Academic journal article Constitutional Commentary

Corporate Speech & the Rights of Others

Academic journal article Constitutional Commentary

Corporate Speech & the Rights of Others

Article excerpt


How might the role of money in electoral politics change if corporations had no First Amendment rights? In short, "not much." Insofar as the Supreme Court has protected business corporations' under the Constitution, that protection has never expressly relied on the notion that a corporation per se has constitutional rights. To the contrary, a central strategy of the Court's corporate constitutional jurisprudence has been to avoid deciding whether corporations are the holders of constitutional rights. Critics of corporate constitutional jurisprudence must recognize that it is based not on the rights of the corporation but on the rights of others. Recognizing this fact reveals the real weakness of the Court's reasoning: it depends on a mischaracterization of corporate governance as a participatory democracy.

This Essay makes two main arguments. First, the jurisprudence extending constitutional protection to corporations focuses not on the rights of corporations themselves, but on the rights of others. Criticizing the Court for focusing on corporate constitutional "personhood" misses the point of the case law. In fact, the jurisprudence has avoided simplistically equating the corporate legal "person" with the human individual to whom the Constitution guarantees rights. The Court has done so by carefully reframing corporate constitutional law issues to focus on the interests of individuals. The Court has done this in two ways: First, it sometimes treats a corporation as an "aggregate" of individual natural persons. Second, in the free speech context, it focuses on the rights of human listeners rather than those of corporate speakers. For example, the Court has justified corporate speech protection on the basis of individuals' interest in hearing diverse viewpoints.

My second point focuses on the real weakness of the corporate constitutional jurisprudence: its reliance on the common misconception that the actions of a corporation reliably reflect the will of its constituent individuals. Using this flawed assumption, the Supreme Court has held that corporate regulations infringe on the due process and Fourth Amendment rights of natural persons. The Court has made a related error in the free speech context--the central concern of this Essay. Although listeners may have an interest in hearing corporate messages, that may conflict with the interests of the corporation's shareholders (or its other constituents, such as employees) if they disagree with those messages. But the Court has dismissed this concern on the ground that shareholders control a corporation's messages through "the procedures of corporate democracy." (2)

However, corporate law does not, and is not intended to, run corporations in a democratic way. Rather, in the interests of money-making efficiency, the law concentrates power in professional managers. (3) They enjoy nearly unreviewable discretion to control the resources of the corporation with negligible input from shareholders. As intended, this arrangement is likely to benefit shareholders financially. But it does not protect them (or other corporate constituents) from corporate political spending or other speech acts they disagree with. This fact undermines the Court's listeners' rights argument against corporate campaign finance regulation. It is also consistent with the proposed "Democracy for All Amendment," which would expressly permit campaign finance law to regulate corporations and natural persons differently. (4)

Another proposed constitutional amendment, the "People's Rights Amendment," would amend the Constitution to exclude corporations from the categories of "people, person, or citizen as used in this Constitution." (5) The amendment aims to deny corporations the rights the Constitution gives to human individuals. Because corporate First Amendment law does not depend on corporate rights per se, however, the People's Rights Amendment would have no immediate determinative effect on corporate campaign finance regulation or other corporate speech laws. …

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