Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, July 17, 2012

Corporate People

In a recent op-ed in the Wall Street Journal, Jack and Suzy Welch responded to comments by Elizabeth Warren in which she declared that corporations obviously are not people because, for instance, they do not have hearts or get sick.  Jack and Suzy Welch replied, with equal zeal, that “Of course corporations are people.  What else would they be?”

What they would be, and in fact are, is clear.  Corporations are entities created by law; they exist to fulfill certain permitted purposes; and they are separate and distinct from their officers and employees.  Indeed, assuming that the interests of officers and employees are coextensive with those of the entity has led to no end of mischief, and more than a few indictments.

The real question is therefore not whether corporations lack passions, sorrows, and the capacity to dance (as Elizabeth Warren says) or whether they bond with their customers, mentor inner-city kids, and shout, laugh, and drink coffee (as Jack and Suzy Welch say).  The real question is whether legal entities like corporations should have certain rights that we normally assign to human beings.

As to some matters, this question would not make any sense.  No one argues that corporations should have the right to marry who they like, use contraception, or choose to get an abortion.  But, as to other matters, the question is not only sensible, but critical.  One such issue is whether speech engaged in by legal entities—including corporations—should receive the protections of the First Amendment.

Many, probably most, First Amendment scholars agree that the answer to this question is “yes.”  The Supreme Court answered this question that way long before Citizens United and its attendant rhetorical flurry.  Still, important issues remain.

Smart and informed people—like Elizabeth Warren and Jack and Suzy Welch—can reasonably disagree about those issues.  They can argue over the effects of concluding that corporations have First Amendment rights.  They can debate whether those effects are so destructive to the democratic process that our First Amendment jurisprudence leaves room for government regulation.

But I respectfully suggest that everyone should stop arguing over whether corporations smile or tango or take their kids to Little League or get misty-eyed during Hallmark commercials.  They don’t, and it would be creepy if they did, and none of that really has anything to do with the actual and serious issue at hand.

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