“In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”

~Justice Marshall Harlan (1833-1911)[i]

Those are the words of Justice Harlan, the lone dissenter of the Plessy v. Ferguson opinion. The Dred Scott decision he makes reference to, delivered in 1857, infamously denied African Americans of even the most fundamental right to citizenship in the United States, thus stripping them of any rights protected under the Constitution at the time.[ii] Justice Harlan’s ominous comparison between the Dred Scott decision and Plessy then speaks volumes to the repercussions he felt would ensue as a result of the Plessy decision. Indeed, Justice Harlan’s words would prove to be most insightful.   

With the ratification of the 13th Amendment, which abolished slavery in the United States; the subsequent passage of the Civil Rights Act of 1866, which afforded the same rights to African Americans as “enjoyed by white citizens”[iii]; followed by the 14th Amendment,  particularly the Due Process Clause, which stated that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property…”[iv]; and lastly, the 15th Amendment which granted former slaves the right to vote,  there finally seemed to be hope of some semblance of equality between the races insofar as it is seen through the eyes of the law. However, the freedoms granted to African Americans were to be short lived.

In 1896, in the case of Plessy v. Ferguson, the US Supreme Court set the precedent that “separate” facilities were constitutional as long as they were “equal.”[v] Justice Harlan, in his lone dissenting opinion commented that,

The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge.[vi]

Justice Harlan seemed to believe the strides forward in protecting the equal rights of African Americans that had been made through the 13th, 14th, and 15th Amendments had essentially been undone through the court’s decision to establish “separate but equal” as constitutional. Yet, what was perhaps more worrisome than this, was the precedent being set through the Plessy decision, as Harlan’s comment suggests, that through ample legal weaseling on the part of the state, the “inalienable rights” of American citizens could be supplanted. He later added, poignantly, “The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”[vii] Justice Harlan’s foresight is quite remarkable, as what ensued post Plessy, was some sixty years of institutionalized racism under the thinly guised banner of “separate but equal,” or Jim Crow laws as they were known more colloquially.

Beginning shortly after Plessy, southern states began curtailing the rights gained by African Americans, notably, their right to vote. Many southern states enacted literacy tests, poll taxes, elaborate registration systems, and eventually whites-only Democratic Party primaries to exclude black voters. For example, in Louisiana, where more than 130,000 black voters had been registered in 1896—the same year Plessy was decided—the number had plummeted to 1,342 by 1904.[viii]

All too aware of injustices such as these, the National Association for the Advancement of Colored People (NAACP), founded in 1909, began a multi-decade long legal campaign to end “separate but equal,” headed by Charles Hamilton Houston and later his protégé, Thurgood Marshall.[ix] In a series of legal victories, beginning with the 1936 case of Murray v. Maryland, which successfully desegregated the University of Maryland’s law school[x], Huston, Thurgood and the NAACP began systematically setting legal precedence to topple Jim Crow, drawing particular attention to the near complete inequality of “separate but equal” facilities for African Americans. 

Finally, in 1954, in the landmark US Supreme Court case of Brown v. Board of Education, the “separate but equal” doctrine was struck down and found to be unconstitutional, ending the de jure segregation of schools. The winning arguments were founded largely on evidence to suggest that the segregation of schools had an adverse effect on African American children, instilling in them something of an inferiority complex. Separate, then, was inherently unequal, as in the separation of the two races one race was overwhelmingly stigmatized. State-sanctioned segregation could now be seen as a violation of 14th Amendments rights guaranteed under the equal protection clause.[xi]  

It’s important to note that shortly before the hearing of this case Chief Justice Vinson passed away and Governor Earl Warren took his place. Chief Justice Warren was instrumental in uniting the opinion of factions within the justices. Though all but one opposed segregation, they couldn’t decide whether or not the court had the authority to end segregation. Largely in part due to Warren’s prowess as a leader, the court was able to come to a unanimous decision.[xii]

Although Brown ended the de jure segregation of schools, many schools particularly in the south refused to become integrated. Many southern states staunchly opposed the decision and vowed to have it overturned. The situation became such that the court issued a second statement a year later, in what is referred to as Brown II, urging schools to integrate “with all deliberate speed.” Unfortunately, it would still be years before many schools integrated, however the impacts of Brown are undeniably invaluable. If nothing else, NAACP lawyers working to secure the rights of underrepresented peoples and minorities now had Brown behind them, rather than Plessy in front of them.[xiii] 

Citizens United & Corporate Personhood: Precedent and Ruling

The First Amendment is arguably the cornerstone of the American Constitution. The freedom of speech, press, and religion and the insurance that government cannot enact laws to curtail these rights, represents a fundamental value held sacred and dear to the American way of life. Freedom of speech is essential to the democratic process, as it allows for the equity of ideas and insures that citizens can freely access the “marketplace of ideas.”[i] However, in a system where money becomes a form of speech, what then becomes of the democratic process when some have tremendously more wealth than others? Does this mean that the wealthier you are, the louder your voice becomes? If so, is this not anathema to the ideals and principles of democracy, which hold that the voice of every citizen is of equal value—whether they be among the highest echelons of the rich or  the most destitute of the poor? 

These are but some of the questions raised by the 2010 Supreme Court case of Citizens United v. Federal Elections Committee which decided that 1st Amendment rights of freedom of speech, particularly political speech, extend to corporations. This ruling effectively allows corporations and unions to inject the political system with unregulated billions in support or opposition of any federally elected candidate.[ii] Although corporations cannot directly fund candidates, they can influence and sway the opinion of the nation via various and sundry media outlets. What follows will explore how this decision was reached and address the following questions: Was this a case of judicial activism? What does this decision mean in the greater context of free speech, particularly that of political speech?

Freedom of speech is not an absolute right, in fact the Supreme Court has delineated numerous classifications of speech which are not protected under the 1st Amendment—slander, copyright, and certain forms of obscenity, to name a few.[iii] On the other end of the spectrum, however, political speech exists as one of the most protected forms of speech, and political speech becomes a central issue in the Citizens United case.            

Citizens United, a rightwing non-profit organization which has largely spread its message through documentary films, with titles including: Broken Promises: The UN at 60, HYPE: The Obama Effect, and Rediscovering God in America,[iv] was beginning to air commercials for its most recent film entitled, Hillary: The Movie in 2008, an election year. The film was extremely critical of then Senator Hillary Clinton who was, at the time, a possible Democratic presidential candidate. Citizens United feared that airing these advertisements would be prohibited due to restrictions established by the Bipartisan Campaign Reform Act (BCRA) of 2002.

BCRA was one of the more recent of nearly a century of federal enactments designed “to purge national politics of what [is] conceived to be the pernicious influence of ‘big money’ campaign contributions.”[v] Specifically of concern to Citizens United were provisions in the act which restricted corporate funded “electioneering communications” 30 days prior to a primary election.  With ads for Hillary running, Citizens United felt they may be liable for criminal and civil penalties.[vi]

Concerned about possible penalties for violating BCRA, Citizens United sought declaratory and injunctive relief and challenged the constitutionality of the act as it applied to their ads and Hillary in the District Court of the District of Colombia.[vii] The DC District Court ruled in favor of the FEC and Citizens United appealed to the Supreme Court.

In the Supreme Court, Citizens United argued their case claiming that Hillary was not an “electioneering communication” due to its method of distribution via on-demand. Because, it was argued, “…this delivery system has a lower risk of distorting the political process than do television ads…”[viii] Citizens United’s arguments stayed narrowly concerned with how BCRA applied to Hillary, yet, in a surprising turn of events, Justice Kennedy asked Citizens United to come back and reargue their case more broadly to include the issue of freedom of political speech. Justice Kennedy writes, 

Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider [BCRAs] facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by [BCRA’s] corporate expenditure ban.[ix]

In a way, this passage is a tilt of Justice Kennedy’s hand, as it already implies that the restrictions on corporate funded political ad campaigns, has a “chilling effect” on political speech. But do these restrictions actually chill political speech when each constituent member of a corporation retains their liberties and ability to donate to a chosen political cause, campaign, or candidate? This becomes a complex question when we take into account the freedom of association. When the case was heard again, it was argued that the 1st Amendment protects associations of individuals, and Corporations, as associations of individuals, therefore have speech rights under the First Amendment.[x] Thus, restricting a corporation’s ability to promote its political ideas via media is a chilling of political speech.

Additionally, it was argued that government could not make distinctions between media corporations—which are of course, perpetually engaged in political discourse—and non-media corporations. Making such distinctions would be beyond the government’s purview, but since BCRA specifically restricted corporate political speech, it was argued that it wasn’t a difficult leap to restricting political speech in books, newspapers, and the like, disseminated via corporate outlets. In a similar vein, Justice Scalia, ever the staunch Originalist, argued that the Free Press clause of the 1st Amendment was originally intended to protect the distribution of written materials and did not only apply to the media per se.  This seems to support the argument that the Constitution does not allow government to separate corporations into media and non-media categories.[xi]

If this was the direction the court was leaning, however, they would have to address some firmly established precedent. In the 1990 case of Austin v. Michigan Chamber of Commerce, in a 6-3 decision (among the dissenting were Kennedy and Scalia), the courts upheld the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections. Furthermore, they stated that this restriction did not violate the First or the Fourteenth Amendment.[xii] The reasoning behind the act as well as the subsequent ruling was largely to keep political and corporate corruption in check.

Even more recently, in 2003 the courts specifically addressed the constitutionality of BCRA in McConnell v. Federal Election Commission. This case put the constitutionality of BCRA to the test, wherein two portions of the act were focused on; Title I which regulates the use of soft money by political parties, officeholders, and candidates[xiii] and Title II, which “prohibits corporations and unions from using general treasury funds for communications that are intended to, or have the effect of, influencing federal election outcomes.”[xiv] The court upheld both Titles.

Given this precedent described above, the court ethic of judicial restraint and the sanctity of stare decisis, one would think the decision in Citizens United would be clear. However, stare decisis, was apparently out to lunch when the opinion for Citizens United was decided. In a 5-4 decision, the courts found the provisions of BCRA which prohibited corporations and not-for-profit organizations from broadcasting electioneering communications within 60 days of a general election or 30 days of a primary election to be unconstitutional under the 1st Amendment freedom of speech. Not only did this decision overrule Austin, it partially overruled McConnell as well. Addressing the issue of corruption as was central in the Austin case, the court decided that there was not reliable evidence of the risk of corruption or the appearance of corruption. This rationale did not satisfy strict scrutiny as would be applied to limitations on speech.

What is of most concern though, is that Citizens United extended constitutional rights afforded only to citizens “naturalized or born in the United States” to a corporation. This decision hardly seems in line with judicial restraint, which begs the question; was this a case of judicial activism? I am certainly of the opinion that it is and it would seem Justice Stevens would agree. In his dissent, Justice Stevens noted that it was a highly unusual move, and that the court had further ruled on a Constitutional issue that it didn’t need to consider in order to decide the case before it—this of course is the diametric opposite of the principle of judicial restraint.[xv]

This decision has largely been touted as a victory for free speech amongst the rightwing, as now it is thought, average citizens like you and I can pool our resources together, incorporate, and form a stronger political presence. The ruling in Citizens United also applies to non-profit organizations like the Sierra Club, which would seem to be a positive development in their ability to have influence in the political sphere. In fact, the ACLU filed amicus curiae brief with Citizens United—which is especially surprising given the title of one of Citizens United’s documentaries, ACLU: At War With America[xvi].

However, this line of thinking seems somewhat flawed to me. Granted, organizations like the Sierra Club or Amnesty International can now freely distribute political ads to the public in alignment with their ideals, but so can Exxon Mobil, Pfizer, Monsanto and Boeing—and let’s be honest here, the interests of these corporations are very different from those of the Sierra Club or Amnesty International and they are obscenely more wealthy. This becomes especially disconcerting with the Citizens United ruling, allowing unlimited spending to this end. This means the more money you have, the more political speech you have. So I have to wonder, what will Exxon have to say to the public about emissions caps or fossil fuel divestment? What will Pfizer have to say about healthcare reform? How will Monsanto feel about GMO labeling, or bans on certain pesticides? And what propositions will Boeing, a major arms producer, have for international affairs? Somehow, I doubt very much that it will be in the American public’s best interest.

This leads me to another question, how on earth was it even considered that corporations should have any constitutional rights? The answer to this question is that somewhere along the line, corporations became people. So when did that happen, and why?

The Suspect Origins of Corporate Personhood

Corporate personhood is actually an idea that has been around for a long time. In fact, it can be traced back to English common law, and the reasoning for it is understandable enough. Put bluntly, you can’t sue an inanimate object[xvii]. Thus, in order to take a corporation to court they must be considered people. However, this concept of “personhood” would be later expanded to include granting corporations constitutional rights. This interesting twist first makes its appearance in the 1886 case of Santa Clara County v. Southern Pacific Railroad. This was a seemingly innocuous tax suit in which numerous California counties sued the Southern Pacific Railroad Company for refusing to pay property taxes.

Southern Pacific argued that since the tax rates varied from state to state, being forced to pay these taxes would violate their Equal Protection rights under the 14th Amendment. Implicitly within this argument exists the question of whether or not a corporation has constitutional rights. The California State Supreme Court would have none of it, and sided with the counties. Southern Pacific then appealed all the way to the US Supreme Court.

The Supreme Court sided with Southern Pacific, yet it avoided meeting the constitutional question in the decision. This makes the following except from the headnote for the case particularly interesting:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.[xviii]

Though this statement may have reflected the sentiment of the judges preceding the arguments for the case, the court did not rule on this matter in this case. Yet, this case is known for establishing the precedent which acknowledges corporations as persons in the United States. It would seem then that we’ve been operating for more than a hundred years from a precedent set through an erroneous headnote.

Headnotes serve as brief summations of the court opinion, prominent arguments, and facts addressed in the case and are drafted by a court reporter, and then disseminated to the legal community through books called The United States Reports.[xix] Though I make no claims in this matter, it is interesting to note that in this case, the court reporter, Bancroft Davis, was the former president of the Newburgh and New York Railway.[xx]

After the Santa Clara County v. Southern Pacific Railroad case, corporate personhood remained a rather obscure concept until the 1970’s when corporate lawyers dusted it off. Since then numerous cases have been heard wherein corporate personhood has been used as a basis to reach for constitutional protections for corporations.

In 1986, Dow Chemical sued the federal government for its use of aerial photography conducted by the Environmental Protection Agency (EPA). Dow argued the photography was a violation of the corporation's Fourth Amendment rights—protections from unreasonable search and seizure. The Supreme Court disagreed, concluding that Dow couldn't possibly expect privacy in its chemical plant. [xxi] In similar cases, Nike argued it had 1st Amendment rights, J.C. Penny said it had 14th Amendment rights, Tobacco and asbestos companies asserted that they had Fifth Amendment rights to withhold the dangers of their products from the public. Alarmingly, with the exception of the Nike case, all of these attempts to obtain human rights for corporations were successful, and now we can add Citizens United to this list.