How corporations are using the First Amendment to destroy government regulation.
Or for another example, consider the aftermath of the Citizens United decision in 2010. Perhaps in an effort to quell fears, Justice Kennedy, writing for the majority, noted that while the Court held that laws restricting commercial entities’ expenditures on political messages violated their First Amendment-protected speech, he very pointedly left the door open for Congress to pass laws compelling commercial entities to disclose their expenditures. “Citizens and shareholders” must be able to “make informed decisions and give proper weight to different speakers and messages,” he wrote. It sounded reasonable at the time. After all, if we can’t restrict corporate expenditures, at least we can see how much they’re spending on what, right?
Not so fast. In the months and years since that decision, corporations and industry groups have been fighting tooth and nail any laws or regulations that would require commercial entities to disclose their political expenditures on the grounds that—drum roll, please!—any such action would infringe on commercial entities’ First Amendment-protected political speech. They argue that such disclosure might subject them to criticism for making the expenditures, which would, in turn, have a “chilling effect” on their ability to spend—er, “speak”—in the future. Just as the government cannot force a citizen to speak or not speak about his political beliefs, they argue, the government cannot force a corporation to disclose its political donations either. Welcome to the NFL.
It helps to think of the current state of First Amendment jurisprudence the same way you might think of a sci-fi novel. Within its own self-contained universe, organized according to its own laws and assumptions, everything makes logical sense. Kennedy, Abrams, the ACLU, and all the rest of those “purists” make three main assumptions. First, they assume that the information issued by a corporation is “speech” and that the corporation itself should be considered a “speaker.” Second, they assume that all political speech, no matter what is said, enjoys the full protections of the First Amendment. And third, they assume that we cannot discriminate against any political speech regardless of the speaker’s identity. On the basis of those three assumptions, their conclusion is logically inevitable: political speech issued by a corporate speaker enjoys the full protections of the First Amendment.
But there’s one fatal problem with that little proof: there’s no reason why the first premise—that information issued by a corporation qualifies as “speech”—should pass the test of common sense. As Rehnquist, Bork, and other old-guard conservatives noted decades ago, a corporation is a legal entity that exists because our laws allow it to exist, so that it may perform an economic purpose. It issues information to consumers and the public so that it might advance that economic purpose. That seems like a very, very different thing than a natural person, who is not a legal entity, and exists regardless of the will of the government, speaking about beliefs and convictions. Why not agree that entities that are not alive create information, while only people create speech?
It’s at this stage in the conversation that the First Amendment purists, having worked themselves into a bit of a froth, make three points. First, they argue that if we limit the definition of speech or wade into the muck of deciding who gets to be a “speaker” under the law and who does not, then we position ourselves on a slippery slope: we are in danger of creating loopholes that allow the First Amendment to protect one type of speaker but not another. Without total absolutism, wherein all speech, by all speakers is protected, they argue, we risk creating a world in which, say, Muslims are silenced just because they’re Muslims, or anarchists are denied free speech just because they’re anarchists. It is, admittedly, a scary prospect, but in reality, it seems that we are in no danger at all of that actually happening. Would it not be perfectly possible to guarantee, absolutely, free speech rights for every single solitary American—full stop, no exceptions!—without also agreeing to guarantee those rights to corporations? If the line is drawn between people and non-people, that slippery slope seems pretty sticky to me.
The second point the purists raise is what happens when people, who individually enjoy full First Amendment protections, arrange themselves into a group and form legal entities, like corporations, unions, or nonprofits. And the answer, again, seems fairly simple. After all, the government already treats legal entities differently than it treats people. Legal entities are taxed differently, they’re afforded different privileges, and they’re subject to different duties, punishments, and rights. Legal entities cannot be jailed. They cannot plead the Fifth so as not to perjure themselves. They can only be held to limited liability for their financial mistakes. So, in the same way that the law already treats a legal entity differently than it treats a person, so too should it treat the information issued (and cash spent) by a legal entity differently than it treats the speech created (and cash spent) by a person.
The third point the purists make is that since many newspapers and media outlets are corporations, any jurisprudence that does not consider corporations’ speech to be protected by the First Amendment threatens the freedom of the press. Again, that sounds scary, but it seems that there is no reason that must be the case. As Stanford law professor Michael McConnell points out, the First Amendment specifically names the “press” as worthy of its protections, and our laws reflect that, carefully defining and affording protections to editorial activities. “No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry,” he wrote. But there is no reason to assume that the First Amendment’s press clause should apply to activities, like “campaign contributions, which are not an exercise of the freedom of the press.”
And that, of course, leads to the most important point of all. Shouldn’t our democratically elected governments—local, state, and federal—have the power to police commerce within their jurisdictions? That doesn’t mean that corporations, unions, or nonprofits would be unable to issue commercial or political information. They would simply have to fight, alongside the citizens who benefit from that information, for favorable laws in the political arena, lobbying elected officials and regulators, as they do now. What they wouldn’t be able to do is use the courts, marshalling a supposed constitutional right to circumvent the political process.
Of course, the only way to ensure that these commonsense lines between people and legal entities get redrawn is for political leaders to first understand the threat posed by runaway commercial speech rights, and then to put on the bench judges who do, too—and soon. Legal precedent is powerful and consequential, but it can, as we’ve seen, evolve or devolve over time, depending on who is making the calls.
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