A few weeks ago, I was on the toxic cesspool that Twitter has become, and got a reply to one of my Tweets: “You libertarians need to realize corporations=/=people if you want people to take you seriously.” And then the strangest thing happened: a substantive, polite conversation.
I replied that no libertarian I know would defend the position that corporations are people. My interlocutor replied, saying s/he thought that was a standard libertarian position.I said, no, although in fact libertarians would argue for two kinds of protections for corporations. The first would be freedom of contract, in the sense that corporations are legal “persons” capable of signing binding agreements, but also that property owned by the corporation was protected by the Fifth Amendment from takings without compensation. And that also means that corporations have the freedom to choose the terms of the contract, without outside regulation of those terms, as long as there is no force or fraud. So corporations are, in a limited sense, economic persons, and liability for losses of the corporation is limited to the assets of the corporation, protecting stockholders’ personal assets.
Freedom of Association
The second aspect of corporations is that they are associations. Not persons, with the First Amendment speech rights given to citizens, but associations of citizens. Corporations, then (and this was the holding in Citizens United) can participate in politics because to rule otherwise would be a restriction on the freedom of association guaranteed by the First Amendment. (The amendment actually says “peaceably to assemble,” but that has been interpreted to mean “association”). Same amendment as speech protection, but freedom of association is quite different.Thus, it is simply not true that “libertarians believe that corporations are persons,” even though that caricature is often presented as fact. It is true that freedom of association is one of our core principles, and we think it extends to freedom of contract.
But you don’t have to go that far; imagine that the state can say which associations have political participation rights and which don’t. What about political parties? Parties are associations of individual citizens, and the political rights of the citizens are expressed more effectively through associating into groups. That is why the First Amendment puts freedom of assembly on a par with the other freedoms (speech, religion, press, and petition).
An Actual Conversation
My conversational partner (“Twittee”?) went silent for about five minutes. Then s/he replied, “That’s interesting. And it makes a lot of sense. Thanks!”
And I thought, what just happened? Is this really Twitter? Perhaps it’s the dawn of a new era. Try it: try explaining that one of our core values is freedom of association. Try pointing out that this entails freedom of contract, and that property rights are just as important as political rights.
Then instead of defending that tired old claim that “money is speech” we can do better with “contracts are associations, and therefore protected by the First Amendment. And the Fifth Amendment protection for ‘due process,’ and the Fourteenth Amendment protection for ‘rights, privileges, and immunities.’” Maybe we can have an actual conversation.