

Corporations Cannot Have Natural Rights… Duh - jackowayed
http://yehudakatz.com/2010/02/01/corporations-cannot-have-natural-rights-duh/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+KatzGotYourTongue+%28Katz+Got+Your+Tongue%3F%29

======
nestlequ1k
It's so much simpler than that. Read the first amendment closely one more
time. "Congress shall make no law..."

Where does it stipulate that this does not apply to groups with a shared
financial interest? Why would anyone lean towards less free speech rather than
more?

------
anon-e-moose
It's interesting to me how everyone who disagrees with this ruling keep acting
like the justices are extremely confused and decided through some convoluted
mental process that corporations are pretend-people.

Lets look at the First Amendment, shall we?

"Congress shall make no law"..."abridging the freedom of speech, or of the
press"

Hmm... doesn't say you have to be a person. In fact it seems to just say,
Congress can't make a law... abridging speech. Not speech by people, or speech
by companies, or speech by the media. Just speech. As in, anyone can say
whatever. _Especially_ about politics.

Justice Kennedy brilliantly points out: '"If the First Amendment has any
force, it prohibits Congress from fining or jailing citizens, or associations
of citizens, for simply engaging in political speech." He also noted that
since there was no way to distinguish between media and other corporations,
these restrictions would allow Congress to suppress political speech in
newspapers, books, television and blogs.' (via Wikipedia)

Honestly I'm not sure what's going to change... rich people and unions already
dump money into politics, through various means.

------
cmars232
I think the proposed heavy tax on corporate contributions makes a nicer
distinction between speech with words and "speech" with money.

------
Shamiq
I want to hear what Eliezer has to say.

------
yardie
Freedom of speech isn't a right, in human history, it's an anomaly. We've
elevated it's status to a right to make sure their is no dispute of its
importance. These things are only held together by the blood and sweat of the
people that are willing to protect them. Corporations have neither of these
qualities so I fail to understand how they qualify for something that most
people can't even get for themselves.

~~~
joubert
Freedom of speech is necessary for an effective democracy.

Corporations are not citizens.

------
zzzmarcus
"Without government, people have certain rights. They choose to surrender some
of them to the government."

What "natural" rights do you have without government?

~~~
ramidarigaz
The right to kill, the right take without giving, the right to go where you
want, when you want. Pretty much all the stuff that is considered to be bad
today. Those are rights that the government has taken away, probably for the
better ('cept for the last one. I hate fences).

------
lmkg
While I generally agree with the article and disagree with the SCOTUS ruling,
I do have to take exception to this statement:

> However, corporations do not exist outside of government

If you take the "corporations are most certainly not people" position (and I
do), then a corporation is an agreement between a group of people with a
mutual economic interest. That's not a government creation, that's a naturally
arising phenomenon. You don't need any sort of government to create a
corporation, although contract law would help. But I don't think it's possible
to have contracts without corporations arising naturally and organically.

Am I missing something? Obviously, the US has passed a lot of laws giving
corporations particular rights, responsibilities, liabilities, privileges,
etc. But that doesn't mean that corporations are government creations, in the
same way that citizen's rights are natural right that are recognized rather
than granted.

~~~
wycats
You're thinking about partnerships, which are the associations of people
others are talking about (created, as you point out, via contract law).

Corporation are special entities created by governments to shield the
executives from persoanl responsibility for their actions as executives. In
THAT capacity, I argue that the corporation does not inherit human rights
because of the shield that protects the underlying individuals for
responsibility for their actions.

------
techiferous
What I find ironic is that we experience a fair amount of cognitive
disequilibrium when we discuss the legal rights of corporations in comparison
with the legal rights of individuals, but we aren't bothered by the difference
between the legal rights of humans and the legal rights of animals. IMO, the
basic rights of human individuals are more similar to the rights of advanced
animals (like pigs) than they are to the rights of corporations.

~~~
nhebb
Because no one wants to get sued by their breakfast sausage.

------
wycats
Corporations aren't normal associations of people or the arguments below would
be correct. They're groups of people hired by others to spend their money WITH
A SPECIAL LIABILITY SHIELD. That shield protects them personally from the
corporations responsibility and prevents the human rights from leaking into
the artificial, government-created entity that is a corporation.

The individual people involved, acting by themselves or as a group, are free
to speak as much as they want, spending as much money as they want in the
process. What they're not, I argue, is free to spend someone else's money
through an artificial construct that shields them from all responsibility for
their actions.

Rights and responsibilities are two sides of the same coin. If the human
responsibilities assoiated with a han right are shielded, the human right is
shielded too.

~~~
_delirium
Are you arguing that the First Amendment doesn't apply to corporations at all
then? So was the Pentagon Papers case, which ruled that the New York Times
Company had a First-Amendment right to publish the Pentagon Papers free from
government censorship, wrong? Maybe some individual author had the right to
publish them, but the New York Times Company didn't? What about the free-
speech precedents involving corporations like adult-film producers?

~~~
Mets102
The New York Times didn't exercise free speech rights in publishing the
Pentagon Papers. The First Amendment protects five specific rights (speech,
press, religion, assembly, petition), along with protecting against an
establishment of religion. The Times was using its press rights under the
First Amendment.

There are different lines of jurisprudence in First Amendment law depending
upon the right implicated. A press case is going to be decided upon a
different line of cases than a free speech case.

The corporate or non-corporate form is irrelevant. It's looking to the
substance. There's a difference between freedom of the press and freedom of
speech. Freedom of the press protects the ability to report the news. It's
rooted in the the British government prosecuting those publishing stories
critical of the government as seditious libel, giving rise to the maxim, "the
greater the truth, the greater the libel."

Speech, in contrast, is the speaking of opinion. The Times did not do this in
publishing the Pentagon Papers. There is a difference between a newspaper with
corporate form publishing the news and a corporation such as ExxonMobil or
Google effectively advocating for a specific candidate.

~~~
_delirium
That's not my understanding of the relevant precedents--- the Supreme Court
has never interpreted the "freedom of the press" to refer to a specially
protected class of reporters or news companies, or limited it to reporting the
news. It has been held to protect the First Amendment rights of not only news
corporations like the New York Times, but also companies that produce
pornographic films and magazines, for example (one of the important precedents
on the First Amendment's protection of parody involves an issue of _Hustler_
). It seems to have been read much more broadly to mean, roughly, "the freedom
to publish things, like books, newspapers, and films". For example, films like
_Hillary: The Movie_ , which was the thing at issue in _Citizens United_.

I think there's probably some way the other outcome could've been reached, but
it would be trickier than I think a lot of people are arguing. It would have
to be a narrow prohibition against direct electioneering by corporations,
carved out as a First-Amendment exception due to the compelling government
interest in free elections/etc. (similarly to how obscenity, libel, false
advertising, and "false-light disclosure of private facts" are recognized
exceptions). And then specific cases would have to be investigated to see
which side of the line they fell on: for example, to determine whether
_Hillary: The Movie_ was a real movie, or pure electioneering disguised in a
sham movie.

------
jfoutz
We (the U.S.) protect rich people's freedom of speech. We protect
organization's freedom of speech. Saying corporations have no freedom of
speech is like saying peaceable assembly is a separate right from freedom of
speech. It's not. The first amendment gets value from thousands, or millions
of people getting together to say the same thing at the same time.

~~~
sethg
Before the _Citizens United_ case came down, thousands or millions of people
_were_ free to get together to say the same thing at the same time by donating
money to organizations (“527 corporations”) whose specific purpose was
political advocacy. (Or they could give money directly to their favorite
political parties or candidates, but then each person involved faced limits on
what he or she could contribute.)

What _wasn’t_ legal was for another kind of corporation to use its general-
treasury funds for the same purpose. The laws banning that kind of spending
were based on the idea that when a for-profit corporation injects itself into
the electoral process¹, it creates the appearance of political corruption if
not actual corruption. After all, if the corporate directors authorizing the
donation _didn’t_ expect to get some kind of benefit from the politician in
return, then they were wasting their stockholders’ money.

The majority in _Citizens United_ acknowledged that preventing the appearance
of corruption was a legitimate concern (which is why restrictions on _direct_
donations to political parties and candidates were allowed to stand), but was
so committed to the “treat corporations as people” principle that they didn’t
see the point of restricting contributions from corporations.

¹I.e., corporations _could_ run ads saying “nuclear energy is great”, but
_not_ “vote for Smith, because he supports nuclear energy”.

~~~
ShabbyDoo
"After all, if the corporate directors authorizing the donation didn’t expect
to get some kind of benefit from the politician in return"

Of course. But, that thing in return might not be corrupt. Let's say you are a
gun manufacturer and you give money to politicians who support the NRA.
Corrupt? No more so than a gun owner making contributions for similar reasons.
Beneficial? You bet.

------
grellas
Were corporations not accorded protections under the Bill of Rights (as argued
in this piece on the theory that "state-created entities" are artificial and
were not intended to be covered by such protections), among other things:

1\. The government could conduct searches and seizures at will of corporate
property in disregard of the Fourth Amendment.

2\. It could take corporate property without compensation in disregard of the
Fifth.

3\. It could deny the rights of free speech to the New York Times and other
corporate entities in disregard of the First.

4\. It could deny the right of religious expression to churches, synagogues
and other religious organizations that are incorporated.

Nor, if the logic of this piece were to be followed that "state-created
entities" should not be protected under the Bill of Rights, would any other
legally-recognized entity be entitled to such protections.

How about:

1\. Universities.

2\. Schools.

3\. Charities.

4\. Partnerships, LLCs, trusts, and other business entities (want the
government to confiscate the IP or other assets of your startup and say it
owes you nothing because it is not you but a mere "state-created entity" from
which it is taking the property?).

This list could go on and on at great length.

The analysis in this piece may be something that one may want to advocate as
some sort of ideal but, in terms of law, history, etc., it is quite flawed. I
think this is more a talking point in the recent uproar over the _Citizens
United_ case than it is a serious point of constitutional discussion.

~~~
wycats
Let's actually take a look at the two scenarios.

In the case of corporation-owned property, the shareholders indirectly own the
property itself. If the government takes away the property, the shareholders
lose the property, and the government violates the takings clause insofar as
individual humans have lost money.

In the case of corporate speech, the shareholders are not speaking at all.
Instead, executives are speaking, protected from the consequences of their
speech by the corporate shield. In comparison with the above case, nothing
stops the individual executives or the individual shareholders from speaking,
either by themselves or in concert with others.

What I'm suggesting is that the form of the corporation, which the government
created to shield actors from the consequences of their actions, is not
_itself_ afforded the right to speech.

~~~
grellas
_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._

My comment was primarily directed to the concluding statements (quoted above)
that posit a deductive argument in absolute terms and that conclude that the
Bill of Rights "cannot apply" to corporations. This absolute position simply
cannot be defended based on the law. I agree with you that the issue can get
more complicated if the point is limited to the question of free speech. That
doesn't mean, though, that the argument is not overstated, which I think it
is.

By the way, the distinction you make between rights accorded to entities
versus rights accorded to individuals through entities is an important one and
a thoughtful discussion on this distinction may be found here:
[http://www.professorbainbridge.com/professorbainbridgecom/20...](http://www.professorbainbridge.com/professorbainbridgecom/2009/09/corporate-
constitutional-rights.html).

------
mquander
This doesn't seem to me to have any merit, either legally or from common
sense. Corporations have no rights under the Constitution? Oh, so can the FBI
raid the offices of any corporation without a warrant? Could Congress pass a
law prohibiting CNN from covering a war? Obviously, the Constitution should
prohibit these things, and it does.

The reason the court did not elaborate on its classification of corporations
as "speakers" in the context of the First Amendment is that it's settled law,
with a long history you could look up on Wikipedia, and none of the justices
(even the dissenting ones) disagree with that classification. The dissent of
the minority was based on the idea that even though corporations should enjoy
a strong right to free political speech, the state's interest in preventing
corruption and the appearance of corruption is great enough that it should be
restricted in this case.

Addendum: No, I don't think this is a really good situation, although I doubt
that the sky will fall; corporations already find ways to shovel about as much
money as they might like at candidates. However, I think that it's just a
consequence of two root problems -- the first being the great inequality of
wealth (and therefore power) in our society, being nearly all concentrated in
a rich elite; the second being the lack of serious and/or compulsory public
financing for campaigns, so that wealth is usually a prerequisite to being
elected.

~~~
joubert
Corporations are not citizens.

This means that _technically_ they cannot cast a vote in an election. But it
also means that in _practice_ the power they can exert to effect certain
political outcomes must be constrained (otherwise votes of citizens will
become even more meaningless because of the asymmetry of capital
concentration).

You say "although I doubt that the sky will fall; corporations already find
ways to shovel about as much money as they might like at candidates". Surely
they were not actually able to push unlimited amounts of money to influence
political outcomes, otherwise there would have been no reason for the Supreme
Court to make the change. Or no?

~~~
mquander
Well, what I meant specifically is that corporations can influence elections
indirectly via PACs and 527s, and that corporations can attempt to influence
elected candidates via lobbying (and by actually getting their representatives
into positions of power) so they already have some reasonably effective
mechanisms for converting their money to votes.

I don't think that the Supreme Court decision to enable them to spend directly
on candidates really took into account very much these existing abilities one
way or the other, although I'm not a lawyer and I probably haven't studied it
much more than you, so maybe I'm missing some chain of reasoning.

------
gfunk911
The merits of this decision are a legitimete topic for debate. I'm still not
100% sure how I feel about it.

The point that I feel like those who are against it completely miss (and that
anti-business people generally miss) is that corporations are just groups of
people. It's people/turtles all the way down.

A quote that I found interesting, even though I do not agree 100%: "Until
today, we had the right to free speech, and the right to assembly, but not the
right to free speech when we were assembled. The Supreme Court has thankfully
corrected that absurdity."
[http://www.coyoteblog.com/coyote_blog/2010/01/good-news-
for-...](http://www.coyoteblog.com/coyote_blog/2010/01/good-news-for-free-
speech.html)

~~~
joubert
There is a huge power asymmetry between a corporation and a natural person.

If the former is able to voice their political opinion without constraint
(e.g. Enron spends, say $1 billion dollars in an election), they can
effectively manipulate our democracy, drowning out citizens' political will.
This is what just happened when the (conservative) Supreme Court overturned
the limits on corporate spending in political campaigns.

Moreover, it now enables _foreign_ corporations to manipulate election
outcomes.

~~~
yummyfajitas
Lets be clear what we mean by "manipulate" and "drowning out citizens'
political will": the corporation may use speech to persuade voters to vote a
certain way.

So it isn't so much "drowning out" citizen's political will as persuading them
to exercise it in a certain way.

~~~
joubert
If an organization is able to purchase all the advertising space in a
jurisdiction, they can effectively decide how people will vote.

Consider the Prop 8 smear campaign in California by the Mormon Church.

~~~
yummyfajitas
The Mormon Church bought all the advertising space in CA? That's quite a feat.

------
jhancock
I have been thinking of another aspect of this case. One that obviates net
neutrality, IMO. The ruling against McCain-Feingold states that government
does not have the power to create penalties (criminal or civil) that limit
speech. In the case of McCain-Feingold, the court ruled that it was enough to
base its ruling simply on the assumption that the law "may" limit speech,
without proof that it actually has. I think this is reasonable. Here is where
it unravels:

There are other laws the government has passed that provide penalties as
McCain-Feingold does. A key example is broadcast spectrum sales. The FCC has
sold rights of public spectrum and provides criminal penalties for infringing
on the use of that spectrum. This of course creates third party arbiters of
content and has provably limited speech. Case in point: next week's SuperBowl
will show an ad against abortion but has refused an ad for a gay dating site.
Political ads are refused all the time by major broadcasters when they do not
suit the content arbiters. I think the duplicity of the court lies in the
cases they refuse to hear that should apply the same logic as this ruling.
Does anyone know of examples of such cases that have been refused or ruled
against?

~~~
hga
I think you misunderstand what was struck down in McCain-Feingold: an explicit
ban on non-media corporate speech advocating the election or defeat of a
candidate in the 1-2 months before a Federal election (1 for a primary, 2 for
a general).

~~~
jhancock
What was struck down was Congress passing a law that restricts speech and the
rational as published by the court clearly shows this is why the law was
struck down. McCain-Feingold does restrict speech and does so in fairly
arbitrary manners. I like the fact that McCain-Feingold attempted to "do
something" but the court has ruled that how it does it is unlawful per the 1st
amendment.

1st amendment: "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."

It is critical when we talk about free speech in the U.S. to understand that
this freedom is limited to Congress not making laws restricting speech. It
does not mean others cannot limit speech.

For example, the case with "Bong Hits for Jesus", the court did not have to
rule in the same manner as Congress did not pass a law limiting this speech,
but rather a specific school made the decision on controlling student
behavior.

~~~
hga
Errr, "this freedom is limited to Congress not making laws restricting speech"
was true prior to the passage of the 14th Amendment. That enforces it on the
states, and _Morse v. Frederick_
(<http://en.wikipedia.org/wiki/Bong_Hits_for_Jesus>) was based on previous
"school speech" jurisprudence. Schools are a special place and special
restrictions are allowed in them, but certainly not total bans on political
speech.

~~~
jhancock
Sorry if I muddied the debate by bringing in other cases. I was attempting to
contrast the decision which perhaps was not necessary. The decision against
McCain-Feingold was strictly a 1st amendment one and the 14th does not effect
the decision, at least not in what I've read about the ruling.

~~~
hga
Actually the 14th comes into play, not WRT McCain-Feingold but in that the
Supremes explicitly reversed _Austin v. Michigan Chamber of Commerce_ , which
was about a state law.

I've read that 28 or so states have laws which will come under wilting
scrutiny now.

