Let them eat cake

In Kiobel v. Royal Dutch Petroleum et al, the Supreme Court will decide if the Alien Tort Statute can apply to a corporation.[1]  Royal Dutch argues that as a corporation, it cannot be sued for violating human rights.  The statute only reaches individuals or natural persons.

The Court of Appeal for the Second Circuit agreed writing,

“We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs’ ATS claims must be dismissed for lack of subject matter jurisdiction. (Docket Nos 06-4800-cv, 06-4876-cv; 1-2)

So, under international law corporations are not considered persons and therefore gain immunity from a suit for liability.  Yet in Citizens United v. Federal Election Commission, the argument was exactly opposite.  Corporations ARE persons under the Constitution and have rights under the First Amendment.

The Court has recognized that First Amendment protection extends to corporations. This protection has been extended by explicit holdings to the context of political speech. Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” [First Nat. Bank of Boston v.] Bellotti [(1978)]. The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” . . .[2]

Does it make sense for corporations to have their cake and eat it too?  Corporations are not persons where it provides protection (liability) and are persons when it provides protection (First Amendment).  Can they have it both ways?  Can corporations be non-persons in international and statutory law and persons in constitutional law?  Perhaps the docketing of this case suggests that the Court will address this seeming contradiction.  Or perhaps, the bundling of the case with Mohamad v. Rajoub signals that this contradiction will remain because the Court is unlikely to wade into an area of international diplomacy.  Allowing individuals to sue political entities and parties in the US courts can affect the ability of the executive branch to conduct foreign policy.  If this is the case, then the person/non-person status of corporations is likely to continue, and continue to provide a great deal of legal protection to US corporations.

Addendum November 7, 2011: Today a federal judge blocked the new graphic cigarette labels.  The temporary injunction was issued because the corporations are likely to prevail on their challenge–the law violates their right to free speech. (http://newsandinsight.thomsonreuters.com/Legal/News/2011/11_-_November/Federal_judge_blocks_graphic_cigarette_labels/)

[1] This case will be heard in conjunction with Mohamad v. Rajoub et al.  This case involves a suit against the PLO and the Palestinian Authority under the Torture Victim Act.

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Filed under Freedom of Speech, Assembly, and Association, The Executive, The Judiciary

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