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And just like that, corporations were people again.
The technological titans of Silicon Valley made some serious decisions last week. Twitter and Facebook took the extraordinary step of locking the president of the United States out of their platforms.
Meanwhile, publishing house Simon & Schuster cancelled a forthcoming book from Missouri Sen. Josh Hawley. The proposed title? “The Tyranny of Big Tech.” Ironic.
Trump and Hawley both claimed these actions are an affront to the First Amendment.
They are wrong. Because corporations are people. And people have rights.
Back in 2012, now-Sen. Mitt Romney was excoriated by Democrats in his campaign against Barack Obama. He made the mistake of responding to hecklers at the Iowa State Fair with the retort “corporations are people, my friend.”
Obama mocked him. “Corporations aren’t people. People are people!” Romney’s current colleague Sen. Elizabeth Warren joined the fray with a similar sentiment.
After all, the idea that corporations are people — and are entitled to certain constitutional rights — is the underpinning of the Supreme Court’s Citizens United decision. It has been a boogeyman of the left ever since.
Yet corporations are people. Legally, we say they are people because it allows us to provide a means for collective action. Every organized city or town in Maine is a “body corporate and politic.” That allows the “City of Bangor” to do things as a city, in the name of the city, rather than a big long list of every inhabitant.
And the law provides for private groups of people to come together to pursue collective goals. They may choose to become a “corporation” to define their legal relationship to the world. That includes everything from your local ice cream stand all the way up to Twitter or Facebook.
Which brings us back to Trump and Hawley.
Popularly, the First Amendment protects “freedom of speech.” But that is shorthand. What it really says is that “Congress shall make no law … abridging freedom of speech.”
However, one of the other provisions the Framers included is in the Constitution itself. The so-called “contract clause” prohibits states from enacting laws “impairing the Obligation of Contracts.” Those who established our system of government believed greatly in private parties regulating their mutual affairs without the heavy hand of government.
That is exactly what Twitter, Facebook and Simon & Schuster have done. Maybe Hawley has a private contract claim against his old publisher; that battle is for another day. But no one — not even the president — has a constitutional right to receive a private service from a person, be they individual or corporate.
There is plenty to critique about giant organizations in the tech world. When Google “curates” information through its black-box algorithm, the free flow of information in our society is jeopardized due to their scale. When Twitter bans Donald Trump yet permits Ayatollah Khamenei to advocate “armed resistance” to the “ruinous regime” of Israel, a legitimate debate can arise as to the value and values of these large corporations.
Yet private individuals — or groups of private individuals organizing themselves as “corporations” — retain their rights. They can speak freely. They can freely associate. And they can enter into contracts with others, whether through a “user agreement” or a publishing arrangement. And they may exit those agreements as well, subject to whatever terms they have established by contract.
All because the Constitution protects people from government. And corporations are people, because people make up corporations.
It is one of those things that makes America great.