Boy, we're having trouble. Let me be charitable. Someday I hope you'll remember today as the day you learned something about the law from an Internet stranger.

So, corporations being "people" in the legal sense doesn't mean that they're the same as natural persons under the law in every way. The idea of corporate "personhood" is a shorthanded way of describing the legal advantages conferred by acquiring a corporate charter from a given state. These include the rule that individual assets are immune from liability for actions taken by the business. And the rule that the business survives the death of the people who own it. And the idea that a business is a separate legal entity that can sue and be sued. And a few others (like the separation of ownership and management duties, but this isn't truly a necessary feature).

Corporations are essentially a convenience of state law, since it would be perfectly possible to recreate such an arrangement with a complex nexus of contracts. The few exceptions to that involve the judicially created narrowings of the fiduciary responsibilities of corporate managers in certain circumstances (known as Revlon duties, after Revlon v. MacAndrews & Forbes) and the (problematic) immunization of corporate directors for environmental and tort liability (which I think should be changed).

There's nothing special about corporate personhood. It has existed for as long as the idea of a business entity has existed, and for-profit corporations (as legal persons) have existed for well over a century.

Most importantly for our purposes, corporate personhood has nothing to do with the Supreme Court's ruling in Citizens United. You could pass an amendment to the Constitution today saying that corporations are no longer persons under the law and the case would come out exactly the same way. If you don't believe me, I strongly urge you to read Justice Kennedy's majority opinion for yourself. I know it's long and a bit dense (Kennedy isn't the most talented legal writer in the world), but the reasoning truly is all there. Nowhere will you find the court relying on the idea that corporations are persons, and persons have First Amendment rights, therefore corporations do too. It's not how the case is reasoned and not why it comes out the way it does.

So I agree with you. Corporations and natural persons are different and should be treated differently by the law -- at least whenever the differences between them are relevant. But that difference doesn't matter in the Citizens United case.

If you effortlessly understood all that and sincerely knew it before reading these paragraphs, sorry for being a jerk. Otherwise, I really, truly think you should spend some time learning about the law before you make statements like this.

I was being facetious, dude. Relax a little.

Good post.

How do you square corporations' 1st Amendment personhood with the piercing the corporate veil doctrine?

Not being snarky--just thought of this and was genuinely interested in some feedback from you/other law-talking guys.

Wherever you want to draw the line, as blurry as it might seem to you, corporate contributions to political campaigns is very firmly on the free speech side. Such money is clearly political.

I believe the European Court actually has ruled even commercial speech is protected, just not to the same extent as political speech.

PS: Dr. Modern underestimates how long "corporate personhood" has been in existence. In various forms, "legal persons" with legal responsibilities and rights have existed for thousands of years.

So has SCOTUS.

http://benswann.com/obama-signs-land...l-conventions/

This legislation seems interesting given the thread topic....

It's a legal fiction to create an entity for purposes of legal fiction. I only mean fiction very slightly disparagingly in this instance. Invented to debasicly protect people from losing money while trying to make more money. It is artificial, no amount or style of reasoning is going to turn a corporation into an individual living being except in a technical and artificial manner.

It is a meme that people believe the court did generally rule corporations are people too. We have stellar dollar-counters like Mitt Romney saying of course corporations are people; like it's an everyday man fact. Of course! I got a torque wrench!

Not kidding about needing all the basic we can get.

I don't want to leave a mistaken impression. I do like corporations, and value purposeful fictions. Technical manners are give or take.

Do you see the inconsistency between these two statements? You want to deflect criticism of the actual real world results of the decision by hoisting your interpretation of strict adherence to the ideal the more important value. Then you try to group this decision with all of the good real world results traced to the 1st amendment. You can't have it both ways.

So what's your stance on the proverbial shouting fire in a crowded theatre? Or what about the several other examples of restrictions on speech I offered which serve us well? Are you against copyright laws?


I don't believe in platonic idealizations when it comes to government. So I'm not a completely impractical right wing/libertarian ideologue with a selective bias toward crafting such ideals so that they benefit the wealthy. Freedom is a most basic of any infinite number of other competing values and desired outcomes, so it's a great null position on any matter. But in order to hammer out higher order values, like human rights for example, you have to put restrictions on absolute freedom in order to get what you want. Like, I don't want my neighbor to have nuclear weapons, even though that is a restriction on his freedom and I value freedom in general as a null value. This argument translates seamlessly into freedom of expression- it's great as a null position. It's a fundamental value out of which we carve higher ordered values such as those observed by copyright laws or laws that say you can't shout fire in a crowded theatre.

You persistently attempt to create a false dichotomy offering either extreme state control or complete liberalization of all speech (including of course your construction of money as speech) and their concomitant bad and good social outcomes (outcomes you simultaneously claim don't matter). In that attempt you also persistently dodge any discussion of good social outcomes that derive from restrictions on speech, probably because they simply destroy your argument.

Sigh. Deuces, darling, I don't think we'll ever agree on anything.

You really don't see what I'm saying? To you, all consequences are just consequences and you feed them into some gigantic (ideologically neutral?) equation and see what comes out? In the first context, I'm explaining the logical truth that having a higher-order norm means that lower-order norms are incommensurate. In the second context, I'm explaining (loosely) why I think it's a good idea to have free expression as a very high-order norm. So far as I can tell, your whole normative approach is something like "calculate the maximum social good for all people using a gigantic magic calculator."

I can't make sense of the political world in that way. It fundamentally makes no sense to me, and seems to involve viewing yourself and your moral ideas as somehow endowed with a Godlike degree of objectivity that no ordinary human being actually possesses. I'm way more open to being convinced than you think (and way more liberal than you think), you just rhetorically suck at convincing me because you positively insist that the debate has to be about quantifying outcomes.

A good starting place would be to stop talking about "null" values like this is some sort of stats problem.

If expression has a price how is it free?

Because the word "free" has different definitions.

Not in this context.

This is one of worst analogies with regards to the 1st amendment put forth by a court.

They were both more populist movements that their respective parties' core.

That being said, both of these movements, along with every other movement ever, is full of really dumb people. We can quibble (or more likely, agree) over who has the dumbest, or the greater percentage of dumb, but the fact is that the majority of people across the spectrum have rather simple minded beliefs, that are forged in the fires of mainstream media, public education, and a few other components.

The caricature of "these people are frighteningly stupid - run the other way" is actually quite similar to the way people in Tea Party caricature liberals. The parallels are strikingly similar, and it's a massive feature of cognitive dissonance that plagues humanity. It goes roughly as follows (borrowed from Kathryn Schulz TED talk):

1) They're ignorant. If they had the facts and data like me, they'd agree with me.

2) They're stupid. They DO have the fact but they still disagree? Must not know how to reason or be irrational.

3) They're evil. Oh, so they are intelligent and have the facts? Well then they are obviously have a nefarious agenda that is served by their position. (or 3A, they're too prideful to admit when they are wrong.)

yes in this context, c'mon.

Freedom of speech does not mean "speech that is free of charge."

What an awful post. How disingenous can you be to suggest that the historical precedent over the last century set by previous cases within the court relating to corporations having personhood / being protected under the first amendment wasn't a major determining factor in the Citizens United ruling? And you're going to be a condescending prick on top of it all? GTFO

I presume you're not including money spent by SuperPACs?

Freedom = It's MY mannieses, **** you

I just want to document the changing reasoning here:

Oh really?

Which cases? Cite them. And cite the passages from the majority opinion in Citizens United that rely on them. Find me the part in Citizens United that states that corporations having personhood is essential to the holding. It should be easy if you've read these decisions. I'll wait.

Dr.,

Not sure if you missed this one, but

Thoughts?

Hey Ray,

Sorry, I saw your post, I just wasn't sure I understood the question. Are you asking how we can regard corporations as persons endowed with First Amendment rights given that we sometimes acknowledge that it's appropriate to disregard that status, such as in veil-piercing cases?

If so, the answer is that corporate personhood isn't essential to the idea that their speech is protected by the First Amendment; rather, we regard them as associations of natural persons, such that it makes no sense to treat their speech differently from, say, speech published by a literary magazine or political journal. The New York Times is a corporation, but there's no reason to treat an article published by it differently from an article published by a freelancer.

Thanks for the response, Dr.

The thought came to me that if the law prevents individuals from forming corporations that are mere alter egos of themselves as liability shelters, then the law seems to implicitly be saying that corporations are NOT individual persons. It would then logically follow that they wouldn't have the same liberties that individual persons enjoy.

There is a similar parallel in tax law. Given the pass through taxation framework of business organizations like sole proprietorships, and even multiple person entities such as partnerships and LLCs, they would seem more likely to enjoy rights, as organizations, that individuals enjoy (e.g., free speech), because they, unlike corporations which are separately taxed at the organizational level, are not treated as separate non-person entities.

The notion you set forth of "associations of persons" speaking as one through a corporate framework makes sense. Although I would think that the magazine/journal examples you give qualify as protected/encouraged speech more directly under the free press clause. Is there a similar compelling interest in corporate speech as exists in freedom of the press? I honestly can't say.

What change of reasoning? The second quote I assumed was your defense of corporations having the same rights as people. It turns out that you were talking about my use of that reasoning when it came to the Citizens United case. I couldn't have known that because you were too busy being preachy to highlight what exactly you disagreed with.

How quickly you forget that you are the one who stated that corporations being legally considered people had nothing at all to do with the Citizens United ruling. Why do I need to present evidence that it was a key determining factor to dispute that?

You want to take corporate personhood out of the equation in a vacuum and I'm telling you that you can't. It has had a massive influence on future court rulings which were later used as legal precedent to decide cases that then impacted other cases which were then referenced in Citizens United.

You may be right that corporate personhood was less of a focal point than some of the other arguments, but what I'm saying is that the entirety of the argument has a lot to do with the consequences of corporations being declared people in the first place. You can't seperate them without erasing history and the momentum that led to where we are at today.

Also worth noting that without that ruling and all of the subsequent cases that it spawned the case by Citizens United gets rejected by the courts at face value. That in itself is extremely significant.

Wow, this is weird. "Corporations aren't people" is an epithet that people hurl at Citizens United. The specific point I'm making is that corporate personhood, meaning the legal concept I discussed in a fair amount of detail above, isn't especially relevant. To be clear, yes, the decision recognizes that First Amendment protections extend to corporations. If you revoked corporate personhood, meaning the specific legal concept outlined above, this would still be true. This might seem like a semantic point, but it's an important one in the wider context of asking ourselves what the relevant differences are between "corporate speech" and "regular human speech."

Let's try a hypothetical. It's 2016 and Hillary Clinton and Elizabeth Warren are running against each other in the Democratic primary. Some group of people make a campaign commercial advocating the election of Elizabeth Warren. Congress passes a law barring that commercial -- or any political commercial advocating a candidate's election -- from being shown 60 days before the actual primary. Which of the following groups, if any, has a First Amendment right to show their commercial:

(a) An ad hoc affiliation of Warren supporters with no legal relationship
(b) A local pro-Warren advocacy group with a charter and paying members
(c) A small business that markets books warning of the dangers of credit card debt, an issue that Warren has been big on
(d) A statewide autoworkers' union
(e) The National Wildlife Foundation
(f) Exxon-Mobil corporation, which is hoping that financially supporting Warren will soften her stances
(g) An ad hoc affiliation of extremely wealthy tech entrepreneurs who want Warren to channel money their way

Because it's... precisely what would disprove my point? There are specific passages in Citizens United that I had in mind when I said that. I'll just quote them for you to save you the trouble of actually reading the law. Here's what the Court wrote, pages 25 - 26 of the majority opinion:

Citations omitted, but there are several long string-cites in that passage. What I'm asking is where in there you see the concept of corporate personhood being integral in the Court's reasoning. Like, if corporate personhood were rescinded tomorrow, you think that reasoning would change and the Court would suddenly say "oh, well, since they now aren't legal persons, business partnerships don't have First Amendment rights, since the First Amendment only applies to persons."

I reiterate that I'm a lawyer and, unlike you, I've actually read all these "legal precedents." I know what they say and what their reasoning is in detail. Humor me by at least pretending to consider that my position might not be the result of some right-wing agenda.