Someone in a comment suggested that we non-libertarians are ignorant and we should educate ourselves by reading the Volokh Conspiracy, a well-known blog you’ve probably heard of. So I went over there to see what the brilliant Volokh Crew had to say about the recent Citizens United case regarding the free speech rights of corporations.

So here it is, and IMO the whole thing is a tortured exercise in stacking one straw man argument on top of another, beginning with the title, “Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities’?”

One especially remarkable part of the argument (See subhead 3, Nearly Everyone and Everything is Probably a “State-Created Entity.”) says,

Even individual citizens might be considered “state-created” entities under this logic. After all, the status of “citizen” is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. — the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, “citizens” are no less “state-created” entities than corporations are.

First, in theory, the government IS the people, and the House at least is supposed to BE the people, the citizens, sitting in representation, and when Congress votes to set up a program like Social Security, this is really the people through their government making something to improve the quality of their lives, not government “giving” them something. And in my mind setting up a government program to benefit people is not the same thing as conferring a “right.”

Anyway, as I understand it the argument boils down to this: if the status of citizen were taken away a person would still exist, and if the status of corporation were taken away a business would still exist. Therefore, a corporation is just like a citizen.

To which one commenter asked, “does my marriage have the right to free speech beyond the individual rights my wife and I possess?” Another asked, “Do you believe that corporations have a right to vote in state and federal elections?” (Which echoed something Justice Stevens said in his Citizens United dissent: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”)

A corporation by definition is an entity separate and distinct from its members. The corporation as a corporation can do things like enter into contracts and pay taxes, and these obligations are separate from the personal obligations of the members. So when you are talking about a corporation doing something, you are not talking about its members acting through a corporation. You are saying the corporation itself is doing it.

As I understand it, the essential legal question underlying Citizens United is whether a corporation itself enjoy the status of “person” under the 14th Amendment? The question is not whether the individual members of a corporation may be deprived of free speech rights because they are acting through a corporation.

The crew at Volokh and Reason seem both to be ignoring this, and instead are saying that individuals are being deprived of their free speech rights because their use of a corporation for purposes of free speech is restricted. But that is not really the legal issue at the heart of the case. And, anyway, government makes all sorts of restrictions on means of communication, from licensing of broadcast bands to public nuisance laws that don’t let me blast my political opinions from a super-duper megaphone to my entire neighborhood 24/7. Not that I want to do that.

Another argument they are making is that if corporations can be “censored” in political campaigns, wouldn’t that overturn free speech cases involving media corporations, such as New York Times v. Sullivan? But the Sullivan case was not about government-imposed restrictions on the newspaper’s speech, but about the newspapers’ liability in a civil suit. And since the First Amendment specifically protects freedom of the press, seems to me the press itself enjoys a particular protection no matter who owns it. But again, that’s not the real issue.

The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government. But because a corporation somehow has gained the status of “person,” the corporation itself can claim 14th Amendment protection of its rights. Again, this has nothing whatsoever to do with who owns the corporation or the rights of the members.