As Julian Sanchez detailed yesterday, those who complain about fewer restrictions on corporate political speech but celebrate the freeing of restrictions on corporate videogame speech are in a bit of a logical pretzel. But ultimately both those who think corporations have speech rights and those who don’t miss the larger point: it’s not about corporate rights but the rights of the individuals who freely associate and thus pool their speech via the corporate legal form.
That is, it really doesn’t matter that “corporations aren’t people.” Of course they’re not living, breathing human beings, and their “personhood” for legal purposes is just that: a convenient legal fiction.
To elaborate on these ideas, Cato legal associate Caitlyn Walsh McCarthy and I have written a law review article titled “So What If Corporations Aren’t People?” Here’s the abstract:
Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so‐called media corporations. In short, rights‐bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.
This article is still being edited — it won’t appear in the John Marshall Law Review till the fall — so comments are welcome. Thanks to Eugene Volokh for making suggestions on an earlier version.
Update: Larry Solum has “recommended” our article on the Legal Theory Blog. Thanks!