"He's a snake in the grass, I tell ya guys; he may look dumb but that's just a disguise; he's a mastermind in the ways of espionage." Charlie Daniels, "Uneasy Rider" Speech and Sociopaths: Does it make sense to collapse, for Constitutional and legal purposes, the distinctions between human beings and corporate "persons"? - TT's Lost in Tokyo

Speech and Sociopaths: Does it make sense to collapse, for Constitutional and legal purposes, the distinctions between human beings and corporate "persons"?

Further to my preceding posts on corporate "free speech", let me copy here for those interested some parts of a post by legal blogger/law prof Kimberly Hauser, and excerpts of the comment thread (emphasis added).

Says Hauser:

Justice Kennedy stated in the majority opinion: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in free speech.”  Hold on, Emily Litella, since when is a corporation an “association of citizens.”  The last time I checked, they were state-chartered entities organized for the purpose of operating a business, making a profit, and sheltering the organizers of the business from personal liability.  I don’t think anyone would mistake one for an “associations of citizens.”  This decision is a travesty on a number of levels, but as I discussed with my classes today, corporations are not humansThomas Jefferson stated: “A bill of rights is what the people are entitled to against every government on earth, .  .  .”  These rights are human rights, essential to our type of government.  They should not be cheapened by their extension to corporations.  (I do understand that corporations have been given “rights” over the years by the Supreme Court, starting with Santa Clara County v. Southern Pacific Railroad Company.  I just don’t agree with that line of decisions.  And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.)

From the comment thread:

... The root of the problem is that corporations are divorced from their owners, who have been given a grant of limited liability for the risks they shift to society, a cloak of anonymity by which they can behave irresponsibility and seek favors from government, as well as unlimited lives and deep pockets to make persistent efforts to corrupt.

on February 7, 2010 at 4:27 am | Lampie The Clown

... You mentioned the Santa Clara case as the start of corporate personhood, without mentioning that it was sleight of hand and not a real ruling on the subject. That’s exactly what the clerk was counting on, and why it worked. Just thought I’d tell the rest of the story.

Actually, long before the Santa Clara case, the legal fiction of corporations as people was established to include five legal rights—the right to a common treasury or chest (including the right to own property), the right to a corporate seal (i.e., the right to make and sign contracts), the right to sue and be sued (to enforce contracts), the right to hire agents (employees) and the right to make by-laws (self-governance). They were given the rights they needed to do the only thing they were designed to do. Conduct business.

They are amoral, profits and self interest as highest priority are mandated by law to be part of their design, and they have limited liability. This gives them the “personality” of a sociopath, and makes them unsuited by design to using free speech responsibly.

With the current design, the only solution I can think of is to have Asimov’s “three laws of robotics” made part of all corporate charters. ....


One commenter defended the Court with a straight face:

A Corporation IS an “association of citizens”– those citizens are the shareholders, i.e., owners of said corporation, who associate ever so often (annual meetings, and other special occasions)….

And as for objections to “corporate personhood”, as a person is created by human parents and grows in a mother’s womb, so too is a corporation. It is created by the (human) people who sign its original charter, and the “womb” that allows the corporation to be ‘born’ is that of the [government] agency that grants corporate charters. The difference between the two different types of “births” are, in my opinion, negligible.

(Eventually, human embryos won’t have to be implanted into a person in order to be born– so the “birth from a human” objection will cease to have merit.)

As for Lampie’s argument that corporations have “the personality of a ’sociopath’, (which) makes them unsuited by design to using free speech responsibly”, this argument that discriminates against REAL sociopaths (who as far as I know, STILL have their free speech rights unencumbered by the SCOTUS decision or any comments you’d make to the contrary). Sociopaths have rights, too!

My sense of humor is a bit underdeveloped, so at first I ignored the "sociopath" assertion and penned a straight response regarding the "association" assertion:

Shawn, several points:

- while real people do associate to form a corporation, a corporation remains a legal fiction created by governments, not the people “associating” with it. It is legally separate and distinct from them and their ownership right is considered property.

- Since a corporation is peoples’ property, those [people who own it] have Constitutional rights to make sure their property is not unjustly or without due process taken by government.

- Other forms of property, like human slaves, were not considered citizens and did not have Constitutional rights, including a right to speak. If slaves and inanimate things couldn't/can’t speak for Constitutional purposes, neither does it make any sense to argue that corporations - as opposed to the people in them - can “speak” under the First Amendment.

- Further, it is crystal-clear that the Founding Fathers hated corporations, and the ability of states to closely restrict them and to impose conditions on the privileges and rights they received was uncontested. It is a radical and profoundly non-originalistic step to conclude, as the Roberts/Scalia court did, that the Founding Fathers intended [in the Bill of Rights] to provide Constitutional speech rights to corporations.

Then, getting the joke about sociopaths, I couldn't resist making a didactic point:

Shawn, presumably your comment is wholly tongue-in-cheek, but let me note that we hunt down and lock away (and even execute) sociopaths – thus depriving them not merely of their speech, but of their ability to harm us and even their existence in some cases.

If corporations are by nature sociopathic, then we by all means ought to do the same.

Note that we don’t need to lock up corporations; we can find various ways to change their nature, control their bad behavior and limit their ability to hurt us – the simplest way, of course, would be to simply eliminate the limited liability of their shareholders, who would then have every incentive to control what their [not-so-]little Frankensteins do.

Published Fri, Feb 12 2010 4:59 AM by TokyoTom


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