Argument: Limiting the rights of corporate persons would harm a wide range of organisations and limit the freedom of natural persons.

Public speech and exchanges of ideas lie at the root of political and social decision making in liberal democracies. Without a guarantee that expression will remain free and protected from government interference, the other rights discussed in the first amendment to the United States constitution would become impossible to exercise. The discussion and pursuit of religious ideas would be obstructed. The ability to challenge the actions and decisions of an incumbent government would be put at risk too [1] . Even the reporting of verifiably true information about the affairs of the state and its citizens- freedom of the press- would become hazardous without the toleration for inaccuracies and the concept of public interest that principled freedom of speech gives rise to.

In order for a right to be meaningful, however, it must be possible to exercise that right effectively. A right to free movement would be meaningless if the government that guaranteed it was unable to keep its citizens safe within their communities. Similarly, free speech in liberal democracies cannot be exercised effectively without the ability to disseminate speech among a large audience, and without the ability to co-operate with others in order to do so. Isolated oratory and passing on news by word-of-mouth are not effective ways of handling information.

Corporate entities have emerged as the most effective method of pooling individual resources in order to take full advantage of the benefits and freedoms of free speech and dialogue [2] . As the columnist George Will observes, in the USA “newspapers, magazines, broadcasting entities, online journalism operations- and most religious institutions- are corporate entities.” [3] The proposition side advocates depriving these bodies of many of their rights, simply because they benefit from a legal fiction that- itself- is designed to make co-operation and resources sharing among like-minded individuals- natural persons- more effective.

The difficulties presented by corporate campaigning would allow the state to restrain the publication of almost any coherent, publicly distributed form of speech that was critical of politicians or their parties. The legal scholar Eugene Volokh has noted that Jim McGovern's People's Rights Amendment, which most closely resembles the proposition's mechanism, would give legislators fiat to restrict the content of newspapers by defining it as “corporate” speech that did not benefit from the same set of rights as the expressed opinions of natural persons. This is a wider application of the rule that brought Citizens United and the BCRA before the supreme court [4] . As set out in the introductory case study, the BCRA allowed the Federal Election Commission to claim that a movie (produced by a right-wing PAC) critical of democratic presidential hopeful Hilary Clinton represented a misuse of private funds that could potentially give an unfair advantage to Clinton's opponents.

Under the sections of the BCRA that were struck down in 2012, and under the new laws that proposition wish to create, it would be possible for legislative bodies and the judiciary to target any and all forms of political communication produced by corporate entities without having to consider the objectives of those communications. In plainer terms, the state's power to ban and censor free speech would not be limited to statements made to lobby an electorate or to campaign in favour of a particular politician or policy.

Citizens who wished to avoid being caught up in this law would be obliged to share resources via archaic legal structures such as partnerships and co-operative agreements. Assemblies of citizens could be exposed to a great deal of financial risk in such a situation. Each member of a partnership would be forced to bear the debts and legal liabilities of the entire partnership. In addition, agreements concluded by the partnership would require the consent of every partner. This is a minor inconvenience when a partnership consists of two or three people, but it would be an impossible demand to fulfil for an organisation such as the communications giant ComCast, which has a share volume of 10.5 million (as of May 2012).

[1] “Taking a Scythe to the Bill of Rights”. Will, G F. The Washington Post, 05 May 2012. http://www.washingtonpost.com/opinions/taking-a-scythe-to-the-bill-of-ri...

[2] “Infant and corporate rights”. The Economist, 07 May 2012. http://www.economist.com/blogs/democracyinamerica/2012/05/contested-pers...

[3] “Taking a Scythe to the Bill of Rights”. Will, G F. The Washington Post, 05 May 2012. http://www.washingtonpost.com/opinions/taking-a-scythe-to-the-bill-of-ri...

[4] “The ‘People’s Rights Amendment’ and the media”. Volokh, E. The Volokh Conspiracy, 26 April 2012. http://volokh.com/2012/04/26/the-peoples-rights-amendment-and-the-media/

Candidate 1: "The People’s Rights Amendment is a proposed amendment to the United States constitution that attempts to address corporations’ increased freedom to engage in political campaigning. Referring to the First Amendment, section 2 of the PRA states “The word people, person or citizen as used in this constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State the United States or any foreign state.” [1]

The US Supreme Court justified striking down the BCRA by stating that “if the first amendment has any force, it prohibits congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” [2] However, the BCRA was never intended to limit US citizens' right to engage in effective and public political speech. The First Amendment to the constitution was not overridden by the BCRA. Newspapers remain effectively exempt from the powers granted to the FEC by the BCRA for this very reason, and, paraphrasing Justice Stevens’ opinion in Citizens United, it remains possible for the Supreme Court to challenge any attempt to legislate against freedom of the press – but such action has not yet been taken [3] .

Although ordinary citizens rely on corporate structures and company law to make the process of gathering and publishing publicly relevant information easier, corporate structures are also used to fulfil goals that are not related to the interests of the general public. Information released “in the public interest” is intended to be engaged with in a critical fashion. Voters receive information- even if it is biased- on the understanding that it represents an earnest commentary on the strengths and weaknesses and candidates' policies. Voters receive information during elections on the understanding that it relates directly to their interests and their welfare – to how they should vote.

The communications targeted by the BCRA, and by the proposition mechanism are those that seek to serve the interests of profit-led businesses by distorting political debate. The large raw materials business Pacific Lumber engaged in an abuse of direct democracy proceedings in Humboldt county, California, when it attempted to use a ballot initiative to remove the county's district attorney from office [4] . The attorney had brought a public suit [5] against Pacific Lumber after incompetent tree felling practices had caused flooding in the area. In plainer language, the corporation tried to use Humboldt County's electoral system to extricate itself from a court case brought by a state official. Such a bold and blatant move should not have been available to Pacific Lumber in the first place.

Balloting against Humboldt County's incumbent sheriff was conducted in a manner intended to mislead the public. The purpose underlying Pacific Lumber's actions was kept concealed from the citizens approached by the business's poll operatives. This runs contrary to the ideological objectives of ordinary political campaigning. Even inflexible ideologues that choose to hit the campaign trail will be acting to try and convince their audience that the normative content of their message has value and relevance for society as a whole. A campaign co-ordinated by a profit-led corporation will be geared only to serve the interests of that corporation.

Electioneering communications sponsored by corporations damage free speech by failing to contain any normative reasoning or content. They do not represent an honestly expressed view of the direction that society should take, of the policies that should be deployed to address flaws in society.

Far from limiting ordinary citizens’ access to the free speech protections that are a feature of liberal democracies, the proposition side are simply attempting to address an aspect of the on-going debate over the how best to protect the quality and vibrancy of free speech. It has always been necessary to ensure that free expression does not become a licence to exploit the credulous, but it is also important for democratic states to allow heterodox and unpopular ideas to be discussed as freely as those that receive widespread social approval. In this instance, legislation that was intended to achieve this objective in the USA has been exploited by corporations to use free expression to forward their own- very narrow- interests, usually under the guise of protecting others' essential freedoms and economic interests.

In cases such as this, where the marketplace of ideas has undergone a market failure, where legislation is being applied to scenarios that fall outside of the range of problems it was originally created to address, it is appropriate to reconsider the limits and purpose of freedom of expression. New legislation- including any proposed replacement for the BCRA- must take a case-specific approach to free speech issues due to the wide range of organisations that choose to define themselves as corporations. As discussed in the proposition side's substantive argument, the law must accord speech rights to corporations based on their stated goals, priorities and the groups whose interests they serve.

[1] “Proposing an amendment to the Constitution of the United States to clarify the authority of Congress and the States to regulate corporations…” Joint resolution, United States House of Representatives. http://mcgovern.house.gov/uploads/Peoples%20Rights%20Amendment.pdf

[2] Citizens United v Federal Election Commission. Supreme Court of the United States, 21 January 2010. 558 US 50. http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

[3] Citizens United v Federal Election Commission. Supreme Court of the United States, 21 January 2010. 558 US 50. http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

[4] “Humboldt DA fights to keep job”. San Francisco Chronicle, 28 February 2004. http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/0...

[5] “Humboldt County D.A. sues logging firm, alleging fraudulent practices”. Los Angeles Times, 26 February 2003."
Candidate 2: "The value placed upon the right to free expression reflects its ability to enable the articulation of new, compelling and beneficial ideas, alongside damaging forms of speech. In liberal democratic societies, the potential inherent in free speech has always preserved it against limitation by legislation and- to a great extent- by social norms. A natural (as opposed to legal) person who makes statements that are openly offensive, or are inaccurate or misleading may also be able to articulate profound and useful ideas and observations. This is also true for certain groups formed by association – such as political parties.

However, corporations as they are popularly understood- as business entities- are constrained by law only to act in a certain way. In the United States, the individuals responsible for deciding on the actions of a corporation do so on the explicit understanding that they owe a particular duty to the individuals who make up that corporation. This legal duty takes the form of an obligation to run the business to maximise the value of the shares [1] in the business that each of its constituent investors holds. This duty has done a lot to promote investment in new businesses and to keep the reputation of established firms intact. It ensures that confidence in corporations is not undermined by speculation that they might be pursuing the wrong goals and it allows incompetent directors to be removed from their positions before they can harm investors' interests. However, this law also makes it necessary to limit the other rights that corporate persons might have access to.

The Unitarian commentator Tom Stites puts the situation bluntly. “Corporations express the collective investment goals of shareholders... Fiduciary responsibility confines all but closely held corporations to this singular goal. By shutting off other values to focus solely on pursuit of profit... corporations are by their nature immoral...” [2] In other words, the boards of directors of large corporations, in most circumstances will only be able to pursue a profit motive.

The type of personhood that money-making corporations utilise under American law is a personhood that comes complete with a very specific personality and set of goals. A corporate person that is formed by a collective of shareholders, each of whom have invested in the assets held by this individual, will be bound to engage profit motivated behaviour when it acts [3] . Executives and employees of the corporation, will find their jobs at risk if they choose to forgo profit-led behaviour in favour of directing a corporation to take actions informed by different social and economic principles.

An individual's right to free speech cannot not be abrogated in a broad fashion by a liberal government, in part because he is, to borrow an archaic phrase, “the captain of his own soul” – an individual with free will, able to be influenced by argument and to develop new ideas and perspectives upon the subject of his speech. A profit making corporation, however, is obliged to follow a single set of behavioural imperatives. If it is not attempting to maximise its profits, it will seek to protect the value of its interests and the efficiency of its operations. Where it is able to speak freely, a corporation will always use its right to expression for predictable ends. It is easy to envision scenarios in which corporate bodies will use the right to free speech to spread false or inaccurate information or to distort open debate if there was profit to be gained or protected.

Human behaviour is diverse and the ideas that we express can be altered by reason and the influence of argument. Through legal measures that were intended to protect shareholders investment in profit-making corporations, corporate behaviour has become limited, closed minded and immune to persuasive debate.

[1] Mills v Mills (1938) CLR 150

[2] “How corporations became ‘persons’”. uuworld.org, 01 May 2003. http://www.uuworld.org/ideas/articles/157829.shtml

[3] Bakan, J. “The Corporation”, Free Press, 2004"
Candidate 3: "Corporate influence distracts politicians from the needs of their constituents.

The content of public speech is informed as much by the ideas and convictions of individuals engaged in free expression as it is by the concurrent acts of expression engaged in by other individuals. Free speech is a product of society and the processes driving the development and growth of society.

The environment in which free speech is currently exercised is characterised by pervasive acts of expression – television commercials, billboards, spam email and advertisements on social media sites. Each of these forms of media is aimed at influencing opinions and behaviours. Active engagement with a book or a movie is often a prerequisite if an individual is to be influenced by its content.. The audience for the content contained in an advert does not necessarily choose to engage with its message.

As a result of this, adverts are uniquely placed to bring issues and perspectives to the attention of individuals who might otherwise have been unaware of them. Advertising is a powerful political tool. For this reason the manner in which political causes can be advertised and the amount of funding spent on those adverts is, almost without exception, strictly regulated in most liberal democracies. Commercial content carried by for-profit organisations such as newspapers and television channels is expensive. The prominence of a message is affected by the amount of money that can be spent on increasing its length, rebroadcasting it and showing it to new audiences. When it comes to political speech, spending money is the best way to increase the efficacy and persuasiveness of a message.

Irrespective of the qualities of a particular campaign, the qualifications of its candidates or the evidence underlying its policy proposals, its effectiveness will still be measured in the amount of money that it is able to spend on advertising. Legal restrictions on political spending are intended to prevent political speech from becoming a battle of budget rather than ideas – campaign finance laws are designed to protect the integrity, quality and efficacy of speech.

In the USA the Bi-partisan Campaign Reform Act achieved this goal by preventing corporations from funding “electioneering communications” within 30 days of a caucus or 60 days of a general election. “Electioneering communications” were defined by the acts as publications that named a federal candidate (a candidate for a presidential election, for example). The Act prevented interest groups indirectly affiliated with particular candidates from spending money to support a candidates’ message. Although there are limits on the income that a politician can directly receive from donors, different rules apply to organisations that are not directly affiliated with that politician. And although a politician may receive criticism for receiving corporate money, corporations can contribute to causes indirectly, by providing funds of issue groups."
Candidate 4: "Corporates that attempt to address social issues damage political discourse.

Corporate personhood is a challenging concept for liberal democracies. On the one hand, the legal fiction that underlies personhood enables groups of citizens to quickly and efficiently join forces to make collective grievances heard and to use weight of numbers to match the influence of wealthier individuals. However, corporations, particularly in the business context, can also be large and unaccountable organisations.

This proposition must address two issues. First, whether acts of free expression engaged in by corporations generally should benefit from the same protection as acts of expression engaged in by individuals. Second, whether there should be more scrutiny of the membership and objectives of corporations – or whether corporations should receive rights conditional on their activities.

If we follow the reasoning in the Citizens United case, which radically changed the interpretation of corporate speech rights in American law, it is clear that acts of corporate speech should benefit from a high standard of protection. Corporations can take the form of churches, trades unions or political campaigning groups [1] . The fiction of personhood allows these organisations to operate more freely, ignoring many of the bureaucratic burdens associated with partnership organisations. It also allows citizens to found non-profit making groups, such as PACs, without the risk of being made liable for the debts that those groups generate.

Profit-led corporations may be used to publish examples of free expression, without necessarily wishing to influence or misuse the ideas expressed. The publishers of political science textbooks, of annotated editions of Kapital and of Capitalism and Freedom are still profit-led businesses. In short, free speech in liberal democracies cannot be exercised effectively without the ability to disseminate speech among a large audience, and without the ability to co-operate with others in order to do so. For this reason, where a corporation is permitted to engage in free expression, the contents of its acts of expression should not be subject to restrictions that differ radically from those applied to individual acts of expression.

But what about the second issue? Natural persons are allowed- as a general rule- a broad right to free expression. This right is subject to certain caveats, but there is always a presumption that expression should be free and subject to as few limitations as possible. Should corporations benefit from the same presumption? No. The proposition side suggests that corporations’ access to constitutional free speech rights should depend on their goals, objectives and membership.

Corporations, unlike natural persons, are inflexible in their motives and influences. Free speech is preferable to conflict because it acts as a conduit for compromise, but before compromise can take place it must be possible for the participants and audience in a discussion or an exchange of views to be influenced by their opponents’ arguments. Profit-led corporations owe a very specific duty to their shareholders- the individual who support and constitute the corporation. Under the corporate-laws of almost all liberal democracies, business corporations must act in their interests, and this invariably means generating profit and increasing the value of the equity that each shareholder has in the business [2] . Because this duty is a legal one, and failure to uphold it can be cause to remove corporate decision makers (directors and executives) from their jobs and even to bring them to trial.

This behavioural imperative is absolute. Were a business corporation to announce that it would no longer operate with profit as its core priority, it would collapse [3] . Even if this process might not be inevitable in the real world, it still informs corporate culture to a significant degree. Natural persons are flexible and pragmatic; at the very least they have the potential to be so. Profit-led corporations are not. Free speech rights exercised by a profit-led corporation will always be exercised in the service of the profit motive.

[1] Citizens United v Federal Election Commission. Supreme Court of the United States, 21 January 2010. 558 US

[2] Bakan, J. “The Corporation”, Free Press, 2004

[3] “Kay needs to replace ‘shareholder value’ with ‘corporate value’.” Professor Simon Deakin. Financial times, 20 March 2012. http://blogs.ft.com/economistsforum/2012/03/kay-needs-to-replace-shareho..."

The People’s Rights Amendment is a proposed amendment to the United States constitution that attempts to address corporations’ increased freedom to engage in political campaigning. Referring to the First Amendment, section 2 of the PRA states “The word people, person or citizen as used in this constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State the United States or any foreign state.” [1]

The US Supreme Court justified striking down the BCRA by stating that “if the first amendment has any force, it prohibits congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” [2] However, the BCRA was never intended to limit US citizens' right to engage in effective and public political speech. The First Amendment to the constitution was not overridden by the BCRA. Newspapers remain effectively exempt from the powers granted to the FEC by the BCRA for this very reason, and, paraphrasing Justice Stevens’ opinion in Citizens United, it remains possible for the Supreme Court to challenge any attempt to legislate against freedom of the press – but such action has not yet been taken [3] .

Although ordinary citizens rely on corporate structures and company law to make the process of gathering and publishing publicly relevant information easier, corporate structures are also used to fulfil goals that are not related to the interests of the general public. Information released “in the public interest” is intended to be engaged with in a critical fashion. Voters receive information- even if it is biased- on the understanding that it represents an earnest commentary on the strengths and weaknesses and candidates' policies. Voters receive information during elections on the understanding that it relates directly to their interests and their welfare – to how they should vote.

The communications targeted by the BCRA, and by the proposition mechanism are those that seek to serve the interests of profit-led businesses by distorting political debate. The large raw materials business Pacific Lumber engaged in an abuse of direct democracy proceedings in Humboldt county, California, when it attempted to use a ballot initiative to remove the county's district attorney from office [4] . The attorney had brought a public suit [5] against Pacific Lumber after incompetent tree felling practices had caused flooding in the area. In plainer language, the corporation tried to use Humboldt County's electoral system to extricate itself from a court case brought by a state official. Such a bold and blatant move should not have been available to Pacific Lumber in the first place.

Balloting against Humboldt County's incumbent sheriff was conducted in a manner intended to mislead the public. The purpose underlying Pacific Lumber's actions was kept concealed from the citizens approached by the business's poll operatives. This runs contrary to the ideological objectives of ordinary political campaigning. Even inflexible ideologues that choose to hit the campaign trail will be acting to try and convince their audience that the normative content of their message has value and relevance for society as a whole. A campaign co-ordinated by a profit-led corporation will be geared only to serve the interests of that corporation.

Electioneering communications sponsored by corporations damage free speech by failing to contain any normative reasoning or content. They do not represent an honestly expressed view of the direction that society should take, of the policies that should be deployed to address flaws in society.

Far from limiting ordinary citizens’ access to the free speech protections that are a feature of liberal democracies, the proposition side are simply attempting to address an aspect of the on-going debate over the how best to protect the quality and vibrancy of free speech. It has always been necessary to ensure that free expression does not become a licence to exploit the credulous, but it is also important for democratic states to allow heterodox and unpopular ideas to be discussed as freely as those that receive widespread social approval. In this instance, legislation that was intended to achieve this objective in the USA has been exploited by corporations to use free expression to forward their own- very narrow- interests, usually under the guise of protecting others' essential freedoms and economic interests.

In cases such as this, where the marketplace of ideas has undergone a market failure, where legislation is being applied to scenarios that fall outside of the range of problems it was originally created to address, it is appropriate to reconsider the limits and purpose of freedom of expression. New legislation- including any proposed replacement for the BCRA- must take a case-specific approach to free speech issues due to the wide range of organisations that choose to define themselves as corporations. As discussed in the proposition side's substantive argument, the law must accord speech rights to corporations based on their stated goals, priorities and the groups whose interests they serve.

[1] “Proposing an amendment to the Constitution of the United States to clarify the authority of Congress and the States to regulate corporations…” Joint resolution, United States House of Representatives. http://mcgovern.house.gov/uploads/Peoples%20Rights%20Amendment.pdf

[2] Citizens United v Federal Election Commission. Supreme Court of the United States, 21 January 2010. 558 US 50. http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

[3] Citizens United v Federal Election Commission. Supreme Court of the United States, 21 January 2010. 558 US 50. http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

[4] “Humboldt DA fights to keep job”. San Francisco Chronicle, 28 February 2004. http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/0...

[5] “Humboldt County D.A. sues logging firm, alleging fraudulent practices”. Los Angeles Times, 26 February 2003.
