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Freedom of Speech, Elections & Corporations

Congress shall make no law abridging the freedom of speech, or of the press.

Above is a quote from the first amendment of US constitution. Note that the sentence doesn’t mention whose freedom of speech is being protected. It is assumed that only a “legal person” is protected under this law. Now, who is the legal person? Interestingly the definition of legal person is open to evolve. The definition has changed over time. Once blacks were not part of the this definition and around late 19th century blacks were recognized as legal person. Something else also happen along with blacks getting their rights. The corporations also start claiming that they should be treated as legal person. This claim eventually reached to the supreme court and it accepted the doctrine of corporations as legal persons. Interestingly, US legislators haven’t expressed any opinion on this subject so far.

This led to all sorts of legal consequences. Now any rights given to humans are equally applicable to a corporation. Recently a case has come to US supreme court against a government law that restricts a corporation to directly investing in election campaigns. The rational behind this law is that the immense resources available to corporations will outbalance all the other political voices and may open a way of quid pro quo corruption.

US supreme court realized that it is “first amendment” case. They finally decided that Government can’t stop corporations to invest in election campaings because it is a legal person and protected by first amendment. You can listen to the legal argument in supreme court here. There is only one instant during the hearing when it was mildly raised that the definition of legal person can be modified to resolve the case. This point was raised by newly appointed Justice Sotomayor, while grilling the lawyer of corporations.

Justice Sotomayor: Going back to the question of stare decisis, the one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment. And so my question to you is, once we say they can’t, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics. But we can go back to the very basics that way, but wouldn’t we be doing some more harm than good by a broad ruling in a case that doesn’t involve more business corporations and actually doesn’t even involve the traditional nonprofit organization? It involves an advocacy corporation that has a very particular interest.

She doesn’t go far to suggest that it was actually an error. She might be simply giving a clue to government lawyer to chase this argument. But, the issue of legal person was never raised again. Now! Obama says that he will counter court decision using some legislative laws. Will he attack this definition of legal person? I guess not. There are too many people whose interest are embedded in this definition of legal person. Let’s see how lawyers going to shape the society in US.

It is very interesting to see how society is shaped by such choices of legal definitions.

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