Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.


  1. SCOTUS should revisit their decision. Instead of just using free speech as the sole criterion, they need to consider potential harm to our social structure from the outright purchase of “elected” representatives; or alternatively, our congress should consider it. Like that would ever happen.

  2. “Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.”

    Citizens United was a disaster.

    Hobby Lobby was a very needed and well reasoned decision that respected rights, rare for courts.

    The individual sole proprietor shop owner simply does not have the financial means to bring and stay with a civil rights case in the way that a large corporation does, though the ruling in a large corporate case will also be enjoyed by the sole proprietor shop owner.

    I will presume that you hold the legally accurate conclusion that your objections to legal fictions having civil rights are not present regarding sole proprietors.

    Everything a sole proprietor does at his shop, economically, religious, political or personal is exclusively the actions of the sole proprietor and not of any legal fiction.

    Large corporations thus become something of legal superheroes for sole proprietors when they bring cases championing civil rights in market activity, as they fight the battles the little guy cannot.

    If Smith, the sole proprietor, is forced to bake an g-y wedding cake at his shop, Smith, himself, not a legal fiction, is being forced by state power to participate in economic activity from which his civil rights would have him abstain.

    By what moral authority is the government granted the power to destroy Smith’s civil right to direct his economic activity to remain in harmony with the whole of Smith’s civil rights?

  3. Annoyed: I think Sheila was referring to Hobby Lobby’s denial of health insurance benefits to its employees on the basis of the corporation’s religious beliefs. The employees may have closely held beliefs that birth control is a right to employees regardless of the presence or absence of religious beliefs. So who’s rights prevail? The question is do corporations have religious beliefs or only their owners; are corporations = individuals? Not sure about your reference.

  4. I am so tired of the wedding cake argument. What has happened with Citizens United and Hobby Lobby is that corporations have purchased the services of the citizens’ representatives to the exclusion of an possible competition for those services from the non-corporate individual. It is “a form of government in which all power is vested in a few persons or in a dominant class or clique; government by the few.”

    If you doubt that influence, look at the various states (mostly red) where bills with almost the exact same language are being introduced and passed in their legislatures. Individuals, even sole proprietors, should not have less protection because they have no chance of going up against that kind of wealth and power.

    The recent RFRA disaster is classic. Not until Corporations rose to oppose the law’s discriminatory impacts did the legislators pay attention. The individual legislators have been bought and paid for by the ALEC agenda funded by such uber-rich as the Koch brothers and others like them. When other entites with deep pockets rise to object, it becomes less an uneven match.

    We have a new aristocracy with the money and power to control the outcomes of political and economic activities. It will eventually cause political rebellion as those who have nothing to lose rise up to defend themselves from virtual indentured servitude.

  5. Annoyed; you need to scroll back to Sheila’s blog, “Cakes, Pork Chops and SB 101” posted on March 30th. She give an excellent explanation of the rights of businesses and/or consumers which is easy to understand and cannot be argued with…except by the 1%, SCOTUS and those who refuse to understand civil and human rights as defined in the Constitution and Amendments. The health care provision by Hobby Lobby and all other businesses does NOT require employees to avail themselves of every provision in their policy; including birth control. Otherwise; all male employees at Hobby Lobby and other businesses hiding behind the SCOTUS ruling in favor of Hobby Lobby would be REQUIRED to use Viagra and any and all other erectile dysfunction supples covered by the policy. Policy holders would be required to use insulin and other medcations covered by their policy and undergo unneeded treatments, including surgeries because they are covered by that health care policy. All of us who have health care coverage are given the opportunity to avail ourselves of what is offered in our policy as well as the opportunity to refuse options.

    By the way; I know that is an “a” missing between the “g” and the “y” in your comment. No flies on me. If the “Smith” you refer to is in business to make money and open to the public but refuses to serve a potential customer who is well behaved and has cash or valid credit card to make a purchase or use their service due to the “religious” belief of company owners; they are no longer a public business. We went through this for well over 100 years regarding the racial issue; this is the same denial of rights under a different banner. A post on Facebook yesterday by the governor of Kentucky stated, “The Kentucky law against gay marriage is not discriminatory because it applies to straight marriage too.” Kentucky is too busy rioting over the loss of a basketball game to jump on that one; Pence is probably sorry he signed SB 101 into law before the tournament started. Well; he and his corporations won the battle but the war is not over yet. Nor is the war against Citizens United because citizens were not well armed for that battle…and the beat goes on.

  6. JD – the last sentence in your comments is exactly what I have been telling people for the past 10 years. We are getting closer and closer to the uprising very rapidly. I believe that we are less than 10 years away from a violent uprising.

  7. Corporations and businesses are not registered to vote and do not have a right to vote. If they did, they could be considered individuals with individual’s rights. The Supreme Court was way off base in treating corporations as individuals but without limits on their political contributions. My head is still spinning on that one.

  8. “By what moral authority is the government granted the power to destroy Smith’s civil right to direct his economic activity to remain in harmony with the whole of Smith’s civil rights?”

    The constitution of the US: “to provide for the general welfare”.

    A sole proprietor landlord is still subject to federal, state, and local anti-discrimination ordinances, regardless of his religious or other leanings. A sole proprietor motel operator cannot claim his “civil right to direct his economic activity” allows him to refuse rooms on the basis of skin color or gender, etc. A sole proprietor manufacturer or retailer cannot invoke his first amendment rights to promulgate false advertising.

    When you engage in economic activity, as an individual, sole proprietor, or corporate “person”, you are subject to the legitimate rules and regulations put in place by the government to promote the general welfare. Your claimed “civil right to direct economic activity” must be balanced against others’ civil rights as well.

  9. I don’t believe that most Americans understand these issues, or care to understand them.. It’s like the person who sees the complicated medical terminology report and test results from a recent test battery, and walks away, complaining that it was just too hard to understand. The person is dead two months later. We understand “dead”, but don’t want to know about the processes that could be changed to prevent it. When we do understand, it is sometimes too late.

  10. Perhaps a way around the Citizens United is to state Plain and Simply only a Human Being that is registered to vote can donate to a political campaign. Then you could Limit the Amount each Human Being can donate. I am sure some will say you are limiting speech if you limit the amount donations. However, you would “free to express” your speech beyond the limit but not amplify via the purchasing of campaign marketing or advertising.

  11. IMO rights are always tied to responsibilities. My right to anything can always be tied to my responsibility to grant the same right to others.

    Corporations are very limited in their responsibilities. Basically only to maximize shareholder return and comply with the law.

    To grant them the rights of people without the responsibilities of good citizenship is both bizarre and dysfunctional.

    They are a useful organizational tool. No more.

  12. Another point, many advance the arguments for/against personal freedom in a moral context. Is the “free market” moral; is there even a free market anymore? Is morality relevant to the market? I suppose it would be a total waste of breath to suggest to our christian brethren that they would do us all a favor by letting god make the tough decisions for all, including whether same sex marriage is ok or not. When the role is called up yonder, won’t she handle all those problems in her own way? The rest of us will be free to relax in the lounge.

  13. I always understood the concept of a corporation to be that a fictional entity was created to do business so that shareholders, officers and directors could escape personal liability for debts, torts, etc.. This fictional entity was just that–a fiction. A fiction can’t hold religious beliefs or political views, because only a human can possess these attributes. If the fiction is nothing more than the alter-ego of the shareholders, officers and directors, then they should be stripped of the benefits of creating the fictional entity. Can’t have it both ways.

  14. Daleb – Don’t you understand that the “free market” and “laissez faire captialism” are the highest moral good. The “entreprenuer” is the highest moral being. It is in the Declaration of Independence and the Constitution. Jesus spoke extensively about this in the “sermon on the mount”. I am sure I learned this from some Koch brother pamphlet or someplace similar.

    Oh to be a corporation with all of the rights of a person and none of the responsibilities. Who needs a vote when you can buy the legislature.

  15. Len: Well said. I’d like to have it both ways too. I just can’t afford the lobbyists. Hey Dan Coats is retiring, maybe he could represent me.

  16. One advantage of limiting free speech of corporations is that every shrill, annoying, not-for-profit would be silenced and forbidden from participating in elections.

  17. The SCOTUS decision seems to me to be so clearly legislation-from-the-bench: Corporations were made legal in order to encourage investment & business development without fear of personal bankruptcy – OK, fine, I can see that resulting in a societal benefit.
    But Citizen’s United takes this a step too far, by giving a very small coterie of self-interested people the full economic & decision-making power of their “aggregate of individuals” without criminal accountability, or even effective accountability to their shareholders other than Wall Street.
    If corporations were truly considered legal people, the officers and board members would be criminally liable for corporate law-breaking, up to & including fines & jail time, to make authority & responsibility concomitant again. In the case of CU it looks like politics trumped logic – but then it’s been clear for years that the Supreme Court is bought & paid for.

Comments are closed.