Employers of Religion

Part 1 | Part 2 | Part 3

People have freedom of religion guaranteed to them by the Constitution. Lately there has been controversy—for example, in Sebelius v. Hobby Lobby—about whether corporations need such a freedom as well. I can help answer that: No. They do not.

People can already assert individual rights to religion. When a person creates a corporation, he no more needs additional religious rights for that corporation than a person with a megaphone needs additional free speech rights for that megaphone. A corporation is not a new and distinct human being.†

Corporations are avatars that represent people, performing actions on their behalf, but with augmented strength. But, in so doing, they are like the “power loader” exoskeleton donned by the character Ripley in the movie Alien, or like the superhero armor worn by Tony Stark in the Iron Man movies. These vehicles magnify the power of their wearers over others.

It all begins with an understanding that the ones with the brains, with the religion, with the political intent, and with the ethical responsibility are real, natural people who own these corporations. Everything else about corporations is just a vehicle for packaging and focusing power under their control. With rights come responsibilities, and if there is to be neither desire nor mechanism to hold corporations to the simplest social graces that we would demand of any civil person, then we must not think of them as we do civil people.

Consolidated and magnified power, unfettered by the social graces, does not require protection. Indeed, those without magnified power, those at the mercy of such power, are the ones needing protection. That's why we have rights at all—so that puny little people like any of us can stand up against bigger entities, like companies and governments. To say that then companies and governments need the same rights as ordinary people is to make a mockery of the very purpose of our rights. It is to diminish and dismantle human rights, not to extend them.

If a corporation imposes ethical choices upon employees, that's not the corporation protecting its natural rights. That's a person or a gang of people using the magnified power of employment to coerce other people not to follow their own religious beliefs. We've learned to recognize such coercion in the case of sexual harassment, and to understand that there is a responsibility of the powerful in an employment situation not to coerce the behavior of the weak. This is really no different.

The analogy may confuse you if you are comparing religion to sexual harassment, but that's not the right point of view. Both sex and religion can be beautiful things, but only when freely elected. Either forced sex or forced religion is an atrocity. An exercise of power, devoid of joy. A crime.

We allow an employer to use threats of firing to maintain a certain degree of order within a company, but only as long as that order relates to the business. We do not and must never allow employers to use any such threats to coerce behavior outside the scope of the business.

As a free citizen of the United States, you may choose what parts of your religion you like or don't. You can elect to be Jewish and yet perhaps you eat cheeseburgers. And yes, you can be Catholic and still use birth control. These are personal choices you make. Your religious advisors may even be offended. But that's between you and them, not between you and your employer. If your employer is allowed to intervene, even if he thinks he's just exercising his freedom of religion, he's using his magnified power to disallow you from exercising your own.

And that's the crux of it, the meta-rule of religion: Your religious rights stop when they start to infringe mine. We each must leave space for one another. Birth control is a personal choice, and something we each need to decide for ourselves. Employees do not make birth control decisions for their employers, and the same must be true in reverse. Any pretense that the company has a religious need separate from and beyond that of the owners just distracts from the fact that the owner's sphere of personal influence is being allowed to be bigger than by any right it should be.

Moreover, it will not stop there. The issues in question are not about the company being asked to pay for birth control, but merely about a company being asked to pay for access to a company that might pay for birth control. There is already an indirection in place. This indirection is really no different than the fact that the company is paying wages to a person who might pay for birth control, and the next natural step is to allow the company to control what happens with those wages.

It is simply not the company's business in either case. Health care is needed by employees, and it's up to each employee's sense of ethics and religion to elect what is appropriate, within the bounds of the law, to satisfy that need. For a company to dictate more is to either privately dictate a person's ethics and religion or to privately dictate the bounds of law. Either is unacceptable.

Corporations are not people. They do not get offended. Owners of companies get offended. And, if we let them, they'll use their artificial shells of power, like the image of the wizard in the Wizard of Oz, to make their sense of being offended more seem bigger, more important, and more menacing in order to coerce behavior. Corporations might dictate rules that must be followed by employees to keep their jobs. These powers may often be justified as needed for the correct function of the business, and the quality of its product. But there is no correct function of any business in play with the use of birth control—except, ironically, that some businesses might be adversely affected if the people working for them cannot avoid pregnancy and become distracted by an inability to plan the size and timing of their respective families.

Birth control must be the choice of the employee because it is an activity beyond the scope of employment. There is no defensible corporate interest in keeping employees from having control over family matters. It is a naked abuse of power by certain business owners over their employees and a perfect illustration of why corporations must not be accorded some artificially drawn freedom of religion.

Corporate religion is just institutionalized coercion trying to take hold.

We the Flesh-and-Blood People must draw a line.

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Author's Note: If you got value from this post, please “Share” it.

This third and final part of a 3-part series was originally published December 6, 2013 at Open Salon, where I wrote under my own name, Kent Pitman. The first part was Corporations Are Not People. The second part was We The People (and Corporations).

Tags (from Open Salon): politics, incorporation, corporations, corporate personhood, legal personhood, legal person, legal personality, taxation, crimes, punishment, imprisonment, life, death, death penalty, urination, trickle down, census, social security, robbery, slavery, human trafficking, murder, pro-life, childhood, contracts, travel, passport, visa, home country, citizen, citizenship, speech, religion, freedom, freedom of speech, freedom of religion, religious freedom, philosophy, ethics, vote, voter, voting, run for office, running for office, candidate, elect, election, elected, office holder

Footnote

†Note that even if you disagree with me, and think that a corporation really is a distinct person, the problem is that such so-called legal people are veritably required under stockholder theory to behave sociopathically. See my article Fiduciary Duty vs. The Three Laws of Robotics for an elaboration of why. In such cases, where legal people are neither asked nor expected to exhibit other-than-selfish behavior, special restrictions to hold that selfish behavior in check, not special encouragement to be as free as possible in the exercise of that selfish behavior, would seem more appropriate. The notion of a free society is based precisely in the assumption that most of us will not behave sociopathically. It is a calculated gamble that we will tend to do well by each other if allowed the chance. It would be irrational to make such a gamble situations where we do not have such an expectation.

We The People (and Corporations)

Part 1 | Part 2 | Part 3

Corporations are “legal people.” I explained yesterday why this made no sense. But it's our current jurisprudence, which is to say it's how we do things ’round here, and that sad fact dates back to the 19th century to some very old US Supreme Court cases, particularly the 1819 case Trustees of Dartmouth College v. Woodward and the 1886 case Santa Clara County v. Southern Pacific Railroad. So, unfortunately, there's been a lot of time in the interim for this badly conceived legal philosophy to work its ugly tendrils into the fabric of our society.

Before Copernicus figured out that the planets revolve around the Sun instead of the Earth, the orbits of the planets were thought to twist and turn in baroque ways. It wasn't true, but it seemed that way to astronomers of the day because they were building on an inappropriate foundation. The change in law from a “person” being just a person, to a “person” being either a person or something that is really very clearly not a person, is like going back in time to those days when we thought planets didn't revolve around the sun.

Words are the foundation upon which we build our civilization. The specific words we use are arbitrary in origin, but once chosen and used, our brains become wired to have certain memories, associations, and intuitions about them. Although corporate personhood has existed for ages, the practice of asserting it in order to gain far-reaching political power seems more recent. It started out as a way of asserting the legitimacy or manner in which corporations sign contracts or pay taxes, issues one might reasonably want to clarify for corporations, whether they are people or not. But more recently it has been used to imply that we should give rights or make accommodations to corporations simply because “they are people.” After all, people have rights and corporations are people, so—voilà!—corporations have rights, right?

Well, no. Not right. We are wired to react in certain reflexive ways to primitive concepts. We learn and remember a great many lessons and promises in life using words. So if we can change the meaning of word, do all the sentences we've ever spoken using that word still apply?

We know things about “people,” for example. As speakers of English, we come to associate those things we know with the words “person” or “people.” We are taught that “killing” is wrong, but especially the killing of “people” matters. We have laws against killing “people.” We feel uneasy around someone who even might do that. But if learn that a corporation is a person, must we suddenly feel the same kind of revulsion about someone killing a corporation that we have been raised to feel about them killing a person? Should we feel personally at risk sitting at dinner next to someone has killed a corporation? Could we be next?

Words are all we have to describe the rules we've agreed to live by in our society. We guard the text of those agreements carefully, so someone doesn't just edit the words in the night and expect us to comply with a new set of rules. But if the meaning of the words in those agreements can change out from underneath us, we can end up with different rules even without the text of the rules changing. That must not happen.

We must know when shifts of meaning are happening. We must have the right to review and approve the consequences of changes in meaning. It's not sufficient for someone to tell us that such review has already happened under a different understanding of those words. When such tricks are played with words, our gut feelings are easily manipulated.

It occurs to me that I don't know why I'm even bothering to be upset. There's an easy way out of this, much easier than all this fussing. I should just talk to the writers of a few dictionaries and get the definition of “absurdity” changed to mean “brilliant idea” and then the absurdities that characterize the linguistic landscape of Citizens United v. Federal Election Commission, giving freedom of speech to corporations, and Sebelius v. Hobby Lobby, giving freedom of religion to corporations, would magically become brilliant ideas. And then, perhaps, I'll no longer care.

But can embracing and exploiting such drifts in meaning for tactical advantage really be the answer? Is the Dictionary to be our new battleground? It's too hard to control the Supreme Court, so why not just buy a few publishing houses and change the Dictionary? Is this how wars are now to be fought? If so, we need to call a halt to it before we hurt ourselves irreparably. Santa Clara County notwithstanding, this is no way to run a railroad.

And where are the peddlers of original intent when we need them? No doubt they're busy changing the definition of “original” to more flexibly suit some Machiavellian end, and haven't time or interest to help us. Because as it looks now, it's likely to be Scalias of the court, the self-professed keepers of original intent, who seem to me most likely to afford freedom of religion to corporations. What irony, or perhaps just good old-fashioned hypocrisy, in that.

We need to do something. We The People, I mean.

People People. Not corporate people.

If you catch my drift.

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Author's Note: If you got value from this post, please “Share” it.

This second part of a 3-part series was originally published December 4, 2013 at Open Salon, where I wrote under my own name, Kent Pitman. The first part was Corporations Are Not People. The series concludes with Employers of Religion.

Tags (from Open Salon): politics, political, political battleground, santa clara county vs southern pacific railroad, trustees of dartmouth college vs woodward, corporation, incorporate, incorporated, corporate person, corporate personhood, legal person, legal people, copernicus, copernican, pre-copernican, killing a corporation, gut feeling, language, dictionary, original intent, freedom of speech, freedom of religion, corporate speech, corporate religion

The Legal and Ethical Issues in Suspending Keith Olbermann

Keith Olbermann's suspension from MSNBC on Friday brought 250,000 people out of the woodwork over this one weekend to sign a petition asking that he be reinstated.

Yesterday in my blog at Open Salon I did an analysis (On the Privacy of Political Campaign Contributions) making the claim that because human contributions are limited to a modest amount ($2400), it’s not realistically possible to unduly influence an election by making them and so they ought to be a private matter, out of the reach of employers to control. I also made the claim that because corporate contributions are potentially unlimited, that disclosure is quite important. It’s not the kind of simple rule people like, but then it comes because of that stupid legal person fiction.

Today I also did a big run-down on the grab bag of other issues I thought this suspension (MSNBC Ethical Theatre 2010). This basically takes the position that MSNBC is using the situation to try to appear more ethical than Fox (who gave $1M to the Republican Governors Association), saying they are strict with their employees about what can and cannot be given. But since the contribution is legal, I assert they’re just creating theatre that makes them look ethical. Which is a little weird since I think they are pretty ethical and have nothing to prove. Commenters on my blog post seem to think there's an internal feud at MSNBC.

Oddly, in a Google search for the Olbermann petition, this shows up alongside another petition that wants him fired for being a "maniac" and has 1316 signatures. See my article The Freedom to Hear if you want a guess on where I come down on that.

The Freedom to Hear

I have come to believe that the Founding Fathers blew it when they wrote The First Amendment. They shouldn't have spoken of “free speech” but instead should have spoken of unfettered access to information—that is, “the freedom to hear.” The two are similar rights, but the right to hear is the more important one.

As I see it, the right to stand on a soap box in the park is not a right to stop others who might pass by and hold them hostage, forcing them to listen to one's message. It is not a right of coercion. Rather, the power of the right is the opportunity to place oneself passively in a place where others, if they so choose, might elect to listen.

Democratic Need: The Fuel of Change

It's critically important in a democracy that the majority is able to hear about things that are not popular with that majority. That is how open-minded people change their minds. They take in information about less-popular ideas and consider whether to change their mind and admit new ideas.

In a well-functioning democracy, the status quo will represent the majority viewpoint. As a result, any possible change will occur due to a minority viewpoint taking hold. For that to happen, it's critical that the populace have access to unpopular views. On the other hand, forcing them to receive unpopular views would be tyranny by some minority. So the process must be voluntary, and must involve a conscious decision by enlightened members of the populace to hear what might change their mind.

Tie-Breaking the Golden Rule: Spam and Telemarketing

In some ways, one might think the matter symmetric and the choice of how to express it merely a variation of wording. Communication involves a speaker and a listener, so to say conversation is about speech is to say it's about listening. What's the big deal?

Well, for one thing, if the speaker and listener are not in agreement, there becomes the question of who should win. Those of us who believe that the Golden Rule is the dominant meta-rule that drives all politics find ourselves in an uncomfortable position when one person wants to, even has an articulated right to, speak while another has no desire to listen, and has no corresponding articulated right to assert. Something feels unbalanced about that. Tour right to speak pushes out at me and I need a corresponding force I can balance with. Saying my only right is to speak back, and not merely to assert a right of silence, seems unfairly coercive to me. At minimum there must be a balance of power between speaker and listener.

And yet even then, ties will still occur. In matters of telemarketing and spam, the answer seems clear to me, even before the imposition of rights and laws, just on the basis of common sense. In fact, I was first alerted to this issue at all by receiving email spam that contained a patriotic-sounding passage about free speech which seemed to have the purpose of saying “I have the right to send this and you don't have the right to complain about that.” I don't think that's so. I think the rights of the listener must dominate over the rights of the speaker. In the case of a conflict, the term “free speech” appears to give dominant power to the speaker, while an alternate phrase like “freedom to hear” shifts control to the listener.

Publishing and Censorship

There is also the matter of speaking generally, passively, to no particular person—the matter of publishing, if you will. Publishing speaks out, but with no identified listener.

But publishing does not intrude. Published material can sit patiently and wait, in a library or repository. This process is voluntary, and while it might seem an act of “pushing” information out, that's mistaking advertising for inventory. Inventory is the passive receipt of information to a waystation, awaiting a consumer who will tune in.

Publishing is curious, too, because it actually speaks not only to everyone now existing but to people who might not yet be born. It would be unrealistically difficult to poll everyone who now exists, but when you add those who might exist in the future, it's a definite impossibility. No one can know who might be interested and who might not. And yet publishing speaks to all such people.

And so when it comes to the possibility of censorship we find someone intervening in the wending, passive, voluntary path from speaker to would-be end-listener. But whose rights are denied? The speaker's? I would allege not. The speaker has spoken and even if the speaker's words might reach the intended audience, I've argued he has no right to impose them. It's the listener who has the ultimate right to receive the information. If the chain is broken, it is the listener who is infringed.

In fact, in the impossible situation that it could be shown in advance that there could not possibly be any person interested to hear, one might theoretically argue it was not only rightful but merciful to ask that the speaker desist. But given that no such argument could reasonably be constructed, because there is no science capable of predicting what future people will or won't want to hear, organized censorship has no place because it denies the ultimate rights of listeners, not the rights of speakers.

The Complexities of Public Speech

Recently in the news is the question of whether Obama should be permitted to speak at Notre Dame, given his position on abortion. Under my formulation, I claim it should be clear that this is the wrong question. The right question is not Obama's right to speak, it's whether there is any person at Notre Dame who wants to hear what he has to say, because it is the need of those who might be open to his message that is at issue.

Of course, Public Speech poses a particular difficulty if you assume that any possible reader should have a right to deny speech. Here there are two ways to break things down. One is to say that this argues that Free Speech is the core right and that in order to argue Obama's right to speak I have to go back to that. But I'm not trying to argue based on an ideology. I don't begin with the notion that he must have a right to speak and then bend all law to suit my Machiavellian end goal. Rather, I begin with the simple question: How will that one person in the audience who would hear Obama get the information if Obama is not allowed to speak?

Certainly, if Obama is invited he must be allowed to speak because that's in the nature of the contract. Let someone who doesn't want him to speak not invite him. So this beef by certain would-be audience-members and onlookers is not with Obama, it's with the conference organizers.

And, further, it seems clear that if someone trying to enlighten themselves at a university wants the information, they should have access to it. This goes back to the censorship issue. It seems clear that it serves the rights of the audience to permit controversial speakers. Such speakers' goals may be served by speaking, but in my view they ought enjoy no right to speak if there are no listeners who would hear.

What makes the issue of Obama a problem is not that he might attend and speak but that an audience who wants to be there for other reasons is put in an awkward position. Their choice becomes to attend an event where they would not voluntarily listen, or not to attend. But to not attend means missing an event that is significant for other reasons. This bundling of two unrelated events is the real cause of the difficulty. A structuring of the event to allow those who would do so to attend the main body of the event and then to leave, perhaps in protest, would probably have resolved this. So much the better if their leaving provided seats for others who would like to hear the lecture because I suspect there were not seats enough for all who had wanted to attend and that if those who don't want to hear the lecture were to leave, the gathering place would quickly refill with people who did want to hear.

Avoiding the “Least Common Denominator”

The problem of public speech is also tricky for another reason. There is a temptation by some to manipulate the system in order to say that all public discourse must be a kind of “least common denominator”—permitting only the most conservative of speech, that speech which is acceptable to all. Or, at least, that speech alleged to be acceptable to all. Who even knows if there is any such speech.

The freedom to hear must not be confused with a right of the individual to control what others may say in a public venue by asserting their right against others' rights to publish. The recourse in that case must be a right of individuals to opt out of situations that will thrust arbitrary messages at them in unwanted fashion. I have some sympathy for someone not wanting to see offensive billboards in a public square, for example, since opting out of using certain public areas may be difficult. But the notion that a speech or an internet page must not exist because there is someone somewhere not interested in it misses the entire point of what it is for information to be passively conveyed.

As long as there is a simple, cost-free, rational way to opt out, that should be the final recourse of the party who wants to use their freedom to hear as a mechanism for stopping speech they do not like. Causing the speaker not to speak means potentially infringing another's right to hear. Better to just avoid the venue where the unwanted speech is ocurring.

Just Plain Noise

It should go without saying, but I'll say it anyway: At the point where you're playing your music too loud or blocking my path to a building or any of a variety of other so-called speech acts, you're not exercising what I see as free speech, since you're not entertaining my need to hear, you're just a force trying to invade my space. Making your message available to me is fine, but making it impossible for me to ignore your message is not fine, and certainly ought not be your right.

Sometimes in a society when there are injustices, one takes actions to get attention that are beyond the scope of their rights; but civil disobedience is not a right, it is a calculated sacrifice.

Information from Foul Sources

A particular case of interest is the question of whether murderers should be allowed to write books. Some would say these people have lost their rights and must not be allowed to speak. Perhaps. But I claim that the interesting question is whether the would-be readers of such things have lost their right to hear from a murderer. Do law enforcement officials, psychologists, and even just ordinary citizens sitting at home have no right to know what makes a murderer tick? I think not.

If necessary, cut off the convicted felon's right to the money or even to media notice or fan mail or other benefits of he publication. But if the murderer will offer useful information to those whose enjoy full rights in our society, I see no reason to keep a murderer from writing. The real victim will be a free society who will not be able to prepare for the next such murder.

In September 1997, Salon's Table Talk forum hosted an interesting extended discussion on one of its threads about the question of whether the reader of literary works should make a decision about what to read or not based on the moral character of the author. I was proud to participate. It was entitled “She boiled squirrel nutkin, he diddled girls -- does it spoil the message?” Alas, Salon has retired those pages and the discussion is no longer available as a cross-reference.

Summary

There are two parties involved in a communication. If both are willing, the communication should proceed. But when there's a dispute, who wins? Using terms like “free speech” appears to give the favor to the speaker, which I think is wrong. I prefer the term “freedom to hear” because it gives final say back to the person who would be receiving the information. In my view, the right to free speech ought not be a right to impose one's message on another, only about making messages passively available to others who would hear them.

Free speech is a way of guaranteeing that we in a democracy and in a free society have access to a free flow of ideas. It isn't supposed to be a way of forcing us to endure a free flow of noise or indoctrination. That's not freedom, it's slavery.

I'm not suggesting a Constitutional amendment, although if I were doing the Constitution over, I would ask for a balancing “freedom to hear.” However, even within our present society, with the Constitution as it presently is, I often find that reformulating problems of free speech as problems involving a freedom to hear yields important insights in how to think about those problems in fresh and empowering ways.

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Author's Note: If you got value from this post, please “Share” it.

Originally published May 21, 2009 at Open Salon, where I wrote under my own name, Kent Pitman.

Tags (from Open Salon): politics, rights, Constitution, freedom to hear, right to hear, freedom to listen, right to listen, speech, free speech, freedom of speech, spam, censor, censorship, telemarketing, protest, civil disobedience, democracy, democratic society, information exchange, golden rule, publishing, speech, obama, notre dame, infringed, murderer, rights of felons, right to publish, publication rights, right to write, right to author, rights of felons, dumbing down, least common denominator, coercion, oppression, oppressive, controlling, noise