THE CONSTITUTIONAL RIGHTS OF CORPORATIONS: FRAMING CORPORATE PERSONHOOD AND CATEGORIZING RIGHTS

Elizabeth Pollman*

INTRODUCTION The U.S. Constitution does not specifically mention corporations. As a matter of constitutional text, no explanation is provided regarding who constitutes a person or the people and in what capacity.1 The Supreme Court has long recognized that corporations can be the subject of constitutional protection, or holders of constitutional rights, however, and this longstanding notion has become known as the doctrine of corporate personhood. The doctrine does not itself establish which rights corporations hold, or how to determine which rights they should hold.2 It recognizes corporations as legal entities that can have a particular constitutional right or protectionsuch as a due process right protecting the corporation from a government taking of corporate property without compensation. And although the Supreme Court has recognized that corporations can hold rights, it has never broadly ruled that corporations are entitled to all of the constitutional rights and protections that individuals enjoy, coextensive with individual rights and protections. From the starting point of recognizing the corporation as a potential rights holder, the Court has considered issues pertaining to whether and how to apply specific constitutional rights and protections to corporations. Over time, and on an ad hoc basis, the Court has recognized corporations as having a panoply of rights which one might think of in terms of three categories: (1) rights associated with contract and property interests; (2) rights associated with searches and trials; and (3) rights associated with speech. This paper, prepared for the 28th Amendment conference at UCLA, first contextualizes the doctrine of corporate personhood amongst other corporate personality issues. It then discusses corporate constitutional rights in terms of the above-noted categories as they may provide a useful framework for understanding current law and for thinking about change in this area of law.

* Associate Professor of Law, Loyola Law School, Los Angeles; elizabeth.pollman@lls.edu. 1 ASHUTOSH BHAGWAT, THE MYTH OF RIGHTS: THE PURPOSES AND LIMITS OF CONSTITUTIONAL RIGHTS 1015 (2010) (noting the absence of textual reference or explanation of the treatment of corporations in the Constitution and arguing that the Bill of Rights and Fourteenth Amendment are best understood as limits on governmental power rather than assurances of individual autonomy). 2 Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 UTAH L. REV. 1629.

I.

CONTEXTUALIZING THE CONSTITUTIONAL RIGHTS OTHER ISSUES OF CORPORATE PERSONALITY

OF

CORPORATIONS AMONGST

Corporate personality comprises a few conceptually distinct notions or issues. There is the issue of the entity status of corporations under the law, or what might be called legal personality. This concept is core to what corporations arethe fiction of a legal entityand what they are able to do. In addition, there are statutory issues of whether corporations are intended to be included when a statute refers to persons, people, or the like. Further, there is the issue of the treatment of corporations under the U.S. Constitution. While these concepts are connected and some have argued for a sort of equivalency between themif corporations are persons for one purpose under the law, they should be persons for another3it is often helpful in understanding and analyzing issues of corporate personality to keep these notions distinct at least at the outset. This section briefly describes these aspects or issues of corporate personality before focusing on one in particularthe treatment of corporations under the U.S. Constitution. Entity Status The entity status of corporations under the lawlegal personalitywas established long before the question arose as to how to treat corporations under the U.S. Constitution. By at least as early as the eighteenth century, English law had established corporations as having certain abilities to act as an entity under the law.4 Blackstone noted that when members are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals . . . for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies . . .5
3

This is often framed in terms of corporations bearing both rights and responsibilities. For instance, in discussing Kiobel v. Royal Dutch Petroleum, one scholar recently argued that a robust understanding of corporate personhood, so evident in Supreme Court decisions such as Citizens United, applies with equal force to [Alien Tort Statute] claims against corporations. That is, the same corporations that are persons entitled to constitutional protection, are also persons for providing remedies when their agents violate international law. Beth Stephens, Response: A Federal Forum and Citizens United, SCOTUSBLOG (July 19, 2012, 1:08 PM), http://www.scotusblog.com/2012/07/response-a-federal-forum-and-citizens-united/. See also Brief for International Human Rights Organizations and International Law Experts as Amici Curiae Supporting Petitioners, Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert. granted, 132 S. Ct. 472 (mem.) (2011) (No. 10-1491), 2011 WL 6780140, at *14 n.18 (arguing that legal responsibility is a necessary corollary to granting rights to corporations). 4 The concept of an institution that could live beyond an individuals lifetime dates back at least to the thirteenth century, when some religious organizations and military units were formed as corporations, and the joint-stock corporation dates to the fourteenth century. David F. Linowes, The Corporation as Citizen, in THE UNITED STATES CONSTITUTION: ROOTS, RIGHTS AND RESPONSIBILITIES 345 (A. E. Dick Howard ed., 1992). In 1612, Lord Coke noted a corporation was invisible, immortal, and rest[ed] only in intendment and consideration of the law. Case of Suttons Hosp., 77 Eng. Rep. 960, 973 (1612). 5 1 WILLIAM BLACKSTONE, COMMENTARIES 468 (7th ed. 1775).

In concrete terms, the characteristics or abilities that flowed from legal personality included the ability to contract, to own property, and to sue and be sued in the corporate name.6 It also included a conception of the corporation as potentially having a perpetual existence, or at least an existence that was not tied to the lifespan of its participants, in contrast to the partnership form of business.7 Limited liability for corporate shareholders developed over time.8 These entity characteristics or abilities of the corporation were crucial to establishing the usefulness of the corporate form for raising capital from a broad group of investors and building lasting institutions.9 The separate legal existence of the corporation allowed corporate participants to lock in capital, partitioning corporate assets from those of its participants, and helping the corporation to draw in other valuable resources for long-term success.10 The entity features of the corporate form have allowed it to have a profound impact on American industrialization and prosperity.11 Statutory Issues Statutory laws, both state and federal, have often included corporations in definitions sections, either expressly referring to corporations in the relevant statutory text or defining the term person to include corporations, to make clear that the statute applies to corporations.12 Statutes that do not expressly include corporations or define person to include corporations may give rise to ambiguity that must eventually be interpreted by courts. These statutory issues
6

The corporate ability to own property and to sue and be sued were considered incident to the corporate form at common law. See, e.g., Van Allen v. Assessors, 70 U.S. (3 Wall.) 573, 584 (1865) (referencing as established law: [t]he corporation is the legal owner of all of the propertyandcan deal with the corporate property as absolutely as a private individual can deal with his own); STEWART KYD, TREATISE ON THE LAW OF CORPORATIONS (1793) (describing a corporation as vested by the policy of the law, with a capacity of acting, in several respects, as an individual, particularly of taking and granting property, contracting obligations, and of suing and being sued.); 9 WILLIAM MEADE FLETCHER ET AL., FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS 4226 (perm. ed., rev. vol. 1999) (The power to sue and be sued is one of the inherent powers of a corporation and is among the incidental or implied powers that have been attributed to corporations from the earliest period.). 7 Margaret M. Blair, Locking In Capital: What Corporate Law Achieved for Business Organizers in the Nineteenth Century, 51 UCLA L. REV. 387, 407-10 (2003); Naomi R. Lamoreaux, Partnerships, Corporations, and the Limits on Contractual Freedom, in U.S. HISTORY: AN ESSAY IN ECONOMICS, LAW, AND CULTURE 35 (Kenneth Lipartito & David B. Sicilia eds., 2004). 8 See Lamoreaux, supra note 7, at 32; ROBERT C. CLARK, CORPORATE LAW 7 (1986); PHILLIP I. BLUMBERG, THE MULTINATIONAL CHALLENGE TO CORPORATION LAW: THE SEARCH FOR A NEW CORPORATE PERSONALITY 3-20 (1993). 9 Blair, supra note 7. 10 Id. at 390-394; see also Henry Hansmann & Reinier Kraakman, The Essential Role of Organizational Law, 110 YALE L.J. 387, 393-95 (2000). 11 See, e.g., Linowes, supra note 4, at 351 (discussing the corporation as the vehicle of the Industrial Revolution and its continued role in promoting the economic well-being for people, which is foundational in a constitutional democracy). 12 See, e.g., Dictionary Act, 1 U.S.C. 1 ([T]he words person and whoever include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.).

may concern matters of great significance regarding the powers and accountability of corporations. For example, last year in FCC v. AT&T, the Supreme Court held that corporations do not have a right of personal privacy for purposes of the Freedom of Information Acts exemption 7(C), which protects from disclosure certain law enforcement records.13 Currently before the Supreme Court in Kiobel v. Royal Dutch Petroleum is, inter alia, the question of whether the Alien Tort Statute, passed by Congress in 1789, applies to corporations or only to human beings directly.14 The Court may thus address whether corporations can be sued in U.S. courts under the Alien Tort Statute for human rights violations that occur entirely in another country. The case thus presents a statutory question of importance to issues of corporate social responsibility as well as international law and U.S. foreign policy. Constitutional Treatment Finally, there is the question of how to treat corporations under the U.S. Constitution. A small number of corporations existed and played a role in the American colonial period.15 The U.S. Constitution, however, includes no specific reference to corporations.16 It was thus left to courts to decide whether corporations can be the subject of constitutional protections, or holders of rights, and whether those rights would be coextensive with the scope of individual rights. The Supreme Court has not addressed these issues in a holistic wayrather, the Court has made incremental decisions, on a case-by-case basis and without a unified theory of the corporation.17 This has led to inconsistencies in the Courts reasoning.18 Further, the Court has not often drawn nuanced distinctions between different types of corporationssuch as nonprofits, closely held corporations, and large public corporationsor their organizational dynamics or purposes.
13 14

FCC v. AT&T, 562 U.S. _, 131 S. Ct. 1177 (2011). Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert. granted, 132 S. Ct. 472 (mem.) (2011) (case argued Feb. 2012 and restored to docket for reargument, 132 S. Ct. 1738 (mem.) (Mar. 5, 2012) (No. 10-1491)). The case was reargued in early October 2012, with the parties addressing the extraterritoriality question of whether and under what circumstances an Alien Tort Statute case can be filed in U.S. courts for violations of the law of nations occurring within the territory of a sovereign other than the United States. Lyle Denniston, Argument Preview: Will an Old Law Shrink?, SCOTUSBLOG (Sept. 27, 2012, 12:07 AM), http://www.scotusblog.com/?p=152751. 15 LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 18889 (2d ed. 1985); JAMES WILLARD HURST, THE LEGITIMACY OF THE BUSINESS CORPORATION IN THE LAW OF THE UNITED STATES 1780-1970, at 7, 14 (1970). There were very few corporations at the founding, but some early corporations, such as the East India Company and the Hudson Bay Company, were known. HURST, id. at 7; Linowes, supra note 4, at 345. 16 HURST, supra note 15, at 4. 17 Pollman, supra note 2, at 1660-63. In First National Bank of Boston v. Bellotti, the Court stated that the Constitution protects corporations except for [c]ertain purely personal guarantees. 435 U.S. 765, 779 n.14 (1978). Whether or not a particular guarantee is purely personal or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision. Id. This formulation has the sound of a unified legal test, however, the Court has not consistently applied this test and it provides little substantive guidance. 18 Pollman, supra note 2, at 1648-49, 1660.

II.

THREE CATEGORIES OF CORPORATE CONSTITUTIONAL RIGHTS

The previous section set out to provide context for the doctrine of corporate personhood, contrasting it with other issues of corporate personality such as the entity status of the corporation and statutory issues. This section focuses on the doctrine of corporate personhood, providing an overview of the three categories of corporate constitutional rights. a. Rights Associated with Contract and Property Interests The earliest cases concerning corporate constitutional rights involve rights associated with contract and property interests. These cases spanned a time from when corporations served a quasi-public function and were subject to strict government regulation, to the start of the transformation to the more modern business corporation. In the 1819 case of Dartmouth College v. Woodward, the Supreme Court recognized that corporations were protected by the Contract Clause of the Constitution, which forbids a state from impairing existing contractual obligations.19 The Court reasoned that the corporate charter represented a contract between the individuals who incorporated the entity and the state, and therefore the state could not unilaterally amend the charter of a private college and effectively convert it into a public institution.20 For Contract Clause purposes, this recognized the corporation as a contract creating a separate entity through which people carried on business or their identified objectives, and it protected the individuals behind the artificial entity.21 In the mid to late nineteenth century, states began to pass general incorporation laws, meaning that a special charter from the state legislature was no longer required to incorporate and corporations could be formed for a wide variety of purposes.22 Incorporating thus became a mere administrative formality, and individuals could form a corporation for any lawful business,

19

17 U.S. (4 Wheat.) 518, 636 (1819). Several years after Dartmouth College, Chief Justice Marshall reaffirmed this principle in Providence Bank v. Billings, 29 U.S. (4 Pet.) 514, 560 (1830). For more recent Contract Clause cases, see Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978); U.S. Trust Co. v. New Jersey, 431 U.S. 1 (1977). 20 Id. at 650. 21 Also in the early part of the nineteenth century, the Court held that corporations are citizens of a state for the purpose of determining federal diversity jurisdiction. Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 87-88 (1809). Corporations are also entitled to due process in the context of personal jurisdiction. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984) (holding that a Colombian corporations contacts with Texas were insufficient to meet due process requirements of the Fourteenth Amendment so as to allow a Texas court to assert in personam jurisdiction over the corporation). By contrast, corporations are not citizens for the purposes of the Privileges and Immunities Clause of Article IV. Paul v. Virginia, 80 U.S. (8 Wall.) 168, 177 (1868); Bank of America v. Earle, 38 U.S. (13 Pet.) 519 (1839). 22 HURST, supra note 15, at 18; Linowes, supra note 4, at 346; MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 181-82 (1992).

including the manufacturing that spurred the Industrial Revolution.23 The number of corporations increased significantly as states began to liberalize their corporate laws.24 It was also in the late nineteenth century that the Supreme Court established constitutional protection for corporate property.25 Corporate personhood is often traced to this timespecifically, the 1886 decision in Santa Clara County v. Southern Pacific Railroad,26 in which Chief Justice Waite stated from the bench before argument: 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 any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.27 This pronouncement responded to the defendant railroads brief, which argued that a provision of the California constitution violated the Fourteenth Amendment by excluding corporations from a certain property tax deduction, thereby imposing unequal burdens on corporations and denying them equal protection of the laws.28 The defendants argument focused on property rights: The truth cannot be evaded that, for the purpose of protecting rights, the property of all business and trading corporations IS the property of the individual corporators.29 The Courts opinion was based on a more narrow ground, that the state board lacked jurisdiction to assess the value of the railroad fences, and expressly stated that it [wa]s not necessary to consider any other questions raised by the pleadings and the facts found by the court.30 As the Court avoided the constitutional question in the Santa Clara opinion, it did not explain the basis for its pre-argument statement that corporations are persons within the meaning of the Fourteenth Amendment.31 Shortly after, however, the Court reaffirmed this ruling in Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania:
23 24

See HURST supra note 15, at 18. Whereas by 1800 there were about 300 corporations, mostly vested with a public or quasi-public purpose, by the turn of the twentieth century, there were approximately 500,000 business corporations. Blair, supra note 7, at 389 n.3; HURST, supra note 15, at 17. 25 See Gregory A. Mark, Comment, The Personification of the Business Corporation in American Law, 54 U. CHI. L. REV. 1441, 1460-63 (1987); see also Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 GEO. L. J. 1593 (1988) (describing the doctrine of corporate personhood as the Supreme Courts solution to two problemsguaranteeing that owners of property held in the name of a corporation would receive the same constitutional protections as the owners of property held in their own nameand [determining] how to assign the power to assert constitutional rights in corporately held property). 26 118 U.S. 394 (1886). 27 Id. at 396. 28 Id. at 409. 29 HORWITZ, supra note 22, at 70 (emphasis omitted) (quoting Argument for Defendant, San Mateo v. S. Pac. R.R. Co., 116 U.S. 138 (1885)). 30 Santa Clara, 118 U.S. at 416. 31 For a discussion of the Santa Clara case and the debate surrounding its unusual circumstances, including a conspiracy theory that arose and was discounted, see Pollman, supra note 2, at nn. 79-92 and accompanying text.

Under the designation of person [under the Fourteenth Amendment], there is no doubt that a private corporation is included. Such corporations are merely associations of individuals united for a special purpose, and permitted to do business under a particular name, and have a succession of members without dissolution.32 Further, in Minneapolis & St. Louis Railroad v. Beckwith,33 the Court relied on Santa Clara and Pembina Mining to hold that corporations could invoke Fourteenth Amendment due process protections. The Court reiterated that corporations are persons within the meaning of the [Fourteenth Amendment] and explained, corporations can invoke the benefits of provisions of the Constitution and laws which guaranty to persons the enjoyment of property, or afford to them means for its protection, or prohibit legislation injuriously affecting it.34 The Court also extended Fifth Amendment due process protection to corporate property, in a case in which an act of the secretary of the interior would have revoked and annulled a grant of public lands to a railroad corporation.35 Thus, in the nineteenth century, the Court recognized corporations as having the protection of the Contract Clause, as well as the protection of the Fourteenth and Fifth Amendments in the context of guarding corporate property as it would individually-held property.36 b. Rights Associated with Trials and Searches Early common law did not impose criminal responsibility on corporations as courts struggled with the conceptual difficulty of attributing an act and intent to a corporation.37 By the early twentieth century, however, courts had taken a broader approach by importing tort and agency principles to hold corporations vicariously liable for criminal acts performed by corporate
32

125 U.S. 181, 188-89 (1888). Like Santa Clara, the case concerned the assessment of a tax against a corporation. For a more recent case recognizing a corporate equal protection right under the Fourteenth Amendment in the context of a discriminatory state tax, see Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (1985). 33 129 U.S. 26, 28 (1889). 34 Id. 35 Noble v. Union River Logging Railroad Co., 147 U.S. 165, 176 (1892) (A revocation of the approval of the secretary of the interior, however, by his successor in office, was an attempt to deprive the plaintiff [railroad corporation] of its property without due process of law, and was, therefore, void.). See also Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (holding that regulation of a coal corporations mining activity under a state statute could be so pervasive as to constitute a taking); Russian Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931) (allowing a foreign corporation to claim a takings violation). 36 Linowes, supra note 4. 37 See N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481, 492 (1909) (citing Chief Justice Holt and Blackstone and explaining that early common law held a corporation could not commit a crime); 1 WILLIAM BLACKSTONE, COMMENTARIES 476 (1765) ([A] corporation cannot commit treason, or felony, or other crime, in its [sic] corporate capacity.). For a more detailed history of corporate criminal liability in England and America, see Kathleen F. Brickey, Corporate Criminal Accountability: A Brief History and an Observation, 60 WASH. U. L.Q. 393, 396-400, 404-15 (1982).

agents.38 In addition, federal regulation of economic activity through criminal statutes, such as antitrust laws, had grown by this time and queued up issues concerning the governments power to prosecute corporations.39 In 1909, in New York Central & Hudson Railroad Co. v. United States,40 the Supreme Court definitively recognized corporate criminal liability based on the doctrine of respondeat superior. Also around this time, the Court held in Hale v. Henkel that a corporation did not have the Fifth Amendment right against self-incrimination, but did have a Fourth Amendment right against unreasonable searches and seizures.41 The Courts treatment of corporations did not seem to rest on a textual basis as the Fourth Amendment uses the word people, and the Fifth Amendment uses the similar word person.42 Pragmatism may have driven the decision as granting corporations the privilege against self-incrimination could have significantly impeded corporate criminal prosecutions that were growing at the time, whereas recognizing corporations as holding some right against unreasonable government searches and seizures would not entirely shield corporations from such enforcement.43 Although the Supreme Court has recognized corporations as having Fourth Amendment protection against unreasonable searches and seizures, the Court has not ruled that such protection is coextensive in scope with that afforded to individuals.44 For example, in Oklahoma Press Publishing Co. v. Walling, the Court enforced a broad subpoena duces tecum requiring the production of corporate records to determine whether corporations were complying with the Fair
38

See, e.g., United States v. Van Schaick, 134 F. 592, 609 (S.D.N.Y. 1904); United States v. John Kelso Co., 86 F. 304, 308 (N.D. Cal. 1898); see also Brickey, supra note 37, at 404-15 (discussing the history of corporate accountability in the U.S.). 39 Peter J. Henning, The Conundrum of Corporate Criminal Liability: Seeking a Consistent Approach to the Constitutional Rights of Corporations in Criminal Prosecutions, 63 TENN. L. REV. 793, 814-16 (1996). 40 212 U.S. 481 (1909). 41 201 U.S. 43 (1906) (considering challenges by a corporate officer who had immunity as an individual but refused to testify or comply with a grand jury subpoena for corporate records in connection with a criminal antitrust investigation of the tobacco industry). The Courts rationale for denying corporations the privilege against incrimination was that it is a purely personal privilege of the witness and a corporation can testify only through agents. Id. at 69-70; see also Braswell v. United States, 487 U.S. 99 (1988) (holding that the principal shareholder of a closely held corporation could not assert the privilege against self-incrimination in response to a subpoena for the corporate documents). 42 By contrast, Justice Brewer in his Hale dissent explicitly referenced earlier interpretations of person, stating: [D]ecisions [such as Pembina Mining] were under the 14th Amendment; but if the word person in that amendment includes corporations, it also includes corporations when used in the 4th and 5th Amendments. . . Indeed, [the corporation] is essentially but an association of individuals, to which is given certain rights and privileges, and in which is vested the legal title. The beneficial ownership is in the individuals, the corporation being simply an instrumentality by which the powers granted to these associated individuals may be exercised. Hale, 201 U.S. at 85 (Brewer, J., dissenting). For a discussion of the majoritys visitatorial power rationale in depriving corporations a Fifth Amendment privilege against self-incrimination, see Lance Cole, Reexamining the Collective Entity Doctrine in the New Era of Limited Liability EntitiesShould Business Entities Have a Fifth Amendment Privilege?, 2005 COLUM. BUS. L. REV. 1, 13-31 (2005). 43 Henning, supra note 39, at 797. 44 Id. at 798-99, 801-02.

Labor Standards Act.45 The Court stated that corporations are not entitled to all of the constitutional protection which private individuals have in these and related matters.46 Similarly in Marshall v. Barlows, Inc., the Court concluded that a corporation had some expectation of privacy prohibiting warrantless searches to inspect workplace safety, but that the standard for obtaining a warrant to enter a business was lower than that to search a private home.47 Besides ruling on corporations rights to Fourth Amendment protection, and denying corporations the Fifth Amendment privilege against self-incrimination, the Supreme Court has also addressed the applicability to corporations of other constitutional protections related to trials. The Supreme Court has assumed that corporations can claim the protection of the Double Jeopardy Clause,48 and has seemingly recognized that corporations have Sixth and Seventh Amendment entitlements to trial by jury in at least some contexts.49 Some open questions
45 46

327 U.S. 186 (1946). Id. at 205. Similarly in United States v. Morton Salt Co., 338 U.S. 632 (1950), the Court rejected a corporations Fourth Amendment challenge against a government demand for information concerning compliance with a consent decree. The Court stated, While they may and should have protection from unlawful demands in the name of public investigation, corporations can claim no equality with individuals in the enjoyment of a right to privacy. Id. at 652. Further, it noted that as long as the investigation was within the governments authority, the Fourth Amendment required only that the demand is not too indefinite and the information sought is reasonably relevant. Id. 47 436 U.S. 307, 315-20 (1978); see also Donovan v. Dewey, 452 U.S. 594, 598-99 (1981) ([T]he expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individuals home.); Dow Chemical Co. v. United States, 476 U.S. 227, 239 (1986) (rejecting a corporations Fourth Amendment challenge to the EPAs use of aerial surveillance to monitor emissions at a manufacturing plant); New York v. Burger, 482 U.S. 691, 702-05 (1987) (upholding a warrantless police inspection of the records of a vehicle dismantling business, a closely regulated business). 48 United States v. Martin Linen Supply Co., 430 U.S. 564, 57576 (1977) (discussing double jeopardy); Fong Foo v. United States, 369 U.S. 141 (1962) (discussing double jeopardy); see also Old Dominion Dairy Prods., Inc. v. Secy of Def., 631 F.2d 953, 969 (D.C. Cir. 1980) (discussing liberty interests under the Fifth Amendment Due Process Clause). For a discussion of some restrictions on double jeopardy protection, see V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 HARV. L. REV. 1477, 1517 n.211 (1996). 49 See Ross v. Bernhard, 396 U.S. 531, 53234 (1970) (holding that the [Seventh Amendment] right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury and noting that a corporations suit to enforce a legal right was an action at common law carrying the right to jury trial at the time the Seventh Amendment was adopted); United Mine Workers v. Bagwell, 114 S. Ct. 2552 (1994) (recognizing a unions Sixth Amendment right to a jury trial in a criminal contempt proceeding). A few lower courts have held that corporations have a Sixth Amendment right to a jury trial. United States v. R.L. Polk & Co., 438 F.2d 377, 378-80 (6th Cir. 1971); United States v. Greenpeace, Inc., 314 F. Supp. 2d 1252, 1261 (S.D. Fla. 2004); see also Khanna, supra note 48, at 1518, n.216 (The Sixth Amendment right to a jury trial may, arguably, be available to corporate defendants.); F. Joseph Warin & Michael D. Bopp, Corporations, Criminal Contempt and the Constitution: Do Corporations Have a Sixth Amendment Right to Trial by Jury in Criminal Contempt Actions, and if so, Under What Circumstances?, 1997 COLUM. BUS. L. REV. 1 (1997) ([I]t appears that corporations share with individuals the Sixth Amendment right to be heard by a jury in serious criminal cases.). Furthermore, last term, the Supreme Court recognized a corporation as having a Sixth Amendment Apprendi right to jury determination of any fact (other than the fact of a prior conviction) that increases a criminal defendants

remain such as whether corporations have protection against excessive fines under the Eighth Amendment,50 whether corporations receive protection under the Sixth Amendments Assistance of Counsel Clause,51 and whether corporations have a right to be indicted by a grand jury.52 c. Rights Associated with Speech Finally, the Supreme Court has recognized corporations as having speech rights under the First Amendment. Jurisprudence recognizing corporate speech rights is of the most recent vintage and has arguably reflected the greatest expansion of corporate rights. Before briefly summarizing the corporate rights associated with speech the Court has recognized to date, it is worth noting that it was not a given that corporations would have speech rights or rights of comparable breadth as individuals enjoy. The Court has previously recognized limitations to the rights of corporations vis--vis individuals, for instance holding that corporations do not have a Fifth Amendment right against self-incrimination and that corporations are not citizens under the Privileges and Immunities Clause.53 Corporations do not have voting rights under the Fourteenth, Fifteenth, Nineteenth, or Twenty-Fourth Amendments.54

maximum potential sentence. S. Union Co. v. United States, 565 U.S. _, 132 S. Ct. 2344 (2012) (holding that Apprendi applies to the imposition of criminal fines). 50 See Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 276 n.22 (1989) (Because of the result we reach today, we need not answerwhether the Eighth Amendment protects corporations as well as individuals.); but see id. at 285 (OConnor, J., concurring in part and dissenting in part) (suggesting that the Excessive Fines Clause applies to corporations). See also Elizabeth Salisbury Warren, The Case for Applying the Eighth Amendment to Corporations, 49 VAND. L. REV. 1313 (1996); United States ex rel. Tyson v. Amerigroup III., Inc., 488 F. Supp. 2d 719, 742-48 (N.D. Ill. 2007) (applying the Eighth Amendment Excessive Fines Clause to corporations). 51 See Scott v. Illinois, 440 U.S. 367, 389 (1979) (stating the right to appointed counsel applies where the defendant is sentenced to a term of imprisonment); compare United States v. Unimex, Inc., 991 F.2d 546, 550 (9th Cir. 1993) (Being incorporeal, corporations cannot be imprisoned, so they have no constitutional right to appointed counsel), with United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 743 (1979) ([T]he right to effective assistance of counsel is not so peculiarly applicable to individuals that corporations should not be entitled to it. . . Consequently, we hold that the guarantee of effective assistance of counsel applies to corporate defendants.). 52 Henning, supra note 39, at 856-59 (noting that some circuit courts have rejected arguments by corporate defendants for a right to grand jury indictment). 53 See supra notes 21, 41 and accompanying text. As discussed above, corporations also have more limited Fourth Amendment protections than individuals. Supra notes 44-47 and accompanying text. 54 See Darrell A.H. Miller, Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights, 86 N.Y.U. L. REV. 887, 910 (2011); Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 948 (2010) (Stevens, J., dissenting) (noting, with sarcasm, that under the majoritys reasoning it may be a First Amendment problem that corporations are not permitted to vote); see also Texfi Indus., Inc. v. City of Fayetteville, 269 S.E.2d 142, 150 (N.C. 1980) (holding that a corporation had no fundamental right to vote in a referendum).

10

And with limited exception,55 the question of corporate speech did not arise until the 1970s. Until then, governments regulated without serious restriction corporate advertising, mailings, and political spending.56 In the 1970s, the Supreme Court recognized corporations as having some rights in the context of commercial speech as well as political speech. As one scholar has explained, the commercial speech doctrine is a subset of First Amendment jurisprudence that creates a category of intermediate scrutiny for speech falling within its boundaries.57 Commercial speech has not been clearly defined, but has been generally understood as speech promoting a commercial activity, product or service, such as television advertising or marketing.58 The commercial speech doctrine started in 1976 in the Virginia Pharmacy case, in which the Court ruled that the State of Virginia could not forbid pharmacists from advertising drug prices.59 The case was brought by consumer advocates and the Courts rationale relied on the idea that as listeners they had a right to hear the information; suppression of truthful speech about lawful activity could hurt consumers.60 A few years later, in Central Hudson Gas & Electric Corp. v. Public Services Commission of New York, the Court held that a state could not completely ban promotional advertising by an electrical utility, and it set out a four-part analysis for commercial speech.61 Courts first look at whether the speech concerns lawful activity and is not misleading, and then whether the government has a substantial interest in regulating the
55

E.g., Grosjean v. Am. Press Co., 297 U.S. 233, 243-44 (1936) (holding unconstitutional a state license tax imposed on newspaper corporations selling advertising as an impermissible abridgment of speech or speech of the press under the Due Process Clause of the Fourteenth Amendment). 56 Mark Tushnet, Corporations and Free Speech, in THE POLITICS OF LAW 253 (1982); see also Tamara R. Piety, Against Freedom of Commercial Expression, 29 CARDOZO L. REV. 2583, 2586-87, 2642 (2008). Early campaign finance legislation includes the Tillman Act of 1907, banning corporations from giving direct contributions to federal candidates, and the Taft-Hartley Act, passed in 1947, prohibiting corporations and labor unions from making independent expenditures in support of, or in opposition to, federal candidates. Tillman Act of 1907, Pub. L. No. 59-36, 34 Stat. 864 (codified as amended at 2 U.S.C. 441b); Labor Management Relations Act of 1947, ch. 120, 61 Stat. 136. Later campaign finance regulation includes the Federal Election Campaign Act (FECA), passed and amended in the 1970s, which codified the ability of corporations and labor unions to use Political Action Committees (PACs) to make independent expenditures, and the Bipartisan Campaign Reform Act of 2002, which strengthened the FECAs prohibition on corporate spending on advertisements advocating the election or defeat of federal candidates. Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3; Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81. 57 Piety, supra note 56, at 2599. Commercial speech receives less protection than political or other quintessentially protected speech, but regulation directed at this speech must meet an intermediate scrutiny test that, over the last couple of decades, has begun to look a lot more like strict scrutiny. Id. 58 Id. at 2593-95, 2644; see Central Hudson Gas & Elec. Corp. v. Pub. Servs. Comms of N.Y., 447 U.S. 557, 561 (1980) (explaining commercial speech as expression related solely to the economic interests of the speaker and its audience). 59 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 749-70 (1976). 60 Id. at 761-70. 61 447 U.S. 557 (1980).

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speech, if the regulation directly advances that governmental interest, and whether it has a reasonable fit in serving that interest.62 The recognition of corporate political speech rights also came about in the 1970s. Shortly on the heels of the Courts landmark campaign finance decision in Buckley v. Valeo, which equated political spending with political speech,63 came the Courts first decision recognizing corporations as having political speech rights. In First National Bank of Boston v. Bellotti, the Court held unconstitutional a Massachusetts law that barred corporations from spending money to influence ballot initiatives.64 After Bellotti, the Courts corporate political speech jurisprudence took some twists and turns outside of the ballot initiative context,65 but was extended to include a corporate right to spend on political messages mentioning candidates so long as those messages did not amount to express vote for or vote against advocacy.66 As in the commercial speech cases, the Court often relied on the rights of listeners rather than focusing on the identity of the speaker.67 In Citizens United v. FEC, the Court further expanded corporate political speech rights by invalidating the federal ban on corporate expenditures from general treasury funds for electioneering communications for or against a candidate.68 Previously, under the Bipartisan Campaign Reform Act of 2002, any such advertising could be funded only through a corporations political action committee (PAC).69 In addition, Citizens United provided the
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Id. at 566; see also Bd. of Trs. v. Fox, 492 U.S. 469, 480 (1989) (refining the last part of the analysis to require a reasonable fit rather than the least restrictive means); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996) (establishing a heightened form of First Amendment scrutiny for regulation creating a blanket ban on truthful, nonmisleading speech about a lawful product and where the ban serves an interest unrelated to consumer protection). For discussion of more recent commercial speech case law, including the Nike v. Kasky case, see the Case Western Law Review symposium issue, Symposium, Nike v. Kasky and the Modern Commercial Speech Doctrine, 54 CASE W. L. REV. 965 (2004). 63 424 U.S. 1 (1976). Scholars and jurists have argued that while spending money may facilitate speech or amplify its volume, the restriction of spending should not be equated with the restriction of speech. See, e.g., Deborah Hellman, Money Talks But It Isnt Speech, 95 MINN. L. REV. 953 (2011); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001 (1976); Jessica Levinson, When Less is More: Limiting Political Spending to Promote Political Speech (forthcoming U. RICH. L. REV.) (on file with author). 64 435 U.S. 765, 795 (1978). Under Bellotti, laws burdening corporate political speech are subject to strict scrutiny, a higher standard than commercial speech. Id. at 786-89. 65 FEC v. Natl Right to Work Comm., 459 U.S. 197 (1982) (holding that Congress could prohibit a nonprofit from mass soliciting contributions to a segregated fund from non-members); FEC v. Mass. Citizens For Life, Inc., 479 U.S. 238 (1986) (holding that a federal prohibition on using corporate treasury funds for expenditures in a federal election unconstitutionally burdened the rights of an anti-abortion nonprofit to publish a newsletter); Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) (upholding a Michigan statute prohibiting use of corporate treasury funds for candidate-related expenditures); McConnell v. FEC, 540 U.S. 93 (2003) (upholding limits on electioneering communications). Citizens United overruled Austin and partly overruled McConnell. Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 913 (2010). 66 FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 457 (2007). 67 E.g., Bellotti, 435 U.S. at 778. 68 558 U.S. 310, 130 S. Ct. 876 (2010). 69 2 U.S.C. 441b(b)(2).

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basis for subsequent rulings, such as the D.C. Circuits decision in SpeechNow.org v. FEC,70 which more generally affected campaign finance regulation by, for instance, paving the way for super PACs.71 While Citizens United has significantly changed the ways corporations can be involved in political spending, it did not overturn the ban on corporations making direct contributions to candidates or the direct contribution limits that apply to organizations and individuals.72 Apart from political speech rights in the election context, the Court has also recognized corporations as having certain speech rights about general matters of public concern or expressive association rights.73 Notable decisions include Pacific Gas & Electric Co. v. Public Utilities Commission and NAACP v. Button. In the PG&E case, the Court held that the California Public Utilities Commission violated a utilitys First Amendment rights by ordering it to place a third partys communication in its billing envelopes.74 In NAACP v. Button, the Court found unconstitutional Virginias prosecution of the NAACP for soliciting plaintiffs to litigate the constitutionality of public school segregation laws.75 The Court explained that the NAACPs activity was a form of political expression protected by the right of association.76 CONCLUSION The broad topic of corporate personality comprises a few conceptually distinct notions or issuesthe entity status of corporations under the law, statutory issues of whether corporations are intended to be included when a statute refers to persons or similar terms, and the treatment of corporations as legal persons under the U.S. Constitution. This paper has focused on the latter issue, and has provided an overview of the constitutional rights of corporations, set out in three broad categories: (1) rights associated with contract and property interests; (2) rights associated with searches and trials; and (3) rights associated with speech.
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599 F.3d 686 (D.C. Cir. 2010). Relying on the Supreme Courts conclusion in Citizens United that independent expenditures do not give rise to corruption or the appearance of corruption, the D.C. Circuit in SpeechNow reasoned that there is not a sufficient risk of corruption to justify limiting contributions to groups that make only independent expenditures. Id. at 695. 71 See Cynthia L. Bauerly & Eric C. Hallstrom, Square Pegs: The Challenges for Existing Federal Campaign Finance Disclosure Laws in the Age of the Super PAC, 15 N.Y.U. J. LEGIS. & PUB. POLY 329, 337-38 (2012) (discussing the genesis of the Super PAC). Key areas of response to Citizens United include disclosure regulations and corporate governance proposals. See, e.g., Daniel Winik, Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United, 120 YALE L.J. 622 (2010); Heidi Welsh & Robin Young, IRRC Institute, Corporate Governance of Political Expenditures: 2011 Benchmark Report on S&P 500 Companies, http://ssrn.com/abstract=1959566. 72 2 U.S.C. 441a, 441b(a). 73 See Adam Winkler, Corporate Personhood and the Rights of Corporate Speech, 30 SEATTLE U. L. REV. 863, 870-71 (2007) (discussing categories of corporate speech rights, including the right to non-electionrelated political speechor, alternatively phrased, speech about general matters of public concern). 74 475 U.S. 1, 8-9, 17, n.14 (1986). 75 371 U.S. 415, 428 (1963); see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (holding that a state court contempt order against the NAACP for refusing to disclose its membership list abridged the members right to engage in lawful association in support of their common beliefs). 76 Id. at 428-29.

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This overview reveals that the Supreme Court has accorded corporations many constitutional rights; however, it has not accorded corporations all of the rights that individuals hold, nor has it always accorded corporations the same scope of protection as that of individuals. The universe of corporations that have been accorded rights is broad, ranging from nonprofits to business corporations. While the Courts recognition of rights for these corporations has been incremental and ad hoc, its jurisprudence has reflected an understanding that people organize activities and associate through the legal fiction of the corporate form and that it is possible for rights to be held at the entity level to protect the individuals involved in the corporation or for some other reason. Further, this overview has provided historical context for understanding the development of corporate rights. The earliest recognitions of corporate rights were rooted in protecting contract and property interests. The expansion of corporate rights in the early twentieth century largely related to trial and search rights, which arose in the context of holding corporations criminally or civilly liable for their actions. Corporate speech rights are of the most recent vintage and reflect significant expansions, including political speech rights for business corporations.

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