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I have to agree with Sotomayor here. And mind you, I am not anti-business at all. I think corporations should have the same "business" rights as people. They sh

by hristov 17y ago

I have to agree with Sotomayor here. And mind you, I am not anti-business at all. I think corporations should have the same "business" rights as people. They should be able to enter into contracts, sue for non-performance, and generally have all the economic rights and protections of a person. But rights like freedom of speech just do not make sense for corporations. They are based on purely human considerations which are just non-existent for fictitious entities. We know that a human being feels oppressed if he/she cannot speak his/her mind. But does a fictitious entity? Of course not. Note that all the actual human beings that are part of the corporation (i.e., stockholders, employees, directors, etc.) have their own free speech rights and can exercise free speech as long as they make it clear they are not speaking on behalf of the corporation.

sp332 17y ago
If corporations are only afforded business rights, what sort of organization could acquire freedom of speech? If a group of people would like to make a joint statement, do you think they should each have to sign the document? Do governments have the right to say what they like, or would every citizen have to sign each law, treaty, and declaration of war?
- roc 17y ago
  What groups? None. The whole point is that people are people, whereas their organizations are not them, nor are they free willed individuals on their own. There's no need for an organization to be immune from censure or regulation when its constituents are all themselves immune. If the government decides corporations shouldn't be able to pay for political advertising or host fund-raisers, then the corporation's constituents are free to speak out such measures, vote against them, run against the incumbent politicians, etc. The rights of sovereign governments is a red herring. They have an implicit ability to do whatever they like, either because:they are democratically elected and their actions subject to review and reversal by their citizens' votes; or they rule by force and the will of their citizens is irrelevant.
  - sp332 17y ago
    This last bit, which you dismiss, is my point. Corporations have leaders which are elected, and their actions are subject to review by stakeholders. So why shouldn't they have similar rights? It might be useful to separate "business rights" from "speech rights", but there should be a way for people to speak as a group. Class-action lawsuits, for example, allow a lot of people to be represented in court without personally being involved in the legal proceedings. Political institutions speak on behalf of significant chunks of the population on a regular basis. And how would a corporation publish a prospectus without the right to speak? If prospectus contains lies, would you hold the individual who wrote it accountable? That defeats some of the protections a corporation provides, and means the stakeholders get a lot less money if they sue.
    - roc 17y ago
      The problem, is that isn't true. In practice, save via a very expensive proxy fight, shareholders have almost no actual voice within most corporations. Only the deeply cynical could hold that up as an analogue to democratic government and even they wouldn't say it was a positive state of affairs worth emulating. there should be a way for people to speak as a group There is. You just couldn't speak, as a group, through a shell entity that has its own inalienable right to free speech. Not having freedom of speech equivalent to individuals doesn't imply a complete re-write of corporate law. It simply means that congress can (constitutionally) make laws abridging and regulating corporate speech. No-one's proposing a change to how we handle corporate fraud and responsibility. I fail to see how the right to free political speech has any bearing on those areas.
      - gojomo 17y ago
        An 'expensive proxy fight' is still cheaper than the campaigns required to reliably influence an elected government. What's more, shareholders have many other options for influence. They can buy additional shares directly. They can 'exit' -- move their money elsewhere, empowering an alternate organization that does represent them. In the comparison between shareholders and voters, it's not clear to me that it's shareholders who have less influence.
- hristov 17y ago
  Just because a corporation does not have rights of free speech under the 1st amendment does not mean that all of its speech rights should be destroyed. They can just be controlled in some ways for the public good as allowed by law. Thus, an organization should have the right to speech and to voice its opinions, but those rights can be controlled for the public good, for example by laws that prohibit them spending too much money for campaigns or requiring them to identify themselves when buying TV ads. And of course any organization can fall back on the first amendment rights of its members -- thus as you mentioned they can have all their members sign a document or have them all go to a demonstration, etc. I don't see anythign wrong with this system.
  - hughprime 17y ago
    Just because a corporation does not have rights of free speech under the 1st amendment does not mean that all of its speech rights should be destroyed. Yes, but the point is that they could be. The reason that rights are explicitly set out in the US Constitution is that governments, left to their own devices, tend to eventually find an excuse to take away any freedom they're not explicitly forbidden from taking away. This isn't because they're bad people, it's just because they're people. In this case, I'd be very concerned about governments wanting to take away rights from corporations. Governments have always been uneasy about large corporations since Washington tends to dislike the idea of any power centers other than itself. Giving governments the power to make laws restricting political donations is particularly dangerous, since the party in power is always going to try to twist these laws (always with the most noble-sounding stated intentions) to restrict the ability of the other party to get funding while protecting its own.
    - anigbrowl 17y ago
      But Hugh, one might very well ask in that case why there is no constitutional provision for corporations. Constitutional protections appear to be limited to citizens qua human persons; no protection is offered to institutions, even though powerful non-governmental institutions (churches) were well-established at the time of the United States' founding. being as how no special protections appear to be extended to any organizations other than the states, one might reasonably ask whether the founders ever intended for private organizations to have a distinct legal identity to begin with (as opposed to, say, a board of directors acting with common purpose but individual responsibility). tl;dr if corporations enjoy constitutional protection, why aren't they mentioned in the constitution?
wglb 17y ago
Wait--when a person goes bankrupt, nobody is charged with murder, so I am not following the argument here.
bokonist 17y ago
The employees and the shareholders of the corporation have the right, not the corporation itself. In practice though, this is the same thing. Note that all the actual human beings that are part of the corporation (i.e., stockholders, employees, directors, etc.) have their own free speech rights and can exercise free speech as long as they make it clear they are not speaking on behalf of the corporation. No, this is wrong. A person has the first amendment right to speak on behalf of whomever or whatever they please.
billswift 17y ago
Then I assume you believe corporations should be immediately stripped of all media outlets like the NYT, WSJ, WaPo, ABC, NBC, CNN, MSNBC, and so on? Otherwise, you are just saying some corporations should have first amendment rights (those that own presses) and others shouldn't.

by hristov 17y ago

sp332 17y ago

If corporations are only afforded business rights, what sort of organization could acquire freedom of speech? If a group of people would like to make a joint statement, do you think they should each have to sign the document? Do governments have the right to say what they like, or would every citizen have to sign each law, treaty, and declaration of war?

roc 17y ago
What groups? None. The whole point is that people are people, whereas their organizations are not them, nor are they free willed individuals on their own. There's no need for an organization to be immune from censure or regulation when its constituents are all themselves immune. If the government decides corporations shouldn't be able to pay for political advertising or host fund-raisers, then the corporation's constituents are free to speak out such measures, vote against them, run against the incumbent politicians, etc. The rights of sovereign governments is a red herring. They have an implicit ability to do whatever they like, either because:they are democratically elected and their actions subject to review and reversal by their citizens' votes; or they rule by force and the will of their citizens is irrelevant.
- sp332 17y ago
  This last bit, which you dismiss, is my point. Corporations have leaders which are elected, and their actions are subject to review by stakeholders. So why shouldn't they have similar rights? It might be useful to separate "business rights" from "speech rights", but there should be a way for people to speak as a group. Class-action lawsuits, for example, allow a lot of people to be represented in court without personally being involved in the legal proceedings. Political institutions speak on behalf of significant chunks of the population on a regular basis. And how would a corporation publish a prospectus without the right to speak? If prospectus contains lies, would you hold the individual who wrote it accountable? That defeats some of the protections a corporation provides, and means the stakeholders get a lot less money if they sue.
  - roc 17y ago
    The problem, is that isn't true. In practice, save via a very expensive proxy fight, shareholders have almost no actual voice within most corporations. Only the deeply cynical could hold that up as an analogue to democratic government and even they wouldn't say it was a positive state of affairs worth emulating. there should be a way for people to speak as a group There is. You just couldn't speak, as a group, through a shell entity that has its own inalienable right to free speech. Not having freedom of speech equivalent to individuals doesn't imply a complete re-write of corporate law. It simply means that congress can (constitutionally) make laws abridging and regulating corporate speech. No-one's proposing a change to how we handle corporate fraud and responsibility. I fail to see how the right to free political speech has any bearing on those areas.
    - gojomo 17y ago
      An 'expensive proxy fight' is still cheaper than the campaigns required to reliably influence an elected government. What's more, shareholders have many other options for influence. They can buy additional shares directly. They can 'exit' -- move their money elsewhere, empowering an alternate organization that does represent them. In the comparison between shareholders and voters, it's not clear to me that it's shareholders who have less influence.
hristov 17y ago
Just because a corporation does not have rights of free speech under the 1st amendment does not mean that all of its speech rights should be destroyed. They can just be controlled in some ways for the public good as allowed by law. Thus, an organization should have the right to speech and to voice its opinions, but those rights can be controlled for the public good, for example by laws that prohibit them spending too much money for campaigns or requiring them to identify themselves when buying TV ads. And of course any organization can fall back on the first amendment rights of its members -- thus as you mentioned they can have all their members sign a document or have them all go to a demonstration, etc. I don't see anythign wrong with this system.
- hughprime 17y ago
  Just because a corporation does not have rights of free speech under the 1st amendment does not mean that all of its speech rights should be destroyed. Yes, but the point is that they could be. The reason that rights are explicitly set out in the US Constitution is that governments, left to their own devices, tend to eventually find an excuse to take away any freedom they're not explicitly forbidden from taking away. This isn't because they're bad people, it's just because they're people. In this case, I'd be very concerned about governments wanting to take away rights from corporations. Governments have always been uneasy about large corporations since Washington tends to dislike the idea of any power centers other than itself. Giving governments the power to make laws restricting political donations is particularly dangerous, since the party in power is always going to try to twist these laws (always with the most noble-sounding stated intentions) to restrict the ability of the other party to get funding while protecting its own.
  - anigbrowl 17y ago
    But Hugh, one might very well ask in that case why there is no constitutional provision for corporations. Constitutional protections appear to be limited to citizens qua human persons; no protection is offered to institutions, even though powerful non-governmental institutions (churches) were well-established at the time of the United States' founding. being as how no special protections appear to be extended to any organizations other than the states, one might reasonably ask whether the founders ever intended for private organizations to have a distinct legal identity to begin with (as opposed to, say, a board of directors acting with common purpose but individual responsibility). tl;dr if corporations enjoy constitutional protection, why aren't they mentioned in the constitution?

wglb 17y ago

Wait--when a person goes bankrupt, nobody is charged with murder, so I am not following the argument here.

bokonist 17y ago

The employees and the shareholders of the corporation have the right, not the corporation itself. In practice though, this is the same thing. Note that all the actual human beings that are part of the corporation (i.e., stockholders, employees, directors, etc.) have their own free speech rights and can exercise free speech as long as they make it clear they are not speaking on behalf of the corporation. No, this is wrong. A person has the first amendment right to speak on behalf of whomever or whatever they please.

billswift 17y ago

Then I assume you believe corporations should be immediately stripped of all media outlets like the NYT, WSJ, WaPo, ABC, NBC, CNN, MSNBC, and so on? Otherwise, you are just saying some corporations should have first amendment rights (those that own presses) and others shouldn't.