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Can Towns Bar Chick-fil-A From Opening New Stores for Its Explicit Anti-Gay Stance?

The owner's anti-gay crusade is funded in large part straight from Chick-fil-A corporate coffers.

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Plus, never mind the fact that the very first Supreme Court case to enshrine corporate personhood into law was Santa Clara County v. Southern Pacific Railroad in1886. In that case, not a single judge ruled in favor of corporate personhood, yet a court reporter with ties to the railroad barons slipped the doctrine into the headnotes of the case. Though headnotes having no official legal standing, this particular headnote has been the basis of corporate personhood precedent ever since.  

But Greenwald knew affirming corporate personhood just because SCOTUS says so wasn’t the strongest argument. He asks to “leave aside” that fact and instead jots down a few hypotheticals, examples of the dystopic future our nation is headed toward if corporations weren’t given personhood rights. As Greenwald argues:

I’d like everyone to suppose that the following actions are taken by the state, and then for each, tell me whether you believe it would or would not be constitutional:

Congress enacts a law that states: No business incorporated in America, whether for-profit or non-profit, shall be permitted to donate any of its money to groups espousing liberal ideas. Any business found to be in violation of this prohibition shall be guilty of a Class A felony. Corporate donations to groups espousing conservative causes shall still be permissible and legal.

Greenwald rattles off a few more similar hypotheticals, basically arguing that if corporations didn’t have First Amendment rights like people, then governments would be allowed to discriminate against certain corporations – even going as far to conduct audits, searches and seizures on corporations that held different politics than whichever party was in control.  

Now, I’m a big fan of Glenn Greenwald and agree with him on most issues. But on corporate personhood, he’s dead wrong.

First, in regard to his hypotheticals: Yes, I believe those hypotheticals are indeed constitutional. In saying as much I’ve been accused of being both a “ repulsive authoritarian” and an “ anarchist.” Greenwald even called me a “ Bush follower.” 

But take the hypothetical cited above, it sounds remarkably similar to this law, which is still on the books (but not enforced):

Be it enacted, that it shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any State legislature of a United States Senator.  

That text is from the 1907 Tillman Act, passed by President Teddy Roosevelt who was neither a repulsive authoritarian, nor an anarchist, nor a “Bush follower.”

Roosevelt wanted the law to go even further, telling Congress in 1905, “Not only should both the National and the several State Legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation…”

The only difference between Greenwald’s extreme, dystopian hypothetical law and the actual law known as the Tilman Act is that Greenwald’s hypothetical discriminates against certain corporations, whereas the Tilman Act discriminates against all corporations.  

If Greenwald’s arguments hinge on fear of government overreach, then he should be more horrified by the Tilman Act than he is by the decision made by the mayors of Chicago and Boston. The Tilman Act completely freezes so-called corporate “free speech” – locking corporations out of protections guaranteed under the Constitution to people. The mayors just wanted that speech moved elsewhere.