Corporations as Persons

Every time I mention that I think Citizen's United was rightly decided my liberal friends begin to gag and whine about how terrible it was and how awful it is that "corporations are persons." A new book by Kent Greenfield, https://yalebooks.yale.edu/book/9780300211474/corporations-are-people-too, reminds us there are important reasons for corporations to be considered persons. For example, were corporations not to have the same rights of speech as persons, the New York Times would have lost the battle. The Times is a for-profit corporation yet the decision permitted it to publish classified information from Daniel Ellsberg. Ralph Nader's public interest group sued and won on behalf of pharmaceutical corporations to advertise. The issue was whether they had a right to commercial speech. The dissent in that case, was by the conservative Chief Justice Rehnquist; speech for corporations was considered to be a progressive cause.

Fast Forward several decades to Citizens United when that decision raised a firestorm of protest. Most people didn't know that the issue was protection of political speech at its best. The Court said the Federal Election Commission could not prevent the showing of a pay-per-view anti-Hillary movie within thirty days of the election. They went on to reiterate the importance of free speech for corporations as persons. That concept, enshrined by Justice Marshall in Dartmouth v Woodward (1819) is important because it not only protects the corporation and shareholders but requires responsibilities of them as well (a major point of Greenfield's book.) That guarantees them protection from unwarranted search and seizure by the government among other things. I know progressives would surely not want the government to willy-nilly search the files of a corporation like Planned Parenthood, for example. They also, as part of free speech, could spend money to support political positions, something progressives had fought for for unions.

Greenfield argues the Court made a mistake in the Hobby Lobby decision by not considering it a person. The Green's went wrong Greenfield believes is that the rights of the owners don't necessarily translate into the rights of the corporation as a person. The Greens has chosen to protect their personal assets by making Hobby Lobby a separate entity, person, if you will. "Corporate personhood expresses the idea 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 corporate law brief argued that this separateness meant the Greens should not be able to attach their own religious beliefs to the corporation. The Greens chose to form a corporation in order to operate the business without running the risk of losing their personal assets."

Ironically, many of the groups now proposing a constitutionality amendment to deny corporation separateness and personhood, were it to be ratified would lose the right to talk about it.

"The argument that corporations should not have standing to assert any constitutional right is quite weak. The opposite of a constitutional right is a governmental power. If corporations have no rights, then governmental power in connection with corporations is at its maximum. That power can be abused, and corporate personhood is a necessary bulwark." The government tried to enforce censorship on the New York Times in 1971, but the court decided as a "person" it had protected speech.


"Today, Google and other media companies are fighting government demands to disgorge the contents of their servers. No one suggests that the government’s power should be unchecked because the media companies, as corporations, have no Fourth Amendment rights to be free of unreasonable searches and seizures. If corporations were not able to claim the Fifth Amendment rights to be free of government takings, their assets and resources would always be at risk of expropriation. No one would invest in corporations, undermining the reason we have them in the first place."