Bench Memos

Slate Violates Limits of Corporate Personhood?

In a Slate essay, UCLA law professor Adam Winkler argues that “Hobby Lobby should only have the rights of legal personhood that are essential for its operations.” From which of his ears he has extracted that proposition is unclear. (It certainly doesn’t follow from the passage he quotes from Chief Justice Marshall’s famous 1819 Dartmouth College opinion.)

Insofar as Winkler purports to be describing the rights that Hobby Lobby actually has pursuant to its incorporation in Oklahoma, his analysis is oddly bereft of any reference to Oklahoma law. Ditto for rights under RFRA.

Insofar as Winkler is prescribing the rights that he thinks corporations “should” have, perhaps Slate—which (we learn at the bottom of the page) “is published by The Slate Group, a Graham Holdings Company”—should have followed his views. Winkler might grudgingly (“Perhaps”) allow corporations “some limited speech rights, as we ordinarily expect firms to advertise and communicate with employees and customers.” But, under Winkler’s theorizing, it surely isn’t “essential for [a corporation’s] operations” that it publish op-eds.

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