Friday, January 22, 2010

The Corporation as a "Speech Tool"

In the latest in a series of silly posts by the law professors at The Volokh Conspiracy, defending the Supreme Court's treatment of corporations as if they're living, breathing human beings, Ilya Somin contends that we need not look at corporations as exercising independent speech - that they're tools used by real people to advance their arguments.
When corporations “speak,” they are just a means that individuals use to exercise their rights of free speech — often a more effective means than the available alternatives. And just as the right protected in Griswold actually was a human right rather than a right belonging to the contraceptives, property rights are rights of human owners, not rights belonging to tracts of land or objects.
That's a decent public policy argument for allowing corporations to have some speech rights, and you know what? Virtually no one contends that corporations should have no protected speech rights. But that doesn't mean they are persons entitled to the full protection of the First Amendment. It's similar to Somin's prior post that the owners of corporations are real people. Well, duh. I personally own a corporation... but when it turns 18 I don't get to vote twice.

I have yet to see a compelling answer from advocates of corporate free speech absolutism for corporations as to why a corporate entity that exists only by virtue of a license from the state can't be limited by that state in the extent of its "personhood". We actually do restrict the speech of certain entities that want to qualify for tax advantages - churches, charitable organizations - why is that constitutional? Given that corporations pay a different tax rate than real, living breathing human beings, would those tax advantages justify similar limits on their speech rights? Or are we going to strip away the restrictions on political lobbying and advocacy for political candidates that we impose on some corporations but not others?

Justices like Scalia and Thomas praise themselves for staying within the confines of the language of a statute or the Constitution. (They don't always do that, but we're not supposed to notice.) Justices and judges who follow their school of interpretation will tell you that if it's not in the statute it's not their job to insert new language - that's the job of the legislature. There's nothing in the Constitution that would suggest that references to the People are meant to encompass fictitious persons. To the extent that legislatures have chosen to grant rights to corporations, for good public policy reasons, there's nothing in the constitution that says "they can't limit those rights" or "they can't offer substantially fewer rights than the Constitution grants to living, breathing human beings." It's pure judicial activism to rewrite the Constitution in the manner of the Citizens United majority.

If they believed their own words, Justices like Scalia and Thomas would apologize that although they think it would be a good idea to amend the Constitution to grant full (or near-full) rights to Corporations, but that it's not their job to judicially rewrite our nation's founding document. But... they don't. (But when it comes to the rights of real people, particularly people who aren't sufficiently deferential to authority, broad limits on speech are easily rationalized. Stupid kid was 18 - he should have formed the "Bong Hits for Jesus Corporation" and held up a constitutionally protected advertisement.)
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen
I think Apple, born in California and now 34 years old, would be an excellent Member of Congress. And it's almost old enough to become President!
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
So why does the census discriminate against states like Delaware and Nevada by not including their corporations? Those states deserve more Members of Congress! Shenanigans!

This is every inch the type of activism that "conservatives" claim to hate. Having failed at the ballot box, they went to court to get legislation from the bench. (I would call my examples, above, reductio ad absurdem, except it could be a mere four years from now that President Halliburton dispatches Vice President Xe to detain me for having such dissident thoughts. Presidents, after all, should be able to indefinitely detain anybody they deem a threat to the nation, right?)
Update: Somin adds,
I should clarify that in this post, as before, I’m not arguing that corporations themselves are “persons” with constitutional rights. Rather, I’m asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights.
Given that he's defending the Citizens United decision, that just doesn't ring true. The issue is not, and has never been, "Can Joe Smith give $100 to support a Member of Congress". Of course he can. The issue is whether the corporation, apart from Joe Smith, can give money and support in its own right. I accept that a public policy argument can be made to protect certain forms or levels of "corporate speech", and that there are times when individuals could point to corporations and other similar entities and say that speech limits on those entities violate their personal Constitutional rights, but it's not the Supreme Court's role to ignore the actual language of the Constitution - that, again, is legislation from the bench.

Further, if it's the individual right that is being burdened, why is the plaintiff a corporation seeking protection of its rights rather than owners or shareholders complaining that limits on corporations negatively affect their individual, constitutionally protected rights? If Joe Smith wants to give $100 to his corporation then direct his corporation to give the money to a Congressional campaign, he can leave out the middle man - Joe Smith don't need an activist decision giving the corporation additional rights to give his money to the campaign.

It's only if the corporation is making an independent assessment, even by virtue of the collective actions of the people who control it such that they diverge from what Joe could do individually, that Joe's personal speech rights are affected. In terms of monetary contributions, it's only when the contribution reflects corporation's independence from shareholders and owners with a minority interest (such that the same money could not flow directly from them, individually), or the distribution of funds vastly beyond what the owners would produce from their own pocket (this isn't about "mom and pop" firms) that it becomes necessary to find it "unconstitutional" to limit the corporation's "right" to shower money on political candidates and causes - because in the other contexts the money can still be contributed in equal volume.

It's not enough to say that some corporations, such as media corporations, are viewed as important tools to advance free speech. Again, if an individual has his rights affected by government restrictions on business entities, the individual can bring a lawsuit under the First Amendment - and nobody is disputing that living, breathing people enjoy full protections under the First Amendment.

Again, why is it that lawprofs like Somin get their noses bent out of shape when the nation's largest corporations are restricted in their "political speech", but don't even raise an eyebrow about the restrictions imposed on charitable organizations, churches... how about lobbyists representing foreign governments? The money may be foreign, but if it's a domestic non-profit owned by citizens, doesn't Somin's argument strip away any Constitution-based reason for treating it differently than any other for-profit enterprise?


  1. So, given this ruling, would there be justification for 501(c)3 corporations to sue on the basis that the restrictions limiting their ability to endorse candidates and political positions are also unconstitutional, since it violates their free speech rights? True, those restrictions are normally understood as part of the price you pay for not paying taxes, but since when did the constitution say that the right of free speech was only for people who pay their taxes?

  2. I agree with that, Jan, at least in theory. In practice I expect that the Court would find that restrictions on non-profits and churches remain justified by the tax breaks they enjoy.

    If you were to point to the tax breaks corporations enjoy as compared to "natural persons" you would likely receive a response in the form of a blizzard of words and case precedents that, at its core, would amount to nothing more than "That's different".


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