Google For President? If Corporations Are People...

from the free-speech-and-its-consequences dept

A bunch of folks have sent in the Citizens United Supreme Court decision and asking for my opinion on it. The ruling came out last week when I was traveling, and I didn't have that much time to look at the details or think about what it all meant until now. It's one of those cases where I see both sides of the argument, but am troubled by what comes out of a ruling in either direction. There is a real worry of a First Amendment problem if you restrict any kind of speech -- but I do worry about giving corporations even greater power in influencing elections. But my real issue with the ruling goes back deeper, with the generally accepted concept that a corporation is a person. That seems like an even bigger problem, because the fact is that we don't actually treat a corporation like a person at all. A corporation does not get a vote. A corporation cannot be put in jail (yes, its executives or employees might be able to, but not the same thing). And a corporation may not run for office. This point was brought to my attention by my friend Jeff, who sent over a link to a story arguing (in a very much tongue-in-cheek manner) that if a corporation has the same rights as a person, why can't Google run for President.

That said, while I would remove the idea that a corporation is ever "a person," that doesn't change the fact that I would be careful about limiting any type of speech -- including a politically motivated movie, which was at the heart of this case. Instead, I tend to think that the problem is one of information (not money) asymmetry. And while it may appear idealistic, this is the sort of thing that the internet is helping to combat, even if it takes time, and there are some losses early on. In copyright policy, it's true that the entertainment industry has still been able to push through laws in its favor over the past few years, but a lot more people are paying attention to the issue, and the changes that are getting through are of much lower impact than what they used to regularly get through. I don't think that the entertainment industry would be able to push through the kind of massive sweeping changes that it has successfully pushed through in the past. Instead, I tend to agree with Julian Sanchez, in discussing a recent conversation with Larry Lessig, that points to a more organic way to respond to corporate influence on politics:
Look at it this way: We don't get draconian copyright policies because the RIAA and MPAA actually have more money, all told, than those of us who'd benefit from a more balanced intellectual property regime.  They're richer, of course, but there's a lot more of us. The problem is that their resources are already pooled, and they're far more acutely aware of which side their bread is buttered on. That's the asymmetry we need to address. And as Clay Shirky has so cogently argued, we may finally have the means to do so, because for the first time in human history, we have in the Internet (and Web 2.0 especially) a mass medium that is simultaneously good at enabling interactive conversations (as the telephone does) and groups (as magazines or television did).  The costs of processing and disseminating information have fallen dramatically over the past decade, and now the same is happening to the costs of organizing people and coordinating action.

That's why I think Lessig's focus on public finance as a silver bullet is less likely to bear fruit than an array of solutions that exploit transformative technology--something he's so keenly analyzed in his writing on Free Culture. My colleague Jim Harper's Washington Watch project, or the efforts of the folks at the Sunlight Foundation, are one part of the solution: Backroom deals are typically held in the back room for a reason. Sites like ActBlue and Slatecard are another, because they make it easier for a national audience to punish bad actors in their local races.
This doesn't mean that corporate influence has been -- or ever will be -- neutralized. But it does suggest that it's becoming easier for the voices of those actually impacted to speak up and make themselves heard. It will take a lot of effort -- and certainly, corporations are often a lot more tied into the levers of power, but there is more of an opportunity for groups of people to use information tools to their advantage, and to counter efforts by anyone, whether its corporations or individuals, to push through harmful legislation. It may seem idealistic (and, it is), but the unintended consequences of barring speech seems like it could be much worse.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Fred McTaker (profile), Feb 2nd, 2010 @ 7:44pm

    Corporations shouldn't have free speech

    I fervently disagree with the implication that corporations should be given any form of free speech. By definition, corporations are limited liability and are immortal. Their bylaws and government definitions dictate that their members are less liable for their actions than any individual citizen, and they survive the loss of any part of their membership. Those same laws also dictate that they act solely in the best interest of their shareholders, and the only way that interest is defined is with money, via profit.

    Creating a legal entity like a corporation is like creating a immortal robot sociopath with turrets syndrome, and then granting it "personhood", with the exact same rights as self-controlled mortals. We have already seen the consequences of this in their advertising, which have nothing to do with facts or reality (i.e. allergy medication that will allow you to surf on wheat fields). Letting this robot monster loose in the political field will just further the damage they already started.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 7:52pm

    I don't really understand how any speech is being blocked by banning corporations from "speaking." The CEOs can still take their millions and use it to speak as freely as they want, and the middle management, the mailroom employees, the security guards, the janitors, and the temps can all take their own pay and do the same thing.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 7:58pm

    Too young

    Google is too young to run for president, or even for congress.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 8:07pm

    Re: Too young

    Heck, Google is too young to view many of the pages it indexes.

     

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    Capt Obvious, Feb 2nd, 2010 @ 8:18pm

    We the Corporations, in order to form a more perfect union ...

    Does a corporation have vocal chords ?
    No - and therefore by definition, they are not capable of speech. This whole thing is retarded.

    Can you imagine if congress attempted to pass the bill of rights today? OMG what a circus that would be.

    WTH is going on around here anyway.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 8:21pm

    The Big House

    If corporations are to be considered the equivalent of a person, then they can serve time for their crimes - every last employee.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 8:26pm

    Corporations should now be forced to serve jury duty.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 8:30pm

    "Instead, I tend to think that the problem is one of information (not money) asymmetry."

    "It will take a lot of effort"

    Effort = money, or rather, effort has value just like money. Money is just a means to transfer value and effort itself is valuable, just like money.

    So in a sense one must compare the value of the effort to resist corporate propaganda with the value of the money that corporations put into their propaganda.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 8:31pm

    Re:

    and this is why an end to end user verified cryptographic voting system is important. It allows everyone to put effort into ensuring their votes count and that effort has huge monetary value to counter the money that corporations would put into rigging the system.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 8:43pm

    When a corporation purchases another corporation, is that a form of slavery?

     

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    Overcast (profile), Feb 2nd, 2010 @ 8:58pm

    Corporations and banks already run things.

    "The real truth of the matter is, as you and I know, that a financial
    element in the large centers has owned the government of the U.S. since
    the days of Andrew Jackson."
    -- Franklin D. Roosevelt
    (1882-1945), 32nd US President
    November 21, 1933
    Source: in a letter written to Colonel E. Mandell House

     

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    Anonymous Coward, Feb 2nd, 2010 @ 8:59pm

    Re:

    When a corporation bribes/purchases politicians that's a form of slavery.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 9:05pm

    "This point was brought to my attention by my friend Jeff, who sent over a link to a story arguing (in a very much tongue-in-cheek manner) that if a corporation has the same rights as a person, why can't Google run for President."

    The reason is simple: Although a corporation is a "person" it is not a "citizen" and only citizens can vote, run for office, etc.

     

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    Andrew F (profile), Feb 2nd, 2010 @ 9:07pm

    Re: Corporations shouldn't have free speech

    Corporations don't speak. People do. Corporations merely provide legal protection for the people who speak on behalf of the corporation.

    The thing is, we generally don't hold individual people liable for political speech because of the 1st Amendment. So whether a CEO is speaking for himself or on for his corporation is a moot point legally.

    The concern, of course, is that corporations have large pools of money that they can use to "outspeak" individuals. Two responses:

    (1) There are people with large pools of money. If Rupert Murdoch hires a bunch of people to stand outside grocery stores handing out a DVD he made criticizing Obama, why should we treat that any differently than if Fox News had done it?

    (2) As Mike mentions, technology is empowering ordinary people to stand up to rich corporations. It's possible for Joe Schmoe to reach out to more voters with a homemade YouTube clip than a million dollar ad blitz on TV.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 9:13pm

    nintendo 2012

     

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    Anonymous Coward, Feb 2nd, 2010 @ 9:20pm

    Does a corporation have vocal chords ?
    No - and therefore by definition, they are not capable of speech.


    You have a very limited view of how people are able to communicate.

     

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    Anonymous Coward, Feb 2nd, 2010 @ 10:00pm

    Re:

    Mario/Luigi 2012

     

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    erikjan, Feb 2nd, 2010 @ 10:23pm

    surprise, surptise ...

    This discussion is ridiculous. The US are the only country in the world that thinks that a corporation is a person. All due to the very clever move of a court clerk more than a hundred years ago. Maybe it would make sense to look across the border and check other countries that do not allow corporations to poor huge amounts of money into the election coffers of their politicians. Like most of Western Europe. And what do you see then? That those politicians are (generally, there are always exceptions) are not bought, and that their campaigns are funded by public money, personal donations, and (legally) limited donations from businesses. Airtime on television and radio is set apart for campaign purposes, and also paid for from public money. It creates a level playing field. It gives all candidates a more or less equal change. It does not give the candidates the opportunity to buy the vote. Problem solved. And corporations, they have plenty access to politicians. They do not need to be persons for that. They are powerful enough as they are.

     

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    BentFranklin (profile), Feb 2nd, 2010 @ 11:58pm

    If given the ability, a corporation will never do anything other than exploit to the fullest any kind of feedback loop between acquisition of money and use of that money to bend rules to make it more money. Anything else would be suboptimal. And what people call capitalism nowadays is really just the competition between disparate entities to control more of that feedback loop.

    That's bad enough, and it's almost tolerable. But now factor in the exponential increase of technology. We have always had overlords but there was always the possibility that the worm would turn and we'd have new overlords, some of whom might be us if we are smart and lucky. But when technology increases exponentially a time comes sooner or later, probably sooner, when whoever is in control will be able to use that technology to remain in control indefinitely. If you assume that world leaders and other power centers know this, you could view recent history as a bunch of different powers each jostling, allying, backstabbing, and piggybacking each other to try to time it so that their ascension is at just the right moment. Peak too soon or too late and you lose forever.

    Does that help explain China's policies? Maybe they think it will be twenty or more years off, so they are husbanding their resources. Someone who was convinced it was coming sooner would be motivated to trash any value or institution to be in the right place at the right time. That could explain a lot about the behavior of the Republicans in the past ten years (except maybe they thought it was the Rapture instead of technological singularity).

    Meanwhile corporations are fencing off the mind like they once did the prairie -- with barbed wire. It's an Oklahoma land grab in your head. They've already carved up the prime real estate and cheap energy sources and they're taking a close look at everything else now.

    At least with physical property there is also physical responsibility. The monopoly society grants you to exclusive use of your auto comes with your obligation to insure it. If you mistreat your dog it will be taken from you. As much as many people like to deny it, physical property is not a God-given right. It might be a good idea, but it is granted by society only if its use does not harm society. It's not an entitlement, it's a contract. And if one person somehow legally obtained all the property in the world, how long do you think that would last? Physical property is tamed by all sorts of these conditions.

    With intellectual property, the owners don't hesitate to collect their rents but where is the intellectual responsibility? The money/rules feedback loop is legislating out these liabilities. IP owners want to achieve maximum benefits from its special nature of being reproducible, but they want to deny society the same benefits. If a program has a bug, too bad, you licensed it as is. If patent hoarders slow down progress or let historical records be lost forever, there is no consequence at all. If content providers parrot propaganda, do you get your war back? If you pay for an online article and it turns out to be wrong, do you even get your money back?

    So intellectual property is currently a gigantic rip off, because society is not getting its end of the deal from providing monopolies on the use of ideas. And if anyone starts to realize this and speaks up, their voice is drowned in wave after wave of spectacle and titillation spewing from television and, corporations would like, the internet. That often seems to me to be the main purpose of convergence. Because the most effective cage is the one that is invisible to the slave. Don't just remove degrees of freedom, remove the knowledge that they could even exist. What is the ratio of the readership of TechDirt to the viewership of American Idol? Tiny, but even that's too much for a feedback loop to leave lying around. Hence, the threats to network neutrality. You can have your free speech as long as you can only ever yell into a vacuum.

    What is the main threat to this insane situation? Democracy: one man one vote. It's the governor, maybe the only governor, to the money/rules feedback loop. It prevents the runaway accumulation of wealth, because to the extent the people are not happy, they revolt with their votes. So, every step away from democracy is a step toward a runaway feedback loop. And every step toward democracy is a step away from actual revolt.

    That's why this Citizens United issue concerns me greatly. It's a huge win for the money over the people.

    That's also why one of the most important issues today is election integrity. There is no place in our election machinery for proprietary hardware or software, and yet it's everywhere. It's like having secret government regulations that govern the counting of votes. It's anathema. Fight it wherever you can. Not just the voting programs but also, of course, the operating system (currently almost universally Windows CE). There should only ever be one program running on an electronic voting machine, so there's no reason at all to have an operating system, even if that means you have to write your own hardware drivers, which also should be open source, or at least disclosed source.

    Save the internet and save the elections, and we will at least have a chance. And support a constitutional amendment that will force the Supreme Court to back off:
    http://freespeechforpeople.org/.

     

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  20.  
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    bob, Feb 3rd, 2010 @ 2:13am

    Freedom

    I am against coerced union dues going to politicians.
    That is not stopped by this ruling.
    I don't like that super rich can give to politicians.
    That is not stopped by this ruling.
    Google can't run for president unless Sergey Brin gives up his shares in google.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 3:28am

    Duh?

    So you basically quoted an article saying corps don't get lobbiests because they have more money but because they spend it as a consolidated force. Which is basically the same thing. Who has more pooled money? Multinational corps or common people. Sounds like a no brainer and a post not up to your usual caliber.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 3:32am

    Re: Re: Corporations shouldn't have free speech

    #1. First, if Rupert Murdoch had done something highly illegal he himself can be punished. Now if he makes Fox News do it suddenly an imaginary entity is liable for which you can only fine.

    #2. Technology also empowers large corps to stand up to governments and to oppress and hide information, especially when you have large concentrations of reserve cash to throw at the problem.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 5:26am

    Re:

    "Although a corporation is a "person""

    Wrong

     

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    Capt Obvious, Feb 3rd, 2010 @ 5:29am

    Re: It's speech - not communicate

    In the First Amendment, the operative word would be "speech".
    Look it up.

     

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    duderino, Feb 3rd, 2010 @ 6:49am

    Re: Re: It's speech - not communicate

    @Capt Obvious

    You tried to use too basic of an example, but sadly it doesn't work especially since free speech and be implying what is written, painted, acted, hand signaled, etc.

    If I have my vocal chords removed, I still have the right to hold up a protest sign outside of the white house demanding our troops to be pulled out of the middle east. That is free speech.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 8:03am

    Re:

    Although a corporation is a "person" it is not a "citizen"

    A "person" born in the U.S. is automatically a "citizen". A corporation is born when it is created.

     

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    Saxon, Feb 3rd, 2010 @ 8:06am

    Google's not old enough to be president. It was born in the US, true, but it can't run for office for another 25 years or so.

     

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    Colonel Panik, Feb 3rd, 2010 @ 8:16am

    If Corporations Are People...

    Mike Masnick, Thanks a lot for pointing out that
    through the use of the internets everyone has a voice.

    Now they will come for our internets.

     

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    Joakim, Feb 3rd, 2010 @ 9:00am

    Loophole?

    Couldn't someone that is currently ineligible to be president, like Arnold Schwarzenegger (not voting for him, hes just an easy example) just buy a US corporate entity to become eligible?

    The process would have to be something like this ...
    Purchase an old US corporate entity that has been around for 35+ years (to satisfy the need to be US born and over 35 years old)
    Reduce staff to bare minimums (a corporation of himself).
    Then legally change the name of the corporation to be something more in line with expectations, like "Arnold Schwarzenegger US" (marketability).

    At this point, wouldn't he be within the law to have the corporation run for president?

     

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    Michael Sherrin (profile), Feb 3rd, 2010 @ 9:50am

    It's about money

    The problem with this ruling (and some previous rulings) is that money is considered the same as speech. So a corporation may not pay for ads, but there is no law preventing them from publicly endorsing candidates or making movies/shows/etc. to promote them. By banning/limiting donations, you are not limiting a person or corporation's ability to speak but only preventing them from spending money which is not a constitutional right.

     

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    TDR, Feb 3rd, 2010 @ 10:02am

    Corporations' right of personhood needs to be abolished, and their legal obligation should be to their customers, NOT their shareholders. If that were the case, they'd be falling all over themselves to make their customers as happy as possible to keep them from filing the near-inevitable lawsuits that would otherwise be filed against them.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 11:34am

    Re: Loophole?

    Couldn't someone that is currently ineligible to be president, like Arnold Schwarzenegger (not voting for him, hes just an easy example) just buy a US corporate entity to become eligible?

    That seems like it should be OK with the Supreme Court.

     

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    nasch (profile), Feb 3rd, 2010 @ 12:00pm

    Re: We the Corporations, in order to form a more perfect union ...

    So people unable to speak due to some accident or medical condition no longer have any free speech rights?

     

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    Fentex, Feb 3rd, 2010 @ 12:51pm

    That corporations ever get treated as people is an obvious error, but denying free speech to every corporate body is also a problem.

    Not every corporate body is a profit making venture - some are advocacy groups that essentially exist for the purpose of speaking on an issue.

    How do you forbid one corporate body from publishing propaganda in it's own interests without preventing an advocacy group (such as Greenpeace, the Sierra Club, PETA, Unicef, Docotrs Sans Frontiers, the Red Cross etc, pick one you agree with or just recognise as doing good work) from speaking for a public interest as well?

     

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    Pontifex (profile), Feb 3rd, 2010 @ 1:07pm

    Re: The Big House

    That would not be fair at all. Everyone in management, possibly, but not every employee.

     

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    Chuck Norris' Enemy (deceased) (profile), Feb 3rd, 2010 @ 1:24pm

    Media Corporations lose their monopoly

    Well, now the media is mad that they lost their monopoly on corporate sponsored campaign advertising. Media corporations, controlling news, could continue to "influence" elections up to poll closing all because they are "journalists" with objectivity (spit). Otherwise, every corporation should start their own news org which could be exempt from the previous restrictions by McCain-Feingold.
    Check John Stossel's blog

     

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    KD, Feb 3rd, 2010 @ 6:53pm

    Re: Re: Re: Corporations shouldn't have free speech

    Another important factor in this: Large corporations are doing their level best to emasculate the internet.

    I think the idealistic position that common people will be able to use the internet to organize themselves and successfully oppose the large corporate interests is something that is far from certain.

    I don't have a solution, but I think we have to fight the large corporations at every step rather than letting them take some ground here and there while we rely on using the internet to organize to keep them in check. Taking that tool away from us is one of the many things on their agenda.

     

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    KD, Feb 3rd, 2010 @ 7:13pm

    Re: surprise, surptise ...

    If there is any difference in how much the corporations control the governments in western Europe (and I do NOT concede that point at all), a large part of the reason would have to be that they have at least partially-functional multi-party systems, not the two-party-no-one-else-need-apply system we have in the U.S.

    But the corporations have extremely strong influence there, too, despite whatever differences there are in laws attempting to limit their influence. So I think you are wrong that Europe has found the solution, or is even close to it.

     

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    Fred McTaker (profile), Feb 3rd, 2010 @ 8:37pm

    Re:

    Nintendo is not a natural born citizen, so it couldn't run for President even if it defected from its home in Japan.

     

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    Fred McTaker (profile), Feb 3rd, 2010 @ 8:41pm

    Re: Re: It's speech - not communicate

    "In the First Amendment, the operative word would be "speech".
    Look it up."

    If you looked it up yourself, you would see another form of speech mentioned there -- "the press", which was the short-hand for the only existing long-distance/multicast medium of the time. The modern equivalent of "the press" is anything you can do on the Internet.

     

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    Fred McTaker (profile), Feb 3rd, 2010 @ 8:44pm

    Re: Re: surprise, surptise ...

    I would argue the two-party system in America is a byproduct of the corrupt campaign system, which ends up requiring that all the campaign money gets concentrated into the least possible number of parties, to remain economically efficient for the contributors. Really there's only one party left: the corporatists. Democratic and Republican ideals are convenient fictions.

     

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    Fred McTaker (profile), Feb 3rd, 2010 @ 8:49pm

    Re: Re: Corporations shouldn't have free speech

    "Corporations don't speak. People do."

    You obviously haven't read enough PR releases. Real people don't speak that way -- only corporate groupthink can create such rubbish.

     

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    Anonymous Coward, Feb 4th, 2010 @ 6:18am

    Re: Re: Re: It's speech - not communicate

    Hmmm, I did not see anything there in reference to a non person (corporation). Perhaps you could enlighten us ?

     

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    chris (profile), Feb 4th, 2010 @ 8:01am

    Re: The Big House

    If corporations are to be considered the equivalent of a person, then they can serve time for their crimes - every last employee.

    i think that would be funny. if you send a corporation to prison, that corporation then gets physically relocated to a prison. everyone continues to do their jobs, but they are in jail and are not free to leave. it would be extra funny if you could quit the company and then be free to leave.

     

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    chris (profile), Feb 4th, 2010 @ 8:03am

    Re:

    hen a corporation purchases another corporation, is that a form of slavery?

    how about this: if corporations merge, is that a form of reverse mitosis? i mean, that's biologically impossible!

     

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    chris (profile), Feb 4th, 2010 @ 8:17am

    why not fight corporations with corporations?

    if there is is an imbalance of power because a corporation has limited liability, cannot be imprisoned, and has already pooled resources, then what's to stop citizens from joining together to form their own corporations to level the playing field?

    imagine a series of shell corporations, holding companies, and charitable organizations to collect contributions and fund media campaigns just like corporations do? isn't that is PAC's and 527 organizations are for?

     

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    Dohn Joe, May 27th, 2010 @ 1:51am

    Jail...not possible...a criminal record on the other hand...

    .
    .
    .
    A corporation cannot be put in jail
    .
    .
    .

    ==============

    Actually a better question is why corporations have not ever been given a criminal record and all the implications that come with it. If they really are a "person"...

     

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    identicon
    محمد علی, Oct 8th, 2013 @ 10:38am

    ایا تابحال فکر کردین که یک خر با یک انسان دوست شود

     

    reply to this | link to this | view in thread ]


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