Yehuda Katz is a member of the Ember.js, Ruby on Rails and jQuery Core Teams; his 9-to-5 home is at the startup he founded, Tilde Inc.. There he works on Skylight, the smart profiler for Rails, and does Ember.js consulting. He is best known for his open source work, which also includes Thor and Handlebars. He travels the world doing open source evangelism and web standards work.

Corporations Cannot Have Natural Rights… Duh

When I first read through the Citizens United decision that essentially made it illegal to “discriminate” against corporate political speech, I found myself very torn. On the one hand, I’m an extremely avid supporter of free speech rights, and Kennedy wrote the majority decision to tug at my heartstrings:

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.

On the other hand, something felt wrong.

In the days that followed, I realized the the court had pulled a bait-and-switch, finding a way to split defenders of free speech, preventing a consistent response to the ruling, and resulting in a fair bit of liberal support for the ruling.

If you read the above quote closely, you can see the lie hiding in plain sight. The court, without drawing much notice, calls corporations “speakers” in the context of the First Amendment.

The problem is simple. The Bill of Rights exists to protect, for the long term, a set of natural rights. If you don’t believe me, read the writings of the anti-federalists, the guys who argued against the constitution and successfully agitated for the addition of the Bill of Rights in the first place:

That insatiable thirst for unconditional controul over our fellow-creatures, and the facility of sounds to convey essentially different ideas, produced the first Bill of Rights ever prefixed to a Frame of Government. The people, although fully sensible that they reserved every tittle of power they did not expressly grant away, yet afraid that the words made use of, to express those rights so granted might convey more than they originally intended, they chose at the same moment to express in different language those rights which the agreement did not include, and which they never designed to part with, endeavoring thereby to prevent any cause for future altercation and the intrusion into society of that doctrine of tacit implication which has been the favorite theme of every tyrant from the origin of all governments to the present day.

The language is a big crufty, but the meaning is clear. Without government, people have certain rights. They choose to surrender some of them to the government. The Constitution outlines the powers they have surrendered, and the Bill of Rights outlines specific cases where those powers may not tread.

However, corporations do not exist outside of government. They are not “creatures”. Instead, corporations are creations of the government, and therefore cannot reserve any rights via a bill of rights.

Looking at the quote from the ruling again:

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.

The ruling fundamentally subverts that actual purpose of the Bill of Rights, using language that appeals to defenders of free speech to apply to entities that, by their very definition, the First Amendment cannot cover.

In short, the Bill of Rights protects the natural rights of people who have already surrendered a fair bit of their autonomy to the federal government. Corporations, by definition, cannot have natural rights, and since they don’t exist outside of government, cannot have surrendered any autonomy to the government. Therefore, the Bill of Rights, and the First Amendment, cannot apply to them. QED.

20 Responses to “Corporations Cannot Have Natural Rights… Duh”

Totally agree.

Human Rights are the decedents of Natural Rights and apply to the species, corporations are made up of individuals, the individuals themselves have Human Rights that are to be protected, but the corporation is an idea, it’s an organization of individuals.

Allowing a corporation to adopt “human rights” is crazy.

Good 10 minute history of human rights: http://www.humanrights.com/what-are-human-rights

Mikel

Corporations were created as engines of economic growth. They’re designed to give their owners limited liability, and thus encourage people to take risks they would otherwise not take if they could be held responsible beyond the extent of their investment in the business. They weren’t designed to bring all the rights of personhood onto the corporation.

When the Bill of Rights was written, corporations were the exception to the rule; not the rule. There was no corporate law developed, and corporations were individually chartered by the acts of the legislature (or in the case of federally-chartered corporations such as the Bank of the United States, the Congress). People couldn’t just go to an office, fill out some paperwork, and all of a sudden they have a corporation.

Corporations, like any group of people, do not have any natural rights *except those they inherit from the individuals making up the group*.

I have the right to free speech. My friend has the right to free speech. If we form a corporation, why should we lose the right to speak together? All corporate free speech means is that the owners of the corporation have free speech and can use their property to further that speech.

If you believe that corporations do not have free speech, do you believe that the government has the right to censor all news sources with more than one employee?

i think you meant: “QED, MFers!”
which I wholeheartedly support.

Then the “media” – NYTimes, ABC, etc. do not have the right to free speech.

The issue is that some preferred large corporations had full free speech before this ruling. Only big corporations – GE, for example – could enjoy this right buying up NBC, MSNBC, or Fox for example.

The court case was ruling on why a small corporation putting out a movie could not talk about candidates just before elections while larger corporations could express their political opinions freely.

The answer to all of this is transparency – not eliminating free speech.

Firstly, I apologize if you grasp this but it was unclear from your post, but the decision was based entirely on the premise that the word of the 1st ammendment “… abridging the freedom of speech…” is protected *speech* regardless or source, not speakers. As such it has nothing to do with corporations being speakers, but that any speech should be protected.

Secondly, corporate persons does not mean what most people are saying. It is not about giving corporations the rights of people, it’s about making a corporation an entity that is accountable to societal rules. A corporation pays taxes, can be sued, and is liable for its actions *independently* of the people who form the corporation. This is fundamental, as our society wouldn’t work very well if you couldn’t sue a corporation, but simply its members; or if the members of a corporation were liable for the corporation’s debts. All corporate personhood does is make corporations a legal entity in the eyes of the law

I wholeheartedly agree but this is not the first time the Supreme Court has acted to give corporations natural rights.

See: http://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad

In effect, this decision is a natural consequence of that case. Unfortunately.

Corporations exist to limit risk to their members, and they effectively never die. This decision is somewhat like having a class of immortal plutocrats living among us. Can’t limit their rights! Wouldn’t be fair.

@chris “Corporations, like any group of people, do not have any natural rights *except those they inherit from the individuals making up the group*.”

Let’s look at the structure of a corporation:

We have the shareholders, the BOD and the employees. The shareholders have essentially no control over the day to day operations of the company and act much like private citizens in our country. Their only real power is to vote for the BOD. There can thousands of shareholders with very different political views and they came together under a business model, not a political ideology, so clearly the corporation does not represent a extension of their free speech.

Second, we have the BOD. The BOD has a fiduciary responsibility to all the shareholders to maximize profit. This means that they could, for instance, support a candidate that wants to pass legislation favorable to the corporation itself. They could not support a candidate that aligned with their personal beliefs because again, they most likely have disparate political views, and it would also be a violation of their fiduciary responsibility. So clearly, the corporation does not represent an extension of their free speech either.

Finally, we have the employees. The executive level employees would have the power to support political candidates, but they are ultimately answerable to the BOD who can not legally allow it. So clearly, the corporation does not represent an extension of their free speech.

We are left with the real reason why corporate free speech should not be protected under the constitution: the corporation is not a collection of it’s constituent parts, it is an independent entity. On top of that, the various participants in a corporation very likely do not have the same or even similar political ideologies, so there is no way the corporation could represent them all even if they wanted it to.

The court has the ability to rule very broadly or very narrowly. The appropriate ruling would have denied corporations the right to paid political advertisements or direct contributions to politicians or political action groups, while leaving intact the ability to produce political “products”, like movies and news (this shouldn’t be a political product, but unfortunately it usually is). Of course, there will always be some ambiguity and it’s not always easy to draw a line in the sand, but in general, if the company derives revenue or intends to derive revenue from an action, then it should be protected. People will always find a loophole in the rules, but that doesn’t mean we should open the floodgates. A ruling like the one I describe would allow us to look at the issue on a case by case basis.

I can’t recall the last time I read any worthwhile news from “the media”, it is usually attributed to a specific author, reporter, journalist or editor, who can and should have protected free speech.

@aaron “it is usually attributed to a specific author, reporter, journalist or editor”

That is a very good point, but the funding for the people who write news stories or movies does come from corporations, so a blanket ban that covers everything would prohibit them from paying those people as “political activists”. A corporation should have the minimum rights necessary to conduct it’s business, and that means *some* free speech, but not unrestricted free speech. If news is your product and you want to portray it with from a specific political ideology, then that is your business model, but that doesn’t mean you can directly sponsor political campaigns or issues. We all understand that movies and news have political bias, they are catering to their audience, but what political bias does Ford have? Is Coke a Republican and Pepsi a Democrat? Will corporations put out political ideology reports so we only invest in the companies that match our politics? It’s absurd.

@wycats: so are you saying that it would be constitutionally protected speech for me, as an individual, to produce the movie that Citizens United produced? But that, since corporations aren’t people, it is not protected speech (and thus the government can censor it) since it was produced by Citizens United and not an individual?

Remember that Citizens United (the corporation) was set up by a bunch of individuals for the sole purpose of producing works that are pretty inarguably constitutionally protected were they to be produced by individuals. It’s not like they’re a company that’s selling some products and also making political videos with their profits. The only reason Citizens United exists is because the individuals alone (who have donated to Citizens United) don’t have the resources to independently produce political videos/materials. The same thing applies for the ACLU, the NRA, or whatever politically active organization you might wish to support. Nobody (well, very few) would ever have the resources to do the things that these organizations do if they had to operate as individuals.

I agree with you that corporations should not be treated identically to people, but clearly some rights of the people must “bubble up” to the corporation. Should the government be able to search a corporation without a warrant? Should they be able to sieze corporate property without due process? I would think most people would say no. But if corporations don’t have rights, why not?

Brian, the corporation obviously represents their shareholders. The BOD is not obligated to maximize profit, they are obligated to act in furtherance of the corporate charter. For some corporations, the charter specifies their goal is to maximize shareholder value (but not all).

In this case, the owners of the corporation have directed their proxies to speak on their behalf in the pursuit of profit. Anyone who did not wish for the corporation to speak in pursuit of profit *didn’t buy any shares*. The free speech rights being exercised are those of the owners, more precisely the majority of owners who voted for the current BOD and the minority who agreed to be bound by that vote.

Also, you ducked the question: if you believe corporations do not have free speech, can the government censor the NYT and other corporate news sources?

@chris: you hit the nail on the head

@brian: Your argument seems to address only large, publicly-held corporations. What about small privately-held ones? For example, a corporation with 3 shareholders, who are also the BOD and officers? Should those people’s rights be abridged simply because they don’t care to subject themselves to a litigation-happy public?

Also, if for-profit corporations shouldn’t be allowed to speak on political issues/campaigns because they are “speaking” through representatives (BOD), what about non-profit corporations? What about unions? What about professional associations (e.g. the AMA)?

Luke

In Santa Clara County v. Southern Pacific Railroad, SCOTUS didn’t in fact rule that corporations were persons, instead it appeared not in the decision itself, but in the headnote prepared by the Court Clerk, who just happened to have previously been the president of another railroad.

Headnotes aren’t supposed to be considered as binding or part of the decisions, but this one seems to have stuck somehow. Kind of a legal “urban legend” which has led to a series of dubious results.

In effect this ruling was interpreted to give the same rights to corporations that the fourteenth amendment, which overturned the Dred Scott decision, guaranteed to everyone, including freed slaves.

One irony, is that since corporations are owned by their shareholders, and “work” for their owners “involuntarily” a case can be made that if corporations are in fact “persons” then such ownership violates the thirteenth amendment which makes slavery and involuntary servitude unconstitutional.

“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.”

Where in there does it require that a corporation be given extra legal privileges above and beyond that of any old unincorporated group of individuals to have freedom of speech? Or do you think it’s reasonable to make the 1st amendment toothless by saying that the “press” is free from government intervention, but the government gets to choose who gets to be called “press”?

I can get passionate and angry on my soapbox about extra laws and privileges that our society has abdicated to corporations, but the 1st amendment applies to everyone. Yes, I’m sad and angry that other circumstances have led to powerful corporations capturing much of our government. But limiting the freedom of individuals pooling their resources or of “the press” to partake in political speech is an incredibly bizarre way to fix that.

Glenn Greenwald had an interesting take on the idea of corporate personhood:

http://letters.salon.com/opinion/greenwald/2010/01/23/citizens_united/permalink/4516d48dcb324ddf1abb5ca09235aea1.html

This really is not about corporations having rights of people. Would you please care to read the first amendment over again, and clarify what part of “Congress shall make no law…abridging the freedom of speech” is confusing?

Should the FEC be able to ban books if they were paid for by corporations, labor unions, or advocacy groups?

I would like to mention something said earlier by Chris:

“I have the right to free speech. My friend has the right to free speech. If we form a corporation, why should we lose the right to speak together? All corporate free speech means is that the owners of the corporation have free speech and can use their property to further that speech.”

The important part of this paragraph is the ‘property’ part. Corporations have rather huge amounts of money. They can give this money to politicians that support their stances, and these politicians will vote for things favorable to corporations in exchange for this monetary support.

I think it’s obvious why corporations shouldn’t be allowed to give as much money as they wish to a politician they favor. Unrestricted capitalism isn’t a good thing.

The court, rightly or wrongly, deferred to precedent with respect to corporate personhood. The concept always struck me as distasteful, but it’s a slippery slope argument – at what point do you deny rights to an organization? As soon as there’s a corporate charter? At a certain percentage of foreign ownership? Given that CI was essentially about the First Amendment, and only tangentially related to corporate personhood, it’s right that the court invoked stare decisis.

Two observations:

1. Given that campaign finance rules were already full of loopholes, allowing large, rich, foreign-owned corporations to spend an unlimited amount of money on issue advocacy through shell organizations like so-called 529′s, how does this substantially change the status quo? They’re now allowed to use a candidate’s name in advertising (the bulk of campaign expenditures), and to fund their busses/buttons/fliers.

2. Is money really the deciding factor in any campaign? Ron Paul’s 2007-2008 campaign fundraising was record-breaking, but didn’t result in substantial Primary success. Although the campaign was flush with cash, and had sizable grassroots support, it was poorly managed and suffered for it.

Should we be more concerned with the corporations buying politicians, or with the politicians who are selling access to power?

The problem is not the money, but the power. As long as politicians have the power to reward their friends and punish their enemies, that power will be for sale.

Corporations that do not attempt to buy the politicians (Microsoft pre-1998) get attacked. The lesson is clear: pay off the politicians, or get bullied by them.

http://news.google.com/newspapers?nid=2026&dat=19981218&id=sMwqAAAAIBAJ&sjid=6dAFAAAAIBAJ&pg=5212,1594196

Leave a Reply

Archives

Categories

Meta