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Corporations, Don't Take It Personally
March 1, 2011 5:02 PM   Subscribe

Today the Supreme Court in ruled 8-0 in FCC v. ATT that corporations have no "personal privacy" exemption under the Freedom of Information Act. The opinion ended the speculation that the Supreme Court would use this case to take yet another step towards equating corporations with actual people. For links to the various briefs, lower court decisions, and a summary of the underlying facts and opinion, visit the SCOTUSblog.

Prior to the decision, conservative commentators asserted that "if decided wrongly, it has the potential to transform the federal government’s Freedom of Information Act into a powerful anti-business weapon in the hands of the left." On the other side, organizations such as the ACLU and EFF argued the public has a strong interest in information collected by the government from corporations during investigations.
posted by Muddler (93 comments total) 20 users marked this as a favorite

 
After all the news coming out of Wisconsin, I'm glad to see this. Thanks.
posted by Rykey at 5:08 PM on March 1, 2011 [2 favorites]


Too bad, if people can go to jail for 30 years for negligence or any of the various dirty crap they get away with, shouldn't corporations be put away too? (I'm thinking CEO/board/VP's)
posted by sammyo at 5:09 PM on March 1, 2011 [1 favorite]


AT&T reported feeling "very emotionally distraught" about the verdict.
posted by mullingitover at 5:23 PM on March 1, 2011 [52 favorites]


Check out the conclusion of the opinion:

"The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally."

Oh, Chief Justice Roberts, you card.
posted by mr_roboto at 5:38 PM on March 1, 2011 [55 favorites]


I'm happy to see non-individuals be denied some of the freedoms extended to real live human beings. I'm even happier to see the decision was unanimous. In high school I wondered how our modern law system could be considered legitimate if even the most distinguished officials of our law system couldn't seem to agree on much. I mean, the law is their entire life and things go 5-4 pretty regularly. In light of that, how are the rest of us supposed to understand and function in the legal system?

I still wonder.
posted by Phyltre at 5:39 PM on March 1, 2011 [8 favorites]


AT&T was opposed to having its communications monitored?
posted by Joe Beese at 5:54 PM on March 1, 2011 [20 favorites]


I'm sorry, I guess I'm late to the party...

Did AT&T actually go to court because they wished to control what information they disclose to the government or other entity? Did I read that correctly?
posted by Bathtub Bobsled at 5:55 PM on March 1, 2011 [1 favorite]


I'm still pissed that there even has to be a decision about this. Are corporations actual people. No. No they are not. Are you fucking kidding me. Just because it's the future doesn't mean we have to pretend we're in a fucked up sci-fi movie.
posted by pwally at 5:55 PM on March 1, 2011 [17 favorites]


Did AT&T actually go to court because they wished to control what information they disclose to the government or other entity? Did I read that correctly?

Lie down with dogs, get up with fleas.
posted by Joe Beese at 5:57 PM on March 1, 2011 [1 favorite]


I tried to extrude most of my body mass across the border to drink tax-free tequila while leaving a shell-toenail in the US, but the border patrol would not respect my rights as a corporation. I will not stand for being treated like a lowly human being.
posted by benzenedream at 5:59 PM on March 1, 2011 [13 favorites]


Wednesday, March 2, 2011: The Supreme Court decided unanimously that actual persons also have no personal privacy.
posted by FelliniBlank at 6:00 PM on March 1, 2011 [3 favorites]


How do you figure, FelliniBlank?
posted by clockzero at 6:02 PM on March 1, 2011


While this seems to be good news, I wonder at the implications. The overwhelming majority of FOIA filings are by corporations seeking information on competitors' business practices as reflected by mandatory government paperwork.

I'm tempted to think that this ruling has less to do with public access to information and more to do with the Supes free-market inclinations.

But I haven't read enough or really thought it through, admittedly.
posted by BitterOldPunk at 6:06 PM on March 1, 2011


This seems to be really just a case of statutory interpretation, where AT&T was arguing to protect its own interest that the word "personal" in FOIA be read to refer to corporate as well as individual privacy. AT&T's best argument, I think, was that "personal" was derivative of "person" and that, because "person" in legal terms usually means both individuals and legal entities (trusts, corporations, llc's), that "personal" denoted corporations as well in the cotext of the statute. The Supreme Court disagreed. A rather cute case, actually; talk of crustaceons and what not.
posted by gagglezoomer at 6:07 PM on March 1, 2011 [1 favorite]


>In light of that, how are the rest of us supposed to understand and function in the legal system?

Mountaintop mystic answer: Don't think of the law as a set of concrete, exact rules. Courts, especially the Supreme Court, tend to make it up as they go along.*

Cynical answer: You're not. You're supposed to hire a lawyer.



*As permitted by stare decisis, rules of statutory interpretation, etc.
posted by Grimp0teuthis at 6:09 PM on March 1, 2011 [1 favorite]


How do you figure, FelliniBlank?

Just a wisenheimer crack to the effect that anytime the Supes appear to do something righteous and logical, I never quite believe that it won't end up biting us all in the ass one way or another.
posted by FelliniBlank at 6:13 PM on March 1, 2011 [3 favorites]


it has the potential to transform the federal government’s Freedom of Information Act into a powerful anti-business weapon in the hands of the left.

ohpleaseohpleaseohpleaseohpleaseohplease
posted by DU at 6:14 PM on March 1, 2011 [14 favorites]


Yeah, DU, if the left had half of the power the loony right attributes to it, things would be so very very different.
posted by oddman at 6:16 PM on March 1, 2011 [4 favorites]


I wondered how our modern law system could be considered legitimate if even the most distinguished officials of our law system couldn't seem to agree on much.

There are no definitively right or wrong answers to such questions. That's what church is for. Think of judicial voting as a probability score rather than a question of truth or falsehood. Higher courts are not really examining factual questions. (Yes, mystic mountaintop. I'm a pragmatist meself.)

I'm tempted to think that this ruling has less to do with public access to information and more to do with the Supes free-market inclinations.

Well, if you want a reason to feel angry you'll easily find one.
posted by anigbrowl at 6:20 PM on March 1, 2011 [1 favorite]


A condensed user guide for how to submit FOIA requests, by Nicole Johnson. Summary jpg.
posted by cashman at 6:29 PM on March 1, 2011 [5 favorites]


I felt kind of dorky citing "wiretaps" as one of the reasons I was dropping my service plan with AT&T, but at least now I can be sure I haven't hurt its feelings.


He feels slightly affronted that nobody seems to notice him. (AT&T is a very emotional guy.) AT&T is handsome in the obvious way. (He has the Nights and Weekends plan).

Can we get a NSFW-style warning made up for Slate (and Salon) links? I think at this point I'm years beyond sick of seeing articles where I agree with the main point yet finding myself hating the authors for their damned cutesy affectations. NOT SANE FOR LIBERALS, maybe?
posted by kittyprecious at 6:40 PM on March 1, 2011 [1 favorite]


Right on! Go Supreme Court! Every great now and again there's some good news.
posted by flapjax at midnite at 6:41 PM on March 1, 2011


Lie down with dogs, wake up with fleas

With Al Jourgensen shredding on a mandolin!
posted by Existential Dread at 7:21 PM on March 1, 2011


Honestly stunned that this was 8-0. The decision largely rest on highly detailed parsing of a couple of words -- leaving lots of wiggle room to come out the other way. How am I supposed to stay pissed at Scalia and Thomas when they act so darned responsibly?
posted by FfejL at 7:24 PM on March 1, 2011 [1 favorite]


Anyone care to share links to the conservative response?
posted by oddman at 7:47 PM on March 1, 2011 [1 favorite]


Did AT&T actually go to court because they wished to control what information they disclose to the government or other entity? Did I read that correctly?

If I'm understanding this correctly, they are saying that the public can make FOIA requests for information gathered by government entities from corporations.

For example, Lets say that Bathtub Bobsled Inc. is being investigated by the FBI and have placed wiretaps and then ordered them to hand over internal memos.

I, a private citizen, can submit an FOIA request and gain access to that information.

If I was the one being investigated, I can submit an FOIA request (lets assume that they investigated me and found I was innocent, yes...innocent ) and get find out what information they collected about me. You, however, can't get that same information about me. I'm a person and I a right to personal property so third parties can get information about me via an FOIA request.

At least, that is what I think is going on here.

If it ends up that other corporations use it to keep an eye on each other, fine. If they all make sure that their competitors stay in line, they'll keep each other honest. I'll keep telling myself that at least. A guy can hope right?

posted by VTX at 7:57 PM on March 1, 2011


Wait…did fucking Scalia do something good for once?

Cause my head might explode.
posted by paisley henosis at 8:00 PM on March 1, 2011 [2 favorites]


This is basically a ruling that the word "personal," as used in FOIA Exemption 7(C), does not derive from the defined term "person," which includes corporations. Most corporations use 7(C) as belt and suspenders for Exemption 4, which includes exemptions for trade secrets as well as commercial and financial information. If this decision has real teeth, i.e., there is a real category of stuff that is only receives protection under 7(C) and not under other exemptions, this will have a chilling effect on corporations willingness to cooperate in government investigations, as AT&T did here.
posted by monju_bosatsu at 8:19 PM on March 1, 2011 [2 favorites]


Exemption with 7(C) deals with invasion of personal privacy. Terms like "embarrassment," "stigma," and "unwanted attention" often come up in 7(C) exemptions. What "personal privacy" does a corporation have? How can you "embarrass" a corporation?

Seems like it was a relatively open and shut case. The fact that AT&T was trying to twist the "ordinary meaning" of "personal" probably only pissed off Scalia and Thomas even more.
posted by Sticherbeast at 8:50 PM on March 1, 2011 [1 favorite]


Hmm, it's 8-0, not 9-0, and SCOTUSblog says "Justice Kagan did not take part." Is it normal for a justice to be absent, or is this irregular?
posted by jcreigh at 9:03 PM on March 1, 2011


When Justice Kagen was Solicitor General Kagen she appealed the case to the Supreme Court on behalf of the government so I assume that's why she didn't take part.
posted by macfly at 9:06 PM on March 1, 2011 [4 favorites]


Kagen, as opposed to Scalia or Thomas, actually recuses herself from cases where there might even be an appearance of impropriety from her involvement.
posted by hippybear at 9:09 PM on March 1, 2011 [18 favorites]


Scalia and Thomas actually sided with the majority and didn't have a batshitcrazy opinion expressing some nonsense blabber about how this isn't part of the Constitution as seen through a microscope made from a strange fascist version of LSD?

Color me confused.
posted by Mister Fabulous at 9:46 PM on March 1, 2011 [3 favorites]


I expect its because Scalia, Roberts and Thomas don't believe citizens have a constitutionally right to privacy - so even though corporations are people, it's a right the right doesn't get right. Or something like that.
posted by nightwood at 9:51 PM on March 1, 2011 [8 favorites]


When I saw this my heart skipped a beat and I began thinking "well sure but which country?"

Heart palpitations of joy as we speak.
posted by clarknova at 10:07 PM on March 1, 2011


I'm happy to see non-individuals be denied some of the freedoms extended to real live human beings. I'm even happier to see the decision was unanimous. In high school I wondered how our modern law system could be considered legitimate if even the most distinguished officials of our law system couldn't seem to agree on much. I mean, the law is their entire life and things go 5-4 pretty regularly. In light of that, how are the rest of us supposed to understand and function in the legal system?

I still wonder.


I don't understand this concern. Under Rule 10 of the Supreme Court Rules, the Court focuses on the these considerations in deciding whether to grant certiorari (that is, to hear a case):

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

The operative word in each of those instances is "conflict" or "conflicts." In the overwhelming majority of cases, the Court only hears cases when there has been some disagreement between the lower courts on a point of law.

Given that the Court takes cases to resolve conflicts among the lower courts or state courts, then shouldn't we expect that the Justices would often themselves disagree about the issues that divided their colleages on other courts?
posted by Slap Factory at 11:19 PM on March 1, 2011 [2 favorites]


But if a point of law is so unclear as to have multiple courts disagreeing over the interpretation, and such that the Supremes themselves disagree;

Doesn't that mean the law is badly written and unclear? And if the law is badly written and unclear - which appears to be relatively common - how is the lay person to stay within the law in general, given ignorance of the law is no defence, when even Judges struggle to decide what the law actually says?
posted by ArkhanJG at 12:22 AM on March 2, 2011


I'm still pissed that there even has to be a decision about this. Are corporations actual people. No. No they are not. Are you fucking kidding me. Just because it's the future doesn't mean we have to pretend we're in a fucked up sci-fi movie.

This is reductive, as I'm sure you know. It really bothers me to see this issue be glibly dismissed by smart folks, since it's important, and by no means clear-cut. Corporations are the way actual people conduct their affairs in our society. Corporate rights are derivative of individual rights, and at least to some degree they are necessary to the exercise of individual rights. You can argue that the two shouldn't be commensurate -- I personally think both this case and Citizens United were correctly decided -- but it won't do to just assert that corporations aren't "actual people."
posted by eugenen at 1:51 AM on March 2, 2011 [3 favorites]


If corporations have rights under the Constitution as "people" than ownership of corporations is slavery, something specifically prohibited under the Constitution. You can't have it both ways, either they're people and have all the rights of people, including the right not to be treated as property, or you can own them in which case they aren't people in any real sense and thus don't have all the rights of people.

I'm surprised at the fact that Thomas et al voted the way they did not particularly because I expect them to be evil, though I do, but because it's entirely inconsistent with their position in Citizens United. There they declared that corporations were people and had all the rights accorded to people, specifically including free speech. Here they argue the exact opposite. In light of CU their decision here makes no sense at all.
posted by sotonohito at 4:32 AM on March 2, 2011 [1 favorite]


How am I supposed to stay pissed at Scalia and Thomas when they act so darned responsibly?

Maybe their wives got laid off by the Heritage Foundation, et al, and the Justices are pissed about it.
posted by Kirth Gerson at 4:43 AM on March 2, 2011 [1 favorite]


But if a point of law is so unclear as to have multiple courts disagreeing over the interpretation, and such that the Supremes themselves disagree;

Doesn't that mean the law is badly written and unclear? And if the law is badly written and unclear - which appears to be relatively common - how is the lay person to stay within the law in general, given ignorance of the law is no defence, when even Judges struggle to decide what the law actually says?


Sometimes, particularly with statutes and regulations, it means that someone botched the drafting. Seriously, have you spent much time mucking about with the Federal Register? It's like chewing aluminum foil: the harder you work at it, the denser it gets.

But the truth of the matter is that Supreme Court cases are news precisely because they're so rare, and even most of those never merit a mention outside law blogs and legal periodicals. The Court hands down about eighty decisions a year, of which something like four or five get any kind of media attention. But the reality is that the cases that make it up to the Supreme Court do not even represent the barest fraction of cases which go through the courts every year. A single partner at my firm closes several times as many cases annually as SCOTUS does, and most of those don't even get very far in state appellate courts.

Most Americans' lives have absolutely nothing whatsoever to do with the subject matter of the majority of litigation. We're talking about FOIA requests here. Show of hands: how many MeFites have filed or been the subject of a FOIA request? Or even been affected by one? Similarly, one of the more notable cases the Court is hearing this term is how the Fourth Amendment warrant requirements apply to in-school interviews of children whom authorities suspect may be the victims of abuse. I mean, sure, that has the potential to be an important case, but it isn't going to have all that much of an effect on the vast majority of the population.

Tl;dr version: the Supreme Court spends most of its time dealing with issues that are so peripheral to the lives of most Americans and most American businesses that the controversy which surrounds it should not lead one to the conclusion that the legal system is a house of cards. The vast majority of cases raise no interesting legal questions, and the legal system applies the law correctly the vast majority of the time. Odds are really, really good that if you do find yourself in the midst of a legal controversy, the only questions will be those of fact, i.e. who can prove what. The law will most likely be clear.
posted by valkyryn at 5:03 AM on March 2, 2011 [2 favorites]


By extension of Roe v. Wade, then, corporations don't have the right to a legal abortion. Next thing we know, we'll hear about AT&T dying in the street due to an infection from a dirty abortionist.
posted by Xoder at 6:15 AM on March 2, 2011


Corporations are the way actual people conduct their affairs in our society. Corporate rights are derivative of individual rights, and at least to some degree they are necessary to the exercise of individual rights. You can argue that the two shouldn't be commensurate -- I personally think both this case and Citizens United were correctly decided -- but it won't do to just assert that corporations aren't "actual people."

No, no, no--corporations are one way some people conduct their affairs in our society, along with lots of other ways--like sole-proprietorships, unions, bridge clubs and all sorts of other artificial legal entities. Unions don't enjoy unqualified rights equivalent to individual rights, why should corporations?

Individuals do not have to incorporate to conduct their affairs in our society, and in fact, most people are not incorporated entities, nor should they be, because corporations enjoy certain specific exemptions from legal and financial liability that ordinary people do not and should not enjoy. These exemptions are defined in law to encourage investment in business, but there is absolutely no basis for thinking we have any right whatsoever to enjoy these exemptions from personal liability; they are granted on a qualified basis under the authority of the state, and do not derive from natural rights.

Corporate rights are not derivative of natural rights, they derive from the authority of the state to define its own laws, nothing more.

Individuals who may choose to exploit the advantages of limited liability and other legally defined benefits of doing business in the legal form of a corporation still continue to remain free to exercise their rights as individuals, do they not? So those rights are preserved already, and do not need to be extended to the activities of the corporation (which is an artificial legal construct, whose rights and legal forms can be defined and constrained however we choose in law).

There are, for various legitimate reasons, all sorts of limits that have been defined for these special kinds of legal entities over the years, and that's as it should be. You don't need an extra helping of rights when you do business as a corporation; you have all your rights intact as an individual. By seeking to extend individual rights to a collective entity that uses capital accumulated by the collective contributions of shareholders, you are in effect creating a new artificial person with rights, but less personal responsibility under the law that can act as a proxy for you--in effect, you're making a legal homunculus and giving yourself more political/economic power with less legal liability using other people's money to "speak".

There is no good argument for granting activity any special rights-based protections, because corporations exist for the conduct of commerce only, and as such, their activities are all commercial activities by definition. Commercial activities can be regulated. In the same sense that corporations can't have "personal" privacy, they also can't engage in speech; they have no personal volition; they can only advertise.
posted by saulgoodman at 6:56 AM on March 2, 2011 [3 favorites]


erm... "...for granting corporate activity"
posted by saulgoodman at 6:56 AM on March 2, 2011


the Supreme Court would use this case to take yet another step towards equating corporations with actual people

The overall doctrine of corporate personhood is necessary. Otherwise, if a FedEx truck ran you over, you would have to individually track down and sue every single shareholder of the company. That was the way it used to be. Corporate personhood allows regular humans to sue a company.

Secondly, I think we need a quick lesson in corporations. A corporation is any association of persons joined together and recognized by the state as an entity. Planned Parenthood, MoveOn and the Green Party are as much corporations as BP is. The distinction is important.

People do not like the fact that we have a capitalist economy and that some corporations are organized for the purposes of providing profits for those owning shares in them.

But that does not mean we should somehow wipe out the notion of corporate personhood with regards to our laws. The doctrine arose specifically to combat the abuse of the corporate form by those seeking to avoid responsibility before the courts.

The most misguided of all movements is the movement to strip away corporate personhood before our courts and laws. How does the EPA force BP to clean up anything if they have no standing and cannot be the subject of any regulation as a corporate body?
posted by Ironmouth at 7:34 AM on March 2, 2011


Too bad, if people can go to jail for 30 years for negligence or any of the various dirty crap they get away with, shouldn't corporations be put away too? (I'm thinking CEO/board/VP's)

No, shut down the company and freeze its assets for 30 years.
posted by LordSludge at 7:35 AM on March 2, 2011


Or better still, "for granting commercial activity." We can ban drugs, for example, under the state's authority to regulate commercial activity (at the federal level, too, under the commerce clause). Corporate speech is inherently a commercial activity, which makes it subject to whatever regulations the state or federal legislatures might deem fit to lawfully impose.
posted by saulgoodman at 7:36 AM on March 2, 2011


There is no good argument for granting activity any special rights-based protections, because corporations exist for the conduct of commerce only, and as such, their activities are all commercial activities by definition. Commercial activities can be regulated. In the same sense that corporations can't have "personal" privacy, they also can't engage in speech; they have no personal volition; they can only advertise.

Incorrect. The American Red Cross is a corporation. So is every non-profit in the entire United States.

Also, the corporate form does not excuse liability on the individual, it only limits it to the extent of that person's investment in the corporation. People sue FedEx for hitting them rather than the truck driver because the truck driver has much shallower pockets.

People need to educate themselves. You can be plenty angry about the growing influence of large corporate enterprises in America without throwing away the real protections corporate personhood has. Simple knowledge of court jurisdiction and long-arm statutes quickly shows how corporate personhood was needed to protect the individual and to allow government regulation of corporate activities.
posted by Ironmouth at 7:46 AM on March 2, 2011


The most misguided of all movements is the movement to strip away corporate personhood before our courts and laws. How does the EPA force BP to clean up anything if they have no standing and cannot be the subject of any regulation as a corporate body?

I disagree. We don't need to give them unqualified personhood, and we can define different, more narrowly defined legal categories that give them standing. We make up laws. We can re-make them up, and there's nothing precluding us changing how we define the special set of legal relationships, responsibilities and obligations that we define under law as a corporate entity. We can apply whatever laws we like to any artificial product of our laws, or else our legal inventions can potentially run away from us, which is absurd.
posted by saulgoodman at 7:50 AM on March 2, 2011 [3 favorites]


There has to be a better way to acknowledge the legal responsibilities of an Artificial Legal Entity without calling them 'persons'....
posted by mikelieman at 7:52 AM on March 2, 2011


Oh, preview

Button of inestimable utility

Why, O Why don't I use you...

(or)

Yeah, what saulgoodman said!
posted by mikelieman at 7:54 AM on March 2, 2011


Well, non-profits are a different case, but there's no reason we can't distinguish more finely between for-profit corporations--which, by the way, often have no choice but to pursue profits at risk of legal action from shareholders, proving again that they are not free to speak freely to start with, much less that we have any obligation to allow this commercial activity to take any form up to and including blatant dishonesty and fraud--and non-profits or even public interest oriented legal entities.

The point is, we cannot be constrained against defining and re-defining the artificial legal entities we define and what specific legal privileges they enjoy since that would in effect create the possibility of our creating legal entities we subsequently can't control and constrain in accordance with the demands of public safety and the public interest. I don't see how we can permit that possibility, in principle, much less in practice. The limited liability nature of for-profits, and the legal compulsion to generate profits, makes them a special and dangerous case.
posted by saulgoodman at 7:55 AM on March 2, 2011


Even a blind dog wakes up with fleas some times.
posted by The Violet Cypher at 7:57 AM on March 2, 2011


The point is, we cannot be constrained against defining and re-defining the artificial legal entities we define and what specific legal privileges they enjoy

I like to think that maps perfectly well to "they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. ", if you consider the Secretary of State to be an ALE's 'Creator'.

Thus the State tells the ALE what it's 'rights' are. To me it's in complete compliance with our most fundamental democratic principles..
posted by mikelieman at 8:02 AM on March 2, 2011 [1 favorite]


I disagree. We don't need to give them unqualified personhood, and we can define different, more narrowly defined legal categories that give them standing. We make up laws. We can re-make them up, and there's nothing precluding us changing how we define the special set of legal relationships, responsibilities and obligations that we define under law as a corporate entity. We can apply whatever laws we like to any artificial product of our laws, or else our legal inventions can potentially run away from us, which is absurd.

How? Explain to me your plan for dealing with these issues.
You can't just engage in hand-waiving to that extent. We are talking about a huge portion of our jurisprudence and our laws. One does not just snap one's fingers.

First, let's actually break the doctrine down. A corporation is not a "person." It never has been, ever. It is an "artificial person." Other entities, such as States, trusts and estates are also "artificial persons." You and I, on the other hand, are "real persons."

Where such a distinction is necessary in the law is needed, it is made. And if an enaction doesn't make that distinction, lobby your representatives to do so. But how would you reverse that distinction in regards to common law? Why would you? That would require thousands of new court decisions. Why do this? It serves no positive end.

This whole thing is a big marketing campaign by those opposed to capitalism. By arguing that the doctrine gives them "the same rights as people" they try and fan the flames of resentment. That's all and good-except that nobody pointed out to them that the doctrine's purpose is to protect people from corporations. So they get a lot of people riled up to strip away their own protections in a short-sighted marketing campaign.

The problem isn't the corporations per se. Its the holding that money=first amendment expression. Because that was found to be true, those running corporations get a lot more "speech" than the rest of us.

Again, don't forget MoveOn. It is a corporation. Should its speech be limited too?
posted by Ironmouth at 8:12 AM on March 2, 2011


We do need a corporate death penalty, and those wall street fatcats who all should have been tried and jailed, and their companies should be dissolved, there is no too big to fail - let them fall goddamit!
posted by Monkey0nCrack at 8:19 AM on March 2, 2011


Its the holding that money=first amendment expression

Extending that, it's the notion that any ALE has Rights in the first place which offends. They have whatever privileges The State ( exercising the will of The People ) choose to give them. I'm at a loss as to what legislative text would best reinforce that. Of course, that overlooks the issue that the text we have would seem to be perfectly clear on the issue, and that even the things in the Bill of Rights seem to get interpreted into trouble...


Again, don't forget MoveOn. It is a corporation. Should its speech be limited too?

Since ALE's don't have a natural right to Free Speech, then yes, of course. Now those restrictions can be as loose or tight as The People decide them to be. But to be consistent with the segregation of Natural Persons and Artificial Entities, they are inherent in the artificial nature of those entities..

And yeah, I'm a big fan of corporate death penalties. One strike and we revoke your paperwork and you can disburse your assets to your shareholders. Game over, please try again... Insert $255 LLC Filing Fee to begin...
posted by mikelieman at 8:24 AM on March 2, 2011 [1 favorite]


Ironmouth/Saulgoodman, I'm not sure how this (admittedly, semiotic) ruling goes against protections of humans from corporations, if i understand you correctly, or how you two are disagreeing? I'm reading you both as saying a corporation is an artificial construct that is person-like. We have a ruling here that codifies(?) such a distinction between humanhood and personhood, as it were. Is the issue here a matter of degree?

The "what does this mean, writ large" and "where from here" questions I have seem really embedded in what you two are saying...
posted by Sweetdefenestration at 8:28 AM on March 2, 2011


We do need a corporate death penalty, and those wall street fatcats who all should have been tried and jailed, and their companies should be dissolved, there is no too big to fail - let them fall goddamit!

Only individuals should be tried. Otherwise you are saying your parents, neighbors, company pension funds, government pension funds, and the investments of a lot of regular people should be swept up and wiped out and all their employees, from the lowest clerk and factory worker should lose their liveliehood. No. Disposess the rich CEOs and execs, and put better manangement in there. Or you might find yourself sucked up in their holocaust. Fuck that. If violations of criminal statutes can be proven, expropriate all of their wealth, and have the corps new management sue the old management for every ill-gotten dollar.
posted by Ironmouth at 8:29 AM on March 2, 2011 [2 favorites]


Ironmouth/Saulgoodman, I'm not sure how this (admittedly, semiotic) ruling goes against protections of humans from corporations, if i understand you correctly, or how you two are disagreeing?

The ruling just rightly denies a corporate body one part of FOIA protection when one party asks the government about information it collected from that corporate body.

Remember corporate does not always mean for profit. It means any corporate body.
posted by Ironmouth at 8:34 AM on March 2, 2011 [1 favorite]


I'm keenly aware that corporate doesn't just mean for-profit. It's a collective singularity, as it were. Incorporation is not the only method by which to do business or engage in commerce (whether those profits be returned to the organization or sent to shareholders' pockets).

In those circumstances where incorporation is the choice of the persons engaged in the enterprise, the rights, responsibilities and limitations of that new corporate entity are/should be subject to constraints of incorporation.

As AT&T should reveal its involvement with government inquiries to third parties, so should [insert your fave-love-to-love-NP-here] and [insert your fave-love-to-hate-NP-here].

There seems to be a bone you're picking here about protections of the doctrine of corporate personhood (in relation to non-profits, specifically?), while at the same time asserting the benefit of limitations of corporate personhood as non-human-hood. In a world where a false dilemma is indeed false ... I, um, don't see your bone.
posted by Sweetdefenestration at 9:23 AM on March 2, 2011 [1 favorite]


Does this mean we may get to impose the death penalty on corporations?
posted by dgran at 10:27 AM on March 2, 2011


There seems to be a bone you're picking here about protections of the doctrine of corporate personhood (in relation to non-profits, specifically?), while at the same time asserting the benefit of limitations of corporate personhood as non-human-hood. In a world where a false dilemma is indeed false ... I, um, don't see your bone.

Let me be more clear. First, to understand what I am talking about, you must understand two legal doctrines, jurisdiction and standing. In order for a court to have power over a case, it must have jurisdiction over both the person, (in personam jurisdiction), and the subject matter. Prior to the advent of corporate bodies, the corporation (for profit, non-profit, any corporate body) did not exist as a person. Courts had no jurisdiction over the "person" of a corporation. It could not be sued for any reason, because it did not exist. The laws did not apply to it because they specified "any person." Corporations lacked total accountability under the law. There were huge injustices. To sue a corporation, you could only sue each member individually for their contribution to the corporation. Since the original corporations were each granted individual charters by legislative bills, there was no legal structure upon which one could do anything against a corporation.

However, over the last three centuries, the law moved to impose accountability upon corporations, (for profit, non-profit, any corporate body). It did so by inventing the "artificial person," a legal fiction, designed to give corporate entities an existence under law, making them able to be regulated and to be subject to law suits and to be able to bring suits themselves. Corporations were given five "rights" which also meant that others could assert their rights against them. Broadly speaking, they were given the right to hire, the right to have a treasury, the right to enter into contracts, the right to adopt rules of self-governance and the right to sue and be sued. Eventually, in Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844), the Supreme Court set down the rules which basically apply to them today, that they were citizens and domiciles of a particular state. This allowed states to generally regulate them and allowed the courts to figure out what they were, where they resided (a critical question for jurisdictional and other issues) and what rights persons, artificial and natural had against them and vice-versa.

These were huge steps forward. Now a natural person harmed by a corporation had the protection of the courts and the law applied to the corporation collectively, making enforcement vastly easier. A corporation may now be convicted of criminal acts, regulated, enter into bankruptcy, and be sued by any party. This brought accountability.

Persons are rightly upset that corporations with large war chests (for profit and non-profit) can use that money to pay for large election-related ads and influence elections in ways that are harmful to our body politic.

However, some misguided individuals have focused on the doctrine of corporate personhood as being the source of the problem. Not so. The artificial person remains the most important protection we have against corporate malfeasance and harms done by corporations. Without it, we would be massively harmed. Therefore, I oppose changing the doctrine of artificial personhood. Its the best thing we have going.

Instead, the problem is that the Supreme court's finding that speech=money is the main problem. By allowing a person, natural or otherwise, to hide behind first amendment rights to contribute massive amounts of money to other people's speech, the law is twisted.

Now, on to non-profits. A non-profit is a corporation just as Exxon is a corporation. Although it is registered under a different statute, both are artificial persons under the law. Both have the same rights. So, Moveon.org, which is a non-profit corporation, with a CEO and a board is the same as Exxon, even though one is for profit and the other is not. Interestingly enough, Citizens United, the conservative plaintiff in the celebrated court case, is also a non-profit corporation.

The FEC rules said that no one, natural person or corporation, could engage in coordinated communications within a set time of a national election. Citizens United wanted to advertise their film about Hillary Clinton. The Court said the law was wrong (McCain-Feingold) and that Citizens United could advertise its film up to the election. If Citizens United lost, then it also would mean that MoveOn.org could not do similar things regarding Bush, or McCain or anyone else.

I'm ok with that idea. Some aren't. But we have to educate ourselves on all of these issues before the law of unintended consequences wipes out one of our most important protections against corporations, profit and non-profit alike.
posted by Ironmouth at 10:35 AM on March 2, 2011 [1 favorite]


As AT&T should reveal its involvement with government inquiries to third parties, so should [insert your fave-love-to-love-NP-here] and [insert your fave-love-to-hate-NP-here].

This has nothing to do with AT&T revealing anything. AT&T wanted to stop the government from revealing its involvement. It argued it could assert FOIA's personal privacy exception to request that an agency not reveal information it collected from contacts with the government. The Court rightly said no way.
posted by Ironmouth at 10:37 AM on March 2, 2011


Thank you for your clarification, Ironmouth. Insert the passive-voice into my original statement, if you'd like. It sounds like the passion/excitement i'm hearing from you stems from the heat around Citizens United.

While I don't disagree with the application of personhood to corporations as a mechanism by which they may be held accountable, I do disagree it's the only way to achieve it... or at least the least flawed. A corporation cannot vote, but can be charged with a crime.... There are quirky issues that come out of constructing a scheme through which, yes, we gained jurisdiction over corporations by assigning rights.

Is it not unintended consequences (of assigning person-hood to a non-human) that have given rise to the very argument AT&T put forward?

There are many babies and lots of murky bathwater to go around.
posted by Sweetdefenestration at 11:23 AM on March 2, 2011


No, no, no--corporations are one way some people conduct their affairs in our society, along with lots of other ways--like sole-proprietorships, unions, bridge clubs and all sorts of other artificial legal entities. Unions don't enjoy unqualified rights equivalent to individual rights, why should corporations?

Overlooked by most people angry about the Citizens United decision was the fact that it conferred the exact same free speech rights upon unions that it did upon corporations - after all, a union is a kind of corporation and the national organizations are pretty hefty in financial terms. And they have been using this freedom just the same way as the Chamber of Commerce and various conservative organizations, in the millions of dollars. Conservative groups spent quite a bit more more money under the new rules than liberal ones did in the 2010 election (source), but remember there numbers are not the same as total spending, and do not include spending PACs, 527 groups and so on, some of which tilts heavily in favor of the Democratic party. (Total federal election spending data here; closer than I expected.)
posted by anigbrowl at 12:13 PM on March 2, 2011


While I don't disagree with the application of personhood to corporations as a mechanism by which they may be held accountable, I do disagree it's the only way to achieve it... or at least the least flawed. A corporation cannot vote, but can be charged with a crime.... There are quirky issues that come out of constructing a scheme through which, yes, we gained jurisdiction over corporations by assigning rights.

What is your preferred scheme? As I said earlier, this is not an issue you can handwaive away. You must somehow come up with a system whereby one can actually give the court in personam jurisdiction over the corporation, give the law a way to regulate these entities and make this work for everyone. A specific plan is needed, as you argue there is a better way. What better way is there?

I saw this train of thought come up on the side of the left a few years back. I can guarentee you no lawyer came up with it. It is oft echoed, but I never see anyone really understand it for what it has always been--a protection, not a curse.
posted by Ironmouth at 1:25 PM on March 2, 2011


I don't have a scheme, because I'm not learned enough in the law. But what I'm seeing from you is disingenuity: but I never see anyone really understand it for what it has always been--a protection, not a curse

Let me be more clear: A protection can have ill consequences and still be protective (aka not a curse). I cannot imagine that you never hear anyone tell you otherwise. Among other things, I have, upthread.

Perhaps the dichotomy of property vs. person distinction (in rem vs in personam) in jurisdiction is what gives rise to that hugely funny space for a group of people who put money into a common pursuit that acts as a singular entity. As important as hundreds of years of American legal history is, and as potentially impossible as changing the legal system is, it is not beyond us as humans to find the benefit in thinking outside current precedent. Even if the answer we come to is that this is the best we can do.

And though I jibe at deferring to the Latin, there is a good reason to, because legal language (like medical language, etc.) refers to specific and definable terms. Person is not really one of those words, and it keeps getting us into trouble.
posted by Sweetdefenestration at 2:01 PM on March 2, 2011


I'm surprised at the fact that Thomas et al voted the way they did not particularly because I expect them to be evil, though I do, but because it's entirely inconsistent with their position in Citizens United. There they declared that corporations were people and had all the rights accorded to people, specifically including free speech. Here they argue the exact opposite. In light of CU their decision here makes no sense at all.

Have you considered the possibility that your understanding of Citizens United and/or AT&T might be lacking, and that the positions that Justice Thomas and Justice Scalia took in the two cases are entirely consistent? Have you read the two opinions?
posted by Slap Factory at 4:11 PM on March 2, 2011


Here is why Citizens United and this entire issue of corporate personhood is problematic, and does not make for sensible law, no matter how much you squint at it. It all boils down to two questions and the obviously very different answers to them:

1) How much can an individual contribute to the campaign of any individual politician running for election in a Federal race? The answer is straightforward: $2,400.00.

2) How much can an individual who is the head of multiple corporate entities contribute to any individual politician running for election in a Federal race? The answer is not at all straightforward, but it's definitely much more than $2,400.00, because they are free to donate that much as individuals and that much more many times again through directed funds from whatever corporate entities they have sufficient influence over. Under Citizens United, this second individual--the wealthy CEOs--can theoretically contribute multiples of the maximum individual campaign contribution limit to a single candidate. The only limit is the amount of money the individual can devote to spinning off corporate entities that are plausibly independent enough not to run afoul of the letter of the law. An extremely wealthy person can pay many dozens of times more to the candidate of their choice.

These two questions instantly show the real problem with the flawed legal notion of corporate person-hood generally and the Citizens United decision more particularly: They result in a de facto uneven application of law, with one law for the wealthy, and another for the rest of us. That's not permissible regardless of what makes for a convenient legal framework.
posted by saulgoodman at 7:20 PM on March 2, 2011


Whoever was asking about this upthread: This new ruling dealt specifically with the notion of personal privacy as defined under the law, but for corporations. It's the legal concept of 'personal' that's at issue. The court decided that 'personal' does not derive from the term 'person' as defined in law. Personal privacy is not merely any legal person's privacy, but a particular kind of privacy that only ever obtains in the case of actual, not legal, persons. And so corporations, having no personal privacy to protect, can have no expectation of personal privacy. Is that close to it, Ironmouth?
posted by saulgoodman at 8:32 PM on March 2, 2011


These two questions instantly show the real problem with the flawed legal notion of corporate person-hood generally and the Citizens United decision more particularly: They result in a de facto uneven application of law, with one law for the wealthy, and another for the rest of us. That's not permissible regardless of what makes for a convenient legal framework.

Just reverse the money=speech first amendment ruling and we are fine. Convienient is not the word. You are asking to strip away our very protections for one small portion of the law.

Second, what you are describing is not legal. One may not use ostensibly legal means to evade hard caps such as you describe. Can you point to a single instance of a corporation creating dozens of dummy corporations to do what you describe?

The problem isn't for profit capitalist corporations. Its non-profits like Citizens United, who channel donations from dozens of corporations and real persons.

You must have an alternative to solve the dozens of times larger problem of jurisdiction and standing. Just search "legal personality" and read the wikipedia article.

You are pretty much right on the AT&T case above, which is a tremendous example of how a real person and an artificial person are treated differently.
posted by Ironmouth at 7:23 AM on March 3, 2011


Let me be more clear: A protection can have ill consequences and still be protective (aka not a curse).

My point exactly. Stripping away legal personality may provide small benefits in the area of campaign finance law while ripping apart all of the protections it provides in the vastly larger sphere of people's everyday interactions with corporations. Your proposal does vastly more harm than good.
posted by Ironmouth at 7:27 AM on March 3, 2011


Perhaps the dichotomy of property vs. person distinction (in rem vs in personam) in jurisdiction is what gives rise to that hugely funny space for a group of people who put money into a common pursuit that acts as a singular entity

Let me ask you another question. Do citizens give up their right to free speech when they pool their interests together?
posted by Ironmouth at 7:30 AM on March 3, 2011


The problem isn't for profit capitalist corporations. Its non-profits like Citizens United, who channel donations from dozens of corporations and real persons.

I don't the distinction matters, whether its for profit or not, we have any legal authority we need to constrain their activities.

The Kochs and the many various think tanks, foundations, "grassroots" organizations, PACs, etc., that fund conservative politicians.

We must be able to regulate through law, without limit, how corporate entities are entitled to behave politically using other people's money (whether shareholders or donors). I know Citizens United isn't strictly the only reason we've yielded authority over regulating corporate political activity, but Citizens United reinforces the (IMO incorrect) legal reasoning. I'm not saying we have to restrict all speech protections for corporate entities, I'm only saying that as a matter of legal principle, we must not limit the congress' power, at either state or federal levels, to regulate any and all corporate activities as they see fit. Making this a rights question at all is the problem. Everything a person does through a special legal structure like a corporation should be viewed as a legally defined and constrained privilege, because no one has a right to do business through the formal legal structures of a corporation in the first place. Presumably, a given state can allow or permit the formation of corporations in accordance with their own laws. What gives the US supreme court authority to impose constraints on how state legislatures can and can't define and constrain corporate activities under their own law, never mind the federal legislature.

Let me ask you another question. Do citizens give up their right to free speech when they pool their interests together?

No. But if they engage in speech through a formal legal corporate structure, it should be perfectly in order for the law to have more say over how the corporation behaves than the individual. What if the board of the non-profit spends the money to pursue the board's own narrow personal financial interests, without adequately or honestly representing the interests of the donors? What's to keep a CEO from directing his company's money to a PAC in a move that really reflects his own financial interests more than any commitment to shareholder value? How on earth could you prove that support for libertarian political causes was financially motivated rather than motivated in principle even if you knew with absolute certainty it was? You couldn't. You can't. So you can't just treat corporate political activity as the legal equivalent of speech. It's not that.
posted by saulgoodman at 8:04 AM on March 3, 2011


because no one has a right to do business through the formal legal structures of a corporation in the first place.

Suppose you haven't read the Contract Clause of the US Constitution then, because it is actually an enumerated constitutional right.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Article I, Section 10, Clause 1.

This is basic constitutional law.
posted by Ironmouth at 10:21 AM on March 3, 2011


What if the board of the non-profit spends the money to pursue the board's own narrow personal financial interests, without adequately or honestly representing the interests of the donors? What's to keep a CEO from directing his company's money to a PAC in a move that really reflects his own financial interests more than any commitment to shareholder value?

Shareholder's derivative suit. Happens all the time. Seriously. You would argue that the actions were ultra vires. Plus you vote out any board supporting him or her at the next annual meeting. This is basic corporations. If it is a closely held corporation, the CEO, assuming he or she is also a shareholder, has a fiduciary duty to the other shareholders and would be wide open to a suit.

We must be able to regulate through law, without limit, how corporate entities are entitled to behave politically using other people's money (whether shareholders or donors)

Without limit? How can you do that? The persons banding together also have constitutional rights. How could you limit their speech? Upon what clause of the US Constitution do you base this alleged ability of the government to control speech of corporate bodies without limit? Should MoveOn's speech be regulated "without limit?" How about the Sierra Club? Should their speech be regulated "without limit?"

Call me crazy, but you know, I'm not really a huge fan of "regulating speech without limit." I'm in favor of limiting campaign contributions. But not speech "without limit."

What would stop a George W. Bush from just running rampant all over our democracy with such powers.

Call me crazy, but I believe in the rule of law.
posted by Ironmouth at 10:31 AM on March 3, 2011


Or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Corporations aren't simple contracts, though, and again, we don't have to be slaves to legal generalizations that don't fit reality.

Not every contract is enforceable in the US, is it? There are illegal contracts because the different levels of government in the US have authority to define and constrain what kinds of contracts will be recognized under law. If I'm subject to an indentured service contract entered into in another country, does the US hold that contract valid? No, and it shouldn't because among other things, it was not entered into in a way consistent with US law governing valid contracts.

There is a longstanding principle in corporate law (preceding modern jurisprudence) that corporations exist only by authority of the state body that charters them. Granted, we aren't still necessarily bound by the legal principles in effect around the turn of the century, but this fact gives lie to the notion that corporations necessarily must be viewed as simple contracts with full rights as the natural extension of individual rights. That's a uniquely modern legal prejudice that I don't personally find satisfactory.

And in fact, the Santa Clara decision of 1886 that first established the doctrine of corporate legal personhood has long been criticized and was criticized at the time as the culmination of an intentional plot to extend the powers of corporations hatched by the railroad industry bosses of the time.
posted by saulgoodman at 10:40 AM on March 3, 2011


Corporations aren't simple contracts, though, and again, we don't have to be slaves to legal generalizations that don't fit reali

This is the law of our country. I don't know who "we" is, but the government simply lacks the power to do what you say it should have.

yes, corporations are defined under state law. That doesn't give a state the right to impair contracts. We are bound by that rule.

That's a uniquely modern legal prejudice that I don't personally find satisfactory.

Fortunately, your say so doesn't go. The Constitution is the law of the land. The government lacks the powers you wish it to have. Thankfully so. I don't want the government controlling all of that. I just think there should be contribution limits. The rest of that movement, as demonstrated by your last link, is pure black-helicopter stuff.
posted by Ironmouth at 10:56 AM on March 3, 2011


I don't know who "we" is, but the government simply lacks the power to do what you say it should have.

We don't agree. And if everyone did, Citizens United and other recent public financing rulings wouldn't have been necessary in the first place, because they contradicted laws duly enacted by the legislatures.

Since corporations have the ability to establish PACS without spending limits that accept anonymous donations, there is no practical limit to the amount of money a wealthy enough individual can potentially direct to a particular candidate.

I don't care about the legal theory, I care about the possibility of unequal legal outcomes. The fact that the outcome could be so unequal in practice is enough to make the current law problematic, no matter how theoretically sound it is. And if you're saying the legislatures don't/shouldn't even have the authority to correct the law if there are unequal outcomes (i.e. if more political spending is possible under the law for one class of individuals over another class of individuals simply by virtue of the fact that one class also has the ability to influence the spending of large organizations) then I am saying I think that is wrong.
posted by saulgoodman at 11:19 AM on March 3, 2011


Also, I'm sorry if that link was "black helicoptery"; I don't have a whole lot of time for google-fu right now, but it's not the case that only "black helicopter" types have taken issue with the precedent in the Santa Clara County ruling that first established the legal idea of corporate personhood:
In his dissent in the 1938 case of Connecticut General Life Insurance Company v. Johnson, Justice Hugo Black wrote "in 1886, this Court in the case of Santa Clara County v. Southern Pacific Railroad, decided for the first time that the word 'person' in the amendment did in some instances include corporations. [...] The history of the amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments. [...] The language of the amendment itself does not support the theory that it was passed for the benefit of corporations."[12]
....
Justice William O. Douglas wrote in 1949, "the Santa Clara case becomes one of the most momentous of all our decisions. [...] Corporations were now armed with constitutional prerogatives."[13]
So it's not completely fair or honest to pretend that history had always taken this legal fiction for granted, as you seem to want to insist.
posted by saulgoodman at 11:26 AM on March 3, 2011


We don't agree. And if everyone did, Citizens United and other recent public financing rulings wouldn't have been necessary in the first place, because they contradicted laws duly enacted by the legislatures.

Explain how a government could not by your statements, regulate the New York Times Company's speech to prevent it from publishing things?

How does that work? You do realize that the VAST MAJORITY of our free speech cases involve corporations, right?

The NAACP is a corporation, you do know this right? You propose giving the government unlimited power over the expression of the NAACP?

Take for example, NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). The Supreme Court ruled that the NAACP (a corporation) had First Amendment rights and a suit in tort for damages caused by a boycott would not lie because the non-violent activity was protected under the . . .drumroll please, FIRST AMENDMENT. Yet you would say, no the NAACP does not have First Amendment rights?
posted by Ironmouth at 3:53 PM on March 3, 2011


Well, as in every other case, we would have to define and enforce laws that we are all comfortable with. The New York Times, theoretically, is in the business of enabling the speech of others--it's a press. There's no reason our law can't be tailored to provide appropriate degrees of limited freedom, given the specific legal and social purposes of a particular regulated entity. If it's a profit-driven commercial corporation, then we impose stricter limits; if it's a genuinely broad-based, grass roots political organization that discloses its donors and limits donations in accordance with the law, then we grant it appropriate degrees of freedom under the law. It's the overly-general, one-size-fits-all and even the legislature can't change the rules approach to corporate law that recent court precedent and recent policy-making has encouraged that I find incompatible with a common sense reading of the law.

You propose giving the government unlimited power over the expression of the NAACP?

Yes, but not letting the government necessarily exercises it to its most absolute extent. Like in every other case. Remember, every single individual member of the NAACP still has the absolute individual right to express themselves and contribute money as individuals in accordance with the law. To the extent you limit corporate rights, you take nothing away from the individual right. To the extent you strengthen corporate rights, you enhance the rights solely of those few individuals in the best position to influence the spending of corporate entities.
posted by saulgoodman at 6:46 AM on March 4, 2011


These two questions instantly show the real problem with the flawed legal notion of corporate person-hood generally and the Citizens United decision more particularly: They result in a de facto uneven application of law, with one law for the wealthy, and another for the rest of us. That's not permissible regardless of what makes for a convenient legal framework.

No, I think you've got it wrong. A person may be limited in the amount of the direct political contributions that he or she can make to a candidate, but there is no limit on the amount that the individual may spend to expressly advocate in favor or against a candidate. That is, if Charles Koch or George Soros want to erect 20-story billboards on every block in Detroit criticizing my views on health care reform, they have a First Amendment right to do so. All that Citizens United did was to strike down the part of the Bipartisan Campaign Finance Reform Act that prevented corporations and unions from doing the same -- spending their funds for express advocacy in support or against a candidate.
posted by Slap Factory at 12:56 PM on March 4, 2011


Well, as in every other case, we would have to define and enforce laws that we are all comfortable with. The New York Times, theoretically, is in the business of enabling the speech of others--it's a press. There's no reason our law can't be tailored to provide appropriate degrees of limited freedom, given the specific legal and social purposes of a particular regulated entity. If it's a profit-driven commercial corporation, then we impose stricter limits; if it's a genuinely broad-based, grass roots political organization that discloses its donors and limits donations in accordance with the law, then we grant it appropriate degrees of freedom under the law. It's the overly-general, one-size-fits-all and even the legislature can't change the rules approach to corporate law that recent court precedent and recent policy-making has encouraged that I find incompatible with a common sense reading of the law.

Wow. How does your proposal not bog down into picking winners and losers on free speech issues? You know that the New York Times is a for-profit entity, right? (Alas, it has not been a very effective one.) But the New York Times had an exemption from the BCRA, one that was not extended to Citizens United or other political organizations that accepted funds from for-profit corporations and unions.
posted by Slap Factory at 12:58 PM on March 4, 2011


There's no reason our law can't be tailored to provide appropriate degrees of limited freedom, given the specific legal and social purposes of a particular regulated entity. If it's a profit-driven commercial corporation, then we impose stricter limits; if it's a genuinely broad-based, grass roots political organization that discloses its donors and limits donations in accordance with the law, then we grant it appropriate degrees of freedom under the law.

This is evolving towards a sensible position, though you are still using somewhat circular reasoning - eg '[an] organization that discloses its donors and limits donations in accordance with the law [may be granted] appropriate degrees of freedom under the law' - in the context asserting our ability to tailor the law. I essentially agree where you're coming from and trying to get to, but I'd like to join Ironmouth in briefly pointing out the existence of pitfalls along the way.

For one thing, organizations like Citizens United and others which make political disbursements from their general fund, even if they don't disclose donors or limit the amount of their overall donations, are operating completely in accordance with the law as long as they don't donate to or coordinate with candidate or party campaign organizations. At least, with the law as it stands. Now if you want to change that, OK, but you need to consider the possible first amendment consequences. In the meantime, it's worth taking time to distinguish between positive statements (about what the law actually says right now, as affirmed by precedent) and normative statements (about what the law should say, whether by being rewritten or by courts interpreting it some other way).

For another thing, when people break out the word 'appropriate', I have to ask 'appropriate in relation to what'? In most cases the answer seems to be in relation to their political or religious views. There is no objective standard of morality that provides clear answers for all possible situations, so when we talk about rewriting the laws it doesn't make any sense to invoke the idea of what is 'appropriate' - we must spell it out, and justify the choices we make. You made a start on doing so here, and I know you're not trying to provide an overview rather than comprehensive legislation; I'm just making the point that words like 'good 'right' 'appropriate' are often just a socially acceptable restatement of 'what I like.'

In this case, you don't like profit-driven commercial corporations. I presume this is because you figure anything they say in relation to politics is designed to increase their own bottom line. Most of the time you'd be right, but on the other hand I don't have a big problem with that. If I see 'Vote for free government funded broadband (paid for by Cisco)' I can see their self-interest at work.

With an organization like Citizens United, they act as a conduit for other people's views, a sort of legal mask to hide behind. But if they have a lot of small conservative donors, who am I to say they're not a grassroots movement? same thing with the Tea Party; I see the hand of Koch industries, but there are, in actual fact, a large number of very conservative individuals out there with a strong political agenda, even though it's not one that I like. So if they want to band together and rent billboards saying 'Govt = Commies' they have a right to do so. And as repeatedly pointed out, Citizens United does not just affirm the free-speech rights of for-profit corporations (under the law as it stands), but applies equally to political statements by groups like the NAACP, MoveOn, or labor unions.

Labor unions have already rerouted millions of dollars in political spending since the Citizens United decision, and nobody other than a few conservatives has complained about that, or about the fact that a labor union is treated as a legal person in much the same way as a corporation. It's a little bit disingenuous not to acknowledge this.
posted by anigbrowl at 1:41 PM on March 4, 2011


I don't care about the conservatives or liberal ideological BS. This notion of corporate person-hood is conceptually dangerous and has numerous practical effects that are economically damaging to the interests of private individuals. The vast majority of the American people agree with this sentiment. Pretty much the only ones among us who don't are establishment-oriented interests (attorneys, business leaders, wealthy interests).

In this case, you don't like profit-driven commercial corporations. I presume this is because you figure anything they say in relation to politics is designed to increase their own bottom line. Most of the time you'd be right, but on the other hand I don't have a big problem with that. If I see 'Vote for free government funded broadband (paid for by Cisco)' I can see their self-interest at work.

Why is unregulated government propaganda bad, but unregulated privately funded propaganda good for society? It isn't. We're at a point in history where a few individuals in our society alone can afford to launch massive marketing campaigns that work for no purpose but to obfuscate vitally important pieces of public information.

The courts have ruled unequivocally that the tobacco industry, for example, knowingly engaged in long-term, wide spread disinformation campaigns that ultimately cost the public billions in health damages. This kind of widespread manipulation of information in the public sphere has only gotten more aggressive and pervasive in the years since, and everybody knows it and sees it now. If there's not a legal fix for that right now, there'd better be one soon, because people are running out of patience.
posted by saulgoodman at 10:33 AM on March 8, 2011




The vast majority of the American people agree with this sentiment.

I doubt that, actually. What have you got to back that up with?

Personally, I'd prefer full public funding of elections. But then I'd also like if people watched less TV and read more serious newspapers and thought about numbers more carefully. Your ideas are muddled, which may be why you have yet to acknowledge the participation of unions in this process, or that abolishing corporate personhood would make the existence of unions impossible too.
posted by anigbrowl at 2:54 PM on March 8, 2011


The vast majority of the American people agree with this sentiment.

So what? A majority of Americans oppose gay marriage.

Even assuming this assertion is true, I don't know if a majority of Americans really understand the implications, positive and negative, of corporate personhood.
posted by Sticherbeast at 4:22 PM on March 8, 2011


You're wrong about that. And it's not hard to find proof. Just Google it. Here's one quote:
Polls also show that this issue inspires not just disapproval, but a desire for serious action. The Hart survey found broad, bipartisan support for the notion of amending the U.S. Constitution to affirm that corporations don’t have the same rights as people, effectively overturning Citizens United. Eighty-seven percent of Democrats, 82 percent of Independents, and 68 percent of Republicans said they would support such an amendment.
posted by saulgoodman at 9:38 PM on March 8, 2011


Here's another quote from the same article:
Of course, a favorable public opinion poll is not the same as a vibrant movement to make the amendment a reality. As encouraging as these numbers are, what they don’t indicate is broad awareness of the issue. Only 22 percent of the people that Hart polled had actually heard of Citizens United before taking the survey; the rest based their opinion on a brief description of the court decision and proposed amendment.
This is the survey in question. Their methodology:
From December 27, 2010, to January 3, 2011, Hart Research Associates conducted a survey among 500 registered voters on behalf of Free Speech For People with support from the Nathan Cummings Foundation. The interviews were conducted online among a nationally
representative sample of voters.
This is fine advocacy. But it's not proof. If you can't see the difference then you're going to keep getting disappointed.
posted by anigbrowl at 10:52 PM on March 8, 2011


Also, over half the states in the US allow direct corporate contributions to local and state political campaigns. That's where my earlier argument about the implications of corporate legal person-hood in practice running afoul of equal protection becomes a really serious problem.
posted by saulgoodman at 7:32 AM on March 9, 2011


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