Corporate Rights as Stand-in for Human Rights

The rights of corporations are back in the news this week, as the US Supreme Court decided that a California law restricting sale of violent video games to minors constituted an infringement of the constitutional right to free speech.

Far from being shocking, the notion that corporations should be protected by certain rights ought to be utterly commonplace. Here’s why.

Do you believe that human individuals should have a right against unreasonable search and seizure?

Do you believe that human individuals should have strong rights to free speech?

If so, then you must, logically, be in favour of according such rights to corporations. Why? Not because corporations are legally persons, and not because corporations are “like” human individuals in any particular way. We don’t necessarily need to appeal to any checklist of characteristics that a thing must have in order to be accorded rights.

The reason you must logically be in favour of granting such rights to corporations is that granting them to corporations is — in at least some cases — an essential part of protecting such rights for individual humans.

Consider the right against unreasonable search and seizure. Such a right (for individuals) is a central tenet of all civilized societies. It is crucial for our wellbeing that the government not be allowed simply to show up, search our homes, and take our stuff. What about a corporation’s “stuff”? It must be protected as well. Why? Not because corporations feel fear or have interests of their own to protect. No, corporations’ property must be protected because the interests of real, flesh-and-blood people depend on the protection of such property.

Roughly the same argument goes with regard to free speech. It is literally impossible to shut up a corporation without thereby shutting up human persons. If a human being has the right to speak freely, then she also has the right to speak freely about her commercial interests, including about the products and services and viewpoints of the entities (corporations, partnerships, unions, etc.) that advance those interests.

None of this suggests that the rights accorded to corporations must be exactly the same in kind and in character as those accorded to humans. Rights for corporations are largely instrumental, and need only be accorded where doing so protects important human interests. Nor must such rights be unlimited: there are limits on free speech for humans, and those limits generally should also apply to non-human persons such as corporations and unions and clubs and churches. What is essential, here, is to see that corporate rights are not the bogeyman. Just like human rights, they are a tool for helping us get along, and thrive, as a community.

5 comments so far

  1. Charles H. Green on

    Chris,

    Good article and provocative thinking.

    However, whenever I hear imperatives about life, as in “If you believe X, then you must logically believe Y,” I think, “Oh, let’s just see about that.” First, I’m a pragmatist. Second, no one ever went broke under-estimating the logical consistency of human beings.

    But to break it down more precisely: your statements aren’t precise enough. You say basically that If I believe in individual free speech rights, then I must believe in corporate free speech rights. You fail to specify which rights we’re talking about, and therefore the “must logically” claim doesn’t have much to stand on.

    That’s a hole you can drive a truck through. I’m no lawyer, but just to throw out a few for instances, do libel laws vary between people and corporations? Can a corporation be convicted of a crime of passion like a person can? Is there a limited liability person to parallel the concept of a limited liability corporation? (If so, where do I sign up?).

    Within free speech itself, the Supreme Court in the US still regularly hears cases defining the boundaries of free speech; why should we automatically believe that every such decision should apply equally to corporations as to people?

    The concept of free speech arose on the human side of the equation several centuries ago, and I suspect developed quite separately from the concept (and reality) of the corporation. Having arisen socially in such distinct manners, it is far from evident that any “must” statement can be derived from one that affects the other. Again, why?

    If a person’s free speech rights don’t extend to yelling “Fire” in a crowded theater, is that also true of a corporation? What does it even mean for a corporation to “yell” anything? Can a corporation yell? If so, is it a person doing the yelling? Or can “yell” mean something other than what it means for a person? These are just a few of the troublesome details that arise when you assert “must logically” types of claims. They fall flat at the foot of commonsense.

    To sweepingly assert that free speech rights are, without any need to enumerate, identical across people and corporations, in contrast to many other walks of life, is to ascribe some kind of existence to a grammatical rule.

    You say “I must logically believe X if I believe Y.” I say, “I ‘must’ pay taxes and die, but that’s about it. And I”m not even sure about taxes.”

    Commonsense tells me that we do not, nor do we want to, live in a world where a legal fiction of legal and logical necessity has all, no more, and no less, the rights of a human being. It feels to me more like an absurd proposition on the face of it.

    If the case is to be made for free speech, then make it. Do so by citing social costs, or human difficulties; indeed you hint at some of these, and you make more than a half-decent case for them. If it happens that they happen to look parallel for people and corporations, even very frequently, then make the case and say so.

    But by making the argument in the form of deductive logic, you fall into sophistry; you of all people know better than to go there.

    Anyway, thanks for a thoughtful and provocative post; you certainly got my thinking stimulated, even if I’m not too articulate about it!

    • Chris MacDonald on

      Charles:

      Thanks for your thoughtful comment.

      But nowhere did I say, as you suggest I did, that “free speech rights are… identical across people and corporations.”

      In fact, I explicitly deny that, at the start of my final paragraph, where I say, “None of this suggests that the rights accorded to corporations must be exactly the same in kind and in character as those accorded to humans.”

      Nor do I say that corporations should have “all, no more, and no less, the rights of a human being”, as you suggest I do. You’re absolutely right that that would be absurd. That’s why I didn’t say it.

      The only point I was making is that if you give no protection to corporate speech or corporate property, you will necessarily end up failing to protect human speech and human property. In some cases, protecting corporate speech and property are a necessary ingredient for protecting human speech and property. Failure to accord property rights to corporations would essentially mean saying to humans, “oh, your property is secure against unreasonable search and seizure — unless you invest it in a company, in which case all bets are off, and the government will then be free to show up to grab it without due process.” That would be a very significant breach of a human being’s property rights. No one should be able to arbitrarily seize my wealth, regardless of whether it’s parked under my mattress or in a bank vault or in corporate shares.

      The surest way to disprove a claim of logical necessity, of course, is to provide a counter-example. I’d be curious to see an explanation of how corporations could have zero rights, while still protecting the rights of humans.

  2. Matthew Brophy on

    Fascinating and stimulating topic, to be sure. I don’t believe anyone would say that corporations should be treated as having zero rights, at least instrumental ones. But I imagine most regular people see human rights as intrinsic and non-instrumental whereas it appears the talk of corporate “rights” are indeed merely instrumental, stand-in rights that really should be treated as occasional proxies representing underlying human rights of humans. The critique Charles seems to offer in his comments that its unclear what the status and extent of such corporate rights would be.

    Interestingly, thhe recent AT&T case decided by the US Supreme Court denied that a corporation can have “privacy rights.” As you know, AT&T claimed that handing over damning information over pricing would be a violation of AT&T’s personal privacy. The Supreme Court seemed to clearly deny (and in fact ribbingly ridiculed) the notion that a corporation could have such personal privacy rights. While The Court cannot read a human’s personal diary, a corporation is not a human being, and their records are not a personal expression that must be afforded privacy protection.

    I’d look forward to your thoughts, Chris, — if you have time — on this recent case in relation to your topic (in the context of your original post rather than the topic of a corporation as a legal person).

    • Matthew Brophy on

      I see, Chris, that you posted a bit already on the AT&T case here: https://businessethicsblog.com/2010/09/28/corporations-persons-and-human-dignity/ …but maybe you have some follow up thoughts, post the Court’s decision.

      • Chris MacDonald on

        Matthew:

        Yes, the AT&T case is a useful one, here, though I’m not sure I have any new insight on it. I think it’s a good example of a case in which rights can pretty much only make sense if the case can be made that there are underlying human interests (if not rights) to be protected. The (human) right to privacy is very much rooted in specific human capacities and in the notion of respect that is so fundamental to the stability of our social interactions. That right doesn’t apply automatically to corporations because corporations don’t warrant the same kind of respect. If they deserve privacy, it can’t be a strong presumption like it is for persons, but rather needs to be defended for particular purposes.

        Chris.


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