Are corporations "people"? (1 Viewer)

[UncleTrvlingJim]

So, I'm intending this as something of a technical discussion. I think legally, they are considered persons, but what does that mean? What rights do they have and what responsibilities do they have?

They don't have the right to vote, so are they citizens? I think I'm confused on their legal status for a bunch of different things and why that is.

And then there is a discussion on what are the benefits and what are the costs of considering corporations as people.

 

[V Chip]

I guess I am not understanding what you mean.

Corporations do have certain rights. For example - the right to free speech. Do you think they should or should not?

Yes, they should. I don't think a corporation should have all of the same rights as a citizen does, which I have touched on earlier. A corporation doesn't have the right to not incriminate itself, for instance -- someone in the corporation cannot plead the 5th in order to not incriminate the corporation. So it's not that corporations do not have some of the rights of a person, but they should not have ALL of the rights of as person.

Or are you saying they *should* have all of the rights of a person?

 

[JimEverett]

Yes, they should. I don't think a corporation should have all of the same rights as a citizen does, which I have touched on earlier. A corporation doesn't have the right to not incriminate itself, for instance -- someone in the corporation cannot plead the 5th in order to not incriminate the corporation. So it's not that corporations do not have some of the rights of a person, but they should not have ALL of the rights of as person.

Or are you saying they *should* have all of the rights of a person?

No, I think we agree.
The right against self-incrimination is a good example - corps do not and I think should not have that right.

 

[JimEverett]

Government can and does restrict what corporations and people do and there is no reason that a corporation should have the right to anonymously voice the speech of individuals.

If you want to be heard, be heard, but I don't feel it's reasonable for people to hide behind a corporate veil to disseminate political speech.

I think we should be careful here - anonymous and pen-name writing should not be an invitation for government regulation of speech.

 

[Beach Friends]

I guess I don’t get why leaders/decision makers of a corporation *should* be protected/shielded from liability. They absolutely shouldn’t IMO. Can anyone explain the reasoning for that?

IDK if it's been answered, but the public policy behind that is to encourage investment.

 

[V Chip]

No, I think we agree.
The right against self-incrimination is a good example - corps do not and I think should not have that right.

Agreed.

So to me, corporations are NOT people (or a corporation is not a person). We grant them *some* personal rights based on what is reasonable -- and of course, to different people "reasonable" can be very different things. And there are a few things that are in this "reasonable" gray zone now where I think the judicial decisions were entirely unreasonable. YMMV (and IIRC, it does. )

 

[V Chip]

IDK if it's been answered, but the public policy behind that is to encourage investment.

It sort of was, and I get the point for what is probable the vast majority of cases -- some people create a business, that business fails, they shouldn't lose money they had before (or even as the result of running that business for years) the business failed. That makes sense.

But not in all situations. For example, I seem to recall (and I've tried to find out online about this to no avail, so I could be mistaken) that when Popeyes was having financial issues, Al Copeland doubled his salary every year over the last few years before Popeyes filed Chapter 11. Everything about that screams "shady" but IIRC nothing could be done about it. That seems entirely counter-intuitive to me. Golden Parachutes scream "shady" to me, no matter if they were approved by a board or shareholders. And I think there should be cases where liability *should* extend to those running the company even if what was done was not illegal or forbidden.

 

[Beach Friends]

It sort of was, and I get the point for what is probable the vast majority of cases -- some people create a business, that business fails, they shouldn't lose money they had before (or even as the result of running that business for years) the business failed. That makes sense.

But not in all situations. For example, I seem to recall (and I've tried to find out online about this to no avail, so I could be mistaken) that when Popeyes was having financial issues, Al Copeland doubled his salary every year over the last few years before Popeyes filed Chapter 11. Everything about that screams "shady" but IIRC nothing could be done about it. That seems entirely counter-intuitive to me. Golden Parachutes scream "shady" to me, no matter if they were approved by a board or shareholders. And I think there should be cases where liability *should* extend to those running the company even if what was done was not illegal or forbidden.

I think your intuition that it is subject to abuse, or unfairness is correct. And there are instances where you can "pierce the corporate veil" and go after the assets of a shareholder, such as a parent company for example - but it's not really a lot of fun to talk about, lol.

 

[UncleTrvlingJim]

Agreed.

So to me, corporations are NOT people (or a corporation is not a person). We grant them *some* personal rights based on what is reasonable -- and of course, to different people "reasonable" can be very different things. And there are a few things that are in this "reasonable" gray zone now where I think the judicial decisions were entirely unreasonable. YMMV (and IIRC, it does. )

So, this is pretty much where I end up. But I get a bit confused on the legal rulings - for example, why does a corporation have free speech rights but not the right against self-incrimination (or the right to vote). Is there a law that grants them that right, or is it an interpretation from the courts.

 

[JimEverett]

So, this is pretty much where I end up. But I get a bit confused on the legal rulings - for example, why does a corporation have free speech rights but not the right against self-incrimination (or the right to vote). Is there a law that grants them that right, or is it an interpretation from the courts.

Yes, I think they all come from legal rulings.
This may have been what VChip ws getting at earlier - but there are provisions inthe Constitution that clearly put limits on government power - as opposed to allowing persons to exercise certain powers or rights. So, for example -there is a difference between "Congress shall make no law . . . abridging the freedom of speech or of the press . . ." and "nor shall any person . . . be compelled in any criminal case to be a witness against himself." Its not a huge difference, but it is worth pointing out.

Of course there are more complications. For example - the 4th Amendment's right of persons to be free from unreasonable search and seizure applies to corporations. I am not sure exactly how/why courts began to apply a right like this to corporations - but the practicality of it seems clear to me. Government harassment of legally formed entities does not fit into a free society - whereas application of the right against self-incrimination does not seem so opposed to a free socienty if not applied to legal entities.
Likewise, I wonder the extent to which the freedom of association (found in part, at least, in the 1st Amendment) plays a role in recognizing the rights of entities.

 

[Archies Ghost]

I view legal personhood as granting the rights to that legal person equivalent to the rights granted to any free association of people.

It is logical that a group has no fifth amendment right. No one individual represents the entirety of the group and cannot claim to be the self.

It is also logical that a group enjoys the prohibition against unreasonable search and seizure. Inevitably, a physical search directly affects an individual and should be protected.

 

[V Chip]

So, this is pretty much where I end up. But I get a bit confused on the legal rulings - for example, why does a corporation have free speech rights but not the right against self-incrimination (or the right to vote). Is there a law that grants them that right, or is it an interpretation from the courts.

I think it's mostly from legal rulings. I think I read that some rights that corporations are assumed to have haven't ever been litigated, so there's no precedent to fall back on, but the reason for the lack of litigation was that it was assumed they do have those rights. (Or right. Not sure if it was one or more...)

 

[wardorican]

If a corporation is not a "person" then I don't see how it could have any rights. A legislature could grant it certain privileges, I guess - but that would not be rights.

I don't think Free Speech, at least how the 1st amendment reads, requires it to be a person, since the amendment is about Congress not restricting free speech.

I'm not a legal guy, as you know, but didn't Rehnquist make some sort of point about this a while back? That he didn't think the 14th amendment should apply. Actually, now that I looked this up, I think I was mixed up on what I read earlier.

In the 1970s, Santa Clara was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in a case called Bellotti. The Court relied on Santa Clara’s reading when it stated that “t has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.” Justice Rehnquist, in his dissent, questioned the wisdom of extending corporations political rights: “those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” Again Rehnquist could not convince his brethren.

From Wiki

Justice Rehnquist, in a separate dissent, sharply criticized the Court's decision.[54] Rehnquist pointed out that, while the issue of whether corporations had the right to voice their opinions on political issues was new to the Court, the constitutional permissibility of restrictions on such speech had been considered and approved by Congress and over thirty states.[55] He argued that this consensus by so many governmental institutionals should not be ignored in the Court's decision.[55]

Furthermore, Rehnquist claimed that corporate speech is only protected such as it connects to commercial interests.[56] Rehnquist concluded, "although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation. It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes."[57]

Rehnquist asserted that corporate liberties did not include the right to influence and engage in political issues:

I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid.[58]

From this conclusion, Rehnquist argued that the dissemination of information to the public is not diminished by restrictions on corporate speech on political topics.[58] Therefore, in his view, "all natural persons ... remain as free as before to engage in political activity."[58]

 

[JimEverett]

I don't think Free Speech, at least how the 1st amendment reads, requires it to be a person, since the amendment is about Congress not restricting free speech.

I'm not a legal guy, as you know, but didn't Rehnquist make some sort of point about this a while back? That he didn't think the 14th amendment should apply. Actually, now that I looked this up, I think I was mixed up on what I read earlier.





From Wiki

Rehnquist's position seems weird to me. If a corporation only has speech rights related to a commercial enterprise then the government, in one particular instance, would be able to ban books with political content as long as corporate funds were used in creating/distributing the book. O would the argument be that the publication and distribution is the commercial enterprise? If so, then couldn't any and all corporate campaign advocacy be tied to a commercial purpose as well?

In oral arguments for the Citizens United case the government's position was that it could ban books where corporate money was used to publish and distribute the book (like pretty much every single book we know) and that expressed campaign advocacy. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/08-205.pdf - beginning on page 26.

That seems to be Rehquist's position as well, although seemingly Rehnquist would grant the government far more power.
[EDIT] - Actually I don;t think the last sentence is true. They both seem to share a similar view, namely that the government is free to restrict non-commerical speech of corporations at will.

 

[Archies Ghost]

Rehnquist's position seems weird to me. If a corporation only has speech rights related to a commercial enterprise then the government, in one particular instance, would be able to ban books with political content as long as corporate funds were used in creating/distributing the book. O would the argument be that the publication and distribution is the commercial enterprise? If so, then couldn't any and all corporate campaign advocacy be tied to a commercial purpose as well?

In oral arguments for the Citizens United case the government's position was that it could ban books where corporate money was used to publish and distribute the book (like pretty much every single book we know) and that expressed campaign advocacy. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2008/08-205.pdf - beginning on page 26.

That seems to be Rehquist's position as well, although seemingly Rehnquist would grant the government far more power.
[EDIT] - Actually I don;t think the last sentence is true. They both seem to share a similar view, namely that the government is free to restrict non-commerical speech of corporations at will.

I read the arguments you posted. Scalia boils it down in one paragraph for me. The government position seems to be that the "press" is some sort of privileged class and Scalia seriously questions that mindset.

I think attempting to prohibit speech on the basis of which corporate account the money came from is a rather silly idea.

Legal personhood and extending First Amendment Rights to that legal person, I think, is an important decision.

The potential for abuse and serious cooling of free speech exists if the government can prohibit speech in this manner.

 

[JimEverett]

Yeah, Scalia is exactly right. I think there is a misnomer to think of "the Press" (as we commonly use the term) as operating in this privileged sphere where the government sort of grants a privileged state based on what is the purpose of the business as expressed in the Articles of Incorporation. Rather, the test should be whether the State can infringe upon press actions. Anyone or any association of people (whether legally organized or not) can engage in press functions, and those should be free from government regulation.

 

[Archies Ghost]

Yeah, Scalia is exactly right. I think there is a misnomer to think of "the Press" (as we commonly use the term) as operating in this privileged sphere where the government sort of grants a privileged state based on what is the purpose of the business as expressed in the Articles of Incorporation. Rather, the test should be whether the State can infringe upon press actions. Anyone or any association of people (whether legally organized or not) can engage in press functions, and those should be free from government regulation.

If you accept the idea that American constitutional rights derived from English rights at the time, one can see that the freedom of the press was clearly meant to prohibit any restriction before the fact but not prohibit prosecution after publication.

William Blackstone in his commentaries.

In this, and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for restraining the just freedom of the press, "that it was necessary to prevent the daily abuse of it," will entirely lose it's force, when it is shewn (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose, without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press.

Any law that would tend to censor speech before publication would be a clear violation of this concept. I think prohibiting speech based upon its source of finance clearly does that.

There is certainly lots of room for argument as to what constitutes criminal publication but that is another discussion.