Corporations are people are corporations are....

Posted by mouthyb | Posted in , , | Posted on 11:32 AM


Both Microsoft and Google have faced recent (and in the case of Microsoft, regular) antitrust probes in the US and EU over business practices which reduce and/or exclude competition. Google, however, has done something interesting in response to the on-going antitrust probes: they hired a First Amendment scholar to coach their filtering of search results as an opinion, defensible here in the US under free speech.

The corporation as individual under the law is actually over 200 years old in the US. The first case in the US to use the idea (and have it recognized as legal by the US Supreme Court) occurred in 1819. The Supreme Court ruled that for the purposes of contract enforcement, corporations have the right to make and enforce contracts. In 1886, the US Supreme Court ruled that corporations were persons for the purposes of the 14th Amendment, ruling that corporations were citizens under the 14th Amendment. The Citizens United ruling in 2010 allowed corporations to handle political donations as a function of free speech. Free speech turns out to be rather important in corporate challenges to antitrust laws in US history, so it's no wonder that in this case, it's being used as a defense of selectively filtering search results.

I find it disturbing, in the form of legal and historical implications, that the First Amendment has become a useful dodge of antitrust laws. Because small companies and individuals do not have access to the same resources with which to defend themselves and compete as larger corporations and/or multinational corporations, competition between larger corporations and smaller ones or citizens do not happen on a level playing field. Antitrust laws are essentially about examining that playing field and policing for cheaters.

In fact, if I had to characterize that playing field, I'd say that individuals start below ground or perhaps hanging off a cliff, the US tendency to believe that the underdog triumphs (if only they work hard enough and are virtuous) not withstanding.

The clear trend in corporatizing citizenship and in using one of the most beloved (if misunderstood) parts of the Constitution to defend an uncritical view of the use of power is very disturbing. How does an individual mount a challenge to that power differential?

The answer, of course, is that individuals cannot. Small businesses are hard pressed to do so; court cases are costly and there's only so long a small business can afford to weather being stalled in court.

I am at least partially comforted that there's been no challenges to the Second Amendment, Third Amendment, or Fifth Amendment. I have reached the age where I have to come to peace with my own relative powerlessness, in terms of resources, but the tendency of corporation behavior to resemble the beloved, if frightening, cyberpunk novels of my childhood is nightmarish, to say the least.

Comments (0)

Post a Comment