Corporate Personhood and the Bill of Rights

2286344030_55a0fde9a9An oft-repeated criticism of the Citizens United decision is that the protections enumerated in the Bill of Rights apply to individuals, not corporations. This is an argument that seems plausible on first glance, but as Julian nicely illustrates, it falls apart quickly upon closer examination:

Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press … as long as they don’t plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You’re free to practice your religion without interference — but if it’s an unpopular one, well, let’s hope you don’t expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman’s right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she’d better hope she knows a doctor who makes house calls.

As Glenn Greenwald explains, the four liberal justices who dissented in Citizens United did not rely on the idea that free speech rights are limited to natural persons. Instead, they argued that the danger of corruption is a sufficiently compelling state interest to survive the “strict scrutiny” typically applied to limits on speech. All nine justices acknowledged that corporations have free speech rights and that the limits on corporate speech in the Bipartisan Campaign Reform Act were subject to First Amendment scrutiny.

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4 Responses to Corporate Personhood and the Bill of Rights

  1. Wait, you actually read the opinions? I don’t see how that adds anything to the argument.

  2. Tom says:

    Julian’s right that there are problems with filtering rights as they move up the chain to collective corporate action. On the other hand, there seems to be a mechanism whereby crimes committed by corporations are somehow transmuted into financial penalties rather than incarceration or capital punishment (not always, to be sure — but often). This strikes me as a problem, and indicative of the fact that we need to carefully examine how rights are asserted through corporate entities rather than citing the first amendment and assuming that this answers all objections.

    Practically speaking, perhaps it would be reasonable to say that corporations may only engage in political speech on behalf of their shareholders after obtaining their shareholders’ approval of that speech.

  3. eli says:

    Well, that straw man is certainly dead. The deeper issue, of course, is whether the First Amendment should apply in exactly the same way to corporations as it does to humans — i.e. whether Congress can regulate corporate speech differently than it does individuals’ speech, because of the obvious differences between the two.

    As Justice Stevens said from the bench: “The rule announced today — that Congress must treat corporations exactly like human speakers in the political realm — represents a radical change in the law. The court’s decision is at war with the views of generations of Americans.”

  4. Susie says:

    Corporations don’t have the right to vote. Obviously, their rights under the constitution are not identical to my constitutional rights as a person. We need to clearly define where a corporations rights begin and end.

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