Shifted Personhood: Technology, Organizations, and Law on the Path to Citizens United and Hobby Lobby

Abstract

This article tells a nuanced story about law, technology, and social change as they interacted in the evolution of corporations in the United States over two centuries. Most prominently, it is the first to illuminate how the Supreme Court’s view of the relationship between television and the provision of information to people in a mass society shaped its decision to extend the First Amendment’s protection of freedom of expression to corporations in Citizens United. It adds new complexity to the “antidistortion interest,” reveals how judges can easily put their norms in place of legislatures’ when they reason about technology, and suggests how the legal regulation of technology can become an instrumental part of social order. Most broadly, the article provides a model for explaining technology-influenced legal change and brings forward legal aspects of the study of corporations from the Industrial to the Information Age. Its farthest-reaching implication is to explain how personhood has “shifted” between corporations and individuals within the constitutional order, bringing their rights into conflict in new ways, as in the recent Burwell v. Hobby Lobby Stores.