This is not about your right to petition your government. It’s not even really about your right to look at Internet porn or say ‘fuck’ in public. It’s not even about advertising or other commercial speech in general. It’s about the fact that the Supreme Court–always the most reactionary body of the federal government*–has decided on the one hand to limit the explicitly stated rights in the Bill of Rights to actual people** while deciding that an organization of people given acting for profit, a corporation, has all of the same rights as a natural person.
“Congress shall make no law … abridging the freedom of speech” (U.S. Const. Amend I.)
And why was the Bill of Rights enacted? To make it clear that”
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (U.S. Const. Amend. IX.)
and in the cases of the most important ones, to make sure they were spelled out. Notice that it says “others” retained by the “people.” In other words, the rights in the Bill of Rights were among the rights retained by the people. There were others. But they belonged to people. Not to the federal government, nor to the states. What’s more, the powers not given to the feds in the Constitution stayed with the states or the people. (U.S. Const. Amend. X.) So, states had no rights either, they had powers. The only group with rights are people.
So, what to do for big business? That’s easy. We’ll just make up a whole new group of people.
Corporate personhood came to the Supreme Court in the period of the reaction against reconstruction and of robber barons. The Supreme Court in this era neutered the 14th amendment by comically deciding that Congress didn’t have the power to outlaw racial discrimination by private individuals and organizations under Section 5 of the 14th amendment which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this [amendment].” (Civil Rights Cases 109 U.S. 3 (1883).) Later, when the Civil Rights Act of 1964 became law, it was sustained under the Commerce Clause of all things. (cite.) Justice Douglas that this was ridiculous. (cite.)
But they made sure that the states couldn’t mess with big business. Corporations had been recognized as having rights to contract, and to have those contracts honored the same as contracts entered into by natural persons, in Dartmouth College v. Woodward (1819). This makes sense if you believe in the doctrine of limited liability***. You have to have a way to block off their transactions from those of their owners.
But apparently, corporations evolved from accounting fictions, to legal fictions, to some kind of being of pure spirit. In the 1886 case Santa Clara County v. Southern Pacific Railroad, the Supreme Court recognized that corporations were recognized as persons for purposes of the Fourteenth Amendment. By taking this legal fiction–that stacks of paper are a person (great for bookkeeping, keeping tax records, and limiting liability)–to the level of either Dr. Frankenstein or God in Genesis and given them the same rights that the Founders of this country thought either came from Nature or from God. As far as I know, no Supreme Court justice has been denied communion for this brazen act of idolatry. So, shorter Gilded Age Supreme Court: Blacks=not people; corporations=people.
Does this mean that any legal fiction created by the states or federal government can receive this elan vitale? I bet there is a cow or two out there that wishes it couldn’t be deprived of its life without due process, but unfortunately for the cow, a few stacks of paper have more rights than she does.
This is not to be confused with “commercial speech,” which has been allowed to be more restricted than “political speech.” But non-corporations can engage in “commercial speech” and corporations can engage in “political speech.”**** (Experiments have shown that those fancy fake-leather binders that hold a corporation’s records really hate taxes.)
Justice Clarence Thomas stated, in 44 Liquormart, Inc. v. Rhode Island (1996), that “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” Federal judge Alex Kozinski has stated “the Supreme Court plucked the commercial speech doctrine out of thin air.”
Pace, Kozinski, but that “thin air” is the fact that corporations are creatures of the state. States could not provide for the existence of corporations at all. It seems to follow then they could limit their rights of speech, no? (You see, the person restricting the speech is the state, not some metaphysical force. So it would follow that they could limit this legal fiction’s extent.)
* During the brief era of relatively progressive courts in the late New Deal and Warren eras, Congress and the White House were more progressive. Only on the issues of executive power is there any argument that the Supreme Court in this era was more progressive. In any event, even if the New Deal/Warren era were a progressive period, it would be the exception that proves the rule. The only component of our national government (of which, believe it or not, the states are a part due to their constitutional roles in passing amendments and devising election laws to name a few) that is more reactionary than the Supreme Court are certain states, but certain other states are also the most progressive part, so this leaves the Supreme Court alone as the primary shock troops of the reaction.
** Whether or not you think the FISA court is a good idea (I do) or even warrantless wiretapping without FISA is a good idea (I do not), only the most glib legal maneuvering can possibly make these constitutional. i have no doubt that a Constitutional amendment to modernize warrant law would have a decent chance of passing, and this would be the proper way.
*** Limited liability also seems to have the status of a religious dogma. The theory is that by limiting the amount of loss an investor can suffer in any business venture to the amount invested, investment is encouraged. Why the limit should be set at precisely that amount, whether there is an aggregate social utility to this practice, or even whether there is a better way using insurance frameworks is a question left utterly unexamined by mainstream legal and business scholars. Yet it is a principle that is employed in some manner in all developed nations.
**** The naivete of this distinction is shocking. Theoretically, everything a corporation does is for its commercial advantage. If it does something otherwise, it is in violation of its fiduciary duties to its shareholders. While a certain amount of wiggle room is allowed for methods, ends have to be profitable. Therefore, I believe that all “speech” by a corporation is prima facie commercial, even if it is political in nature. This, of course, assumes (which I do not) that we should be concerned at all about analyzing the First Amendment with respect to any “speech” by a corporation. We should not. They have no such rights.