pageok
pageok
pageok
Sotomayor & Corporate Rights:

Should the law treat corporations as legal persons? The newest justice may think not — or at least that's the impression some have drawn from a comment she made at the Citizens United oral argument last week. From the WSJ:

During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics." . . .

Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg. "A corporation, after all, is not endowed by its creator with inalienable rights," Justice Ginsburg said, evoking the Declaration of Independence.

Sotomayor's remark cheered some, but not others.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.

"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."

UPDATE: Larry Ribstein has more. His bottom line: "In a nutshell, viewing the corporation as an entity for First Amendment purposes actually serves to push the speech rights of owners and managers under a rug. Abandoning entity reasoning would focus on what matters for the First Amendment analysis. . . . once you do that, and put the arguments for limiting speech rights under an analytical spotlight, they look pretty weak."

SECOND UPDATE: Still more from Professor Bainbridge here.

Order of the Coif:
A flake. Exactly what Obama was seeking -- a reliable LIBERAL flake.
9.16.2009 11:27pm
Erick:
Are the people that support this line of argument okay with the first amendment not applying to the The New York Times?
9.16.2009 11:31pm
taxman10m:
Why would "freedom of the press" not apply to the New York Times?
9.16.2009 11:35pm
J. Aldridge:
Stupid to treat corporations as "persons." They are creatures of state law and can only be created, operated and sued per state law. If the framers wanted them treated the same way as "persons" they would had included corporations.

John Bingham didn't even try to argue corporations were persons, and instead tried to pass a law to give them privileges and immunities.
9.16.2009 11:48pm
LN (mail):
When will the incessant discrimination against corporations finally come to an end?

Disagree with Barack Obama and you get called a racist. But say that corporations were created by the legal system and not by God... "oh look at me, I'm on the Supreme Court!"
9.17.2009 12:05am
Steve2:
taxman10m, I've seen an interpretation of "freedom of the press" that revolves around the definition of "press" as in "printing press", not "press" as in "journalists who get called 'The Press'", basically saying that "freedom of the press" doesn't protect a right of journalists and media publication, but rather a right of writing and self-publication. By that line of reasoning, "Freedom of the press" means Jonathan Adler's right to write a blog post and taxman10m and Erick and Steve2 and J. Aldridge and Order of the Coif's rights to write comments to the blog post, not a corporation's right to publish a newspaper.

Personally, I think that's a mix of good reasoning and bad reasoning. Yes, "the freedom of speech, or of the press" does make sense when read as "the freedom to speak, or to write" (especially in light of that old distinction between spoken-speech &written-speech as in slander vs. libel), but it doesn't make sense that a bunch of people aggregating their rights to write and use printing presses doesn't create a right to write a newspaper.
9.17.2009 12:06am
abcd (mail):
Of course corporations should be treated exactly as persons. That way all the Gordon Gekkos of the world can be prosecuted for kidnapping and murder.
9.17.2009 12:08am
Don Cruse (www):
Well, there is a difference between saying corporations should not be treated as legal persons for things like contract cases and saying they should not have constitutional rights against the government. The former is just a convenient metaphor to simplify common-law economic arrangements among private parties. The latter is a pretty substantial modification in how our system of government operates from how it was designed.

@Erick: The reporters eat breakfast every morning and put on their pants one leg at a time. They certainly have First Amendment rights. The corporation that owns the newspaper is a different question. Do you need the corporation itself to have a constitutional right to vindicate some important constitutional interest? Really? Does the New York Times corporation need that protection for its annual report to shareholders? (That's the only time it's really speaking with a corporate voice that's not filtered through reporters and editors who could assert their own constitutional rights.)

If so, does the venerable New York Times corporation have a different bundle of *constitutional* rights than a shell corporation you might form tonight through an online corporate formation service? What constitutional basis is there to give some corporations a particular constitutional right and others not?

There are some libertarian reasons to be skeptical of extending constitutional rights to corporations. I'm still waiting to hear a second argument in favor of extending them. (The only one I ever hear is the "New York Times" argument, and that is usually phrased in a way to shut down debate rather than to deepen it.)
9.17.2009 12:12am
Daryl Herbert (www):
She shut down the Didden plaintiffs on the grounds that they failed to challenge the takings policy years before the taking took place (and therefore, they were SOL-barred).

That's not an honest judge--that's a crazy left-wing extremist who thinks the government can take anything from any person at any time for any reason.

Hey, guess what, the PATRIOT act has been on the books for over half a decade. Does that mean terrorist plaintiffs whining that their "rights" were infringed are barred from bringing claims because the SOL has already run? Imagine if a conservative judge tried to ram that ruling through. Do you think he'd get to be on the Supreme Court with a record like that?

Now Sotomayor is leading some kind of charge against the First Amendment because she's afraid a few right-wingers will get a chance to speak at 1% the volume of the liberal media.

She was always an execrable judge, and those of us who said so at the time have been vindicated.
9.17.2009 12:19am
Milhouse (www):
The fallacy here is that the alternative to treating a corporation as a person is to treat it as a non-person, without rights. But that is nonsense. The legal fiction is not that corporations are people, but that they're people in their own right, separate from their shareholders. The alternative to that fiction is to treat corporations as the people who make them up. And each of those people has rights, so the corporations, if we are not to pretend otherwise, must perforce have those rights too. Sotomayor and others taking this line seem to want to have their cake and eat it too: to pretend that the corporation is a separate person from its shareholders, but then to say that since this person is just a pretense, it doesn't have any rights.
9.17.2009 12:24am
Psalm91 (mail):
Giving corporate "persons" an unlimited right to buy elections repeals the First Amendment? Histrionic silliness. Making them persons in the first place was the ultimate act of judicial activism.
9.17.2009 12:30am
Psalm91 (mail):
I remember Gaziano on television years ago; he's gotten worse.
9.17.2009 12:31am
Another guy named Dan (mail):
Isn't a corporation at it's heart an agglomeration of real live people, who have the right to participate in political speech? Shouldn't their rights "pass through" the corporate structure? or does the fact that the corporation has chartered by way of a government agency somehow strip such an agglomeration of the rights that would otherwise extend to the shareholders? Does organization take away the rights that would otherwise extend to a crowd on a street corner?

Stating that a corporation has no right to speech seems to me to be equivalent logic to stating that even though the individual members of a church may have the right to religious freedom, the congregation itself has no right to hold services. This to me seems to be an absurd result.
9.17.2009 12:48am
Brett Marston:
I took Sotomayor's remark to be expressing something like: given the consequential intellectual moves that undergird (or have been interpreted to undergird) certain precedents, it is worth pausing long and hard before plowing ahead with a radical approach based supposedly on first principles. Unsettling one precedent or tradition - by holding that corporations have an unlimited first amendment right to fund political speech - can lead to intellectual and political pressure to unsettle others - like the original claim that corporations are persons, which assists in driving CU's campaign finance argument in the first place. It's actually kind of a conservative, almost Blackstonian argument, given the context.
9.17.2009 1:02am
Laura S.:
It seems clear that Sotomayor's (presumed opinion) would strip a corporate entity such as the NYT of its first amendment protections. Scary stuff.

This certainly supports the view that Sotomayor is the Harriet Meyers who made it through.
9.17.2009 1:02am
New Yorker:

The fallacy here is that the alternative to treating a corporation as a person is to treat it as a non-person, without rights.


Of course there are other alternatives to treating a corporation as a juridical person. This seems to me to be the province of legislatures when they allow a group of persons to form a for-profit entity designed solely to undertake a commercial venture and make money for its shareholders. If the legislature permits people to coalesce their capital in order to form a special entity that is taxed differently and shields its owners from personal liability, it is not necessarily obliged to recognize that entity as a juridical person with all the corresponding rights and obligations under the state constitution.
9.17.2009 1:14am
EH (mail):
I think there are some commenters still hanging around from the birther thread.
9.17.2009 1:48am
einhverfr (mail) (www):
I heard that question as purely rhetorical on Sotomayor's part.

I thought she was saying "look, we have a long history here. How do we fix this problem without causing a lot of damage?" Breyer seemed to have the same concern in his questioning about political parties and spending.
9.17.2009 1:56am
einhverfr (mail) (www):
Psalm91:

Giving corporate "persons" an unlimited right to buy elections repeals the First Amendment?


Of course the justices are smarter than to allow that. However anything is better than the spaghetti opinion that was McConnel.... (so and so deliered this part of the opinion of the court as to that part of his opinion, so and so delivered a different part in a different part of his opinion, etc. until you get 8 opinions filed for 9 justices)
9.17.2009 2:00am
Mithras Invicti (mail) (www):
I've actually done some research on cases from the late 19th and early 20th century which discussed theories of the corporation with regard to constitutional rights. It's interesting to realize courts and lawyers don't seem to be aware of them.

On one hand, corporations are creatures of state law. States could abolish them entirely (prospectively - abolishing existing corporations would be a takings issue); therefore, states must also have the power to limit the purposes of those corporations. From that perspective, of course the government (I'm eliding the difference between state and federal governments on purpose) can say that corporations have certain rights and not others.

On the other hand, it seems unjust to deprive shareholders who are natural persons from using their own property - the corporation - to exercise their own rights. If corporations did not exist, and a group of us were to pool our money to buy a printing press and then hired someone to use it to engage in First Amendment activity, we should as a group be entitled to assert our Free Speech rights with regard to that activity. In that instance we wouldn't say that the printing press is the entity that has the constitutional right. But except for the formalities of forming a legal entity, this is exactly how corporations work now. So why should a corporation be treated differently for constitutional law purposes than a jointly-owned printing press?

The answer, I think, is that the corporate form renders certain benefits to shareholders - in the form of ease of business transactions and limitations on liability. Those are benefits bestowed by the government in the form of corporate law, and the shareholders take advantage of those benefits in exchange for giving up some of the rights they otherwise would have to use their property. If they wish to express themselves using the capital invested in the corporation, then they can withdraw that capital and use it however they wish. But as long as that money stays in the corporation, it cannot be used in any manner contrary to the purposes that corporations were created for.

A good counter-argument would be that First Amendment doesn't just vindicate the rights of speakers, but of hearers, too. Much of the modern world's capital is tied up in corporations and those entities are intimately connected with important issues of the day. By forbidding corporations the right of free speech, for example, this argument goes, then you are depriving the public of the opportunity to hear viewpoints and information that could otherwise be expressed from the perspective of the managers of important commercial enterprises. I don't think this is a winning argument, but it's one that should be taken seriously.
9.17.2009 2:14am
James Gibson (mail):
Lets see, last year during Heller, Justices Stevens, Ginsburg, Breyer and Souter supported an interpretation of the bill of rights in which instead of it being a list of individual rights it is in truth a series of collective rights that can only be envoked by a group of collective. As Stevens put it, in order for a petition to have merit it has to be from a group of a collective (or a corporation).

A year later, a new justice, and a new liberal issue, and the subject is turned on its ear. The first amendment now is not collective in nature, but the right of an individual human and not the right of a group of people. Some would make a distinction that a group is not a corporation in that the corporation is a creature of state law. But any group or collective is also a creature of state in that unless the state recognizes it, it is not a legal group.

Just another example of what is called dicta at the supreme court.
9.17.2009 2:17am
Kazinski:
Corporations have enormous responsibilities in our society, they provide essentially all of our food, medicine, clothing, entertainment, energy, transportation, and for many of us our livelihoods too.

If a candidate is proposing policies that will make it harder or impossible for a corporation to fulfill some of these responsibilities shouldn't they be able to let the public know?
9.17.2009 2:49am
flashman_2 (mail):
Mithras -- It's interesting to think about this at a high level of abstraction, but I think you could state a stronger first-principles case for corporate constitutional rights.

Not only does the government create the benefits of the corporate form: it also creates the burdens on acting outside the corporate form. It's the government that decides how onerous tort duties on non-corporate actors will be and how high the individual tax rates will be. It would be a neat trick if the government could, through drastic differentials in regulatory burdens, create overwhelming incentives to move resources into corporations, then forbid the corporations' owners from using those resources for otherwise constitutionally-protected activities.

After all, in many other contexts the government is not obligated to extend a benefit but, having extended the benefit, cannot condition the benefit on recipients' refraining from constitutionally-protected activities.
9.17.2009 2:51am
Steve:
She shut down the Didden plaintiffs on the grounds that they failed to challenge the takings policy years before the taking took place (and therefore, they were SOL-barred).

Yep, that's settled state law which says you have to challenge a finding of public purpose when the municipality approves the overall redevelopment plan that authorizes a set of takings, as opposed to being able to challenge each individual bit of the redevelopment piecemeal over the next decade or so. Not really surprising that the district court and all three appellate judges agreed; but this was covered at length in the comments to Ilya's posts on the case.
9.17.2009 3:28am
Guy:
Dylan, I'm always weary of overapplying the SOL, and am not sure I agree with Sotomayor's application in that case. But to say a conservative couldn't get away with something similar is demonstrably false, are you familiar with Ledbetter v Goodyear?
9.17.2009 4:59am
David M. Nieporent (www):
Mithras -- It's interesting to think about this at a high level of abstraction, but I think you could state a stronger first-principles case for corporate constitutional rights.

Not only does the government create the benefits of the corporate form: it also creates the burdens on acting outside the corporate form.
I agree with your comments, but I would also look to the distinction between the government creating the benefits of the corporate form and the government creating the corporation itself. Corporations are not the creation of government; they're the creation of individuals. The fact that the government says, "If two people come together and do X, we'll give them limited liability" does not mean that the government ought to have the power to otherwise restrict their actions.
9.17.2009 5:51am
Splunge:
Progressives who think that corporations already have an unduly large influence on policy in the United States

I wonder what color the sky is on the planet where this fool lives? There are certainly agents whose influence on public policy seems outsize, compared to their contributions to the public wealth -- public employee unions come to mind -- but corporations? Say what?

GE has more influence on public policy than its disconnected 50,000 (or whatever) employees would? IBM? Microsoft? Sears? Samsung? Dell? Texas Instruments? Albertson's? General Mills?

I am racking my brains trying to think of any major "influence" on public policy any of these agents, some of the biggest corporations of all, have had in the past 40 years of which I'm aware. And if I try to imagine the baleful "influence" the local gas station or shoe repair shop has, I'm reduced to laughter.

Is "progressive" a synonym for "loony?"
9.17.2009 6:20am
Gabor87 (mail):
Could someone provide a good argument here squaring a corporation's right to political speech in the US with the limits placed on the political speech of non-citizens, given foreign ownership of shares in US corporations?
9.17.2009 6:58am
Brett Bellmore:

A good counter-argument would be that First Amendment doesn't just vindicate the rights of speakers, but of hearers, too.


My argument would be that the First amendment doesn't so much vindicate the rights of hearers, as it sets out an area of action that the government is prohibited from engaging in. And thus, who exactly that action would be targeted against is somewhat irrelevant. Restricting freedom of the press is unconstitutional regardless of who Congress attempts to do it to.
9.17.2009 7:24am
AF:
Too bad this didn't come up in the confirmation hearings. Her polling would have gone up 10 points.
9.17.2009 7:36am
Donald Kilmer (mail):
Not to go all Hugo Black on this, but the First Amendment prohibits Congress from making any law abridging the freedoms of speech, press, et al. Rights that require "personhood" for standing are either textual or judicially inferred. I think the First Amendment's categorical language "make no law" precludes standing challenges based on personhood.
9.17.2009 7:36am
NoPublic:

But any group or collective is also a creature of state in that unless the state recognizes it, it is not a legal group.


And that's relevant to the speech rights of that group exactly how? Unless you're arguing that freedom of speech of the members could be elided by denying the right to assemble. Which is silly on the face of it even in the age of "Free Speech Zones".


GE has more influence on public policy than its disconnected 50,000 (or whatever) employees would?


Perhaps not, but it has different influence.
There's even an argument that it has less influence (50,000 $1 donations having more imprimatur than one $50K donation). But both these arguments are irrelevant.

There's little argument that the rights of the shareholder are constrained unless they're prevented from removing their capital from the corporation and using it to speak individually. Which they are not.

You're really arguing that the corporation is an entity with its own right to speech and I can see no Constitutional basis for that one. If a corporation could speak it could be jailed or executed for treason. How would one go about that, exactly?
9.17.2009 7:40am
Guy:
Splunge, for the record, I don't have a problem with corporate personhood, but major corporations do have tremendous lobbying influence in regards to anti-trust regulations, copyright law, and other areas that affect their business. Disney, for example, is able to get the law changed every time their intellectual property rights are about to become public domain, corporate farms that receive subsidies lobby to keep those subsidies in place, etc. I don't think that politicians keeping corporate interests in mind is necessarily a bad thing, but to say that corporations lack significant influence on public policy is to ignore reality.
9.17.2009 7:41am
MarkField (mail):

Rights that require "personhood" for standing are either textual or judicially inferred. I think the First Amendment's categorical language "make no law" precludes standing challenges based on personhood.


The 1A gets applied to the states via the DP clause of the 14th A, which does have a textual "personhood" requirement.

Nobody has mentioned yet that many scholars favor using the P/I clause to incorporate the BoR instead of the DP clause. Under P/I, the rights apply only to "citizens" of the United States. Would this change the analysis? It seems to me that it would, since it's hard to argue that corporations are citizens of the US (as opposed to the state which created them).

I also note that no one, not even Mr. Aldridge, has offered any evidence whether the original meaning of the word "person" included coroporations.
9.17.2009 8:51am
egd:
NoPublic:

You're really arguing that the corporation is an entity with its own right to speech and I can see no Constitutional basis for that one. If a corporation could speak it could be jailed or executed for treason. How would one go about that, exactly?

So is it your position that NBC has no first amendment rights? The government could send the FBI into NBC headquarters and demand the company cease production of nightly news?

Curious.
9.17.2009 8:56am
Steve:
GE has more influence on public policy than its disconnected 50,000 (or whatever) employees would?

Wow! Yes, obviously. All those corporate subsidies didn't get written into the law because a bunch of individual employees wrote their Congressman and requested them.
9.17.2009 9:08am
Arkady:
If a corporation is a person, it surely is a strange kind of person and not a person like you and me:

1) can a corporation get diabetes?
2) can a corporation convert to Christianity?
3) can a corporation improve its golf swing?
4) can a corporation learn to drive?
5) can a corporation develop a fondness for green tea?
6) can a corporation stand on a scale?
7) can a corporation forget the meaning of a word?
8) can a corporation doubt its own existence?
9) can a corporation get an MRI?
10) can a corporation get pregnant?

and so on.

Now the proper answer to those questions is not "No". The proper answer is, "The questions don't make any sense because a corporation is not the kind of thing for which those questions are appropriate." That is, a corporation is not a human person. And it does no good to suggest, as Milhouse does above, that we ought to "treat corporations as the people who make them up. And each of those people has rights, so the corporations, if we are not to pretend otherwise, must perforce have those rights too." That's the fallacy of composition. It's as if I were to argue that since all even numbers are (assuming Goldbach) the sum of two prime numbers, the class of even numbers is itself the sum of two prime numbers. We cannot, in general, impute to an aggregate what is true of the members of the aggregate. That we often use aggregate language to talk about the individual members of the aggregate is not evidence for that the aggregate has any of the characteristics of the members ("The [NFL team of your choice] suck.") All this has a kind of Platonistic air, but I'm not arguing that these aggregates have a being above and beyond that of their members, only that their place in our conceptual scheme differs from that of the members, differs in a logically fundamental way.

So, yes, the personhood of a corporation is a legal construct, fiction, however you wish to characterize it. The question is, "Does this construct serve a useful or deleterious purpose?"
9.17.2009 9:10am
ArthurKirkland:
As is apparently irresistable among humans, advocates for corporations press for a 'heads I win, tails you lose' situation. They do not wish to have corporations treated as persons would be when that would be unattractive (financial liability, exposure to criminal charges) yet claim personhood when it would benefit the corporation (entitlement to make certain expenditures and defend them as "speech rights"). The 'corporation shouldn't be discriminated against' and 'corporation is just like any other person' argument seems weak.
9.17.2009 9:15am
NoPublic:

So is it your position that NBC has no first amendment rights? The government could send the FBI into NBC headquarters and demand the company cease production of nightly news?

Curious.


That is very nearly my position.

NBC does not produce nightly news speaking with a corporate voice as NBC. Individuals speak, and have the right to. Individuals voted (with their shares) to allow this. Individuals hired the talking heads. Did we fire CBS for Dan Rather's cock-up?

Corporate personhood is a convenient fiction for the purposes of contract but it is irrelevant to the discussion of Free Speech.

Limited liability is not limited enough in most cases.
9.17.2009 9:16am
early bird (mail):
egd,

The individuals who report the news on NBC have free speach rights. Denying corporate personhood wouldn't do anything to limit those rights. The reporters at the NY Times enjoy the freedom of the press, not the NY Times, Inc. It's really not that hard of a concept, folks. What we're talking about here is the rights of corporations qua corporations, not the rights of individuals who are employed by those corporations, or who own stock in them.

If the CEO of Disney wants to contribute $50,000 to someone's campaign, let him. But why should Disney, Inc. be able to do so? I've seen a lot of persuasive arguments against corporate rights, but the only argument I've seen in favor is "News Corporations will be shut down" which I don't find particularly persuasive.
9.17.2009 9:22am
NoPublic:
I should clarify my above comment.

It is very nearly my position that NBC has no First Amendment rights. (In that "NBC" as an entity is not a person nor a citizen, although its member humans may be)

It is not my position in any way that this leads to the FBI being able to shut down news production for any reason.
9.17.2009 9:28am
Gabriel McCall (mail):
So is it your position that NBC has no first amendment rights? The government could send the FBI into NBC headquarters and demand the company cease production of nightly news?

Curious.


"The company" does not produce the news. The natural persons who make up the company produce the news, and each of those persons has his own individual First Amendment rights which the government cannot infringe, regardless of whether the corporation is considered to have rights of its own. Walking into NBC headquarters and shutting down the news would violate the 1A rights of the anchors and reporters, not to mention being a taking against the stockholders and advertisers. NBC qua NBC doesn't need any rights of its own.
9.17.2009 9:31am
markH (mail):
Kazinski:


Corporations have enormous responsibilities in our society, they provide essentially all of our food, medicine, clothing, entertainment, energy, transportation, and for many of us our livelihoods too.


Corporations have one responsibility: to maximize the return on shareholders' investment. You list the hoped-for benefits to society.
9.17.2009 9:40am
Anderson (mail):
Sorry, but I have no trouble believing that "corporate speech," like "commercial speech," is subject to greater restrictions than the speech of individual citizens.

Given the Congress's very strong policy case here, and the likelihood that the precedents do not compel a clear answer here, I would think that this is a case where deference to the legislature is proper.

However, it stops being JUDICIAL!!! ACTIVISM!!! when it starts being the defense of corporate rights.
9.17.2009 9:41am
Ulquiorra:

"The company" does not produce the news. The natural persons who make up the company produce the news, and each of those persons has his own individual First Amendment rights which the government cannot infringe, regardless of whether the corporation is considered to have rights of its own. Walking into NBC headquarters and shutting down the news would violate the 1A rights of the anchors and reporters, not to mention being a taking against the stockholders and advertisers. NBC qua NBC doesn't need any rights of its own.

That argument has some holes. It's easy to argue that NBC absolutely produces the news. The NBC nightly news would not be but for the existence of NBC. It is NBC's equipment that is used to distribute the broadcast. The individuals who work on the news broadcast are doing so because they are paid by NBC. NBC the corporate entity has every right to dictate the content of the news. The NBC news is a vessel of NBC, it's not some independent entity that NBC allows to exist for the purpose of permitting Brian Williams to air his views on matters of public concern.
9.17.2009 9:49am
Anderson (mail):
You list the hoped-for benefits to society.

Benefits like those are why society allows corporations to be created in the first place.

The corporation's own focus should not be confused with the policy arguments for allowing corporations to be created.
9.17.2009 9:50am
Cornellian (mail):
I think the First Amendment's categorical language "make no law" precludes standing challenges based on personhood.

So dogs would have standing to challenge a law Congress enacted making it illegal for dogs to bark loudly in public places?
9.17.2009 9:56am
Will's Post (mail):
Mark Field:


The 1A gets applied to the states via the DP clause of the 14th A, which does have a textual "personhood" requirement.


But this case is about the Constitution applied against the Feds, not the states. We need not bottleneck in the 14th amendment, we are squarely in the 1st. But of course your point brings out an interesting federalism theory: States could make laws limiting the free speech of corporations but not of 14th amendment "persons," while the plain language of the 1st amendment prohibits the feds from limiting any free speech whatsoever.

All novel federalism theories aside, this case is about two issues: (1) Is political speech within the class of free speech protected by the first amendment? And, (2) if the speech is protected by the first amendment, may congress nonetheless limit the free speech of corporations?
I think Sotomayor is on the right track. Because political speech is unquestionably at the core of first amendment "free speech," then we are cornered into the second issue: whether or not corporations count.
9.17.2009 10:00am
Will's Post (mail):
Anderson:


Sorry, but I have no trouble believing that "corporate speech," like "commercial speech," is subject to greater restrictions than the speech of individual citizens.


Your comparison conflates the source of the speech with the purpose of the speech.
9.17.2009 10:04am
Gabriel McCall (mail):
It's easy to argue that NBC absolutely produces the news. The NBC nightly news would not be but for the existence of NBC. It is NBC's equipment that is used to distribute the broadcast. The individuals who work on the news broadcast are doing so because they are paid by NBC. NBC the corporate entity has every right to dictate the content of the news. The NBC news is a vessel of NBC, it's not some independent entity that NBC allows to exist for the purpose of permitting Brian Williams to air his views on matters of public concern.


You're not taking it far enough. NBC does not exist except as a bundle of papers in Delaware and as a useful thought-experiment for predicting what some real people will do in some situations. What does it mean when we say that NBC owns the equipment and writes the checks? The equipment is jointly owned by the stockholders, who have individual 1A rights. The checks are written (actually printed) by some identifiable person or set of persons, drawing on accounts which again are owned by the stockholders.

NBC the corporate entity cannot possibly dictate the content of the news; it has no brain with which to decide nor mouth with which to communicate. The news is decided by individual human beings of various roles, titles, and responsibilities, each of whom has first amendment rights.

You can't name one thing that NBC does which is not decided and then carried out by some natural person or set of persons.

If you're interested, read up on "rational anarchism".
9.17.2009 10:10am
Ariel:
I agree with Donald Kilmer above.

Whether a corporation is a person or not is entirely beside the point. The First Amendment does not grant a right to free speech. Nor is there any other Constitutional basis for a right to free speech, except, perhaps, the Ninth Amendment.

What the First Amendment does is says that Congress shall not make laws interfering with speech. It does not say that Congress can make laws interfering with black people's speech, or with corporate speech, with Asian people's speech, or with nonprofit organization speech. There is no question of personhood embedded in the First Amendment's prohibition.

With the dog barking example, there's an open question as to whether a dog's bark counts as speech. I don't think it's obvious, one way or the other.
9.17.2009 10:16am
Curmudgeon:

The individuals who report the news on NBC have free speach rights. Denying corporate personhood wouldn't do anything to limit those rights.


Those rights will be cold comfort when the government just tells the corporation to either fire you or be convicted itself, blocked from doing business, etc. See Thompson Memorandum
9.17.2009 10:24am
Erick:

@Erick: The reporters eat breakfast every morning and put on their pants one leg at a time. They certainly have First Amendment rights. The corporation that owns the newspaper is a different question. Do you need the corporation itself to have a constitutional right to vindicate some important constitutional interest? Really? Does the New York Times corporation need that protection for its annual report to shareholders? (That's the only time it's really speaking with a corporate voice that's not filtered through reporters and editors who could assert their own constitutional rights.)

Its already been mostly mentioned I think, but the reporters don't own the printing presses, the website, the trucks, the contracts with advertisers, or all the many other things that make the New York Times a functional newspaper.


You're not taking it far enough. NBC does not exist except as a bundle of papers in Delaware and as a useful thought-experiment for predicting what some real people will do in some situations. What does it mean when we say that NBC owns the equipment and writes the checks? The equipment is jointly owned by the stockholders, who have individual 1A rights. The checks are written (actually printed) by some identifiable person or set of persons, drawing on accounts which again are owned by the stockholders.


If you're going to take this route, don't you end up in a situation exactly like giving corporations all the rights of a person? So the checks written to candidates, or to the makers of a Hillary movie all ultimately come from people, and they ultimately serve the purposes of real people, so when you want to restrict those activities, you're really restricting the activities of real people. Except now you have to do what, join every single stockholder to every lawsuit involving the corporation? Join every accountant? So you get to the same place except with different language and a bunch of silly hoops to jump through?
9.17.2009 10:35am
egd:
early bird:

egd,

The individuals who report the news on NBC have free speach rights. Denying corporate personhood wouldn't do anything to limit those rights. The reporters at the NY Times enjoy the freedom of the press, not the NY Times, Inc. It's really not that hard of a concept, folks. What we're talking about here is the rights of corporations qua corporations, not the rights of individuals who are employed by those corporations, or who own stock in them.

The NY Times reporters absolutely have the right to free speech and free publication. But if the NYT doesn't have free speech rights, then we can shut down the paper without infringing the rights of the reporters, they are, after all, free to speak or publish their works in other formats.

I, despite having the same First Amendment right as Maureen Dowd, do not have the "right" to publish my weekly column in the NYT. The NYT is a corporation and exercises discretion in determining whether to publish material and the content of that material. That is most definitely speech, and is protected by the First Amendment.


If the CEO of Disney wants to contribute $50,000 to someone's campaign, let him. But why should Disney, Inc. be able to do so? I've seen a lot of persuasive arguments against corporate rights, but the only argument I've seen in favor is "News Corporations will be shut down" which I don't find particularly persuasive.

Disney, Inc. can contribute money to a political campaign for the same reasons that an NBC news anchor can continue to speak: it isn't a "corporate person" giving money to a campaign, it is a group of shareholders giving money to a campaign. If Disney, Inc. didn't give $50,000 to someone's campaign, the money would be returned to the shareholders. Instead of taking money to which they have a legal right, they authorize agents (Disney, Inc's board and officers) to spend it in ways that they see fit.

Is there some rule about agency law that makes the First Amendment inapplicable? Is providing funding to a politician to produce an ad not protected speech? What if I pay a TV station to act on my behalf to produce and run an ad that I pay for, is that not protected speech?

This really isn't a terribly difficult proposition. How do you distinguish NBC's first amendment right from the first amendment right of GE? Is it because they proclaim themselves a "news organization" that they are automatically afforded greater rights?

What if Monsanto decides to begin calling themselves a "news organization" and makes editorial decisions to only publish "stories" which are pro-GM food?

What if those "stories" take the form of commenting on the positions of various candidates regarding GM food?

What if Monsanto has a firm belief that GM food is good, and criticizes non-GM proponent candidates as poor choices for political office?

What if Monsanto, instead of publishing a newspaper or owning a TV station, decides to publish pamphlets and hands them out for free; or decides to purchase time to air their "news" in 30-second segments on the local TV station?

I can't see in any of these circumstances where Monsanto (or it's agents who are speaking on its behalf, exercising their first amendment rights) differs from NBC or the NYT. But somehow it is a different situation.
9.17.2009 10:42am
Nick B (mail):
Right now corporations seem to be able to chose if they are a "legal person" or not depending on the advantages provided. I've heard various arguments for each side, and I don't have a strong opinion, but I think it should be fixed, either they are a legal person, or they are not.
Nick
9.17.2009 10:57am
Anderson (mail):
Is there some rule about agency law that makes the First Amendment inapplicable?

If there's a $5,000 limit on my individual political contribution to a candidate, and I donate $5,000 myself, then have my "agent" donate another $5,000, then I would think there's a problem.
9.17.2009 10:59am
einhverfr (mail) (www):
I actually like Justice Marshall's 1814 approach which is to say that corporations have those rights which are incidental to their nature and those rights which are granted by law.

Obviously if we live in an nation ruled by laws, corporations must be entitled to due process of law, and to equal protection under the laws. I don't know if the third amendment would be applicable (on first glance, I would argue not), and the second amendment might only be applicable in special circumstances.

But what about freedom of speech? Do Corporations, as incidental to their nature have rights to engage in public political dialog? I think that our jurisprudence on the first amendment, as based on a marketplace of ideas, and the idea that natural persons should have ACCESS to as many viewpoints as possible mandates that they do.

However, I also would see no problem with regulating a few very specific media which are due to resources or market factors generally scarce. I do think rigorous spending limits on TV advertising (not programming) is reasonable.
9.17.2009 11:18am
Bob from Ohio (mail):
It must be a sign of the end times but I tend to agree with Sotomayor and Ginsburg.

Corporations should be limited to the rights granted by the state of incorporation.

Conservatives need to re-examine their unbending support of big business. Look at the health care debate, big pharmacy and insurance companies are in favor of something that most conservatives oppose.

We had a capitalist system before the 14th Amendment and before the whole "commercial speech" concept developed. Granting corporations political rights is not a requirement of our system.
9.17.2009 11:25am
troll_dc2 (mail):
I am quite dismayed that not one comment in this thread has discussed the history of how it came to be hornbook law that a corporation is a person within the meaning of the Fourteenth Amendment. If the Court considers this issue, it has to look to its precedents, and when it does so, it will find a most embarrassing case. That case is Santa Clara County v. Southern Pacific R.R. Co., 118 U.S. 394 (1886).

I have discussed this case in another thread, but I will do so again. The issue before the Court was whether the state could tax the railroad for the value of the fences that separated its roadway from the property of adjacent owners. The Reporter of Decisions noted that


The main--almost the only--questions discussed by counsel in the elaborate arguments related to the constitutionality of the taxes. This Court, in its opinion passed by these questions and decided the cases upon the questions whether under the Constitution and laws of California, the fences on the line of the railroads should have been valued and assessed, if at all, by the local officers, or by the State Board of Equalization; whether, on the record, the assessments and taxation upon the fences are separable from the rest of the assessment and taxation, and what was the effect of the record upon the rights of the state and the county.



But then the Reporter next wrote:

One of the points made and discussed at length in the brief of counsel for defendants in error was that "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." Before argument, MR. CHIEF JUSTICE WAITE said: "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 to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does. "




The opinion was written not by the Chief Justice but by Justice Harlan. Near the end of the opinion, he stated:


It results that the court below might have given judgment in each case for the defendant upon the ground that the assessment, which was the foundation of the action, included property of material value which the state board was without jurisdiction to assess, and the tax levied upon which cannot, from the record, be separated from that imposed upon other property embraced in the same assessment. As the judgment can be sustained upon this ground, it is not necessary to consider any other questions raised by the pleadings and the facts found by the court.


(Emphasis added).

In the Syllabus, the Repoter stated as the first point of the ruling:


The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws.

The Court has repeatedly stated that the Syllabus forms no part of the decision of the Court but is written solely for the convenience of the reader. See UnitedStates v. Detroit Lumber Co., 200 U.S. 321 (1906), which states:


the headnote is not the work of the court, nor does it state its decision, though a different rule, it is true, is prescribed by statute in some states. It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.


So the concept of corporate personhood was adopted by the Reporter of Decisions, who relied on the pre-argument statement of a justice who did not write the Opinion. The justice who wrote the Opinion expressly stated that it was not addressing the matter. It can scarcely be said that Chief Justice Waite's statement was even dicta. How can anyone take the Reporter's Syllabus seriously?

Even looking at Chief Justice Waite's statement on its own, what is the basis for it? He did not say. The proposition was never explained. One would think that the leap from the words of the Amendment to this conclusion would need some sort of explanation, for, at least to me, the conclusion is not self-evident.

Has the Court provided such an explanation in any other decision? I do not know. I hope that someone in this thread, maybe even Prof. Adler, will provide more information.
9.17.2009 11:33am
einhverfr (mail) (www):
Noting that I think that restrictions on broadcast TV corporate political advertising would be arguably Constitutional, but that I think that cable TV is a different case and that isn't narrow enough.
9.17.2009 11:35am
einhverfr (mail) (www):
troll_dc2:

Has the Court provided such an explanation in any other decision? I do not know. I hope that someone in this thread, maybe even Prof. Adler, will provide more information.


A lot of this goes back to Justice Marshall's opinion in Dartmouth v. Woodward. He writes

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. [emphasis added]


I would argue that the due process and equal protection are incidental to existence of every entity that comes under the jurisdiction of the court. This isn't full "personhood" in the sense of natural personhood. But it does provide a sizeable body of legal rights in a country with a government of laws.
9.17.2009 11:43am
einhverfr (mail) (www):
(I am probably the only person on this board who really like the Dartmouth opinion.)
9.17.2009 11:46am
troll_dc2 (mail):
einhverfr:


I would argue that the due process and equal protection are incidental to existence of every entity that comes under the jurisdiction of the court. This isn't full "personhood" in the sense of natural personhood. But it does provide a sizeable body of legal rights in a country with a government of laws.


I do not find your argument persuasive for the following reasons.

1. Taking your quotation literally, what does "incidental to its very existence" mean? Can a corporation exist without due process or equal protection? Yes. It might be a flawed existence, but Marshall, who acknowledged that a corporation is an "artificial being," was referring to something akin to a corporate necessary-and-proper clause. Not only that, there was no due process or equal protection restrictions on the states in Marshall's day, and corporations were the creation of the states.

2. You state that you would argue that "due process and equal protection are incidental to existence of every entity that comes under the jurisdiction of the court." But Marshall wrote "incidental to its very existence" (emphasis added). His concept was much more limited than yours.

3. As a government of laws, we can enact laws that we think are appropriate to govern corporations. If it is thought proper to apply due process and equal protection concepts to corporations, that can always be done by the legislature.
9.17.2009 12:02pm
jpe (mail):

The individuals who report the news on NBC have free speach rights.

Doesn't the corporate treasurer that cuts the check to the agency to produce the political ad have free speech rights?
9.17.2009 12:18pm
eyesay:
Arkady wrote, "It's as if I were to argue that since all even numbers are (assuming Goldbach) the sum of two prime numbers, the class of even numbers is itself the sum of two prime numbers." I think you mean "... all even numbers greater than 2 are (assuming Goldbach) the sum of two prime numbers, ..."
9.17.2009 12:19pm
Steve:
I would argue that the due process and equal protection are incidental to existence of every entity that comes under the jurisdiction of the court.

Equal protection is kind of meaningless without some sort of context, though. For example, black people are entitled to the same legal treatment as white people. But criminals aren't entitled to the same legal treatment as non-criminals. I assume you don't take the position that an equal protection violation occurs when the government regulates telecommunications companies differently from energy companies. So you really have to define what you mean by equal protection.
9.17.2009 12:19pm
einhverfr (mail) (www):
troll_dc2:

I don't know about you but I think that due process and equal protection are procedural, systemic protections against arbitrary government rather than individual rights and protections. Thus, like search warrant limitations, they apply to every entity which comes before the court.

Procedural, systemic protections inherent in our legal system must apply to all defendants. Therefore they are applicable. By their very nature, corporations can be sued or even prosecuted. Therefore they have the same rights as any other defendant in that process. I.e. I don't think it is within the bounds of our system of law (common law, Constitution, etc) to allow for one set of procedures for corporate defendants and a different set for natural persons.

Furthermore, these just like protections against takings, fall under the penumbra of the rights of the shareholders in the corporations as well.

But we may disagree there. My view on political speech rights of corporations is based largely on the basis that corporations have interests in political regulation as incidental to their very existence and hence they have a right to some level of participation in the dialog. This is based on two elements IMO:

1) Corporations, incidental to their very existence have interests and collective points of view, and by existing in any form, corporations fundamentally are involved in the marketplace of ideas.
2) The first amendment protects the right of the people to have access to as many points of view as possible. This is not held by corporations but held by individuals.

Therefore the first amendment interests of both corporations and individuals (both affiliated and unaffiliated with the corporations) are best served by protecting corporate involvement in the marketplace of ideas even around election times.

What corporations do not have the right to do IMO is to monopolize the marketplace of ideas in advance of an election. I think corporations have a Constitutional right to share their viewpoint and I have no problem with corporate web sites including electioneering content. Nor do I see a problem with corporations printing electioneering pamphlets. After all, web space is not a scarce communicative resource, nor does one printed pamphlet prevent a different one from being printed. I would however, have a problem with three or four corporations (PAC's or otherwise) buying up all the advertising space on broadcast analog TV for months prior the election. Such actions would have very distorting effects on the marketplace of ideas.

Thus I draw a line such that I think the BCFRA is facially overbroad, but I think a narrower act, which would not include a blanket ban on electioneering communications within the timeframe, and limit the TV control to a more narrow set would in fact be quite Constitutional.

Thus to my mind, it is a question of appropriate scoping rather than whether these rights exist.
9.17.2009 12:30pm
einhverfr (mail) (www):
Steve:

I assume you don't take the position that an equal protection violation occurs when the government regulates telecommunications companies differently from energy companies. So you really have to define what you mean by equal protection.


Equal protection mandates, at a minimum, that like is treated the same as like without a compelling reason to differ it.

For example, if we say "we will tax Qwest at a higher rate than Verizon because we prefer the latter" that is a violation of equal protection. If we say "we tax telecom companies at a different rate than software companies because of public services we have to offer relative to this" that is not a violation.
9.17.2009 12:32pm
egd:
Arkady:

It's as if I were to argue that since all even numbers are (assuming Goldbach) the sum of two prime numbers, the class of even numbers is itself the sum of two prime numbers. We cannot, in general, impute to an aggregate what is true of the members of the aggregate.

Actually, a more apt analogy would be arguing that since all even numbers greater than two are the sum of two prime numbers (assuming Goldbach), then the sum of two even numbers must also be the sum of two prime numbers.

That is, since all people have free speech, any combination of more than 1 person has free speech.
9.17.2009 12:37pm
eyesay:
egd: If we have a law that says that all persons have the right to employment at U.S. Salt Mines, does that mean that any arbitrary group of persons has the right to share a job at U.S. Salt Mines? If we have a law that all citizens are entitled to a share in the profits of U.S. Salt Mines, does that mean that any arbitrary group of citizens can claim a group share, on top of their individual share? If all citizens are entitled to vote, can any arbitrary group of citizens claim a group vote, on top of their individual vote? Arkady is right, there is a fallacy of composition here.
9.17.2009 12:53pm
troll_dc2 (mail):
einhverfr:

If due process and equal protection rights are truly incidental to the very existence of a corporation, then that would mean that they have to exist for corporations in other countries too. But I would wager that there are countries in which corporations do not have these rights. Assuming that this is so, how can they even function without these rights? The (assumed) fact that they do shows that these rights are not truly incidental to their very existence.
9.17.2009 1:00pm
LN (mail):

That is, since all people have free speech, any combination of more than 1 person has free speech.


If all of GE's employees have freedom of speech, then why does GE need freedom of speech?
9.17.2009 1:11pm
eyesay:
Ordinary persons can be incarcerated or even given the death penalty when they commit crimes. Corporate "persons" cannot be incarcerated, but they could, at least in principle, be given the death penalty by revoking their corporate charter and confiscating their assets. (This sort of "death" would be far less severe than the actual death imposed on a human criminal.)

Corporations can and do sometimes commit very serious crimes. Royal Dutch Shell was an accessory to the murder by the Nigerian government of Sani Abacha of Ken Saro-Wiwa and the rest of the Ogoni Nine. Only occasionally are corporate officers and directors punished for the crimes they authorize and commit as corporate "persons."

It's interesting that we actual citizens tolerate a set of rules wherein corporations receive the benefits and not the burdens of personhood.
9.17.2009 1:19pm
JunkYardLawDog (mail):
Do partnerships and Joint Ventures that aren't partnerships have free speech rights?

It certainly seems to me that non-partnership Joint Ventures have the free speech rights imputed from the individuals in the Joint Venture?

Seems that the same logic would hold true for partnerships of individuals?

If partnerships, which are separate legal entities from the partners, have free speech rights, then what's the basis for arguing a partnership that incorporates loses its free speech rights? A mere change in the form of ownership of the partnership assets shouldn't change the fundamental rights of the partners previously enjoyed through their partnership?

the dog is curious about people's thinking on this.
9.17.2009 1:22pm
Arkady:

I think you mean "... all even numbers greater than 2 are (assuming Goldbach) the sum of two prime numbers, ..."


Well, that's what I should have meant. :) (Or said, anyway...)
9.17.2009 1:42pm
Guest14:
The equipment is jointly owned by the stockholders, who have individual 1A rights.
This is wrong as a matter of state statutory law.

NBC's property is owned by NBC -- not by NBC's shareholders.
9.17.2009 1:42pm
einhverfr (mail) (www):
troll_dc2:

If due process and equal protection rights are truly incidental to the very existence of a corporation, then that would mean that they have to exist for corporations in other countries too. But I would wager that there are countries in which corporations do not have these rights. Assuming that this is so, how can they even function without these rights? The (assumed) fact that they do shows that these rights are not truly incidental to their very existence.


Not quite a rebuttal to my argument.

Here is another try.

A corporation is a an artificial being that exists only in systems of laws, correct? It is an artificial EMBODYMENT of joint ventures.

Since it is a being that exists only in a system of law, it takes on essential attributes from that system. I.e. elements which are ESSENTIAL to our government of laws are then bestowed on such corporations as incidental to its very existence. This must naturally include all systemic, procedural protections that our system of laws requires elsewhere. I think due process, protection against unreasonable searches and seizures, and equal protection clearly fall into that category. Moral/natural rights, however, do not apply.

A corporation would not exist in the same way in another system of laws. Therefore its very existence is fundamentally conditioned by the system of laws which forms its matrix of existence.

The question then is whether freedom of speech is a systemic, procedural protection or whether it is a moral right. My thinking is that it is both. There are clear elements of freedom to petition government and to speak which are systemic and procedural in nature and these are applicable to political speech as well. However, I don't think corporations have the moral rights inherent in the freedom of speech. I also think there are compelling government interests to limit involvement in scarce media (analog broadcasted television advertising for example) where substantial distortion of political dialog might be a problem.

Interestingly, this is also applicable to whether the bill refusing indirect funding of ACORN is an unconstitutional bill of attainder. If ACORN, as a corporate entity, can be arbitrarily stripped of the right to apply for federal, state, and local grants by an act of Congress, then certain systemic protections of our legal system do not extend to corporations. This seems to be the sort of thing you are advocating. So I am sure you think the amendment there is a step in the right direction?
9.17.2009 2:02pm
einhverfr (mail) (www):
The question is whether you apply Marshall's analysis on a case-by-case basis to each individual corporation, or whether you apply it to corporations as a class, in determining which characteristics are incidental to a corporation's very existence.

I think that if Marshall wanted to aggregate, he would have said "to their very existence" rather than "to its very existence."
9.17.2009 2:04pm
Don Kilmer (mail):
Cornellian said:

"So dogs would have standing to challenge a law Congress enacted making it illegal for dogs to bark loudly in public places?"

That reminds me of the joke about the farmer who had a talking dog he wanted to sell. People were amazed that he wanted to sell this talking dog. Turns out the dog lied all the time and Farmer John couldn't abide "people" bearing false witness against their neighbors. Trust me, the joke was funny when I heard it.

I would say that if you can produce a dog who can say: "Congress shall pass no law abriding the freedom of speech." Then I would have to agree that that dog would have standing to challenge anti-barking ordinances too.

Look, if E.T. lands in the United States, he has the First Amendment Right to phone home without having to prove that he is a "person" on his home planet.
9.17.2009 2:44pm
einhverfr (mail) (www):
Eyesay:

Personally I think that corporatons should be subject to suspension and frozen assets for periods of time in lieu of imprisonment.
9.17.2009 3:03pm
Notmyleg (mail):

Actually, a more apt analogy would be arguing that since all even numbers greater than two are the sum of two prime numbers (assuming Goldbach), then the sum of two even numbers must also be the sum of two prime numbers.


This is true I suppose, but not really a refutation of the point. A different example can easily be constructed.

All odd numbers have the property of not being able to be stated as the sum of two odd prime numbers. !Therefore the sum of two odd numbers has the property of not being able to be stated as the sum of two odd prime numbers.

What is true of the individual here is not true of the combination. 9 is an odd number, and cannot be stated as the sum of two odd primes. 18 is the sum of two odd numbers (9 + 9) and can be stated as the sum of two odd primes (11 + 7).

Having said that, I don't have a problem allowing corporations to spend money on ads, it may even be constitutionally required. But I think the combination of individuals theory cannot do the constitutional work on its own.
9.17.2009 3:29pm
JunkYardLawDog (mail):
If corporations don't have free speech rights, how is it they enjoy the right to pay taxes? If corporations must pay taxes don't they also then have the other rights under the bill of rights, like the right to petition the government for a redress of grievances? On what legal theory do you pick and choose which portions of the bill of rights corporations that pay taxes have and don't have?

the dog is curious again.
9.17.2009 3:35pm
Eli Rabett (www):
NBC is a bad example, as its broadcast rights are clearly granted by the government (arguments about cable devolve to local governments granting the rights to lay the cables)
9.17.2009 5:00pm
eyesay:
JunkYardLawDog: We humans can organize our society any way we want. We could agree that red light means go and green means stop, but we've agreed that green means go and red means stop.

We could agree to allow for an entity known as a "corporation" and require such "corporations" to abide by a set of rules. One of those rules could be that there is a corporate income tax. Another of those rules could be that, regardless of the individual rights if the corporation's owners, managers, directors, and employees, the corporation itself has no free speech rights of its own, or has different free speech rights from ordinary persons. These decisions are all a matter of human choice. "Taxation without representation is tyranny" inherently applies to actual persons, not to corporations, because persons can vote, but corporations cannot. For the same reason, corporations don't necessarily have the same Bill of Rights protections as actual persons.
9.17.2009 5:19pm
egd:
LN (mail):


If all of GE's employees have freedom of speech, then why does GE need freedom of speech?

If GE doesn't have freedom of speech, then Congress may pass unconstitutional laws regulating the speech of GE.

eyesay:

egd: If we have a law that says that all persons have the right to employment at U.S. Salt Mines, does that mean that any arbitrary group of persons has the right to share a job at U.S. Salt Mines?

Yes, if the law says that employment at U.S. Salt Mines is a right, then any arbitrary group of persons has the right to employment at U.S. Salt Mines.



If we have a law that all citizens are entitled to a share in the profits of U.S. Salt Mines, does that mean that any arbitrary group of citizens can claim a group share, on top of their individual share?

Is anyone arguing that first amendment rights for corporations should be broader than first amendment rights for an individual?


If all citizens are entitled to vote, can any arbitrary group of citizens claim a group vote, on top of their individual vote? Arkady is right, there is a fallacy of composition here.

I'm not (and I don't think anyone else is either) arguing for more rights for corporations than for individuals. Merely that a group of individuals, as a consequence of being members of that group, should not have their rights curtailed.

If Congress can legally prohibit a group of shareholders from exercising their First Amendment rights, can they also prohibit a similarly situated group of shareholders from exercising their 'right' to vote?

If 30,000 union members vote for Candidate X, should we discount their votes because they are conspiring to pool their votes for Candidate X? After all, 30,000 coordinated votes for Candidate X will surely dilute my lone vote for Candidate Y.

Suddenly I'm reminded of Asimov's short story "Franchise."
9.17.2009 5:48pm
einhverfr (mail) (www):
Eyesay:

We could agree to allow for an entity known as a "corporation" and require such "corporations" to abide by a set of rules. One of those rules could be that there is a corporate income tax. Another of those rules could be that, regardless of the individual rights if the corporation's owners, managers, directors, and employees, the corporation itself has no free speech rights of its own, or has different free speech rights from ordinary persons. These decisions are all a matter of human choice. "Taxation without representation is tyranny" inherently applies to actual persons, not to corporations, because persons can vote, but corporations cannot. For the same reason, corporations don't necessarily have the same Bill of Rights protections as actual persons.


Well, I wouldn't expect the Third Amendment to protect corporations though that might raise takings questions as well.

And beyond that, one can't elect IBM to the office of President of the United States or nominate Oracle to be Chief Justice of the Supreme Court. Nor are citizenship, naturalization, or involuntary servitude applicable to corporations.

I think that a lot of this then comes down to Justice Marshall's view (mentioned above) which I think should be looked at on a per corporation basis to see what is incidental to the very existance of a specific corporation.

I think that a corporation which is created out of US law has by necessity all of the systemic, procedural protections of that system of laws. These include common law responsibilities and protections, protections from unreasonable searches and siezures, due process, and equal protection under the laws.

Whether a corporation has freedom of speech on political matters or not depends on whether we really accept the necessity of a marketplace of ideas.
9.17.2009 6:09pm
einhverfr (mail) (www):
egd:

Is anyone arguing that first amendment rights for corporations should be broader than first amendment rights for an individual?


One of the major issues in Austin was whether the potential for a few corporations to distort the election discourse by putting a lot of money into some ads was sufficient to restrict corporations. I think that it is quite possible that this sort of distortion could occur due to resources that any given individual could not amass.

I guess I would draw a line between participating in the marketplace of ideas (printing pamphlets) and monopolizing the marketplace of ideas (buying up all the advertising space so opponents don't get their viewpoint out).
9.17.2009 6:12pm
einhverfr (mail) (www):
Just to clarify my first comment on this thread, I heard Sotomayor's question as both rhetorical and cynical. She seemed to be asking to my ears "so how many precedents do you want us to overrule? I suppose we could just overrule all of them...."
9.17.2009 6:17pm
Another guy named Dan (mail):
einhverfr:

what if an individual were able to on his own buy enough advertising time to distort a local or state election? is this then grounds for not allowing him any rights to speak whatsoever? The reducto ad absurdum of this is the third grade teacher's if there isn't enough for everyone, no one gets anything.

The fact that I don't have enough money to buy a newspaper ad should not restrict your right to do so, assuming you have the money.
9.17.2009 9:13pm
Tritium (mail):
Is there any official document that states that corporation have any specific rights? It was my understanding that charters granted rights to corporation. And if I remember correctly, no rights can be granted by government, that were not granted to itself.

Guess the confusion explains why people are so ignorant about the Constitution and Natural Law.
9.17.2009 9:22pm
ReaderY:
i frankly agree that the idea that a corporation is a person under the Bill of Rights is nothing more than a legal fiction. A corporation is a creature of state law. States can impose conditions on adopting the corporate form. In the absence of de jure corporate constitutional personhood, corporations would still have de facto rights derivative from the rights of the natural persons who are their shareholders, officers, etc.

It's particularly galling that the Supreme Court a few years ago in United States v. Craft took pains to diss the whole idea that thinking of a marriage as a separate person should be taken seriously. The court, in holding that assets held by a Michigan tenancy by the entirety aren't shielded from a tax lien against one of the spouses, took potshots at the whole concept, calling the idea that a marriage is a legally separate person nothing more than a legal fiction and an archaism out of keeping with the realities of modern life. Scalia, joined by Stephens in dissent, pointed out that regarding a marriage as a person distinct from its members with legally separate assets isn't really any different from regarding a corporation as a separate person with separate assets. Why should the Supreme Court embrace corporate personhood but diss marital personhood? What basis does it have for regarding corporate personhood as something enshrined in the consititution, but regarding separate marital personhood, which has an equally rich tradition in the common law, as nothing more than voodoo and nonsense?
9.17.2009 11:53pm
einhverfr (mail) (www):
Another Guy:

what if an individual were able to on his own buy enough advertising time to distort a local or state election? is this then grounds for not allowing him any rights to speak whatsoever? The reducto ad absurdum of this is the third grade teacher's if there isn't enough for everyone, no one gets anything.


That is an issue too. I guess I would suggest the same equation should govern there. Maybe limits in how many ads a corporate or natural person could buy on a given tv station on a given day in advance of an election?
9.18.2009 12:03am
ReaderY:
What in the constituion prevents states from saying that if you want to make political speech, fine, but if you do so you have to accept regular liability for your actions?

The concept underlying a corporation is limited liability. if we abandon the personhood metaphor and regard a corporation as simply being its constituent shareholders, officers, etc., a claim that corporations have first amendment rights is really nothing more than a claim that there is a constitutional right for people who engage in political speech to have limited liability. Framed this way, why? What's the basis of such a right?

Why can't the state say that while individuals can engage in political speech however they want to organize themselves, they don't have a right to limit their liability when they do so? If people engage in political speech through the corporate form and there's a problem, why can't engaging in political speech be a basis for piercing the corporate veil and going after the individual shareholders, officers, members, or whatever directly? Why can't a state simply treat a corporation as nothing more than a legal fiction whose separate existence can be ignored whenever it does something the state feels limited liability shouldn't apply to? Why can't the state decide what activities justify limited liability and what don't?
9.18.2009 12:09am
einhverfr (mail) (www):
Reader Y:

The issue isn't liability so much as amount of resources to distort the marketplace of ideas.

I think the focus needs to be on the marketplace of ideas, not on the question of whether corporations have free speech rights. That helps clarify the conflicts relating to rights and interests.
9.18.2009 11:08am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.