Free speech and corporate personhood

I’m not a lawyer, so I can’t make an informed comment on the legal aspects of yesterday’s SCOTUS campaign-finance ruling (though I know plenty of lawyers who are likely disgusted with it, including some former Supreme Court clerks). But what I find wrong with it is that it contradicts the heart of one of the most compelling argument for free speech.

J.S. Mill, the grand-daddy of liberalism, argued for freedom of speech on many grounds, but one of the most important was that we can only arrive at the truth if all points of view get a vigorous airing. We need to be able to change course, to correct our views, by being exposed to a variety of competing truth-claims. This is an inherent part of what it means to be a human being realizing our nature as what Mill called “progressive beings.” By engaging in dialogue and argument with competing views, we may come to see that we were mistaken, or that we had overlooked part of the truth. At the very least, we’ll be strengthened in our own views by testing them against counter-arguments.

However, given this view of why free speech matters, the absurdity of treating corporations as “persons” with free speech rights becomes readily apparent. A corporation is not a “progressive being” that can correct its errors and come to a greater comprehension of the truth. It is an entity driven entirely by the profit motive. A corporation will propagate a particular message only to the extent that the message serves that interest: it’s not concerned with the truth.

You might say by way of rejoinder that it doesn’t matter whether corporations are interested in pursuing the truth. All that matters is that people are exposed to the widest possible range of ideas, regardless of their provenance. But this ignores that fact that, with unlimited corporate political “speech” we are no longer working with the model of a conversation aimed at truth, but with an attempt to overwhelm and drown competing points of view with a sheer volume of ads, propaganda, etc. The ideal of rational discussion is pretty much explicitly repudiated by allowing corporations to flood the airwaves with whatever “truths” best serve their interests. Free speech, by its very nature, presupposes something like reasoned dialogue; that’s what distinguishes it from propaganda, advertising, and similar endeavors, which are not good-faith arguments, but are aimed at bypassing rational dialogue.

Corporations aren’t persons: they’re money-making enterprises. There’s nothing inherently wrong with that, but their interests should be subordinated to and circumscribed by those of actual persons.


12 thoughts on “Free speech and corporate personhood

  1. You wrote:

    A corporation is not a “progressive being” that can correct its errors and come to a greater comprehension of the truth. It is an entity driven entirely by the profit motive. A corporation will propagate a particular message only to the extent that the message serves that interest: it’s not concerned with the truth.

    Though I agree with your concern about this decision, surely we all know people – in politics and in personal life – who show little interest in correcting errors or coming to a greater comprehension of the truth, people who are not concerned with truth but with self-interest and personal profit.

    I’m sure that J.S. Mill was a great man, but I’m not sure that most people are seeing “truth” as much as they are seeking self-interest, survival, and comfort. Sorry, but I do have a pretty pessimistic view of human nature …

  2. That’s fair enough, and I share your pessimism. But human beings are at least capable of seeking truth. A corporation, in principle, isn’t. If speech is just one means (among many) for securing various interests, it’s not clear why it merits special protection.

  3. Ironically, it seems to me that the relevant speech isn’t really “free”. Advertising and lobbying are costly undertakings, and this ruling implies that those with greater financial resources at their disposal have the right to effectively control available information and disproportionately influence policy. Given the expense of advertising and lobbying these days, it’s not inconceivable that parties with exceptional wealth can actually block the airing of alternate ideas by those with less money at their disposal. I can’t imagine that the framers of our constitution and rights really meant that the democratic process should be reduced to a Madison Ave. exercise of selling democracy to the highest bidder.

  4. I don’t think I’d make such a sharp contrast between self-interest and truth. Self-interest is a component of truth. For instance, gay people who are advocating for marriage and other rights these days are obviously serving their self-interest, but I’d wager that many straight people have learned a lot from their explanation of their interests. So I think representing one’s self-interest to the public, and to the government, is a perfectly legitimate reason for free speech in a democracy.

    I also don’t agree that corporations are somehow inherently unable to seek truth because they have to make money. That’s like saying that because people have to eat to live, they’re incapable of being motivated by anything but food. It depends on who’s running the corporation, and what its mission is. The news organization that I work for is supposed to be about finding stuff out. We’re not always perfect at it, but without that motivation it wouldn’t have much reason to exist.

    Having said that, I agree with John Page’s qualm about the idea that money=speech. I haven’t read the opinion so I don’t know exactly how the court got there, but that seems like a strange line of reasoning.

    • I agree with your first point (self interest and truth-seeking aren’t mutually exclusive), but I’m not sure about the second. I’d say that a corporation’s ultimate raison d’etre is making money–so everything else is ultimately subordinated to that. (There’s also the interesting question of where exactly a corporation’s intentions lie–in the CEO? The board of directors? The shareholders?)

      Maybe a more pragmatic argument is simply that corporations aren’t people so it’s hard to see why they have any legitimate claim not to have the self-interest hemmed in by social regulation?

      • Yeah, it’s hard to say exactly what a corporation’s raison d’etre is without anthropomorphizing. After all, it doesn’t have a consciousness of its own apart from the people who work and/or invest in it. Within the business world there’s actually more debate on this topic than most people probably realize — there are those who think the company’s main mission should be shareholder value (i.e. making money), while others, notably Peter Drucker and former Medtronic CEO Bill George, have argued at length that corporations ultimately exist for the benefit of society, because they provide stuff that people want and they also provide employment, and shareholders are there to finance those missions. (There is a certain financiers vs. managers aspect to this.)

        If we take “authorial intent” as the standard, in my experience company founders tend to have the same mix of motives that most people have when they decide on a career. They want to make money, but usually they also want to do something fun, challenging, meaningful or what have you.

        I agree, though, that thinking of a corporation as a person is weird. I would think that the question of a corporation’s rights depends on how you feel about groups in general having rights. I think the court decision also touched on that, since the ruling apparently also covers labor unions.

  5. The arguments I heard most were about the law being overbroad and unclear. As to overbroad, the law covered ALL corporations. It is one thing to put the limitation on corporations that make over such-and-such a year. It is another thing to have those with one employee under the same. And what about publishing companies? It was a little murky as to whether books were subject to the law in question.

    I would argue a broader case for free speech than Locke used above. I would argue for the presumption of liberty. We should be presumed free to do all things, and a compelling case should have to be made for each limitation on freedom.

  6. I can agree with the “presumption of liberty” principle, but I think two issues that would have to be ironed out are (a) are corporations properly thought of as bearers of liberty-rights? and (b) what constitues sufficent reason for overturning the presumption against limiting freedom?

  7. “(a) are corporations properly thought of as bearers of liberty-rights?” If all we had were the Declaration of Independence, that might be a good question. But the First Amendment says, “Congress shall make no law …abridging the freedom of speech, or of the press….” The freedom of the press seems to apply to something broader than individuals, so why wouldn’t the freedom of speech? (Peaceful assembly is interesting here. It must be an individual right, but has to be practiced corporately. Nobody can peacefully assemble by him or herself.) In general I share your dim view of corporations as legal persons.
    “(b) what constitues sufficent reason for overturning the presumption against limiting freedom?” I would start with the fact that when it gets to the Bill of Rights, strict scrutiny is applied. Basically a case must be made that the restriction is necessary to the public good and that it is narrowly tailored to restict only in necessary instances. The justices seemed willing to entertain the idea that there was a good being protected in the legislation. It was the fact that the legislation was overbroad that counted against it the most. At least from the re-argumentation I heard. I haven’t read the opinion itself yet.

  8. Pingback: Weekly Round up, January 31, 2010 « The Inhumanities

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