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Very Quick Thought on Corporate Speech Cases

June 30, 2011, 4:20 pm

This whole argument about corporate personhood is an enormous distraction.

Corporations have certain rights not because they are legally persons, but because they are formed by and made up of persons.

Here is my simple formulation.  Inidividuals have the right to free speech.  Individuals have the right to association.  It is crazy to then posit that individuals, when they associate, no longer have free speech rights.   If five of us gather on a park bench, we have not somehow given up our speech or other rights by doing so.  And the fact that we may form a formal club or organization among us with bylaws and hierarchies does not change this fact one bit.

By the way, if the First Amendment does not apply to individuals who have assembled into a corporation, does the Fourth Amendment apply?  How about the Fifth?  or Sixth?  of Seventh?  or Eighth?

Tags: , ,
Category: Individual Rights
  • Dan

    I've been giving this argument to anyone who will listen since the Supreme Court made their ruling on this. Unfortunately, so many people automatically associate "boogey man" with the word "corporation." For most, it's a matter of ignorance, not ideology.

  • http://classicjapanesesongs.blogspot.com Brandon Berg

    By the way, if the First Amendment does not apply to individuals who have assembled into a corporation, does the Fourth Amendment apply? How about the Fifth? or Sixth? of Seventh? or Eighth?

    You don't really want to go down that road, do you?

  • http://stopthebreathing.blogtownhall.com astonerii

    In fact, it even specifies that they have the right to assemble and peaceably petition the government. It is a pretty much open and shut case that corporations have the constitutional authority to say what ever they like about the government or candidates for government office.

  • Noah

    Which First Amendment are you talking about? The one in the Constitution that says "make no laws" or the one the courts created which says "make some laws"?

  • Ted Rado

    Warren:

    You keep giving us more examples of the horrible intrusion of government into our lives. The growth of the elected dictatorship continues apace. Pretty soon we will need a government permit to relieve ourselves (polluting the environment, you know). After all, a government that can tell us what light bulb to use and what insurance we must buy can control anything.

    Maybe we should exhume General Tojo and reconstitute the famous (or infamous) thought police.

  • kebko

    Sadly, it is not novel among the activist left to complain explicitly about those other amendments in relation to corporations. They would not recognize your attempt at hyperbole.

  • bradley13

    If you were speaking of a proprietorship, your argument would be correct. However, individuals forming a corporation are shielded by the corporation from many legal consequences - precisely because the corporation is a separate legal entity.

    If you exercise your rights - or perhaps overstep your rights - as an individual, you are fully liable for the consequences. This is no longer true if you are part of a corporation: your liability and responsibility are reduced, having been assumed by the corporate entity.

    If you wish to exercise free speech, do so as an individual, or as part of an organization that does not shield you from the consequences of your actions. The question of what rights corporations should have is entirely legitimate, precisely because they are separate legal entities.

  • joshv

    To a certain extent I agree with Bradley, nobody is talking about curtailing the rights of individuals who are members or a corporation.

    The corporation is a completely distinct entity, it's actions are composed of the actions of the employees, owners and management, but for legal reasons we consider most of those actions to be the responsibility of the corporation, not the individuals involved.

    This legal fiction is convenient, as when a coporation acts badly, we don't have to track down the last CEO and the estates of decease members of the board of directors, and invidually sue them for something the corporation did 4 years ago. We sue the corporation.

    But it is a legal fiction. The corporation is not an actualy person, and it's entirely up to us to define the bounds of this fictitious corporate personhood. I don't see it at all a foregone conclusion that the result should be a fictious person with all of the Constitutional rights of a real person.

  • Another guy named Dan

    How can you argue that it furthers democracy to allow one person with $10,000 to purchase a television commercial, but to deny that ability to an association of 10,000 people with $1 each?

  • Dan

    I agree with Bradley.

    And "Another guy named Dan:" Let me put it like this. I work for a corporation with more than 10,000 people. If it chooses to give $10,000 to a candidate, or $1 per employee, that $1 isn't really money I have any say over. They don't come to me and ask my permission. I suppose I could protest that I don't want the money used that way and demand "my" dollar back, but doing so may get me fired. If I'm a shareholder, I suppose I could punish the company by selling my stock, but that might hurt me as much as it hurts them, and either way, the money has already been donated and I had no say.

    There's no comparison to a corporation using money to contribute and a group like the NRA or Sierra Club donating. In an organization like the NRA or any other lobbying group, people who form the group willingly give their money to those who run it to support particular political agendas and candidates. Ten thousand people giving $1 through the NRA is completely different than IBM giving $10,000 on behalf of 10,000 of its employees.

  • Maximize Liberty

    bradley13, joshv, and Dan:

    If our constitutional rules are supposed to trump ordinary statutes, then surely the statutes have to accommodate the constitutional rules, not the other way around. So, if the existence of limited liability for associations of people has terrible effects on political speech, you should work towards eliminating the limited liability aspect (which is atstutory) rather than the political speech aspect (which is constitutional). Otherwise, what you are really saying is that you value a corporation's limited liability over its free speech.

    Dan:

    If you are an employee, you are not part of the association. The association is formed by its stockholders. If you are a stockholder and you don't like what the association decides to do, you can quit. That's just as true of its political speech as its decisions on how to spend R&D money.

    Max

  • marco73

    You should read all the hoops that Comedy Central's Stephen Colbert has had to jump through to create a PAC. When someone with the megaphone of Colbert, and the financial and legal muscle of a massive media corporation like Viacom cannot stay within the Campaign Finance laws, then something is seriously wrong. I don't necessarily agree with Colbert's political views, but why can't he speak his mind, and spend his own money, without so much interference.
    http://washingtonexaminer.com/opinion/2011/06/nothing-funny-about-government-limits-political-speech

  • http://hertzlinger.blogspot.com Joseph Hertzlinger

    The purpose of complaining about corporate personhood is not to stop corporate personhood; it's to show that leftists are superior to those "glibertarians" who don't even know their own ideology is based on corporate personhood.

  • markm

    bradley13:

    If you were speaking of a proprietorship, your argument would be correct. However, individuals forming a corporation are shielded by the corporation from many legal consequences – precisely because the corporation is a separate legal entity.

    So your concern is that a corporation could be used as a shield to avoid paying damages for libels. That is, that a libel suit is won, but the corporation lacks sufficient assets to pay the damages, while the responsible people walk away. How many times has this happened? Can you cite even one case?

    And what do you want to do about corporations like the New York Times and CBS?