Brandishing the First Amendment: Commercial Expression in America

8. The Corporate Person

chapter 8 The Corporate Person Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked? —attributed to Baron Edward Thurlow, seventeenth-century lord chancellor of Britain1 The idea of the “corporate speaker” is, for many people, inextricable from the legal and intellectual construction of the corporate person. There may be other grounds on which to extend First Amendment protection to commercial speakers, but this is the one that seems to most thoroughly capture popular and legal imagination. If the arguments that commercial speech contributes greatly to listener autonomy interests seem, at best, exaggerated and, at worst, to obscure the very real ways in which commercial speech impairs personal autonomy by limiting choices (even as consumers are made to feel their choices are expanded), the question remains, is there an autonomy interest for the speaker when the speaker is a corporation? This raises an interesting question: can a legal ‹ction have cognizable autonomy interests? Who is ExxonMobil? Does Nike have a personality? Do these questions even make sense? As noted twentieth-century legal realist and author Felix Cohen put it, “What right have we to believe in corporations if we don’t believe in angels?”2 Yet, whether because of long judicial practice or just because of decades of advertising, we are accustomed to thinking this way, so that “What is the personality of McDonald’s?” is a meaningful question. We are accustomed to thinking this way. Image advertising encourages it. It makes it seem like there 141 can be such a thing as a “bad” corporation or, for that matter, a “good” corporation . Consistent with these tropes, some claim that the social artifact of corporate personhood, in combination with the legal ‹ction of corporate personhood , compels the conclusion that corporations should have First Amendment rights.3 This contention is profoundly mistaken. Corporations are not organic creatures with a moral consciousness (or any consciousness at all for that matter) and so, as an entity, cannot be said to have personalities . Nor do they react to incentives as people do. Perhaps most signi‹cantly for this discussion, corporate persons do not have the needs human beings do: “[T]o dignify a profoundly non-human entity by awarding it rights [is] to confuse basic categories—like trying to control the behavior of animals by handing them pamphlets, or trying to make a machine operate more reliably by promising it a ticket to the movies.”4 What’s in a Name? What does it mean for a corporation to be a person in the law? In the ‹rst place, legal personhood solves many prosaic, unglamorous problems. For example, can a corporation sue and be sued? Where is a corporation located for purposes of jurisdiction? Exploring these mundane questions reveals the almost metaphysical nature of the inquiry; it can lead to mistaking the legal ‹ction for the thing itself. Indeed, this was the thrust of Felix Cohen’s famous article “Transcendental Nonsense.” He argued that trying to answer questions such as “Where is a corporation?” by exploring the “nature” of the corporation resulted in absurd and futile jurisprudential inquiries and obscured that the correct response was to ask which answer would make the most sense as a matter of policy, given the task we want corporations to perform . He believed that facts and social and economic policy should inform how courts answered such questions, not treating metaphors as if they were real. But he lamented that lawyers were particularly prone to making this sort of error: “[L]awyers trained by long practice in believing what is impossible , will accept this reasoning as relevant, material, and competent.”5 As he put it, “When the vivid ‹ctions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then 142 / brandishing the first amendment the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged.”6 Despite Cohen’s trenchant criticisms, the “thingi‹cation” of corporations continued throughout the twentieth century. It included the enactment of numerous criminal laws creating criminal liability not just for those who run corporations but for the corporations themselves. Yet those criminal laws are notoriously dif‹cult to...