Ilya Shapiro and Caitlyn W. McCarthy, both of the Cato Institute, have a short paper in the John Marshall Law Review on the Citizens United case, addressing in particular the issue of whether corporations should count as “real persons” for First Amendment purposes.
Reviewing the Supreme Court’s treatment of the constitutional rights of corporations in a variety of contexts, Shapiro and McCarthy convincingly show that the Court has never thought that corporations have constitutional rights in exactly the same way as individual human beings do. On the contrary, the Court has consistently recognized that corporations, though not identical to human beings for constitutional purposes, should be accorded some constitutional rights in order to protect the constitutional rights of the individuals who manage and own them.
For example, corporations clearly have Fourth Amendment rights against illegal searches and seizures and Fifth Amendment rights against government takings. If they didn’t, the police could storm corporate offices whenever they wanted and seize whatever they pleased (Fourth Amendment), and governments could take corporate property without paying compensation or even giving the corporation a hearing (Fifth Amendment)—and these outcomes would clearly impair the constitutional rights of the individuals who manage and own the corporation. On the other hand, corporations do not have Fifth Amendment rights against self-incrimination, even though the individual human beings who are corporate officers, directors, or shareholders do.
The real issue in Citizens United is thus not whether corporations have constitutional rights just like individual human beings do (of course, they do not), but whether giving effective protection to the First Amendment rights of the human beings who own and manage corporations requires recognizing such rights in the corporation itself. For more on that question, see not only the paper by Shapiro and McCarthy, but also this blog by UCLA law professor Eugene Volokh.
July 21st, 2011 | 1:12 pm
If corporations do not possess free speech rights, then does an incorporated newspaper publisher lack free speech rights?
July 21st, 2011 | 1:33 pm
So, just to be clear on what the “liberal” position on free speech is:
Joe’s Video Game Shop CAN sell Grand Theft Auto to a 10 year old, because that sale is free speech and protected by the 1st Amendment (and the product is not obscene).
Joe’s Video Game Shop CANNOT run an ad saying “Vote for Candidate X” during an election campaign (but Joe’s Newspaper CAN, of course–although according to the LA Times now “tabloids don’t deserve the 1st Amendment” so even that’s not absolute).
So is electioneering considered obscene? Do different clauses of the 1st Amendment only apply to certain special people?
Regardless of how one feels about what legal and constitutional rights corporations have, it should be accepted by all Americans that it is truly obscene to suppress political speech like this.
July 22nd, 2011 | 5:48 am
A great English jurist, A V Dicey, once observed that “When a body of twenty, or two thousand, or two hundred thousand men bind themselves together to act in a particular way for some common purpose, they create a body, which by no fiction of law, but by the very nature of things, differs from the individuals of whom it is constituted.”
Or, listen to F W Maitland, “My organised group shall be a sovereign state. Let us call it Nusquamia. Like many other sovereign states, it owes money, and I will suppose that you are one of its creditors. You are not receiving the expected interest and there is talk of repudiation. That being so, I believe that you will be, and indeed I think that you ought to be, indignant, morally, righteously indignant. Now the question that I want to raise is this: Who is it that really owes you money? Nusquamia. Granted, but can you convert the proposition that Nusquamia owes you money into a series of propositions imposing duties on certain human beings that are now in existence? The task will not be easy. Clearly you do not think that every Nusquamian owes you some aliquot share of the debt. No one thinks in that way. … Nor, I think, shall we get much good out of the word “collectively,” which is the smudgiest word in the English language, for the largest “collection” of zeros is only zero.”
There are real legal and moral questions here that go far beyond mere political rhetoric.
July 23rd, 2011 | 4:04 pm
But if the First Amendment says “Congress shall make no law restricting…” then does it mater whether we agree whether the rights of the corporation differ from the rights of the individual? The point here is the rights of Congress, which explicitly exclude making laws that restrict the freedom of speech. It doesn’t say whose freedom — that’s not what the FA is addressing. It says which freedom, which is explicitly addressed — speech.
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