Are corporations really people, after all?

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By now everyone knows that Mitt Romney has said, “Corporations are people,” and lots of jokes have been made about it: “Let my corporations go!” — Moses, and so on. Paul Krugman gives Romney the benefit of the doubt, giving him credit for meaning, not that corporations are flesh-and-blood folks, but rather that “corporations are organizations that consist of people.” Krugman then takes Romney to task soberly for his ideas about what happens to taxes on corporations, since these are not taxes on the corporate entity per se but only on its profits — the part that workers and suppliers don’t get. But I wonder if even Krugman is cutting Romney too much slack here. Our Supreme Court has held that money is speech in their ruling that restricting the money one can spend on political advertising is an unacceptable restraint of free speech. If a metaphor can be reified by five conservative justices to the point of holding that what is actually money counts in the real world as speech, why isn’t it natural for those of a like turn of mind to feel free to reify the metaphor that corporations are (legal) persons to the idea that they should count in the real world as individuals deserving of all the rights and privileges of actual people.

[Update 8/14/11 I think the bad links are now fixed. Thanks, SSH. Several commentators, and Eugene Volokh in an email, have pointed out that the Supreme Court decision holding that restricting political advertising expenditure is restricting free speech does not represent the unique occasion on which authorities have held that restriction of some non-speech behavior - for example, marching - counts as a restriction on free speech. In other words, the decision was not based on reification of the metaphor “money is speech’; rather the metaphor was a product of the decision. And of course neither I nor anyone else can know what was in Mitt Romney’s mind when he said “Corporations are people.” Points taken. PK]

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22 Comments

  1. SSH said,

    August 13, 2011 @ 7:59 pm

    The URL in that first link has a malicious quotation mark.

  2. Alan Gunn said,

    August 13, 2011 @ 8:02 pm

    "If a metaphor can be reified by five conservative justices to the point of holding that what is actually money counts in the real world as speech, …"

    It's not that a metaphor can be reified, it's the common-sense notion that a right to free speech doesn't mean much if people aren't allowed to spend money on particular kinds of speech. If you aren't allowed to ban political speech (and if the First Amendment doesn't mean that it doesn't mean much of anything) then you shouldn't be able to ban spending on political speech either. It's not a liberal vs. conservative issue, either. Suppose someone were to propose a ban on spending money on abortions. Consistent with Roe v. Wade? Of course not.

  3. LC said,

    August 13, 2011 @ 8:02 pm

    I'm inclined to think the 'made of people' interpretation is correct.

    He busts out "business are people" here

  4. SSH said,

    August 13, 2011 @ 8:02 pm

    And the second one.

  5. giotto said,

    August 13, 2011 @ 8:20 pm

    http://en.wikipedia.org/wiki/Legal_personality

  6. Steve Kass said,

    August 13, 2011 @ 8:41 pm

    I supposed I’m as shocked as anyone that Paul left comments open, but since he did… The speech/abortion analogy fails. Abortion is not expression.

    “Suppose someone were to propose a ban on spending money on” votes.

    “Suppose someone were to propose a ban on spending money on” padlocks or to implement the Privacy Act of 1974.

  7. James said,

    August 13, 2011 @ 10:01 pm

    Alan Gunn, prostitution laws stop people from spending money on sex. Nobody thinks this is equivalent to laws preventing people from having sex.

  8. Victor Mair said,

    August 13, 2011 @ 10:05 pm

    In Chinese, a corporation is called a cáituán fǎrén 财团法人 (lit., "financial group legal person"). The same term in used in Japanese, where it is pronounced zaidan hōjin. I am travelling now and away from my library, so I cannot at this moment determine for certain the precise history of this expression, but it has the look and sound of a term that was translated into Japanese in the late 19th century or early 20th century and probably thence into Chinese.

    I have always found it striking that a corporation is referred to as a "legal person" in Japanese and Chinese and have assumed that it must be a direct translation from some Western concept in jurisprudence, perhaps somewhat masked in a Latin garb.

    On http://www.iciba.com/%E8%B4%A2%E5%9B%A2%E6%B3%95%E4%BA%BA
    cáituán fǎrén 财团法人 is defined thus: "consortium as a juridical person" or "legal body of financial group" (one can see that "juridical person" and "legal body" convey essentially the same notion).

    The Wikipedia entry on "legal personality" gives us some useful information about the concept of "juridical person":

    ====

    "Legal personality (also artificial personality, juridical personality, and juristic personality) is the characteristic of a non-human entity regarded by law to have the status of a person.

    "A legal person (Latin: persona ficta), (also artificial person, juridical person, juristic person, and body corporate, also commonly called a vehicle) has a legal name and has rights, protections, privileges, responsibilities, and liabilities under law, just as natural persons (humans) do. The concept of a legal person is a fundamental legal fiction. It is pertinent to the philosophy of law, as is essential to laws affecting a corporation (corporations law) (the law of business associations).

    "Legal personality allows one or more natural persons to act as a single entity (a composite person) for legal purposes."

    http://en.wikipedia.org/wiki/Legal_personality

    ====

    Since Mitt Romney has a joint Juris Doctor/Master of Business Administration from Harvard Law School and Harvard Business School, he is undoubtedly thoroughly familiar with the concept of a corporation being a legal entity / person, so there is nothing strange whatsoever in his statement that "Corporations are people."

  9. John Roth said,

    August 13, 2011 @ 10:25 pm

    Giotto is correct; the point at issue is whether corporations are legal persons which are accorded the full protection of the constitution, or simply legal entities which have the rights assigned to them by the state. The issue is not as clear-cut as the cited Wikipedia article makes out – certain radicals have said that if they are, then the 13th amendment (anti-slavery) prohibits anyone from owning a corporation.

  10. Ross Presser said,

    August 13, 2011 @ 10:27 pm

    People (individual human beings who are non-felonious adult citizens) can vote. So people have a protected right to free speech, including the right to spend money when necessary to make their speech heard.

    Corporations do not vote. Therefore they do not and should not have such a right.

    OK, this is terrible legal reasoning, but it's a clear expression of the difference in rational minds, excuse me, I mean in the minds of those who disagree with Mr. Gunn.

  11. parse said,

    August 13, 2011 @ 11:16 pm

    Our Supreme Court has held that money is speech in their ruling that restricting the money one can spend on political advertising is an unacceptable restraint of free speech.

    I understand the court had ruled that restricting the amount of money one can spend on political advertising is an unacceptable restraint of free speech, but I think this is a conclusion one can reach without affirming that money is speech. Did the court positively assert that money is speech, or is this just a popular expression of the logic behind the ruling?

  12. Neal Goldfarb said,

    August 14, 2011 @ 12:23 am

    The expression money is speech is more than just a metaphor, it's a metaphor that incorporates metonymy: the word money stands for 'giving money to political candidates or spending money for the benefit of political candidates.' (I doubt that anyone on the Supreme Court thinks money counts as speech if it's just sitting in your bank account or your pocket or behind the cushions on your couch.)

    So while Paul understands the metaphor to treat a substance as an action, I think it's more accurate to say that it treats one kind of action as a different kind of action. Seen in that light, the metaphor doesn't strike me as being as strange as Paul suggests ("…to the point of holding that what is actually money counts in the real world as speech").

    Shifting from the linguistic aspects of the metaphor to the legal aspects: This is hardly the only example of nonlinguistic conduct that has been treated as "speech" under the First Amendment. Consider walking down the street (aka "marching"), gathering together with other people in a public place ("holding a rally"), swinging a stick with a piece of patterned cloth attached to one end ("waving a flag"). Also playing music, dancing, drawing, painting, sculpting, and on and on.

  13. Sandy Nicholson said,

    August 14, 2011 @ 4:21 am

    If a corporation is a person, with the full rights of a person under the US constitution, then surely it (he? she?) also has the full responsibilities of a person (presumably of an adult, or are there under-age corporations?). Then corporations should be subject to the same punishments that face other people who commit crimes. Quite what a jail sentence would mean for a corporation, I’m not sure. And what if a corporation were found guilty of causing loss of life (whether of a real person or of another corporation)? Could the death penalty (which the US still cherishes) reasonably be applied? I doubt that that would go down very well with the slave-own… um … shareholders.

  14. Dan T. said,

    August 14, 2011 @ 7:51 am

    Soylent Green is corporations!

  15. Alan Gunn said,

    August 14, 2011 @ 8:49 am

    "The speech/abortion analogy fails. Abortion is not expression."

    Nobody said it was. But we protect both freedom of expression and the freedom to have an abortion, and doing that means we also protect the right to spend money on those things. A right to do something usually, and maybe always, means that people have a right to spend money on doing that something. Otherwise, few if any rights would really be protected, as you could outlaw the protected conduct by making it illegal to spend money on it. Perhaps this is wrong in some particular cases. But, even if so, it seems worth noting that it is this argument, not the taking of some metaphor too seriously, that supports the striking down of laws against political advertising.

    As for corporations, nobody I've ever heard or read thinks corporations are people with all the constitutional rights that people have. A corporation is a network of contracts; for some purposes, like allowing corporations to be litigants, it makes sense to treat them as if they were people. For others, like voting, it doesn't. Corporations are allowed free speech not because they are people but because people can use them to publish their views. Nobody seems to question this when the corporation is the New York Times. Perhaps I am naive, but I learned as a child that one of the great things about the US was that the government could not ban publications (some publications about sex were then an exception, but no more). I'm glad this has turned out to be true, even when the issue is banning books and other publications about political matters. Why should the New York Times have more right to comment on political candidates than any other organization, whether it be other corporations or labor unions (foreign organizations may be a different matter, according to the Supreme Court)?

    Attributing an idiotic position like "these people believe corporations are human beings" to people who do not in fact take that position and then criticizing their conclusions because they supposedly hold that foolish view is a pretty low form of argument.

  16. Henning Makholm said,

    August 14, 2011 @ 9:54 am

    What bugs me most about Citizens United is the way everyone, whether they agree with the outcome or not, seems to assume that coporation speech equals big-money interests. I mean, if someone like Bill Gates or Rupert Murdoch has a message the he'd like to blast across all channels, all he needs to do is to buy some airtime as an individual. But ordinary people with ordinary economies have to band together and form some form of joint entity in order to do so. How does it make sense that constitutional limits suddenly apply in that case, while the filthy rich can spend all they want?

    It would make much better sense if the ruling was about for-profit business corporations, but American constitutional law appears to be unwilling to make any distinction between business corporations and ones with political aims. In Citizens United, the petitioner was openly and proudly a political association, not a commercial entity. It makes it rather difficult to like them that they were apparently formed with the sole purpose of conducting a character assassination, but in the greater scheme, it would seem to be in the best interests of Big Money to limit speech by cooperating individuals as much as possible, such that only those with large personal fortunes would have a voice.

    Could the problem be that English only has one word "corporation" to describe a legal actor that does not equal one single flesh-and-blood human being? In German, for example, I don't think there would be a problem treating a Verein different from a Gesellshaft.

  17. q said,

    August 14, 2011 @ 10:52 am

    James and Steve Kass, your analogies are inapplicable. Forget about analogies, and focus on the actual issue.

    If the government were to, say, propose a law that forbids anyone from spending more than $10 on any kind of speech, would you not consider that a considerable limitation on one's speech? How would a book author publish their material for less than $10? How would anyone be able to air their speech on radio or TV for less than $10? How would anyone be able to rent a venue for promoting one's ideas for less than $10?

    Corporations (and unions, let's not forget that) are not people, that much is certain. But they represent the interests of people and are simply a mechanism for people to pool their resources for a common objective.

    One can reasonably argue that it would be wise to limit how much money is spent on political speech over the airwaves, especially because I think most people can agree a lot of such speech is rather worthless. But there is no principled reason to only limit corporations or unions

    Also what does this have to do with linguistics.

  18. GeorgeW said,

    August 14, 2011 @ 11:05 am

    It seems to me that 'people' has a +human feature that 'person' does not. I cannot think of examples of 'people' referring to animals or inanimate objects.

    So, what was notable (in addition to the ideological basis for the statement), was Romney using a +human word for a corporation.

  19. Anand Manikutty said,

    August 14, 2011 @ 12:14 pm

    Corporations have rights as well as responsibilities, and the agency of corporations goes well beyond that of the people behind them. I would note that corporations function as 'agents' as well as 'actors' all the time. For instance, in the "Dukes versus Wal-Mart" case, "Wal-Mart Stores" is an actor recognized as such by the legal system. However, although corporations are ultimately composed of people, they are not merely 'agents', that is, they are not merely a representative of a set of people. There is a separate corpus of organizational resources and a separate set of interests (that of the corporation's stakeholders) that come into play that do not belong to people per se.

    This has been true since at least the fifteenth century with the legal recognition of boroughs in England.

  20. Anand Manikutty said,

    August 14, 2011 @ 12:17 pm

    This distinction started to emerge as early as the thirteenth century.

  21. Mark F. said,

    August 14, 2011 @ 12:37 pm

    Isn't a legal fiction different from a metaphor?

  22. Anand Manikutty said,

    August 14, 2011 @ 12:46 pm

    @ Mark F. – Mitt Romney's point might be that a bureaucracy is worse than both.

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