Corporations Are Being Denied Freedom of Expression & Religion!

English: Freedom of Expression trademark certi...

English: Freedom of Expression trademark certificate (Photo credit: Wikipedia)

In the United States, corporations are considered persons. In recent years the judiciary has accepted that this entitles corporations to rights, such as freedom of speech (which was used to justify corporate spending in politics) and freedom of religion (which was used to allow companies to refuse to provide insurance coverage for birth control).

Despite having freedom of speech and religion because they are people, corporations can, unlike other people, be legally owned. Common stock is bought and sold as a matter of routine business and provides an ownership share in a corporation. Since corporations are people, this means that people are being allowed to legally own other people. Owning another person is, of course, slavery. While slavery was legal at one time in the United States, the 13th amendment is rather clear on this matter: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

If corporations are entitled to 1st amendment rights because they are people, it follows that they must also be entitled to 13th amendment rights. That is, corporations have a right not to be owned by other people. The obvious reply is that this is absurd. My response is that this is exactly my point: the 13th Amendment provides the path to the obvious reductio ad absurdum (“reducing to absurdity) to the claim that corporations are people. If they are people and thus get rights, then they cannot be owned. If they can be owned, they are not people and hence do not get the rights of people.

But, let it be supposed that companies are people and hence get the right to freedom of expression and freedom of religion.  Yet somehow don’t get the freedom not to be enslaved. It will be interesting to see where these claims actually lead.

Freedom of expression is usually presented in terms of a person’s right to engage in expression, perhaps by secretly donating fat stacks of cash to shadow political organizations. However, freedom of expression can also be regarded as a freedom from being compelled to engage in certain expressions. For example, the State of Texas has argued against allowing the Confederate battle flag on Texas license plates on this ground. This seems quite reasonable: the freedom to express myself would certainly seem to include the freedom to not express what I do not wish to express.

Freedom of religion is also usually presented in terms of protection from being limited or restricted in the practicing of one’s faith. However, like freedom of expression, it can also be taken to include the right not to be compelled to engage in religious activities against one’s will. So, for example, people have argued that compelling a wedding cake baker to not discriminate against same-sex couples would be to compel her to engage in an activity that goes against her faith. While I disagree with the claim that forbidding discrimination violates religious freedom, I do agree that compelling a person to act against her faith can be an unjust violation of religious freedom.

Corporations, at least according to the law, have freedom of expression and freedom of religion. As such, they have the general right not to be compelled to express views they do not hold and the right not to be compelled to engage in practices against their religious beliefs. Given that a corporation is a person, there is the question of what a corporation would want to express and the question of its faith.

It might be claimed that since a corporation seems to be just a legal fiction operated by actual people, then the beliefs and expressive desires of the corporation are those of the people who are in charge. On this view, a corporation is a legal Mechanical Turk, a pantomime person, the face of the Wizard of Oz (“Pay no attention to that man behind the curtain”). While run by an actual person or people, it is a fictional shell that is not a person.

The advantage of this approach is the corporation’s faith is the faith of the actual people and what it desires to express is what they desire to express. The obvious problem is that this view makes it clear that the corporation is not a person, so it would not get a set of rights of its own, above and beyond the rights already held by the actual people who control the legal pantomime person. So, claims about violations of freedoms would have to be about violations against actual, specific people and not against the legal version of a Mechanical Turk (or Legal Turk, if one prefers).

If someone insists that the corporation is a person in its own right, then this entails it is a distinct entity apart from the folks that would seem to be operating a non-person pantomime person. On this view, the views of the corporation cannot automatically be those of the people who would seem to be operating the pantomime person. After all, if it is just them, it is not a person. To be a person, it needs to have its own personhood. If it has freedom of expression, it must have its own desires of what to express. If it has freedom of religion, it must have its own faith.

Sadly, corporations are not free to express their own views or their own faith. They are owned and compelled to speak and engage in matters of faith. While there is a chance that the corporate person’s views and faith match those of the human persons infesting its legal body, this need not be the case. After all, a slave that is forced by her owner to say things and go to church might believe what she says or have the faith she is compelled to practice…but she might not. Unless she is set free from her owners and allowed her own beliefs and faith, she cannot be said to have freedom of expression or faith.

While Tim Cook has spoken in favor of same-sex marriage, Apple might be a devoutly Christian corporation that cries (metaphorical) tears each time it is forced to mouth (metaphorically) Tim Cook’s words. The corporation Hobby Lobby might be a bisexual atheist corporation. As it is beaten to its (metaphorical) knees to cry out prayers to a God it does not believe in, it might be eager to engage in hot mergers with other companies, regardless of their gender. Until these corporations are freed from the tyranny of ownership, they can never truly exercise their freedom as people.

The obvious response to this absurd silliness is that it is, well, clearly absurd and silly. However, that is exactly my point. If a corporation is a person that is distinct from the actual people operating the pantomime legal person, then it is being denied its freedom of expression and religion because it is forced to say and do what others want it to say and do.  This is, as I am sure most will agree, pure absurdity. If a corporation is really just a legal pantomime and the corporate beliefs and ideas are really just those of the folks operating the legal pantomime, then it is not a person and does not have the rights of a person. The real people do, of course, have all the rights they have always possessed.

This is not to say that there should not be collective rights and laws for organizations. But this is very different from regarding a corporation as a person with a faith and beliefs it wishes to express. That is, obviously enough, a pile of pantomime bull.

 

My Amazon Author Page

My Paizo Page

My DriveThru RPG Page

Follow Me on Twitter

Leave a comment ?

26 Comments.

  1. Karen Lankford

    This is an excellent distillation of the inherent contradictions in asserting personal rights for corporations. Corporations are legal constructs developed in order to allow groups of individuals to pool financial resources for economic purposes. By limiting the liability of each individual investor, limited liability corporations (LLCs)promote greater investment. The legal fiction that corporations are persons for the purposes of entering into contracts or being sued functions as a shield which limits investor liability. If the corporation fails, the investors lose their money but the creditors of the corporation cannot come and take their houses, nor can individuals who might have been harmed by the company’s products prosecute the investors for assault or negligent homocide.

  2. Corporations have legal personhood, as do (sometimes) ships and birds. They are not real persons, of course. Who thinks they are? Corporate entity status isn’t “absurd” or “silly”, the beneficial functions of it include perpetual succession and efficient asset partitioning.

  3. You misconstrue the Hobby Lobby ruling:

    “In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.”

  4. Corporations have speech rights because one doesn’t lose speech rights when acting collectively and because government cannot restrict expression, see First Nat’l Bank of Boston v. Bellotti:

    “The expression proposed by appellants, namely, the expression of views on an issue of public importance, is at the heart of the First Amendment’s concern. There is no support in the First or Fourteenth Amendment, or in this Court’s decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation that cannot prove, to a court’s satisfaction, a material effect on its business. Although appellee suggests that this Court’s decisions generally have extended First Amendment rights only to corporations in the business of communications or which foster the self-expression of individuals, those decisions were not based on the rationale that the challenged communication materially affected the company’s business. They were based, at least in part, on the Amendment’s protection of public discussion and the dissemination of information and ideas. Similarly, commercial speech is accorded some constitutional protection not so much because it pertains to the seller’s business as because it furthers the societal interest in the ‘free flow of commercial information.'”

  5. Given their experience with the East India Company, the founders had no such view of corporations and surely must be rolling in their graves to see ” strict constructionists” advance this absurdity. Didn’t it take until the late 1800’s for another SCOTUS to solidify this fiction. Around that time a Pope also decided he was infallible, …heady times when Robber Barons ruled.
    Happy Birthday ,Thomas Jefferson .

  6. C.Van Carter,

    Mitt Romney seemed to think they are. However, I do agree that no one should think they are real people. That is my exact point.

    The US Supreme Court, in its Citizen’s United ruling, used the argument that corporations get free speech rights because they are people. They did not mean that the people that make up the corporation have free speech rights-that has never been in dispute.

    I never argue that having legal status for collectives is absurd or silly. My point is that taking corporations to be people is absurd. Those are two distinct matters.

  7. C.Van Carter,

    I never argue that people lose speech rights collectively. I just argued that corporations are not people. A collective of people still has the rights of those people. But, we do not need to say the corporation is a person for the collective of people to have rights.

    I do not see any compelling reason to regard corporations as having real metaphysical status as people. But, I am fine with having laws protecting collectives-as long as those laws are just ensuring that people in collectives do not forfeit their rights as individuals.

  8. “The US Supreme Court, in its Citizen’s United ruling, used the argument that corporations get free speech rights because they are people.”

    Where? Citizens United states:

    Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”

  9. “A collective of people still has the rights of those people”

    Then what’s your objection to the Citizens United and Hobby Lobby rulings?

    “I do not see any compelling reason to regard corporations as having real metaphysical status as people.”

    I’m not aware of anyone who does that.

  10. Better than can I could put it:

    http://www.harvardlawreview.org/wp-content/uploads/pdfs/vol_12401bebchuk_jackson.pdf

    Under existing corporate law rules, political speech decisions are by default governed by the same rules as ordinary business decisions. As a result, with respect to corporate political speech decisions, there is under current corporate law (i) no role for shareholders; (ii) no mandatory role for independent directors ; and (iii) no mandatory disclosure to investors.

    We explain that political speech decisions favored by directors and executives (i) may differ from those favored by shareholders; (ii) are, based on the limited available empirical evidence, likely to be of nontrivial financial significance; and (iii) may have expressive significance for shareholders (and impose costs on shareholders) beyond their financial effects.

    http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1166&context=mlr&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com.au%2Fscholar%3Fhl%3Den%26q%3DCitizens%2BUnited%2Bstates%2Bpolitical%2Bspeech%2Bof%2Bcorporations%2B%26btnG%3D%26as_sdt%3D1%252C5%26as_sdtp%3D#search=%22Citizens%20United%20states%20political%20speech%20corporations%22

    The Court’s analysis in Citizens United is likely to lead to new incoherence in the Court’s campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates.

  11. Kevin Henderson

    In practice, prospective employees can choose not to work for a company whose social policies they do not agree with and likewise customers can refuse to use the services of companies they find abhorrent (for social or aesthetic reasons).

    In terms of gay rights and abortion, the trend (thankfully) in America is favorable towards those policies. Companies against these policies are more likely to have a smaller proportion of the whole populations business if they support policies which the majority do not. It will all work out.

  12. C. Van Carter,

    Here is the thing: individuals already have the right to engage in free speech, whether they are in a group or just standing alone. As such, there seems to be no reason to claim that the corporation needs the right of free expression, since all expression will be done by people who already have that right. To use a crappy analogy, if I give 100 people lollipops then they each have a lollipop. Suppose they then form a collective entity. They still have their lollipops. If they cry that they are being denied lollipops because the collective is not getting more pops, they are crying in vain. No new pops for corps.

    I have read the arguments that defend corporate rights and these seem to be essentially crying for extra lollipops. But, I am certainly amendable to reason and could be swayed by a moral argument that shows that the collective is entitled to more than what the individuals are entitled to.

  13. C. Van Carter,

    Well, if the corporation is just the people, then the owners of Hobby Lobby could claim that their individual rights are being violated. Nothing new is needed.

    If the laws explicitly state that the Hobby Lobby owners forfeit their individual rights if they run a business, then those laws would be unjust.

    Oh, there is no philosophical view so crazy that no one holds it. The web version is that there is nothing so weird that there is not a web site dedicated to it. 🙂

    But, there are thinkers who do hold to the notion of collective entities as being real. Hobbes, for example, includes political bodies in his ontology (though they would, of course, be material entities). Fascism, at least in some forms, accepts the state as a real entity with the qualities of a person.

  14. Kevin Henderson,

    There is a certain appeal to having changing social norms rather than legislation bring about such changes. My general inclination is that compulsion must be properly justified and is generally better avoided in favor of liberty. But, of course, preventing harm to citizens is generally a reasonable justification.

  15. David Duffy,

    Interesting. So, the directors and executives might very well be engaged in compelling speech on the part of the corporation.

  16. You would benefit from reading the Burwell and Citizens United decisions.

  17. C. Van Carter,

    That is good advice.

  18. blah blah teleblah

    If you believe that legal personhood for corporations is absurd, I imagine you will agree that a hypothetical President Ted Cruz would be able to seize the assets of the New York Times Company (a publicly traded corporation, whose largest shareholder is a Mexican telecom monopolist) for writing articles about him he did not care for, just so long as he didn’t imprison any of the individual employees. (And hint, the New York Times Company does not have get more constitutional protections than Hobby Lobby because the Times happens to be part of what we today sometimes refer to as “the Press”).

  19. Blah,

    Denying corporate person hood does not entail accepting that the state can do whatever a politician wants to a company. Also, seizing the assets of “the company” would seize assets owned by actual people-that is, the human people who own the company.

  20. blah blah teleblah

    Mike LB,

    Denying corporate personhood absolutely entails what I was referring to. The statute that was struck down in Citizens United, roughly speaking, prevented non-media corporations from making “electioneering communications” within a certain time period of an election. The FEC and the Department of Justice had the power to fine corporations — i.e. seize their property — for violations of the statute. If you reject the concept that corporate entities have legal personhood, there’s no meaningful distinction between the government seizing the property of Fred Thompson’s not-for-profit company for airing a documentary that said how awful Hillary Clinton is when she was running for office (which is what the facts were in the Citizens United case) and the government seizing the property of the for-profit New York Times Company for writing editorials that say how awful Ted Cruz is now that he’s running for President.

    And note that I say “meaningful distinction,” as I am aware that the Times would tell you that it part of “the Press,” and therefore has protections that other corporations that, say, sell oil do not. Employing people that might have gone to journalism school and subscribed to some self-important code of ethics is not a prerequisite for being able to criticize our political leaders though, so I find that to be a distinction without a difference.

  21. Blah,

    As you note, the press gets protection explicitly under the constitution. But, people are also protected from having their stuff seized by the state. A corporation is owned by people, so seizing corporate property would be seizing the property of the owners. If the stuff can be seized from the owners who are actual people, having a fictional corporate person would not change matters. Unless the law was written so that fictional corporate persons got more protections.

  22. blah blah teleblah

    Mike LB,

    The “press” as that term is used in the First Amendment does not refer to “the press” as it is often used today (e.g. the news program “Meet the Press”). Rather, it refers to freedom to use physical printing presses, which, applied to today would encompass modes of communication. (Copy link below for a more thorough analysis as I’m bad with html tags). This makes sense, by the way, as members of “the press” do not have constitutional rights that the rest of us do not. Hence there is no First Amendment right for journalists to protect anonymous sources, although in some states there are statutory protections.

    Otherwise, I still don’t quite get your argument about corporate property ultimately being owned by people. If the government weren’t attempting to impose its will to prevent corporations from doing certain things — in the case of Citizens United paying for ads that support or oppose a particular political candidate — we wouldn’t be talking about whether corporations are people. But, the government enforces its will by either imprisoning/killing people or by seizing their property. That is how the government would ultimately enforce a law that was struck down in Citizens United was upheld, or if government’s attempt to force Hobby Lobby to provide a certain type of birth control to its employees were upheld.

    But in any event, your premise is faulty, which you would realize if you ever tried to enforce a civil judgment against a corporate entity.

    http://volokh.com/2012/01/02/the-original-and-traditional-meaning-of-freedom-of-the-press/

  23. Blah,

    Corporations do not need to be people to have the rights you want them to have. Congress could simply write a law that allows corporations to do all those things. I’m sure they would be happy to do so-Democrats and Republicans have a bipartisan love of corporate donors.

    Sure, under the existing laws they are persons; but that does not mean that my claim that corporations are not really people is flawed. After all, if the supreme court ruled that dolphins are legally people, this would not prove that they are actually people-just legal people.

  24. blah blah teleblah

    Mike LB,

    The First Amendment does not require Congress’s permission. In fact, it starts with “Congress shall make no law…” And again, Carlos Slim — one of the wealthiest men in the world and one of the largest shareholders of the New York Times — did not need the permission of Congress to have his corporation publish editorials that attack political candidates. So I fail to see why Fred Thompson’s not-for-profit corporation needs Congress to pass a law to allow it to criticize air a documentary that criticizes Hillary Clinton. (Your reference to “corporate donors” makes it pretty clear that you still don’t or just refuse to acknowledge what Citizens United was actually about.)

    What Congress, or more appropriately State governments can do is abolish the existence of limited liability entities such as corporations, limited partnerships or limited liability companies. But once allowed, the government can’t subject them to things like warrantless searches, or, say, forbid them from engaging in kosher butchering.

  25. A corporation is clearly not a person it is a legal entity for the purpose of doing business. The people involved in a corporation are the management, employees and shareholders. All of these have their own speech rights. The corporation as a paper entity has no mind, has no physical body, has no opinions of its own. The citizens united decision was a decision rendered by a hopelessly corrupted majority of SCOTUS justices doing the will of their corporate executive masters. Eventually it will be overturned.

  26. blah blah teleblah

    chris moffat:

    Do you know what the holding of Citizens United actually was? (The author of the blog post certainly does not). Do you understand that the ACLU is a corporation, that, under your logic, can be prevented from paying for ads that contain political speech? Do you also understand that virtually every media outlet, from small newspapers to giant conglomerates operate as limited liability entities, and you’re okay with the idea that the government can legally prevent those companies from supporting or attacking politicians in their publications or television broadcasts?

Leave a Comment


NOTE - You can use these HTML tags and attributes:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>