I don’t think anyone believes this argument to be sufficient cause for limiting corporate speech. It is merely the condition precedent for doing so.
It also is patently clear that corporations are not, and cannot be, equivalent to natural persons for all purposes at law. If they could, then whom should go to jail when a corporation is guilty of a crime? Does the corporation become a conspiracy and all shareholders guilty? Should corporations be given citizenship? Should they have the right to vote?
My point is that the statement, “Corporations are people too,” is unworkable. They are not people, and cannot be considered equivalent to people. The proper analysis, therefore, should probe the areas where we should and should not treat corporations the same as natural persons.
Speech happens to be one area where corporations it is relatively feasible to treat corporations relatively equally to natural persons. The question should whether we want to do so. If you simply say, “corporations are simply associations of people and therefore should have full rights,” your premise is flawed and you fail to engage in the appropriate analysis.
Secondly, the point that, “corporations are not people,” serves to underscore a second point, i.e., that all corporations are composed of natural persons who have full speech rights. Where is the harm, therefore, if corporate rights are abridged? In a sense, this is the reverse of the conservative argument against the capital gains tax on the grounds that it is double taxation. Isn’t this double speech? This all goes to Justice Stephens point that corporations already have many vehicles for expression without necessarily having equal rights with natural persons.
One last point, conservatives often say that the Constitution creates individual rights, not group rights. Doesn’t this argument that shareholders have group-rights, i.e., corporate rights, conflict with that position?
Okay, one more: I don’t think it is true that most unions are corporations. In my experience, most unions are unincorporated associations. Indeed, the LMRDA requires that unions be democratic organizations, which makes the corporate form difficult.
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January 21, 2010, 6:45 pmlibarbarian says:
Indeed, it is actually easier for corporate stockholders to change board policies than it is for contributors to charities and political action committees to change their political positions.
Do you have any idea how hard it is to ever get to a stockholder vote if the board doesn’t want to have one?
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January 21, 2010, 6:47 pmzuch says:
Prof. Somin:
They don’t. But the legal entity known as the corporation doesn’t have to have this panoply of rights (any more than it has the right to vote, also a Constitutional right) in order for them to exercise their rights the same as anyone else. In the same way as they can all go out and vote themselves, they can all go out and get up on a soap box and shout to their heart’s content.
Cheers,
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January 21, 2010, 6:53 pmAnderson says:
I will now proceed to form 1,000 LLCs.
Other areas of law allow for piercing sham corporations; not sure why this would be different. Whether anyone would have the incentive to police ‘em is another matter.
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January 21, 2010, 6:53 pmOff Kilter says:
Justice Stevens: the principle that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”
If Stevens truly believed that, it’s unclear what he’s worrying about. Why would a corporation spend money to support an idea, candidate, or opinion if it had no beliefs, feelings, thoughts, or desires?
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January 21, 2010, 6:59 pmzuch says:
Prof. Somin:
This is irrelevant. Congress may regulate or prohibit activities by some but not by others (as they do in establishing SPs, LLCs, non-profits, and other forms of “organisation”) as they see fit, provided that nothing they do violates the Constitution. They are under no per se restriction from treating differently the different types.
Cheers,
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January 21, 2010, 7:01 pmzuch says:
Prof. Somin:
Would these have to do with that “freedom of the press” thingie in the First Amendment?
Cheers,
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January 21, 2010, 7:03 pmbyomtov says:
Actually, shareholders do in fact have the power to vote out corporate board members.
No, in fact they don’t. I mean, I understand that the law books say they do, but the facts are that they don’t. It is extraordinarily difficult and monstrously expensive to try to vote out a board member, and the corporation fights you with shareholder money.
They also have the power to invest only in those corporations that either don’t engage in political speech, or only engage in speech that the investor in question approves of.
This is extremely limited and often non-existent since, as I pointed out elsewhere, investors often do not know what shares they own orwhat political activities the companies are engaged in. Besides, why should investors be required to sell, or avoid, profitable investments to keep management from using company money for political purposes? You’re suggesting that if the company steals a dollar from me the appropriate response is to sell my shares.
In that respect, they are no different from other organizations that people can contribute money to, and that may engage in political speech the contributors don’t like. Indeed, it is actually easier for corporate stockholders to change board policies than it is for contributors to charities and political action committees to change their political positions.
No. It’s not easier. It might not be any harder, but it’s certainly not easier. Frankly, you comments on corporate governance betray an extreme naivete about how it actually works.
Also, you overlook a few things. First, I doubt anyone contributes to a PAC with the idea of getting them to change their political positions. That would be pretty foolish. As for charities, few other than those that are explicitly advocacy groups take political positions, and they certainly don’t support candidates. In any case, there is no cost to withholding further contributions, as there is to changing investments.
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January 21, 2010, 7:03 pmzuch says:
Prof. Somin:
OK. What about this:
I repeat my question above.
Cheers,
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January 21, 2010, 7:07 pmzuch says:
Interesting. Seeing as corporations didn’t exist at the time of the Founders.... ;-)
Cheers,
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January 21, 2010, 7:11 pmzuch says:
I believe you are mistaken. But feel free to quote the passage that says this.
Cheers,
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January 21, 2010, 7:20 pmArkady says:
Could one argue that SCOTUS in this decision has given its imprimatur to rent-seeking?
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January 21, 2010, 7:23 pmShelbyC says:
Zuch, what are you asking? Media corporations and individuals have both freedom of the press and freedom of speech protections. If 1A rights didn’t apply to corporations, the media corporations would have the right to neither freedom of the press, nor to freedom of speech, correct?
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January 21, 2010, 7:24 pmJames N. Gibson says:
How about the East India Company as a corporation, formed 1600.
Or the Hudson Bay Company, formed 1670
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January 21, 2010, 7:32 pmjukeboxgrad says:
libarbarian
Thank you for making this key point. We have the best government money can buy, and this becomes more and more obvious every day. What concerns me greatly is that not many people seem to be greatly concerned.
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January 21, 2010, 7:51 pmpc says:
Do 13th amendment protections also apply to corporations?
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January 21, 2010, 7:52 pmTTC says:
The argument, at least I understand it, is that you can’t have group rights without individual rights. But you can have group rights when a collection of people exercise their individual rights in some fashion.
To me, the concept of group rights is pretty nonsensical. Most of the time the group never gains any substance beyond being some sort of platonic ideal. Or it becomes a catch 22, like in the DC and Chicago gun bans, where they put forth that it’s a group right, but never allow the groups to form.
The BPCFA leads to some silly results. Like the CU case. I can’t team up with my friends and acquaintances to make and distribute a documentary film (which costs much money), but if I’m wealthy, I can self finance, and do it all on my dime and be legal.
Is that really what we want?
I think there is a crowding out effect with the current regulatory scheme. Think how much knowledge and technical ability it takes to navigate the sea of regulations and red tape. It limits and channels speech to those with connections to party apparatus or those that can afford to pay for professional help.
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January 21, 2010, 8:05 pmMark Field says:
Excellent comment, Brian. I agree.
Some quick background on corporations. Yes, corporations did exist before the founding. They were not available to just anyone (that didn’t become the rule until 1840 or so), but were generally granted by legislatures as monopolies for particular purposes (a toll road, for example, or to build a canal). Because they were monopolies in almost every case (probably all cases, but I’m hedging just to be safe), they were extremely unpopular.
The original Tea Party was triggered when the British decided to reduce (yes, reduce) the tax on tea. This had the effect of undercutting the merchants like John Hancock who smuggled tea and benefiting the (very unpopular) East India Company. It was a perfect way for radicals opposed to taxation without representation to combine with merchants whose money was at stake.
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January 21, 2010, 8:08 pmsounds better in writing says:
“The First Amendment’s guarantee of ‘the freedom of speech, or of the press’ prohibits a wide assortment of government restraints upon expression, but the core abuse against which it was directed was the scheme of licensing laws implemented by the monarch and Parliament to contain the ‘evils’ of the printing press in 16th– and 17-century England.” Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002).
“Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order — political and religious — devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally were unknown in the pre-printing press era. . . . The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. . . . The very task of including some entities within the ‘institutional press’ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England — a system the First Amendment was intended to ban from this country.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 800–801 (1978) (Burger, C.J., concurring).
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January 21, 2010, 8:09 pmTTC says:
Double speech? lol
The double taxation issue is with dividends, not capital gains. Corporation makes a profit, that gets taxed, corporation passes on the profit to the shareholders as a dividend, shareholders get taxed on the dividend. This is ameliorated somewhat buy the dividends received deduction for corporations, and individuals can form sub chapter S corporations, but those are extremely limited.
This is why entity types like LLC’s and novelties like MLP’s and publicly traded partnerships are popular.
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January 21, 2010, 8:14 pmShelbyC says:
It’s an issue with both; Remember that shareholders profit from corporate profits in two ways, through dividends or
through investment that increases the stock price. Either way, the shareholder is taxed when the corporation makes money, and again when he receives a dividend or when he re-sells his stock at a higher price.
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January 21, 2010, 8:19 pmzuch says:
They existed under British law, not U.S. law. The form of “companies” (or “corporations”) at that time bears little resemblance to corporations today; the idea of limited liability, for instance, doesn’t predate the Constitution or BoR, and in many places, early corporations were instituted by a charter from the government or even legislation.
Cheers,
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January 21, 2010, 8:20 pmptt says:
“Originalists” purport to be able to put themselves in the mindframe of the founders. If Freedom of Speech was meant to apply to individuals and to all corporations, they why reiterate that right for corporations which fall into the category of “press”?
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January 21, 2010, 8:24 pmzuch says:
Let me rephrase:
“If ‘freedom of speech’ rights didn’t apply to corporations, the corporate press would have neither the right to ‘freedom of the press’ or ‘freedom of speech’.”
How do you get that?
Cheers,
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January 21, 2010, 8:24 pmptt says:
It is double speech for those individuals whose views coincide with the views of the corporations in which they have an ownership stake. It’s neutralized speech for those individuals whose views disagree with the views of the corporation.
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January 21, 2010, 8:27 pmShelbyC says:
Ok, so are you arguing that freedom of the press applies to corporations but freedom of speech doesn’t?
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January 21, 2010, 8:27 pmThe Volokh Conspiracy » Blog Archive » Corporate Rights and Property Rights are Human Rights — Why it’s a Mistake to Conflate a Right with the Means Used to Exercise it says:
[...] my last post, I explained why it’s a mistake to deny free speech rights to people organized as corporations on [...]
ptt says:
What two categories? Non-corporately-organized individuals who have rights and corporately-organized individuals who, until today’s ruling, had no rights?
Individuals have rights as individuals, regardless of what corporation they belong to (except, of course, that individuals risk being fired for having political viewpoints unpopular with management).
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January 21, 2010, 8:34 pmLN says:
Brian’s post is very good and I would also like to concur. Saying “corporations are people too” proves nothing in itself, because there are plenty of instances in which we do not in fact treat corporations like people. No corporation has ever spent the night in jail, for instance. Do corporations have the right to practice their religion as they see fit, by firing people of a particular faith for example? We have to actively decide what the appropriate treatment should be; the idea of a natural law of corporations is silly.
And the emphasis that corporations are just groups of people seems to suggest that it’s not important for corporations to have free speech rights. I can think of why a large insurance company might need the right to speech — basically because the company may have interests that are separate and distinct from any individual’s interests. If a corporation is just a group of people, then those people already have speech rights and no additional “right” is needed. It’s precisely because a corporation is not just a group of people that it may want to make political contributions, etc.
On the subject of double taxation, isn’t the issue with double taxation of dividends that it artificially distorts investment decisions by altering certain returns? Otherwise we have double taxation all the time: I get taxed on my income, and then when I buy something with my after-tax money that gets taxed too, etc etc.
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January 21, 2010, 8:50 pmBrett Bellmore says:
Corporations are people in the same sense Soylent Green is: They aren’t persons, but they’re made up of them. There ain’t nothing else there to silence.
I must say, I’m amazed at how complete the liberal rejection of freedom of speech has become. And all it took was the thought that they’d be the ones doing the censoring.
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January 21, 2010, 9:04 pmShelbyC says:
Nobody’s saying that corporations are people, they are saying that the people who make up corporations are people. Isn’t the whole point of punishing corporations that engage in electioneering communications to in fact punish the corporation’s shareholders, so they will make sure the corporation doesn’t engange in speech that it would engage in otherwise?
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January 21, 2010, 9:10 pmPendulum says:
There are excellent points being made my a number of the commenters.
I suppose I’d add: if corporations can be wholly abolished by state law (or presumably by Congress through the commerce clause power), triggering no constitutional problem, how can corporations have any substantive rights at all? Doesn’t the lack of a right to exist for the entity imply the lack of any right for the entity to engage in a particular activity?
Aren’t the corporation’s “speakers” (managers, owners, employees) equally free to speak their minds and money as part of an entity that doesn’t receive special tax and limited liability privileges from the state?
No one’s saying that 1000 shareholders of X Corp can’t buy political ads as a voluntary partnership. All we’re saying is, if you wish to enjoy special tax and liability benefits, certain conditions of your doing so must be met. What’s the problem with that? (Not a practical problem — a philosophical one.)
(As a personal aside, I’ve radically shifted my position on this issue the more and more I’ve been exposed to it. I previously supported corporate free speech rights, but I now have the tentative opinion that they’re entirely unjustified).
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January 21, 2010, 9:15 pmMichelle Dulak Thomson says:
Exceedingly OT, but if jukeboxgrad would care to provide his/her e-mail address to one michelledulak at the despised entity known in full as America Online, she would appreciate it very much. (I hate uncompleted arguments, and this particular one is keeping me up at night.)
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January 21, 2010, 9:24 pmJames N. Gibson says:
But your comment was they didn’t exist in the time of the founding fathers, who, until 1776, lived under British law.
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January 21, 2010, 9:25 pmLN says:
I guess I really don’t understand this argument, ShelbyC. If the shareholders want to engage in a particular communication, they can do so, because they are people. There is not much of a loss here if you really think that corporations are just associations of people, end of story.
A corporation’s ability to engage in communications is important precisely because a corporation has interests that are not identical to the interests of its shareholders. An advertising company may want to affect some government regulation because that regulation has an impact on its profits. The shareholders of an advertising company have some interest in the profits of the company, but they also have other interests, some of which may conflict with their interests as shareholders in this particular company.
On a fundamental level, corporations are legal fictions and do not have “natural” rights. Secondly, the argument that corporate speech is just a particular form of expression for individual speech is specious; we have not granted corporations “freedom of religion” for example, precisely because we are interested in protecting individual freedom of religion. An individual is entitled to cutting off all contact with people of differing faiths; IBM is not entitled to do this, even though IBM is made up of individuals. This blurring of the distinction between corporations and individuals actually obscures the issue instead of clarifying it.
By the way, I am not presenting a knock-down argument against corporate campaign contributions. I am just saying that most of this talk of rights is a dodge, a way to avoid considering the consequences of various regulations while standing on the high ground of “principle.” We should look at the consequences. That is why we have corporations in the first place: apparently the world is a better place with them in existence. It is not because corporations have a sacred “right to life.”
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January 21, 2010, 9:31 pmMartinned says:
They did exist, in the form of chartered and statutory companies, but the concept of legal personality did not, at least not in any form we would recognise. Before 1844 (Louisville, C. & C.R. Co. v. Letson), Supreme Court case law required that at least one shareholder of the defendant company was a citizen of a state different than the state of the plaintiff, in order to establish diversity jurisdiction. Add to that how few corporations even existed during the founding era, and you get a sense of why corporate speech would not have even come up when they were talking about the first amendment.
That said, in all honesty this is only a phony fight. In the end this whole part of the dispute is about doing something about companies buying members of Congress. Since the official rule is that money is speech, it cannot be regulated in its entirety, so they tried to regulate it for corporations only.
The Corporate Governance concern is a valid one, but as noted by Justice Kennedy the law under consideration here also extends to non-profits and single shareholder corporations, where this problem wouldn’t normally exist. To fix that problem, the better solution would be some change in (state) company law, in order to give the shareholders a greater say in corporate political donations somehow.
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January 21, 2010, 9:51 pmbyomtov says:
If a corporation is just a group of people, then those people already have speech rights and no additional “right” is needed. It’s precisely because a corporation is not just a group of people that it may want to make political contributions, etc.
Excellent point.
It is foolish (the most polite word I could stand) to pretend that corporate shareholders are in agreement about politics, and that corporate speech is merely individual speech aggregated. Fantasyland.
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January 21, 2010, 10:05 pmShelbyC says:
LN, this just isn’t true. Individuals or partnerships can’t refuse to hire, say, jews any more than IBM can. And to the extent that corporations can practice religion, (hey, they can speak) I don’t think they can be prohibited from practicing religion, or forced to practice catholocism, or whatever.
As you say, corporations are a legal fiction, and are treated in court as if they have interests for convenience. It’s really their shareholders that have interests. And if you don’t treat them in court as if they have rights, you will violate the rights of there shareholders. You wouldn’t argue that corporations don’t have the right to due process, would you? Can the government take the assets of a corporation without just compensation?
And if corporations don’t have first amendment rights, can Congress ban only expenditures on electioneering communications that, say, advocate the election of Democrats?
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January 21, 2010, 10:07 pmShelbyC says:
But that’s true for any form of expressive association, isn’t it?
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January 21, 2010, 10:10 pmzuch says:
What was the law when they wrote the BoR?
Not to mention, “corporations” then were quite different entities than today’s corporations.
Cheers,
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January 21, 2010, 10:13 pmJames N. Gibson says:
I think the real problem is your narrow interpretation of the meaning of corporation in the time of the founding fathers. But I really don’t want to get into another fight like the one over the meaning of the word Militia in the founding era.
I truth, and to get back to the present, the issue to me is why are the “for profits” restricted while the “Non-profits” are not even though the “Non-profit” could in fact be funded by a silent for-profit entity or even a foreign entity.
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January 21, 2010, 10:15 pmzuch says:
No, But I’m saying it would not be out-of-hand unreasonable if “freedom of the press” applied to press corporations but not necessarily “freedom of speech”.
First, BTW, I think you have to distinguish between what “freedom of speech” and “freedom of the press” means. Why two? How do they differ? What was the motivating impetus for each? What features of each were deemed essential? Which important?
Cheers,
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January 21, 2010, 10:19 pmzuch says:
Just because Congress is free to regulate both (if we assume that to be true) doesn’t mean they have to regulate both the same on pain of committing a constitutional violation.
Keep in mind that policy considerations are not what is at stake here. What is wise is not always legal (and conversely).
Cheers,
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January 21, 2010, 10:24 pmLN says:
Individuals or partnerships can’t refuse to hire, say, jews any more than IBM can.
I believe that the restriction on hiring discrimination kicks in when you have 15 employees.
Do corporations have the right to vote?
I very much appreciate your argument about the shareholders being harmed by restrictions on corporate speech — in my view, this is getting at the heart of the matter, because you are at least considering the consequences of regulation (as opposed to Somin, who seems content to focus purely on abstract questions of sacred inviolable rights). And yes, restrictions on corporate speech could very well reduce shareholder profits — presumably corporate speech has the goal of increasing profits. (It should.)
But at least now it seems reasonable to point out that we are not all equal corporate shareholders of the American economy. And that what is good for some people may be bad for other people. I don’t actually have a strong position on the issue; I just found these “inalienable rights” arguments silly and distracting.
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January 21, 2010, 10:30 pmbyomtov says:
ShelbyC,
But that’s true for any form of expressive association, isn’t it?
I don’t think so. Some expressive associations, like advocacy groups, exist primarily to promote a specific point of view on political questions. It’s true that not all ACLU members, for example, are in political agreement, but they do agree, broadly, on the issues addressed by the ACLU.
I think there’s a tricky problem here of narrow vs. broad. If a technology corporation, for example, lobbies in favor of some sort of tax break for R&D, that’s narrow advocacy plainly related to its business. But suppose it supports a candidate who favors the same tax break. Now it is supporting a whole package of positions, some or many of which may be anathema to its shareholders. What if the candidate is strongly pro-choice, say? No doubt, if we’re talking about a publicly held corporation, many of the shareholders would oppose that candidate, potential tax break notwithstanding.
Should corporate management be able to spend their money supporting such a candidate?
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January 21, 2010, 10:41 pmRuss says:
speech decisions are also made not by the people, but by “managers” or elected officials.
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January 21, 2010, 11:46 pmDJ says:
A simple nexus of contracts. Between people.
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January 22, 2010, 12:29 ampwedza says:
free speech or excessively funded..?
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January 22, 2010, 12:39 amSimon Jester says:
Remember how we all stopped smoking when cigarette ads were banned from television? And today, we buy alcohol and pour it into glasses when we hang out with our friends, but we never sip it (because depictions of drinking are also banned from television ads).
I’m sure that after CU, we will all vote for whichever candidate appears on television more often.
Isn’t that how it works?
;->
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January 22, 2010, 12:45 amTweets that mention The Volokh Conspiracy » Blog Archive » People Organized as Corporations are People Too -- Topsy.com says:
[...] This post was mentioned on Twitter by Mollie Hemingway, Greg Pollowitz, Cindy Cooper, Rick Wilson, James Rothstein and others. James Rothstein said: People Organized as Corporations are People Too http://bit.ly/7QplcR [...]
LN says:
And tobacco companies were thrilled with the banning of cigarette ads, and didn’t bother to waste any money to “speak” about the issue, because there is absolutely no relationship between advertising and reality.
Advertising is a giant waste of money, the basic proof that markets are not efficient, because companies do engage in advertising even though anyone with any sense realizes that it’s a complete waste of money.
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January 22, 2010, 1:02 amIlya Somin says:
Congress may regulate or prohibit activities by some but not by others (as they do in establishing SPs, LLCs, non-profits, and other forms of “organisation”) as they see fit, provided that nothing they do violates the Constitution. They are under no per se restriction from treating differently the different types.
THe point is that whether it “violates the Constitution” does not depend on whether the people in question are organized as corporations or in some other form.
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January 22, 2010, 2:17 amIlya Somin says:
you are at least considering the consequences of regulation (as opposed to Somin, who seems content to focus purely on abstract questions of sacred inviolable rights)
The post specifically focuses on just one argument for restrictions on corporate speech (that corporations are not people). I specifically said that I wasn’t trying to address the full range of arguments for and against corporate speech regulation.
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January 22, 2010, 2:19 amJoe says:
Ilya says:
Corporations are not “human beings organized as corporations.”
Unlike the other business enterprises you mention — a sole proprietorship or a traditional (i.e., UPA) partnership — corporations are endowed with “legal personhood.” That is to say, corporations are envisioned as a separate legal entity distinct from their shareholders, directors and managers. And this legal personhood is the basis for recognizing the separate rights of corporations in the first place.
There is really no need to recognize the constitutional “rights” of a traditional partnership or sole proprietorship, because according to state law, there is no such person/entity as a traditional partnership or the sole proprietorship. The only relevant “people” in these enterprises are humans. So the rights of the entity ought to be no less and more than the sum of the rights of its members.
Hence, your argument here appears to be squarely at odds with the very theory that forms the basis for granting a corporation any legal rights at all.
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January 22, 2010, 2:51 amTom says:
zuch: Interesting. Seeing as corporations didn’t exist at the time of the Founders.... ;-)Cheers,
Of course corporations existed at the time of the Founders. Massachusetts itself was a corporation, the colony owned by the Massachusetts Bay Company. Corporations existed before the Revolution and they existed after the Revolution.
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January 22, 2010, 9:22 amJ. Aldridge says:
I like that: J. Aldridge, Inc.
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January 22, 2010, 11:37 amRonald H. Jensen says:
An argument has been made that newspapers would be protected even if they are not considered “persons” since the First Amendment does not limit its protection to persons. However, the First Amendment applies only to the federal government. The First Amendment is applied to the states through the Fourteenth Amendment which prohibits the States from depriving any “person of life, liberty, or property without due process of law.” Thus States are only prohibited from denying or limiting “freedom of the press” only to persons. If corporations are not considered “persons” the states would be free to prohibit or limit “speech” by newspapers, movies, etc. which are formed as corporations.
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January 22, 2010, 12:38 pmAJN says:
I assume everyone realizes:
(a) that they are arguing about definitions which, as everyone knows and as has been said before, are neither right nor wrong but merely resolutions to use words in a different way. “What is a corporation?” Or, as has been pointed out before, many questions that appear to be metaphysical are merely a matter of definitions. “If a tree falls in the forest and there is no one around, is there a sound?” Define “sound”.
(b) that they are arguing by analogy, which means they are using value judgements rather than logic or history.
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January 22, 2010, 12:57 pmDarkHelmet says:
Let’s look at the text:
“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.”
Now I’m not a lawyer, but it seems to me that this bit of the Constitution prohibits Congress from making any laws that abridge the freedom of speech or the press. Maybe I’m too literal minded. Still, even with my reading glasses on I can’t see any reference to who or what is doing the talking or operating the printing press. The 1st amendment doesn’t give people rights (or corporations or autonomous collectives.) It PROHIBITS Congress from passing laws that restrict speaking and publishing. McCain-Feingold and all of its scrofulous predecessor laws are unconstitutional.
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January 22, 2010, 2:06 pmzuch says:
Would seem to have been part of the problem for Coakley in Massachussets. And you should include “Cosmopolitan” with “television”.
Cheers,
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January 22, 2010, 3:03 pmzuch says:
My point (here and elsewhere) is that nothing in the laws of corporations or federal campaign law prohibits any or all people who are corporation owners from exercising their free speech rights in any way differently from others. As Anatole France said, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges....” ;-)
Cheers,
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January 22, 2010, 3:08 pmzuch says:
In fact, this was one of the original reasons for incorporation; the entity survives the death or departure of the individuals who originally constituted or composed it, a feature that appeared long before our corporations with “personhood” and shareholder immunity.
Cheers,
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January 22, 2010, 3:12 pmShopfloor » Blog Archive » Freedom to Publish Preserved says:
[...] But first, another important point made clearly by Ilya Somin at the legal blog, Volokh.com: “People Organized as Corporations are People Too.” [...]
Mark Field says:
Yes, you’re too literal minded. Congress passes numerous laws which “abridge” freedom of speech: obscenity laws, for example, or fraud laws. Nobody, not even the most ardent free speech defenders, thinks we should read the 1A that literally. In consequence, there’s no reason to suddenly start doing so in this particular case.
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January 22, 2010, 3:24 pmPubliusFL says:
Corporations don’t have limited liability. You can sue a corporation for its actions all you want. Owners (shareholders) of corporations have limited liability for the corporation’s actions. In that respect, treating people as corporations (limiting the liability of their owners) is foreclosed by the 13th Amendment.
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January 22, 2010, 4:27 pmIleene Crane-Franks says:
Mark Field:
Congress passes laws about obscenity and fraud, or state and local jurisdictions do? If so, under what authority?
Perhaps the better question is “Has Congress been passing laws to bridge freedom of speech when it is expressly prohibited from doing so in 1A?”
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January 22, 2010, 5:35 pmJoe Veenstra says:
I have a question with regard to the comparison between the rights of unions and the rights of corporations to exercise their right to free speech. Don’t union members have a right to “opt out” of the political speech made by unions and get their dues back for that part of the expense of the “collective” speech made by the union? Should the same be true for (minority) shareholders in corporations?
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January 22, 2010, 6:09 pmOperationCounterstrike says:
Yes, but the people organized into a corporation can include felons and foreigners–people who normally cannot, and should not be allowed to, vote.
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January 22, 2010, 8:11 pmMark Field says:
Yep, does it all the time. Like I say, you can argue that it shouldn’t have that power, but that train left the station a long time ago and it ain’t comin’ back. In the unlikely event that it does, then and only then is it reasonable to argue the literal wording of the 1A as supporting Citizens United.
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January 22, 2010, 9:38 pmLuke Lea says:
The problem is that radio and t.v. have a limited spectrum and belong to the public, which depend upon them as their primary source of news and information.
If you let these public airways be monopolized by the highest bidder, other voices may be crowded out. I guess we will see.
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January 23, 2010, 4:18 pmKenneth Almquist says:
It seems to me that Somin is not so much refuting Steven’s point as conceding it.
This raises the possibility that the Court could have struck down USC 441b on the grounds that it violated the free speech rights of owners and employees. But the court didn’t do that.
Why not? The majority in Citizens United seemed to think that some time, place and manner restrictions on speech are appropriate. It could have argued that the particular time, place, and manner restrictions imposed by USC 441b were unconstitutional. Instead, the Court ignored the rights of the human beings organized as corporations, and focused on the rights of the corporations themselves. This focus lead the majority to make a very different argument, namely that USC 441b only restricts the speech of corporations and not individuals, and thus restricts speech based on the identity of the speaker. It struck down the law on the basis that restrictions on speech that are based on the identity of the speaker are generally unconstitutional.
Given that Somin specificly quotes Stevens, this strikes me as a strawman. Stevens doesn’t claim that corporations aren’t entitled to freedom of speech. He argues that the fact that corporations aren’t people is a reason for treating speech by corporations differently from speech by people.
Finally, I would point out that Somin’s repeated use of phraseology such as “people organized as corporations” suggests that for him, the rights of corporations are nothing more than the rights of the people who make up the corporation. Or to put it another way, Somin appears to believe that it is not possible to violate the rights of a corporation without also violating the rights of an individual. In that case, Somin’s position is substantively identical to that of the individual who denies that corporations have any rights at all. It seems rather pointless for Somin to bother to argue that corporations have rights if the rights that Somin thinks that corporations are by definition so weak that they never make a difference.
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January 24, 2010, 3:53 amWilliam Van Alstyne says:
Despite the cogency of observations by several who have commented on the 5/4 decision in this past week’s SCOTUS case, voiding the century-old act of Congress forbidding ordinary business corporations from spending treasury funds to endorse or oppose candidates for national elective office, my own view is that the dissenting opinion by Justice Stevens on balance had the better of the First Amendment argument. The restriction has been even-handed, insofar as (for example) the United Auto Workers (the UAW) is subject to the same limitation as General Motors itself. Each, in turn, is equally free to establish Political Action Committees (PACS) which may indeed solicit contributions from willing parties(shareholders in the one case, workers in the other)whether to be spent directly to advance the candidacies of particular favored candidates or, quite oppositely, to advertise for the defeat of others. Funds raised by PACS (whether corporate or labor union PACS) are provided willingly, even as funds contributed by members of the ACLU, Young Socialists, Vegetarians, NARAL, or the MORAL MAJORITY. Each of these organizatins is properly treated as a First Amendment voluntary association, even as is the NAACP. But there has been no reason to regard a GM shareholder, whether individually or institutionally likewise, nor a GM employee likewise–insofar as his or her uaw dues payments to the union are not voluntary but, instead, made a condition of being employed by GM (pursuant to a collective bargaining contract secured by the UAW via the NLRA). I frankly thought that the dissent in this case had the better of it, consistent with pre-existing First Amendment principles (as well as century-old case law as well). The Court’s 5/4 decision is certainly no great calamity (nor will its likely extension in the current Supreme Court Term to the states via the Fourteenth Amendment). I think, however, there is more to regret than celebrate in the undoing of the “balance” previously struck, as I hope some other readers of this blog may be inclined to agree.
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January 24, 2010, 2:08 pmmpx says:
Corporations are destructive and at constant war with each other!
The major reason that human-based societies can exist succesfully for so long is that generally, at least within a society, most of the humans give ohters right to live, let them be. Not true with the corporations! Corporations are working heavily to destroy other corporations, so called “competitors”, by either driving them to bankrupcy and so a cessation of existance, or simply “eating” them via a buyout. “Business is war” some businessman says. This destructive nature of corporations means a human-like system of them will not work. Giving corporations political powers means that the current incumbent will use it to destroy new, beginners corporations, that potentially threaten incumbents future.
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January 26, 2010, 3:13 amShopfloor » Blog Archive » Half a Hurray for the AFL-CIO, First Amendment Advocates says:
[...] People Organized as Corporations are People Too [...]
Andrew Sichel says:
And the train of corporations running the country has likewise long ago left the station.This ruling is just a dollop of a few country houses. It’d be nice to think it’s not too late to reign corporations in, as they are no longer providing the greatest good to the greatest number of citizens, which they may have once done, but it probably ain’t gonna happen either, which is why Christmas for most of you kids sucked this year and may even just end! Sorry kids.
One of the characteristics which corporations share with rare but extant persons is an inability to stop consuming whatever is in front of them. Some call these people Obese,Monty Python has a sketch of them exploding in restaurants, the rude call them fat pigs and some alien foreigners call them Americans and corporations call them consumers and say they live in China.
The underlying question seems to be whether the continuance and buttressing of corporate control of the country is in the country’s best interests as we enter our eclipse as number 1 and face the renewal of the hegemony of China? (Tomorrow’s issue of The London Review of Books has an interesting essay on this by Perry Anderson called “Sinomania”)
It seems ill mannered to characterize those who think the answer to the previous question is “Yes!” as asses,(e.g. the majority of this Supreme Court) but that is the incorrect answer. And if it’s what you’ve come up with you have not been paying attention to the last half century and you will fail the entire course.
Goliaths are not good at survival when speed and cunning are crucial as the American Revolutionary forces (and the Viet Namese/ Afghani anti-American forces) had (or have) the advantage in home terrain foreign to the larger more cumbersome less savvy invading Armies.
Our founders would have hated TBTF Corporations. Way too King and Pope–
like; thus Federalism. Speaking of which;it wasn’t just some pretty dumb dick in Cosmo that won the recent election in Massachusetts, maybe some folks actually thought they’d lose their better health care system to better health care for dumber states.
What about making Corporations States? Redraw a corporate (i.e. non-“existent” or immortal) map of “The United States Of/In Corporate America” which would also solve crossing state lines to buy health care from Mass.or VT.?
And re the Press/Printing Press/ Media/What’s Media? confusion, it would appear that when the Founders wrote “Press”- albeit printing Press– and despite the first ones having abetted the Papacy in expanding it’s realm– they had in mind freedom of speech accorded to means of disseminating information beyond the “personal” voice. (Speech is usually uttered by a person right? Or a chorus; yes Stevens must’ve meant chorus in his earlier decision. We won’t be inconsistent at 90!)
Unless the first amendment didn’t mean speech using vocal chords and diaphragm but meant speech using vocal chords and two hands or vocal chords and a good strong noose. Which, as the framers were to be our first congress, seems from where we’re looking now, quite possible. (Is tha’t’reason?)
So what happens to expressions like, “Put your money where your mouth is!”? It becomes just, “Put your mouth where it is.” Or maybe “Put our mouth where your mouth was!”
Brindisi!
Andrew Sichel
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January 27, 2010, 10:34 pmLampie The Clown says:
The people who will profit from this theoretical change in regulation can’t even get behind it, yet the corporation continues to try and effect the change.
If ever there was a reason to limit corporate speech, it’s when it causes government to steer away from “for the people” and become “for the legal fiction”. Corporations were conjured up out of thin air and given the metaphorical form of a person to serve the interests of people. Presumably not just it’s stockholders, because it’s charter is granted by the government. When a corporation serves it’s own interests by going against the interests of even those who own it, the name Frankenstein comes to mind.
Perhaps Asimov’s three laws of robotics need to be written into corporate charters?
I agree. If you want to exercise your 1st amendment rights, great. It’s a bit disingenuous to want limited liability when you do it.
To answer the original question, are corporations people? The SCOTUS has never officially ruled on it, although case law has been written as if they had.
Santa Clara County v. Southern Pacific Railroad is sometimes cited as when they did, because the court reporter’s comments included a statement the Chief Justice made before oral arguments began, telling the attorneys during pre-trial that “the court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
Later opinions misinterpreted these pre-argument comments as part of the legal decision, even though the Chief Justice wrote that it was the court’s intention to settle the case while avoiding a ruling on that issue.
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February 6, 2010, 2:21 am