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Current Affairs

A Magazine of Politics and Culture

How Corporations Try To Be More Human Than Humans

The fascinating history of corporate “personhood.”

For the past decade, corporations have been commenting online with an increasing degree of consciousness. Netflix enjoys tweeting about how horny and depressed it is, and Wendy’s habitually roasts its patrons and competitors online. Sunny D, the orange beverage company, once got over 300,000 likes on a performatively depressed tweet that read, “I can’t do this anymore.” It was hard to pin down what was most unnerving: the tweet itself, all the users sincerely consoling Sunny D, or all the other brands consoling it. (“You ok bro?” asked UberEats.)

Where these companies might’ve once posted about weekly promotions and new products or services in an innocuous tone, the new marketing comes across as off-the-cuff and oftentimes emotionally unstable, though in a way that is supposed to feel relatable. The brands talk in terms of “me” and “I” while simultaneously eschewing authorship. The audience is meant to feel like a real person is opening up to them about their real desires and insecurities, rather than experiencing the result of unpaid interns or a PR firm drafting up tweets in a conference room. The goal isn’t that brands want to be our friends per se. They more so want to be perceived as friendly, with everything that adjective entails: being relatable, humble, transparent, and more. Whether its focus is regional or global, any company aiming to engage millennials and Gen-Z now abides by this confessional Twitter style, guaranteeing hundreds of thousands of likes and retweets.

In her 1999 book No Logo, Naomi Klein traces a formative shift in late-20th century marketing that has carried over into the present. Executives, she tells us, eventually realized that honing a brand identity and infiltrating settings traditionally devoid of advertisements were more important activities than manufacturing actual products. By focusing on selling a brand’s “essence,” they could relegate concerns about product quality and manufacturing conditions to a lower tier of consciousness. As free trade deals and deregulation laws blossomed during the Reagan era, companies were able to move their factories to Africa and Asia faster, in countries where labor protection laws were virtually nonexistent. As Klein explains, this greater emphasis on branding “has proved enormously profitable, and its success has companies competing in a race toward weightlessness: whoever owns the least, has the fewest employees on the payroll, and produces the most powerful images, as opposed to products, wins the race.” 

Twenty years later, the branding craze appears to be reaching its logical conclusion through social media, an iteration of “unmarketed space” that Klein refers to throughout the book. What makes it the conclusion of the craze is that it doesn’t end. Twitter and Facebook feeds are abysses that deepen the longer you scroll, opening up more unmarketed space for brands to fill. It only makes sense that corporate marketing departments would devote their energy towards vying for our attention in whatever cranny opens up in our feeds.

Social media, by its very nature, conditions us to crave personal connection in each post. This is what these megalithic corporate accounts are exploiting when they shrink themselves down to human semblances. But this tactic also allows them to make their critics appear overblown and unfair, as if they were waging ad hominem wars on actual people. After Steven Spielberg lobbied against the process by which Netflix films got nominated for the Oscars, the streaming service tweeted out that the director was suppressing its core values of “accessibility” and “representation”—a disingenuous deployment of identity politics. However, as Corey Atad points out in The Baffler, Netflix could care less about carrying out these values when it comes to concrete charitable initiatives such as “investing in broadband lines in underserved regions, or offering free internet services and free Netflix subscriptions for low-income people.” Netflix wants to tweet about how binge-watching soothes “its” loneliness and suggest that it advocates for self-care and mental health awareness in some unspecified capacity, without considering whether its content and structure has the potential to play into insecurities and magnify whatever loneliness/isolation you might already feel. It’s only pretending to be your equally lonely friend.

There’s already a term that explains this particular first-person voice and its prevalence: corporate personhood. Traditionally, the term refers to a legal doctrine. As law professor Adam Winkler has explained, “in corporate law, personhood means the corporation is its own independent entity, with rights and duties wholly separate from those of its members.”

The doctrine dates back to the ratification of the Fourteenth Amendment. This Amendment was adopted following the Civil War to ensure that all people, including freed African-Americans, received “equal protection of the laws.” Corporate personhood itself was created by mistake. Roscoe Conkling, a lawyer who was on the Amendment’s drafting committee, claimed that equal protection was also supposed to protect “artificial persons”—that is, corporations. However, a record of that committee’s deliberations shows that artificial persons were never discussed. Conkling invented the story to help his client, the Southern Pacific Railroad, dodge a tax that California lawmakers wanted to impose on it. His argument was that this special tax amounted to discrimination against corporations. 

Although Conkling lost his client’s case in 1881, his disingenuous interpretation of the Fourteenth Amendment captivated the business sector. Corporations saw it as a potential rhetorical device to fend off regulations. Its influence was so great that by 1912, more than 300 cases had come through the Supreme Court involving the rights of corporations. Meanwhile, fewer than 30 concerned the rights of African-Americans. Winkler writes that Conkling and the railroad company had “set up the Fourteenth Amendment to be more of a bulwark for the rights of businesses than the rights of minorities.”

During the early 1970s, Lewis F. Powell Jr., a corporate activist/conservative lawmaker, wrote a polemic addressed to the U.S. Chamber of Commerce lamenting that “the American economic system is under broad attack.” Powell was bitter that the New Deal had done more for the working class than wealthy elites and believed business leaders had to fight for the “survival of what we call the free enterprise system.” To do this, they needed to take up “confrontation politics,” in the form of PR campaigns that would smear the AFL-CIO, Ralph Nader, and other labor advocates as opponents to freedom, broadly defined. The “Powell Memo” was leaked to the public about a year after Nixon appointed Powell to the Supreme Court, exposing the Justice’s plan to turn corporate personhood into a nationwide movement. 

Since then, corporate personhood has garnered the reputation as a tool to decimate standards of accountability. While deciding Citizens United v. FEC in 2010, the Supreme Court expanded First Amendment rights for all corporations, holding that independent political donations count as a form of free speech. The case effectively permitted corporations like Citizens United to ignore federal campaign finance law. This ruling paved the way for Burwell v. Hobby Lobby. In that case, Hobby Lobby and its evangelical Christian owners argued that forcing them to comply with the Affordable Care Act’s requirement to cover abortion violated the company’s—as opposed to the owners’—freedom of religion rights under the First Amendment.

In his 2018 book We The Corporations, Winkler writes that despite these two cases, corporate personhood has positives. Indeed, this doctrine is also responsible for freedom of the press rights (i.e. free speech for newspapers), and for vicarious liability, which means that if a customer gets injured at a Starbucks, they can sue Starbucks rather than its employees or individual investors. In Winkler’s view, the doctrine functions like a barometer: it measures how strictly or how loosely corporate rights are treated in a given legal battle. What’s perhaps more significant is Winkler’s belief that none of the mentioned Supreme Court rulings are necessarily examples of corporate personhood. Discussing Citizens United in an interview with SCOTUSBlog, Winkler said that “in expanding corporate rights […] the court has often rejected corporate personhood and based the rights of corporations on the rights of their members.”

This is not to say Winkler is defending corporate rights, but rather that he is noticing a specific pattern in how these rulings are decided and what they really mean. In his review of We the Corporations, Harvard Law professor Nikolas Bowie coins the phrase “corporate statehood,” which he defines as “the assumption that corporations deserve the protections of their rights-bearing members because the corporations’ leaders have been elected in some way to represent those members.” This, Bowie says, helps elucidate Winkler’s analysis of what cases like Southern Pacific Railroad and Citizens United were really arguing: corporations deserve constitutional rights because they represent natural people who already have constitutional rights.

Whenever corporations have taken the position above, however, the Supreme Court has seldom inquired into the extent to which they are governed. The “members”—CEOs and their boards of directors—are recognized as stand-ins for the companies as a whole, and implicitly claim to represent the interests of everyone else below them (employees, etc). And yet, the structure of the most powerful corporations is much closer to oligarchies, as employees rarely elect their bosses. But the Supreme Court has not considered this to be much of a legal issue over the past two centuries, allowing companies to seek democratic protections while skirting the burdens of operating democratically. It’s quite possible that if fry cooks at Wendy’s and production crews at Netflix had the power to plan and vote on executive decisions—and be recognized as actual members of the corporation rather than profit-vehicles—then maybe these workers’ qualms with their corporation’s hierarchy and operational choices would be clearer, and would refute the notion that the corporations represent anyone above their own financial interests. Instead, the Supreme Court’s inattention to corporate governance has reinforced the impression that corporations are already fully democratic, strengthening the position that they thus deserve more of a say in politics.

Partisan as Justice Powell’s memo was, its message that corporations should take up confrontational politics could also be read as a guide to creating a brand identity. He encouraged businesses to adopt superficial political stances that would both humanize them while undermining fundamental issues connected to class politics. Although conventional PR language today is far less aggressive than the memo would’ve preferred, its underlying message is that enterprise should ultimately be deregulated and free from scrutiny. This mentality helps explain the significance of Starbucks CEO Howard Shultz’s Democratic presidential primary bid. In running for President, Shultz bolstered the coffee company’s image as a liberal brand. And even though his campaign caved in 2019, the public could then assume that Schultz’s righteous political endeavor extended to the franchise’s business model as a whole. After all, what good liberal CEO would let his company harvest its coffee beans using Brazilian slave labor?

Powell’s memo is a helpful lens through which to understand why Netflix would flaunt its support of “accessibility” and “representation” in response to Steven Spielberg’s criticism of its bid for Oscar nominations. Regardless of whether or not the streaming platform should be eligible for Academy Awards, Netflix was deploying the same playbook that Roscoe Conkling was using when he cried discrimination against his railroad client back in 1881, only this time it did so in a cultural context rather than a courtroom. Netflix tweeted some identity politics buzzwords to look thoughtful and well-intentioned, without expanding the effort and resources that would allow it to live up to these values in any concrete manner—not even by making monthly subscriptions less expensive or more accessible. The move works every time. Spin attacks on the corporation as if they were personal attacks on marginalized people; then sit back and watch as the gesture diverts attention from calls for economic reforms and accountability.

And so Netflix, Wendy’s, and Sunny D continue to humorize and capitalize on millennial working-class anxieties via social media, without doing the work of alleviating those actual anxieties in the people who work for and buy from them. While this spectacle of corporations acting goofy and informal can be amusing, we need to recognize it for what it really is: a contrived and sycophantic ploy for avoiding responsibility. The brands feign to be people just like us, all the while deflecting from their sins, and concealing the irony that some beneficiaries of the strongest constitutional protections aren’t even human.

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