Why Moral Rights of Free Speech for Business Corporations Cannot Be Justified

Abstract

In this paper, I develop two philosophically suggestive arguments that the late Justice Stevens made in Citizens United against the idea that business corporations have free speech rights. First, (1) while business corporations conceived as real entities are capable of a thin agency conceptually sufficient for moral rights, I argue that they fail to clear important justificatory hurdles imposed by interest or choice theories of rights. Business corporations conceived as real entities lack any interest in their personal security; moreover, they are incapable of exercising innate powers of choice. Second, (2) I argue that the structure and functionally individualized purpose of a business corporation—to increase value for its shareholders—undermines the implicit joint commitment necessary to derive corporate rights of free speech from non-operative shareholder-member rights. Since one cannot transfer innate moral rights such as free speech, any exercise of this right on behalf of another must be limited in scope.