Constitutional Adjudication, Free Expression, and the Fashionable Art of Corporation Bashing BRANDISHING THE FIRST AMENDMENT: COMMERCIAL EXPRESSION IN AMERICA. By Tamara R. Piety. Ann Arbor, Michigan: University of Michigan Press, 2012. 342 pages. $70.00.
Late in 2011, Massachusetts Congressman James P. McGovern proposed a constitutional amendment to limit the terms "People, person, or citizens" as used in the Constitution to natural persons.1 As to provisions that do not explicitly use the terms "People, person, or citizens," such as the First Amendment, the new amendment would clarify that "We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons," with the goal and effect of rendering impossible any constitutional recognition of corporations.2 Whatever one thinks about the merits of this proposal, there is little doubt that it taps into widespread confusion about and anger over the Supreme Court's holding in its 2010 decision in Citizens United v. Federal Election Commission that "the First Amendment does not allow political speech restrictions based on a speaker's corporate identity."3 The widespread reaction of both legal scholars and educated lay people to the Citizens United decision was that it is preposterous to believe that a corporation could actually possess constitutional rights because a corporation is neither a "person" nor a "citizen."4
Most recently, the debate over corporate First Amendment rights has been impacted by the interesting and controversial-if seriously flawed- new book by Professor Tamara Piety, Brandishing the First Amendment: Commercial Expression in America.5 Professor Piety's book develops an elaborate constitutional argument that all but excludes speech by profitmaking corporations from the First Amendment's protective scope.
This widespread reaction, while perhaps politically understandable, reveals a complete lack of familiarity with well-established precepts of American constitutional law. In reality, the Citizens United Court's recognition of a corporation's ability to invoke constitutional rights was nothing new. Corporations have been invoking numerous constitutionalized and subconstitutionalized rights in court for many years.6 Indeed, if Congressman McGovern's amendment ever managed to become law, one wonders how the provision's supporters would feel about the removal of the New York Times and Washington Post-both profit-making corporations, of course-from the First Amendment's protective reach.
Most of the battles over the constitutional status of corporations were long ago resolved in favor of allowing corporations to invoke constitutional guarantees. Today, corporate standing to challenge constitutional violations is so well established that it usually goes unnoticed. Corporations regularly invoke the Due Process Clause,7 the Dormant Commerce Clause,8 the Diversity Clause,9 separation of powers protections,10 and the Sixth and Seventh Amendment rights to jury trial.11 Even when it comes to the First Amendment right of free expression, powerful corporate owners of newspapers and broadcast networks regularly invoke the First Amendment without the slightest controversy over their corporate form.12 Moreover, since 1976, the Supreme Court has provided continually expanding First Amendment protection to commercial speech, which is invariably disseminated by profit-making corporations.13
Such practices should hardly come as a surprise. After all, if a corporation is defrauded in the marketplace by a contractor or competitor, would anyone seriously challenge that corporation's ability to resort to the judicial process to remedy the legal wrong done to it? Our economy would no doubt quickly degenerate into a state of chaos if corporations were denied the opportunity to vindicate their legal rights in court. But if no doubt exists that corporations have standing to vindicate subconstitutional rights and protections, how, purely as a logical matter, could they be categorically denied the opportunity to invoke the nation's highest law, the United States Constitution? …