corporations already have free speech, can they now get away with murder?

Slate | In 1796, pirates who committed heinous crimes against individuals could be held liable under the Alien Tort Statute, which permits civil suits by foreigners in federal courts for violations of “the law of nations or a treaty of the United States.” The law was passed by the first Congress in 1789. In 2002, 12 Nigerian nationals sued Royal Dutch Shell under the ATS, alleging that the oil company had colluded with the Nigerian military from 1992 to 1995 to suppress a grass-roots protest movement against oil exploration in the Niger delta. Specifically, members of the Ogoni people contend that Royal Dutch Shell aided and abetted the Nigerian government in torturing, executing, and arbitrarily detaining Ogoni activists. Esther Kiobel, the named plaintiff, is the widow of a victim.

The question for the court is whether Shell is immune from this suit because it is a corporation, not a person. Or—as Justice Stephen Breyer puts it this morning at oral argument—what would happen if the Pirates were a corporation. A corporation called, say, “Pirates Inc.”

Arrrrrr.

The ATS was almost never invoked between the 18th century and the 1980s, at which time human rights organizations dusted it off and deployed it to bring justice to victims of human rights atrocities abroad. In the only Supreme Court pronouncement on the scope of the right to sue under the ATS, the court in 2004 found that ATS could be used to redress violations of a small number of well-established customary international norms. The court was not clear about whether the well-established customary norms would determine who was liable, or merely the actions for which they could be sued. The 2nd Circuit Court of Appeals determined in 2010 that there is no customary international norm of corporate liability and decided in favor of Shell. Three other courts of appeals have found that there is corporate liability under the ATS, not just for pirates but for corporations as well.

In brief, the looming question for the court today is whether, after Citizens United, corporations enjoy not only free speech rights but also the right to say “I’m immune from suit.”

Paul Hoffman represents the 12 Nigerian plaintiffs and opens by pointing out that in Shell’s view of the case, “even if these corporations had jointly operated torture centers with the military dictatorship in Nigeria to detain, torture, and kill all opponents of Shell's operations in Ogoni, the victims would have no claim.”