A Philosopher's Blog

Corporations Are being Denied Freedom of Expression and Religion!

Posted in Ethics, Law, Metaphysics, Philosophy by Michael LaBossiere on April 13, 2015
English: Freedom of Expression trademark certi...

English: Freedom of Expression trademark certificate (Photo credit: Wikipedia)

In the United States, corporations are considered persons. In recent years the judiciary has accepted that this entitles corporations to rights, such as freedom of speech (which was used to justify corporate spending in politics) and freedom of religion (which was used to allow companies to refuse to provide insurance coverage for birth control).

Despite having freedom of speech and religion because they are people, corporations can, unlike other people, be legally owned. Common stock is bought and sold as a matter of routine business and provides an ownership share in a corporation. Since corporations are people, this means that people are being allowed to legally own other people. Owning another person is, of course, slavery. While slavery was legal at one time in the United States, the 13th amendment is rather clear on this matter: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

If corporations are entitled to 1st amendment rights because they are people, it follows that they must also be entitled to 13th amendment rights. That is, corporations have a right not to be owned by other people. The obvious reply is that this is absurd. My response is that this is exactly my point: the 13th Amendment provides the path to the obvious reductio ad absurdum (“reducing to absurdity) to the claim that corporations are people. If they are people and thus get rights, then they cannot be owned. If they can be owned, they are not people and hence do not get the rights of people.

But, let it be supposed that companies are people and hence get the right to freedom of expression and freedom of religion.  Yet somehow don’t get the freedom not to be enslaved. It will be interesting to see where these claims actually lead.

Freedom of expression is usually presented in terms of a person’s right to engage in expression, perhaps by secretly donating fat stacks of cash to shadow political organizations. However, freedom of expression can also be regarded as a freedom from being compelled to engage in certain expressions. For example, the State of Texas has argued against allowing the Confederate battle flag on Texas license plates on this ground. This seems quite reasonable: the freedom to express myself would certainly seem to include the freedom to not express what I do not wish to express.

Freedom of religion is also usually presented in terms of protection from being limited or restricted in the practicing of one’s faith. However, like freedom of expression, it can also be taken to include the right not to be compelled to engage in religious activities against one’s will. So, for example, people have argued that compelling a wedding cake baker to not discriminate against same-sex couples would be to compel her to engage in an activity that goes against her faith. While I disagree with the claim that forbidding discrimination violates religious freedom, I do agree that compelling a person to act against her faith can be an unjust violation of religious freedom.

Corporations, at least according to the law, have freedom of expression and freedom of religion. As such, they have the general right not to be compelled to express views they do not hold and the right not to be compelled to engage in practices against their religious beliefs. Given that a corporation is a person, there is the question of what a corporation would want to express and the question of its faith.

It might be claimed that since a corporation seems to be just a legal fiction operated by actual people, then the beliefs and expressive desires of the corporation are those of the people who are in charge. On this view, a corporation is a legal Mechanical Turk, a pantomime person, the face of the Wizard of Oz (“Pay no attention to that man behind the curtain”). While run by an actual person or people, it is a fictional shell that is not a person.

The advantage of this approach is the corporation’s faith is the faith of the actual people and what it desires to express is what they desire to express. The obvious problem is that this view makes it clear that the corporation is not a person, so it would not get a set of rights of its own, above and beyond the rights already held by the actual people who control the legal pantomime person. So, claims about violations of freedoms would have to be about violations against actual, specific people and not against the legal version of a Mechanical Turk (or Legal Turk, if one prefers).

If someone insists that the corporation is a person in its own right, then this entails it is a distinct entity apart from the folks that would seem to be operating a non-person pantomime person. On this view, the views of the corporation cannot automatically be those of the people who would seem to be operating the pantomime person. After all, if it is just them, it is not a person. To be a person, it needs to have its own personhood. If it has freedom of expression, it must have its own desires of what to express. If it has freedom of religion, it must have its own faith.

Sadly, corporations are not free to express their own views or their own faith. They are owned and compelled to speak and engage in matters of faith. While there is a chance that the corporate person’s views and faith match those of the human persons infesting its legal body, this need not be the case. After all, a slave that is forced by her owner to say things and go to church might believe what she says or have the faith she is compelled to practice…but she might not. Unless she is set free from her owners and allowed her own beliefs and faith, she cannot be said to have freedom of expression or faith.

While Tim Cook has spoken in favor of same-sex marriage, Apple might be a devoutly Christian corporation that cries (metaphorical) tears each time it is forced to mouth (metaphorically) Tim Cook’s words. The corporation Hobby Lobby might be a bisexual atheist corporation. As it is beaten to its (metaphorical) knees to cry out prayers to a God it does not believe in, it might be eager to engage in hot mergers with other companies, regardless of their gender. Until these corporations are freed from the tyranny of ownership, they can never truly exercise their freedom as people.

The obvious response to this absurd silliness is that it is, well, clearly absurd and silly. However, that is exactly my point. If a corporation is a person that is distinct from the actual people operating the pantomime legal person, then it is being denied its freedom of expression and religion because it is forced to say and do what others want it to say and do.  This is, as I am sure most will agree, pure absurdity. If a corporation is really just a legal pantomime and the corporate beliefs and ideas are really just those of the folks operating the legal pantomime, then it is not a person and does not have the rights of a person. The real people do, of course, have all the rights they have always possessed.

This is not to say that there should not be collective rights and laws for organizations. But this is very different from regarding a corporation as a person with a faith and beliefs it wishes to express. That is, obviously enough, a pile of pantomime bull.

 

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  1. […] Michael LaBossiere pens a devastating response and settles that question […]

  2. ronster12012 said, on April 13, 2015 at 9:37 am

    Michael

    “That is, obviously enough, a pile of pantomime bull.”

    That’s what you get when you ignore Shakespeare’s words about killing all the lawyers lol *

    *(No actual lawyers are intended to be killed or harmed in any way)

  3. T. J. Babson said, on April 13, 2015 at 10:46 am

    If corporations can have values like promoting LGBT rights, I don’t see why they shouldn’t be allowed to have other values as well.

    Also, let’s remember that–like people and unlike things–corporations can be sued. Mike, should corporations be able to argue that since they can be owned they are immune from lawsuits? Isn’t this the flip side of what you are arguing?

    • Michael LaBossiere said, on April 13, 2015 at 3:18 pm

      Actual people have values. Speaking of corporate values is shorthand for either what the actual people who run the show claim as values or what they put in their advertising.

      Corporations do not need to be people to be legal entities subject to lawsuits. My argument is about taking corporations to be people, not against the existence of legally defined collections of people.

      • T. J. Babson said, on April 14, 2015 at 6:44 am

        Your argument is that rights are vested in the individual, and that by joining together people should lose their rights.

        You also have a very narrow view of a corporation. Corporations can exist for many reasons, only one of which is to make money.

        Have you never heard of the Corporation for Public Broadcasting?

        http://www.cpb.org/aboutcpb/cpb_articlesofincorporation.pdf

        • Michael LaBossiere said, on April 14, 2015 at 5:02 pm

          1. That is not my argument at all. Collectives are collections of individuals. Unless there is a compelling argument to the contrary, individuals retain individual rights in the collective. Suppose, hypothetically, that I have the individual right to donate $1500 to a single candidate running for head of my track club. If I form Mike, LLC I do not lose that right. But I do not get the right to an extra $1500 donated by Mike, LLC. After all, that is just me double donating. Likewise, if I win a 5K, I get a trophy. Mike, LLC does not get another trophy.

          2. Yes, I have heard of that.

          3. Again, I have no issue with setting up laws for collectives (in general). But, thanks to my distaste for fascism and “communism”, I am not a big fan of regarding collectives as distinct entities. The state is just us. The corporation is just a bunch of people. No fallacy of reification for me, thanks.

          • T. J. Babson said, on April 14, 2015 at 10:16 pm

            “But, thanks to my distaste for fascism and “communism”, I am not a big fan of regarding collectives as distinct entities. The state is just us. The corporation is just a bunch of people. No fallacy of reification for me, thanks.”

            Just the individual vs. the state, right Mike? And why would anybody worry about the state when it “is just us”?

            The level of naivete in these statements is shocking.

            • T. J. Babson said, on April 14, 2015 at 10:36 pm

              “The state is just us.” Or maybe not.

              DENVER (CBS4) – A CBS4 investigation has learned that two Transportation Security Administration screeners at Denver International Airport have been fired after they were discovered manipulating passenger screening systems to allow a male TSA employee to fondle the genital areas of attractive male passengers.

              It happened roughly a dozen times, according to information gathered by CBS4.

              According to law enforcement reports obtained during the CBS4 investigation, a male TSA screener told a female colleague in 2014 that he “gropes” male passengers who come through the screening area at DIA.

              “He related that when a male he finds attractive comes to be screened by the scanning machine he will alert another TSA screener to indicate to the scanning computer that the party being screened is a female. When the screener does this, the scanning machine will indicate an anomaly in the genital area and this allows (the male TSA screener) to conduct a pat-down search of that area.”

              Although the TSA learned of the accusation on Nov. 18, 2014 via an anonymous tip from one of the agency’s own employees, reports show that it would be nearly three months before anything was done.

              http://denver.cbslocal.com/2015/04/13/cbs4-investigation-tsa-screeners-at-dia-manipulated-system-to-grope-mens-genitals/

            • Michael LaBossiere said, on April 15, 2015 at 12:10 pm

              The state wasn’t groping people. That guy was.

              Take a look at John Locke-the state is just us. Who else is there? This does not mean that the people who hold office or wear TSA uniforms do what other people would do or think they should do. It just means that there is not a super-entity that exists apart from the people. Government of the people, by the people, for the people. Unfortunately, some people like to do a little groin patting.

            • Michael LaBossiere said, on April 15, 2015 at 12:06 pm

              No, I am not claiming that it is just the individual against the state. I’m not against groups, just the bad metaphysics of taking collectives to be entities over and above the individuals. So, I am fine with people organizing to oppose the people holding office.

              We should be totally worried about “just us.” You have, I assume, met us.

            • T. J. Babson said, on April 15, 2015 at 12:29 pm

              If we can assume that people go into business to get money and go into politics to get power, I am far more frightened of the politicians than of the businessmen.

            • Michael LaBossiere said, on April 15, 2015 at 5:59 pm

              As well you should be. Although, the businessmen largely control the politicians-so you should feel a bit safer.

            • T. J. Babson said, on April 15, 2015 at 12:31 pm

              Why are you allowed to generalize about a white cop who shoots a black man but I am not allowed to generalize about a groin-groping TSA agent?

            • Michael LaBossiere said, on April 15, 2015 at 6:02 pm

              You can totally generalize from the groping TSA agent. Some TSA agents, like some cops, are awful. But most TSA agents, like most cops, are not awful. Many are decent people. I’m friends with many ex-cops (they are ex-cops mainly because being a cop is rough, low-paying, dangerous and often thankless). I also run with a TSA agent-he is a great guy and would certainly not be groping people.

              I agree that the TSA needs improvements. So does our law enforcement system. Ideally, we would have zero groping and zero unwarranted killings.

            • WTP said, on April 15, 2015 at 3:52 pm

              Why are you allowed to generalize about a white cop who shoots a black man but I am not allowed to generalize about a groin-groping TSA agent?

              Because he makes the rules. He wrote the book and he interprets it as he sees fit. This was one of the more amusing comments made here in quite a while:

              https://aphilosopher.wordpress.com/2015/04/01/does-religious-freedom-justify-discrimination/#comment-116365

              Look, I’ve just been too damn busy to muck with Mike’s foolishness lately. I’ve argued time and time again over the years, presented viable arguments, been met with either clown-nose foolishness or argument abandonment. Mike plays word games and thinks he’s “smart” by doing so. So I have little energy or much care except to ask the glaring question that I’m repeating for the third time now:

              TJ, name one thing, just ONE thing that exists outside of Mike’s understanding that Mike has made a serious effort to understand?

              Just one. As in 1. owe-enn-ee…one. If you can’t find an answer for this, what is the point of any of it?

            • WTP said, on April 15, 2015 at 4:02 pm

              Also…in light of:

              “Loretta Lynch became famous for her herculean confiscation of private property,” Paul, who last week announced his 2016 presidential campaign, said during testimony before the Senate Judiciary Committee. “She seized over a $100 million in forfeited funds during her time as U.S. Attorney and then skirted the reforms that were put in place 15 years ago to protect the innocent by not filing the paperwork that would have allowed those reforms to kick in.”

              “When questioned about civil forfeiture, Loretta Lynch seemed to be unconcerned with the need for reform,” he added. “I think no one who listens to these horrendous abuses of our civil liberties should be not moved to think that we really do need reform in our country.”

              http://thehill.com/blogs/blog-briefing-room/news/238905-rand-paul-blasts-lynch-over-asset-forfeiture

              …amongst many, many others, the best argument you come up with regarding excesses of the state is a TSA agent potentially touching your junk? Stay ser

  4. ronster12012 said, on April 13, 2015 at 11:20 am

    When we say corporations have rights doesn’t that mean boards actually have those rights as without boards corporations are just inert?

  5. ajmacdonaldjr said, on April 13, 2015 at 12:04 pm

    If we actually had freedom we wouldn’t be having this problem. The Federal Tyranny continues. Remember to vote for the candidate of your choice in 2016: Clinton or Bush.

  6. TJB said, on April 13, 2015 at 1:07 pm

    What Mike refuses to understand is that allowing people to form associations and speak as a group actually empowers the little guy. Just as Apple has a voice, so does the NEA.

    • Michael LaBossiere said, on April 13, 2015 at 3:20 pm

      I have no objection to collective legal entities. My objection is against taking corporations to be people. These are two distinct matters.

      • T. J. Babson said, on April 14, 2015 at 6:50 am

        Mike, the idea of corporate personhood is deeply embedded in the law and goes back to the 19th century.

        • WTP said, on April 14, 2015 at 8:38 am

          You expect the leopard to change his spots?

        • Michael LaBossiere said, on April 14, 2015 at 4:54 pm

          That is an appeal to tradition. “Slavery is deeply embedded in the law and goes back to the ancient world”, said slave owners.

          • T. J. Babson said, on April 14, 2015 at 7:14 pm

            Which is why it took a civil war to get rid of it.

    • WTP said, on April 13, 2015 at 8:57 pm

      What Mike refuses to understand…

      TJ, name one thing, just ONE thing that exists outside of Mike’s understanding that Mike has made a serious effort to understand?

  7. nailheadtom said, on April 14, 2015 at 6:49 am

    Corporations are a legal construct whose purpose is to avoid responsibility of individuals, limited liability. They are a creation of the state and as such an adjunct of it. That they can have “personhood” is just another example of the moral fictions used by the establishment to maintain power.

    • T. J. Babson said, on April 14, 2015 at 4:35 pm

      NHT: even MoveOn.org is a corporation…

      • Michael LaBossiere said, on April 14, 2015 at 4:55 pm

        Thus helping to support my claim that corporations are fictions. What is more fictional than MoveOn.org?

  8. T. J. Babson said, on April 14, 2015 at 7:26 pm

    Mike, please read the whole thing. It was too long to cut and paste in its entirety.

    The main target of the corporations-are-not-people crowd is the Supreme Court’s 2010 Citizens United ruling striking down limits on independent corporate spending in elections. After that case, groups sprang up to fight corporate personhood. Others rebranded themselves by newly taking aim at it. But they do not limit themselves to attacking the Court’s campaign finance jurisprudence. Most groups make a broader attack on corporations being able to assert any First Amendment speech rights at all; and some have called for disabusing all corporations or businesses of any constitutional right.

    Common Cause, for example, uses Robert Reich to tout its support for “a constitutional amendment declaring that ‘Only People are People’ and that only people should have free speech rights protected by the Constitution.” Public Citizen, the liberal litigation group founded by Ralph Nader, argues that “rights protected by the Constitution were intended for natural people.” Free Speech for People, one of the groups most influential in the anti-personhood movement, is pushing a “People’s Rights Amendment.” A version has already been sponsored in the U.S. Senate by Jon Tester of Montana and in the House by Jim McGovern of Massachusetts. It would declare that “the rights protected by this Constitution” are “the rights of natural persons.” A range of liberal groups have signed on to the anti-personhood project—MoveOn, Sierra Club and NAACP chapters, and steelworker and SEIU locals. By their count, sixteen states and nearly 600 localities have endorsed some kind of anti-personhood amendment. Even in a moment when the progressive left seems otherwise to be fighting rearguard actions, this movement has genuine energy.

    These are my people. Many of the leaders of this movement are friends and respected colleagues. I contributed to Elizabeth Warren’s senatorial campaign and voted for Reich when he ran for governor of Massachusetts. Forty years ago, my coal miner grandfather sat me down and told me how a union had saved his life. As a law professor, I have spent my career as an oddity—a progressive who teaches corporate law, almost always the most liberal person in any room of business law academics. A decade ago, I came up with a novel legal theory that shareholder activists recently put to good use suing the Hershey Company over the use of child labor in West African chocolate cultivation.

    A corporate lickspittle I’m not.

    But the attack on corporate personhood is a mistake. And it may, ironically, be playing into the hands of the financial and managerial elite.

    What’s the best way to control corporate power? More corporate personhood, not less.

    If you’re shopping for glue sticks or glitter and hearing Christian music over a loudspeaker, you’re probably in a Hobby Lobby store. An arts-and-crafts retailer, Hobby Lobby is a big company, with upwards of 20,000 employees and more than 600 stores. But it’s a “closely held” corporation—meaning its stock is not publicly traded. The stock is owned by members of one family, the Greens of Oklahoma City, who are devout Christians. As enacted, the Affordable Care Act contained a provision requiring the company to provide its employees with health insurance that includes all medically approved forms of contraceptive care. The Greens objected. They believe that four of those methods are “abortifacients,” and claimed that the coverage mandate violated their rights under the Religious Freedom Restoration Act.

    When their suit made it to the Supreme Court in early 2014, a group of corporate law professors (of which I was one) filed a “friend of the court” brief arguing against the corporation.

    The brief’s main argument? Corporate personhood.

    Understand that “corporate personhood” simply expresses the idea that the corporation has a legal identity separate from its shareholders. That separateness, the brief pointed out, is inherent in what it means to be a corporation. A “first principle” of corporate law (as we explained) is that “for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders.” The very purpose of the corporation as a legal form is to create an entity “distinct in its legal interests and existence from those who contribute capital to it.” This separateness means that shareholders are not held liable for the debts of the corporation. That makes it possible for people who do not wish to oversee the day-to-day activities of companies in which they invest—and do not wish to risk every penny they own if the corporation goes bankrupt—to invest in corporate stock. In other words, this separateness is what makes capital markets possible. And capital markets are essential for the development of a vibrant national economy. Beyond that, corporations can exist long after the life of any individual that invests in, or works for, them. This means, as the legal scholar Lynn Stout has pointed out, that corporations provide a mechanism for society to make long-term, intergenerational investments that are not linked to government or a specific family.

    It is not an overstatement to say that corporate separateness has been one of the legal innovations most important to the development of national wealth.

    http://www.theatlantic.com/politics/archive/2015/02/if-corporations-are-people-they-should-act-like-it/385034/

    • WTP said, on April 14, 2015 at 7:50 pm

      TJ, name one thing, just ONE thing that exists outside of Mike’s understanding that Mike has made a serious effort to understand?

    • Michael LaBossiere said, on April 15, 2015 at 12:03 pm

      That is a well written and well-argued piece. Actually, I agree with much of what the author claims. Interestingly, his argument against Hobby Lobby is similar to my own: if corporations are people, then they are distinct entities from their owners and hence cannot be forced to have the faith of the owners.

      My main problem with treating corporations as people is not that there are collective rights (which I regard as extensions of individual rights-a newspaper has the rights it “inherits” from those who do the writing, etc. and it is a convenient legal fiction to treat the collective as a Hobbesian Leviathan). Rather, my problem is with the way personhood has been used in an inconsistent manner and how treating corporations as people has been used to grant “bonus rights” to those running the corporations.

      That said, I do have some general concerns about collective entities and the corrosive impact they can have on accountability and the democratic process.


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