« Goldman Sachs Programmer Sergei Aleynikov's Saga to Acquittal - EEA and Secrecy Hysteria | Main | What can plaintiffs sue for after Obergefell? »

Monday, July 06, 2015

When Corporations are Good People

I’m currently in the early days of a larger project looking more closely at corporate personhood and liberal pluralism. One of the first steps is getting clear on what corporate personhood even means and what about it, and corporate influence in politics and society more generally, people find objectionable. So far, it strikes me that there’s genuine tension between the liberal backlash against Citizens United and Hobby Lobby and the seeming endorsement of the following:    

  1. At LGBT Pride parades across the country last week tons of workers marched behind company banners and corporate-sponsored floats. The NYT mentioned Exxon Mobil at the Houston parade but they’re by no means the only one. Apple (with something like 8000 employees marching in matching t-shirts), Google, Facebook, Coursera, Airbnb, Chipotle, Expedia, Uber, and Genentech  – tons of companies participated (you can see some photos here). Employees often take their employer’s participation as a source of pride – they want to march as representatives of their companies. The public seems pleased to see companies march and parade organizers take it seriously. Indeed, Facebook was only allowed to march in SF Pride by a 5-4 vote by organizers (protesters argued Facebook’s real name policy discriminated against those in the LGBT community who use pseudonyms for safety). But note that the protest was about the substance of Facebook’s policies and not about the participation of corporations more generally.
  2. In April 2014 pro-LGBT rights groups called for the resignation of Mozilla’s then-CEO after it came to light that he donated $1000 to Prop 8 back in 2008. OkCupid, another company, went so far as to block Firefox users from accessing its site, presenting those users instead with information about the Mozilla controversy and OkCupid’s commitment to gay equality. OkCupid told users it “would therefore prefer that [] users not use Mozilla software to access OkCupid.” [one story here]
  3. Calls for companies to be “good corporate citizens” and the entire corporate social responsibility movement more generally. [Forbes keeps a list of the top 100 best]  


Am I missing something? 

Posted by Heather Whitney on July 6, 2015 at 12:14 PM | Permalink


I don't think the post is very clear. At least the responses so far seem to be responding to something different from what you are asking.

What exactly is the "tension" you see between the matters you describe in items 1-3 and the backlash you see? And what does no. 2 have to do with it? Unless you can give a clearer explanation of what the problem is I doubt if you'll get the answers you are looking for.

Posted by: AYY | Jul 7, 2015 12:14:20 AM

I think the conversation would be helped by taking a big step backwards and looking at a very fundamental question: Do corporations themselves have rights, or are we really talking about the rights (natural) people have which they're exercising through a corporate organization?

Let's say the government wanted to censor Prawfs Blawg (OSHA is cracking down on navel gazing due to an epidemic of back injuries). Is the government infringing on the rights of Prawfs Blawg, Inc, rights which it possesses independent of the rights of any natural person? Or, is the government infringing on the rights of the individual prawfs, and Prawfs Blawg, Inc is just how the prawfs choose to organize and their medium for expression? We certainly talk as if it's the former, but I suspect that's just a matter of convenience.

Posted by: Derek Tokaz | Jul 6, 2015 8:50:20 PM

Mark, can you point out these cases where liberals think "corporate participation should be banned" as a "pretty simple" rule?

Opposition, as a matter of discretion, a Confederate flag banner in a white supremacist parade over a corporation doing so in a LGBT parade is not "banning" something. Boycotts of a corporation that sells "immoral" books is not about "banning" said books. etc.

The comments show that the OP is not "absolutely right" as well. Others point this out. There is not "genuine tension" except to the extent some simplistic opposition. I shake my head out the confusion.

Posted by: Joe | Jul 6, 2015 6:25:44 PM

Heather: You're absolutely right, particularly about ## 1 and 3. And to offer yet another example: When Chick-Fil-A was criticized for sponsoring anti-marriage-equality events and that whole thing exploded, no one questioned CFA "speaking" on this issue; the criticism was similarly focused only on substance.

Posted by: Howard Wasserman | Jul 6, 2015 4:31:26 PM

I think what you are missing is that there is not a tension. Liberals are in favor of corporate participation in public policy issues if that participation aligns with liberal values and they believe corporate participation that does not support liberal values should be banned. It's pretty simple.

Posted by: Mark | Jul 6, 2015 4:01:32 PM

I think you've set up a straw man by simply comparing the support for these measures to the "backlash" against CU and Hobby Lobby. There was no question in Citizens United about whether corporations could be associated with certain ideas or expressions. Even as a functional matter, it would be impossible to prevent corporations from appearing to support or deny certain ideas. But whether an entity can present a message supporting an idea was not the question in Citizens United, but rather whether corporate spending around elections was likely to foster corruption or an appearance of corruption (if, like the minority, you accepted that combating an appearance of corruption was an acceptable first amendment goal). Regardless of whether an individual or corporation was involved, the question of any such rule being constitutional depended on operating in the specific 1st Amendment context of spending involving elections. To try to extrapolate from that a broader conclusion about whether a company can or should sponsor parades or block access to competitors/other market participants seems meaningless.

Hobby Lobby is even further afield--it takes you out of the realm of speech entirely (which all of your examples relate to), and into the realm of controlling employees' market-based decisions.

To reverse-engineer the post, the point seems to be that because certain individuals are in favor of corporations financially or operationally supporting same-sex marriage and other social causes, they are "trapped" into drawing certain conclusions about the anti-corruption rationale for limiting expenditures under the first amendment, and whether religion is a necessary aspect of corporate personhood. Liking certain uses of corporate funds carries with it no obligation to support such a broad understanding of corporate personhood.

Ultimate, to say these positions (approving of 1-3 above and disapproving of CU/HL) are inconsistent, then, you would have to be saying that either 1) the constitution protects a right to corporate "personhood," with rights that are indistinguishable from natural personhood, or 2) once you extend some degree of person-like protections to corporations, you have to extend them some complement of fuller protections. The problem with the first is that corporate personhood is a product of state law. What portion of the constitution would prevent it from being withdrawn tomorrow? The problem with the second is that it's tough to see any constitutional principle that requires extension of such protections to corporations, and it's hard to see any stopping point other than by judicial fiat.

None of the examples 1-3 you gave implicate a corporation's political or religious "rights." They're just things corporations have done.

Posted by: Francis | Jul 6, 2015 3:45:25 PM

Yes, you are missing something. The Hobby Lobby ruling was basically that the shareholders of (for now, a closely held corporation) could have both the full benefits of corporate personhood *and* exemptions from certain laws which they didn't like, granted for personal reasons.

Posted by: Barry | Jul 6, 2015 1:56:17 PM

Simply put, some (not just liberals) simplistically say CU is a problem because "corporations aren't people," but that's misguided.

And, even if they were right, they would try to work the best they can in a flawed system to pressure corporations to act well.

But, unless the "backlash" is just summarized in a -- with respect -- simplistic way (and it's fine to say some critics are being simplistic -- marriage is also not just about "loving one another" either), I'm confused on the problem here.

Posted by: Joe | Jul 6, 2015 1:50:24 PM

I think there's a difference between a corporation 1) speaking and/or being a good actor and 2) having a religious belief. The corporate personhood argument against Hobby Lobby is that it's ridiculous to even think about a corporation having a religion at all, and to impute the owners' religious beliefs to the corporation ignores the significance of the corporation as a separate entity. The corporate personhood argument against Citizens United is that yes, corproations should have *some* speech rights but there's no reason to think that just because a corporation is a separate legal entity it must have the exact same speech rights as an individual person. It certainly doesn't have the same exposure to liabilities.

Thus, I do not believe the call for good corporate citizenship is at all in tension with opposition to either holding. Citizen United opponents (mostly) recognize that a corporation can indeed speak and act; but they oppose full rights to spend money influencing politics. It is precisely corporations' ability to influence through corporate actions and spending that gets opponents so riled up. Hobby Lobby opponents have nothing whatsoever to say about a corporation's ability to act. If they ask Hobby Lobby as an organization to pray for a good outcome, then perhaps there's an intellectual conflict.

Posted by: Andrew Selbst | Jul 6, 2015 1:49:32 PM

Citizen United is not primarily a concern because ... "corporate personhood" ... it is a concern because it provides too limited of a definition of corruption and does not provide a nuanced enough understanding of how regulating "corporations" (full stop) is different in the campaign finance area. The dissenting justices did not deny corporations have rights there in various ways etc.

The concern about Hobby Lobby is that there are third party harms to providing an exemption there for a for profit business corporation & in practice the rule will be selectively applied (e.g., the majority only cites racial discrimination; only Kennedy fully accepts distribution of contraceptives was a compelling interest, did not merely assume it).

It is noted that HL is a good corporate citizen. First, corporations are not "citizens" -- I know the term is being used loosely, but let's be clear about that. The corporation here is a legal person. Telling difference. In the 19th Century, corporations were so treated; they were not "citizens" for purposes of the Privileges and [or] Immunities Clause. Second, I'm not that familiar with the details there. I am familiar with the fact they wanted to deny employees a key benefit.

What's the test there? Can they deny jobs to gay people if otherwise they are great? Or, "only" this? Some other great corporate citizen might have religious opposition to something else. One free pass?

Posted by: Joe | Jul 6, 2015 1:44:31 PM

I don't think you are missing anything. And one thing most liberals seem to miss is that Hobby Lobby was and is an extremely good corporate citizen (e.g., treating employees, customers, and community very well)

Posted by: JayA | Jul 6, 2015 1:06:29 PM

Post a comment