Friday, May 14, 2010

On corporate personhood and free expression.

Shorter one today. It's late, I'm tired, and I couldn't get my thoughts together on electoral reform and the virtues of coalition governments. So, instead, I'll take on a smaller point.

Remember Citizens United v Federal Election Commission? That was the Supreme Court of the United States decision which held that corporate funding of independent political broadcasts in elections cannot be limited without violating the First Amendment. Now, of course, Canada doesn't have a First Amendment, and SCOTUS decisions don't have any force under Canadian law. But, the Charter of Rights and Freedoms does give us rights to freedom fo conscience, thought, belief and expression, and corporations are (in at least the "entering into contracts" sense) persons under Canadian law. So, it's only a few skips to allow, as a freedom of speech issue, that corporations in Canada have a fundamental right to fund electoral ads.

Here's how that argument would go (spelled out as it draws out the key issues):
  1. Persons have fundamental rights under the law.
  2. One of those rights is to free expression.
  3. Encouraging expression of ideas, such as by paying for them, is part of free expression.
  4. Corporations are persons.
  5. By (1) and (4), corporations have fundamental rights under the law.
  6. By (2) and (5), corporations have the right to free expression.
  7. By (3) and (6), corporations can encourage expression of ideas, such as by paying for them, as part of free expression.
(5), (6), and (7) follow logically. (1) and (2) are true by definition. Key, then, are (3) and (4). If (3) and (4) can be established, then it would follow that Canadian corporations should be held to the same standards as American corporations.

Is encouraging expression of ideas, such as by paying for them, part of free expression? It depends, I think, on how far free expression really extends. We could consider free expression in a very narrow sense. You have the right to free expression insofar as no one is actively and directly stopping you from speaking as you choose. This is narrow because your expressions could be totally ineffective and ignored, and you could have few, if any, opportunities to express yourself, due to the indirect and/or passive influence of others. (If you have to work 100+ hours a week, for example, then you won't have a lot of time to make your opinions known.) We could also consider free expression in a very broad sense. You have the right to free expression insofar as you have reasonably equal opportunities to express yourself, in comparison to others within your society, and your expressions receive reasonable due consideration. This is broad because your expressions would have to be taken seriously, inasmuch as they deserve to be taken seriously. And you would need to be provided with platforms and venues within which you could say what you thought.

Taking free expression as narrow or broad in this sense is irrelevant to the issue at hand, though. If paying for the expression of ideas is itself part of free expression, then, even in the narrow sense, it would be illegitimate to prevent someone from paying for the expression of ideas. What matters, really, is whether free expression has to take any particular form -- whether there's any particular sort of thing that one has to be expressing in order for it to fall under free expression. Or, to put it in a slightly more illuminating fashion, what do you have to be doing in order to be "expressing", and thus within the ambit of "freedom of expression".

There's some obvious candidate activities. Speaking. Writing. Artistic endeavours should also fall within the range of expressing, as should certain kinds of meaningful actions (e.g., gestures intended to communicate claims that could have been expressed verbally). But what about encouraging certain expressions and discouraging others? I'm not going to say I have any firm views one way or the other, but I do think it's dubious, at least initially, to hold that encouraging expression of ideas counts, itself, as part of expressing anything. Encouraging expression of ideas is a precondition of expression. This is because it creates the circumstances in which expression can occur (and be increased). And the preconditions on something are logically distinct from that very thing. It's a precondition on being a man that one is human, but being human is obviously distinct from being a man. It's a precondition on being a chair that a thing be a physical object, but being a physical object is obviously distinct from being a chair.

Now, one could easily argue that when it comes to things like political ads, the distinction between the content of the ads (which would fall within free expression) and the funding for the ads (the preconditions on that expression) is a pretty fine one to make. I think this is a little confused, though. It brings us back to the extent of free expression -- whether we take it narrowly or broadly. If we take it broadly, then we would need to equalize opportunities for free expression, and could legitimately limit support for various kinds of expression on the grounds that it impedes other expressions. If we take it narrowly, then opportunities aren't in play at all: so they can't be reintroduced as a form of expression, because opportunities are by definition considered irrelevant.

So, there's something weird going on with point (3). Point (4) is on stronger ground, though. Here's how you could argue for (4).
  1. A person (in the "contract signing" sense) is defined by features F.
  2. A corporation has features F.
  3. Persons have rights.
  4. Therefore, corporations have rights.
  5. Therefore, corporations are persons (in the "having fundamental freedoms" sense).
That is, it's a matter of drawing an analogy between corporations and uncontroversial cases of persons (so, normally functioning adult human beings) and, on the basis of that analogy, inferring that a further feature of persons should also be held by corporations. And corporations really are rather similar to uncontroversial cases of persons. Corporations are made up of various components which serve subcorporate functions. This is pretty obvious, as corporations are made up of persons and groups of persons, which do things for the interests of the corporation (accounting, IT, etc, etc -- exactly which functions depend on the corporation). Human beings are similarly made up of various components which serve subpersonal functions. This is less obvious, as we tend to think of humans as being coherent wholes, but that's a deeply misleading impression. Human begins are made up of any number of biological systems which interact to produce things like consciousness, thought, memory, and the like. And the whole person is the combination of all those various functions. So, we can fill in the analogy in just that way: by drawing attention to the fact that corporations and (normally functioning adult) human beings are made up of complex and dynamically interacting processes, each process being performed by a distinct component part, and the results of the interaction are the functions that attach to the whole.

Once you've got an analogy between two things then it's good reasoning to infer that they resemble each other in a further way, pending identification of a disanalogy which breaks the connection (possibly just on the point that's in play). Are there disanalogies between corporations and human beings?

One common suggestion is that corporations are made by people, and human beings are not. Only non-artificial people deserve rights. But that's a non-starter, on two grounds. First, we're talking about rights, which, as far as I'm concerned, are legal fictions. So, in the relevant sense, both human beings and corporations are being dubbed people. It's artificial in both cases. Second, it's just stupid to say that human beings aren't made by people. Parents, friends, peers -- these all play a key role in who we are; indeed, without them, we not only wouldn't be the people we are, but we simply wouldn't be.

Another common suggestion is that corporations are formed for a limited purpose -- to profit. By contrast, human beings can adopt many different purposes. And only persons that can alter their purposes deserve rights, because only such persons need rights. Putting aside concerns about the connection between desert and need and rights, it's just wrong to say that corporations can't adopt other purposes. Most corporations are formed to pursue profits -- but there are purposes that are common to many people as well (health, well-being, etc.). Some corporations are formed for other purposes, though -- non-profits are, by definition, not formed for profit, and there's nothing which stops a corporation being formed which would pursue philanthropic goals entirely, even if this was directly contrary to the pursuit of profit.

Apart from these, I'm not sure what the difference -- the relevant difference, that is -- between persons and corporations is supposed to be. So, I'm content to grant that corporations are persons, just like human beings are. (Which has an angle that not everyone's seen, I think -- if you're a person, you not only have rights, but you have responsibilities, and can be held both criminally and civilly liable. Anyone interested in a jail for corporations?) In order to resist the rather nasty conclusions that follow from Citizens United, then, I would lean on the arguments against (3), that encouraging expressing ideas is not part of free expression. This is in part because conditions on free expression are not the same as expression.

But, more importantly, I think the issue is that we need to read basic freedoms like free expression broadly, such that opportunities to expression must be made reasonably equal between persons. The issue, the real issue, raised by Citizens United is that opportunities to expression are drastically unequal in most countries, even liberal democracies like ours. I won't rehearse the argument here (as it's quite long), but we have crucially misunderstood freedom in ignoring the importance of equality. Freedom doesn't really exist if it applies to some more than to others.


Catelli said...

I was wondering how the limits on a corporation's "rights" were defined. For instance, a corporation does not have a right to vote, even though that is a charter right for all "citizens" (not persons). While all persons have the right to freedom of expression, only citizens have the right to vote. At first I thought that distinction might be enough.

However, according to wikipedia, corporations are not recognized as persons under the charter in Canada. Which, if true, renders this discussion moot.

ADHR said...

That's not fixed, as far as I know. There's no provision in the Charter which prevents corporations from having those rights, pending a Supreme Court decision to grant them. They just aren't recognized as legal persons in the sense relevant to the Charter.

Canadian law, stemming from British law, recognizes corporations as persons in a limited sense, in that personhood is necessary in order to enter into contracts (which corporations can do). And, as suggested, there is an argument from being relevantly similar to legal persons that would establish corporations should have the same rights as you or I.