Corporate Free Speech?

As will probably be featured in newspapers and television news over the next 24-48 hours, the United States Supreme Court decided Citizens United vs. FEC http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf. The decision is pretty complicated, largely because elections law is pretty complicated, and relies a lot of legislative interpretation and some analysis of existing case law. In spite of all that, the headlines will probably read something like "Court upholds Free Speech for Corporations." In large part, this is a correct interpretation and one that the court clearly wanted to endorse as the court engaged in a whole lot of interpretative gymnastics to clear away all sorts ways to sidestep the case.

Because this blog is focused on critical thinking, I don't want to review the decision in toto or evaluate its strengths or weaknesses. Rather, I want to focus on an underlying assumption that is pretty settled within law: corporations have or should have constitutional rights.

While I don't think this assumption will change in law anytime soon, it still is something worth considering and evaluating.

As I understand rights, their purpose is to protect individuals and/or people against intrusions from the state. Most justifications of rights hinge on the sanctity and/or moral worth of human beings. It is not uncommon for folks to frame most "rights talk" in the language of human rights. So the jump to corporate rights does not have a clear philosophical foundation. As a historical matter, while corporations existed when the United States was founded, the founders did not really think that they ought to possess rights.

Corporations (or unions and PACS) are legal fictions, not real persons. The move toward a legal recognition of their rights underlines the precarious nature of "rights" talk in the United States. So, for example, actual people, such as felons, illegal immigrants, and in some cases children, lack many "rights" while legal fictions such as Citibank, NBC or Ford posses them.

One consequence of applying rights talk to corporations, is that we view them as moral actors (and this is a good thing). But another consequence of this application is that it completes the shift from the recognition of human rights to something more akin to citizen rights. In other words, rights seem to follow from the social recognition of belonging and participation than concrete being. This, to me, seems like a very slippery slope in which folks or entities gain rights because society recognizes them as rights bearers. Conversely, those without rights lack them because they are not recognized as legitimate rights bearers. I think this is pretty circular and it seems to leave those without social recognition with little recourse.

Another consequence of these linguistic and conceptual shifts is that it requires us to create analogies from corporal existence to fictional entities. I know how to identify when a human being speaks or writes but I am much less certain how to identify when a corporation speaks or writes. At least in contemporary first amendments and election jurisprudence, speech gets transformed into the ability to spend money on advertisements and other things. As a result of all these translations and analogies, we have moved pretty far from the initial formulation and purpose of rights. So, please take the moment of this Supreme Court decision to ponder the current meaning and usage of rights and rights talk!