October 01, 2012
Horse 1368 - The Rights Of A Company
During the discussion on a forum I frequent to do with the US Presidential Election in November, the issue of undue influence that so called Super PACs have over advertising during the election was brought up and it got me thinking about the rights that a corporation might have.
To start this discussion it is important to note that a company at law is a separate legal person. As a separate legal person, I personally don't see why it should not have the same rights as a person made from flesh and blood. Obviously it probably is ridiculous for a company to get married, divorce and vote (all sorts of abuse might ensue) but as for the more universal rights of things like free speech, then why not, if that free speech is being used to exercise the corporate wishes of the company and ergo its shareholders.
If you take a look at a document like The Universal Declaration of Human Rights it states in Article 2 that:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
- Article 2, UDHR
I take note of two key phrases here; namely "without distinction of any kind" and "or other status". If something is to be made without distinction and irrespective of status, then surely that also means that the person in question doesn't even need to be a corporeal entity. Basically a "person" is an entity who has certain rights, privileges, responsibilities, and legal liability at law.
If you read through the rest of the rights in The Universal Declaration of Human Rights it mentions things such as "the right to recognition everywhere as a person before the law" (Article 6), "the right to own property alone as well as in association with others" (Article 17), "the right to freedom of opinion and expression" (Article 19); all of which it makes perfect sense for a company to possess.
Some rights are simply ludicrous for a company to have on the basis of irrelevance. What use is "the right to rest and leisure" (Article 24) or "the right to marry and to found a family" (Article 16) to a company, for instance?
If you were to look at the Bill of Rights in the US Constitution, again it makes perfect sense for a company to be in possession of the rights therein:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
- Article 1, US Constitution
The right to free speech is as important for a company as it is for a normal person for the same reason. Some companies such as lobby groups are set up for such purposes and the entire of the advertising industry hinges around this. The question of lobby groups is interesting, from a completely objective point of view, it makes complete sense for people to form collectives to speak to law makers. Indeed if you get enough of a collective voice all asking for something and it happens to go before the house and is voted for, then isn't that they very point of democracy? By the people, for the people? Isn't a referendum in principle exactly the same? The difference between a referendum in that respect is purely a matter of scale.
If enough of a collective voice was formed together by the instrument of a partnership, association or company, it might even make the leap and be registered as a political party. If the rights that a corporation did not include the right to free speech then, Labor Holdings Pty Ltd in Australia, the Conservative and Unionist Party plc and the Republican National Committee Co. would be voided from that right (as would their opposite parties); ergo politicians who act as both agents for their constituencies and their parties would likely be voided from speaking in their capacity as party members.
Other parts of the US Constitution also make perfect sense when applied to a company:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
- Article 4, US Constitution
We expect that when the police or other law enforcement agents arrive on the premises of an individual, that they should have a warrant to enter. Likewise, exactly the same principle should apply to companies. It wouldn't make practical sense for a document to be "safe" whilst on the premises of an individual but not whilst in the offices of a company. In some cases where very sensitive information is held on company premises such as a law firm, if any government body had the power to seize or check effects without a warrant, then real people's lives might be affected.
The question then isn't so much about what rights that a corporation might or should have but rather the degree of influence that monied parties have in swaying the decisions of lawmakers and other people in government. It's probably been true since the very beginning of governments in the very first cities that money is an analogue of power and that it shouts very very loudly indeed. Corruption is the undue influence to derive private gain and in the realm of government, that includes such subtleties as grift, nepotism and even patronage. That however is a different question to whether or not a corporation has the same rights as a person though.
Posted by Rollo at 10:10