Friday, January 20, 2012

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART FIVE

[Here are parts one, two, three, and four.]

TORVIK:  The concept of corporate personhood does not affront my human dignity. The principle that corporations are entitled to certain constitutional rights is an old and well-established one. So if it were injurious to human dignity, the damage would presumably already be done. But perhaps I just don't know what it is like to feel fully dignified. Though I am frequently indignant.

When you think about it, it's pretty clear that corporations and other entities must have certain rights but not others. For example, no one would think it proper under the Fourth Amendment for the government to raid the ACLU's (or even IBM's) headquarters without a warrant. See Hale v. Henkel, 201 U.S. 43, 76 (1906). But few would bat an eye at the proposition that corporations lack the privilege against self-incrimination granted by the Fifth Amendment. Id. Why this different instinct? One idea: some rights are personal (such as the privilege against self-incrimination) and other rights are more structural (like the right to be free from unreasonable searches and seizures). The privilege against self-incrimination seems to flow from an idea that there's something wicked about forcing an actual human being to testify against himself. The right to be free from unreasonable searches, on the other hand, has more to do with proper government structure—i.e., ensuring that the government is not tyrannical. (Though, to be sure, there's an element of a personal privacy right in the Fourth Amendment also.)

So maybe one's reaction to Citizens United comes down to whether one thinks the right to engage in political speech (and to spend money to amplify that speech) is more like a personal right or a structural right. This strikes me as a question about which reasonable minds can disagree. If your theory of the First Amendment is that it exists to foster personal self-fulfillment and autonomy, you probably don't think protecting corporate speech makes much sense, and you might even be offended by it. But if your theory is that the First Amendment exists to encourage a free-wheeling exchange in the marketplace of ideas, then you probably just say "the more the merrier," whomever (or whatever) the speaker is. Since I'm provisionally in the latter camp, I don't think the dignity of the species is at stake.

GILLETTE:  It is a mildly amusing thought experiment to scroll through the Amendments to the Constitution and decide which ones apply to “people people” and which ones apply to “corporate people.”  Corporations can’t vote, bear arms, invoke the right to not testify, or run for office (to stretch the 22nd Amendment).  On the other hand, corporations do get to take advantage of the rights to free speech, be free of unreasonable searches and seizures, and free from being forced to quarter soldiers in peacetime.  At least I assume that corporations are protected by the Third Amendment; no case actually discusses the issue.  In fact, it appears that there is only one case that has ever been decided solely on Third Amendment grounds, Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982).

The fact that the First Amendment applies discusses “the press” and the “establishment of religion” certainly suggests that the Framers thought that the amendment applied to organizations.  After all, virtually every religion has some sort of organization or hierarchical structure.  The same is true for “the press.”  It would be strange to think that freedom of the press only means freedom of the human printer not the freedom of the company owning the newspaper.  One might also point out that the First Amendment’s prohibition is on the Government’s ability to prohibit any speech (“Congress shall pass no law”) not just speech by “people people.”  Moreover the amendment is not  a grant of a right to the people (although granting a right to the people would be weird given that the Constitution is written by “We the People.”). 

To me it isn’t necessarily about self-fulfillment or the marketplace of ideas.  It’s more along the lines of the Eugene Volokh hypothetical you brought to my attention.  If we say that corporations don’t have first amendment rights, then that rule is going to apply to corporations whose speech I support as well as those whose speech I don’t.  I don’t regard that as a good trade. 

Speaking of corporate speech, John Stewart and Stephen Colbert do a nice job of illustrating the bogus nature of laws preventing candidates from coordinating advertisement campaigns with the Super-Pacs that support them. 

TORVIK:  Let me make clear that the Gillette-Torvik Blog believes that it has the right to be free from being forced to quarter soldiers in peacetime. 

I think your instinct that a ban on corporate speech would stifle lots of speech that you like masks a deeper principle. I don't think your judgment is that you approve of allowing corporate speech just because, on the whole, you think that it will allow enough speech that you like. I think the underlying judgment is that there is something wrong with stifling the corporate speech that you like, and you have to admit that the same principle must apply to the corporate speech that you don't like.

Anyhow, I think we've come to some consensus. Corporations do have some rights, including some free speech rights. But like any rights they are susceptible to reasonable regulation. I think there's probably a lot of ways to nibble around the edges of corporate speech rights to satisfy the pragmatic concerns of Citizens United's opponents. But—to bring things back to the Montana case that got us off on this—my great disappointment with Western Tradition is that it makes such a poor effort at making any persuasive distinctions. Those will have to await a future case. So we'll have to wait probably about five minutes.

Finally, I want to reiterate my belief that most of these attempts to limit the role of money in politics are futile. I support disclosure laws and those kinds of things, but I think in the end we'd probably be better off with fewer restrictions on political spending rather than more.


  1. This morning I heard "speech equals money" is driven by increasing governmental complexity. I can't find anything on the Web to this effect. What do you think?

    Thanks, Chris

  2. Thanks for commenting Chris. Money being used to finance speech is as old as the Republic. After all, Phillip Freneau was hired by Jefferson and Madison to write articles attacking Federalists in the National Gazette. At the same time, as government regulation of industries grew, attempts by corporations to influence elections and the drafting of legislation has also grown. So in a sense the amount of money going towards elections is tied to increasing governmental complexity.

  3. Hiring somebody to write articles is small potatoes compared with the 1976 Supreme Court decision combined with today's technology. Also, we shouldn't take complexity lightly. An article in The New Scientist a couple of years ago compared societal complexities/fragilities and concluded all but the Byzantines collapsed. Thank you for responding Adam but surely the risk of global collapse into an environmental nightmare partly for the sake of legal nicety is worthy of study.


  4. Chris appears to be broaching subjects that are above our pay grade. But I would like to hear more about his formula of Buckley v. Valeo + today's technology = societal collapse & environmental nightmare.

  5. I think this was the issue -


  6. More nightmarish stuff -

    Plus the seed of a solution: High Noon by JF Rischard. I'm sure fully dignified lawyers have a part to play as do the rest of us.

    Best regards, Chris


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