People Organized as Corporations are People Too

Others, such as senior Conspirator Eugene Volokh, are much better qualified than I am to comment on today’s important free speech decision striking down restrictions on campaign-related speech by corporations. I want to focus on the common claim that corporations aren’t entitled to free speech rights (and perhaps other constitutional rights) because they aren’t “real people.” That argument was reiterated in Justice John Paul Stevens’ dissenting opinion today:

Stevens hammers, more than once this morning from the bench on the principle that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

It’s true, of course, that corporations “are not human beings.” But their owners (the stockholders) and employees are. Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on. In this context, it’s important to emphasize that most media organizations and political activist groups also use the corporate form. As Eugene points out, most liberals accept the idea that organizational form is irrelevant when it comes to media corporations, which were exempt from the restrictions on other corporate speech struck down by the Court today. The Supreme Court (including its most liberal justices) has repeatedly recognized that media corporations have First Amendment rights just as broad as those extended to media owned by individuals. Yet the “corporations aren’t people” argument applies just as readily to media corporations as to others. After all, newspapers, radio stations, and TV stations “are not human beings” and they too “have no consciences, no beliefs, no feelings, no thoughts, no desires.” We readily reject this reasoning in the case of media corporations because we recognize that even though the corporations in question are not people, their owners and employees are. The same point applies to other corporations.

There are various other arguments for treating political speech by people organized as corporations differently from that by people using other organizational forms. I’m not going to try to address them all here. We can discuss them more productively if we first dispense with the weak but popular claim that corporations aren’t entitled to freedom of speech because they aren’t people.

UPDATE: I should mention that it’s irrelevant that the First Amendment specifically protects the freedom of “the press.” It does not specifically mention “press” entities organized as corporations. So if you believe that freedom of speech doesn’t apply to corporations because they “aren’t people,” the same point applies to freedom of the press. As co-blogger Eugene explains, “freedom of the press” is not a constitutional right for a particular group of people or organizations. Rather it is a right to engage in a certain class of activities (such as publishing newspapers and pamphlets), whether the person doing so is a professional member of the media or not.

BELATED UPDATE [February 24, 2012]: UPDATE #2: I should acknowledge an error: Contrary to what I previously thought, most unions are not organized as corporations, but have a separate legal status of their own. I very much regret the mistake and apologize for it. I am correcting this post long after the fact because I know it is still occasionally linked and cited by others.

At the same time, it is important to recognize that unions, like corporations were freed from restrictions on independent campaign-related speech by the Citizens United decision, and the Court’s reasoning in both cases was the same. Moreover, the “corporations aren’t people” argument for restricting corporate speech still applies to unions with equal force. Unions are no more “natural” persons than corporations are. Both are legal entities with special rights, obligations, and privileges defined by the government. In some ways, unions actually have more legal privileges than corporations do. For example, unlike business corporations, they are exempt from federal income taxation.