natural persons

(another old post that is somehow in dialogue with other of my random old posts)

The traditional approach to free speech gave less protection to commercial speech” and to speech by corporations. (Or at least, legislatures typically assumed that this was the doctrine, even if it was never formally articulated by the Supreme Court.) That went away in the 1970s. (Virginia Board of Pharmacy, First National Bank of Boston v. Bellotti).

Citizens United was less a legal innovation, than the logical conclusion of those cases, and Buckley v. Valeo’s holding that campaign contributions were protected under the First Amendment. Yes it was possible for Citizens United to come out the other way but the framework itself was already tilted against campaign finance laws.

I believe that the path the Supreme Court set us on in the 1970s was mistaken. That said I believe it is possible to course correct, not necessarily by bringing back or strengthening the commercial speech doctrine (though I’m open to that!) but by establishing that contrary to Bellotti, in general only natural persons have First Amendment rights. I think that Rehnquist’s solo dissent in that case is mostly correct, and the White-authored dissent raises excellent points as well.

This does not mean that no organizations can have First Amendment protection, just that if organizations have rights they need to be traced to individuals (see Rehnquist dissent footnote 5), or must be press” organizations which the Constitution does directly protect (see Rehnquist dissent paragraph 1, discussing Grosjean). There are alternate routes to this result as well.

Here is a brief sketch of how this could work.

Individuals have free speech rights.

Organizations that are structured such that they represent the views of their members, have rights that are derivative of underlying individual rights.

Option 1: Press organizations also have direct First Amendment rights under the press” provision. And this should apply to many online platforms as well. Figuring out which organizations have such protections and which do not is up to the development of caselaw.

Option 2: Press organizations and other corporations that are chartered to engage in speech have First Amendment rights just as individuals do. (This may be what Rehnquist believed.) The potential issue with this is that it is not clear that the state should be able to grant or withdraw First Amendment rights by granting or withholding corporate charters—under this theory presumably the state would have to lose discretion over granting speech-related corporate charters. Similar to Option 1 the purpose a company is chartered for could be what gives it press rights.

Press protections also apply to individual rights to engage in press activities including their right to access and use communications tools.

Private companies in general should have free speech rights only to the extent they are exercising the rights of their owners derivatively. They usually aren’t. In general, the speech of corporations is too disconnected from the speech of any actual individuals; for example because fiduciary rules require that corporate speech advances the financial interest of the corporation, not the expressive interests of a majority of owners. (The managers of a company are of course always free to spend their own money to push whatever agenda they like.) And it is difficult to see why one person owning more shares would be relevant here–in general, sure they get more votes when it comes to normal corporate affairs, but this shouldn’t give them a greater degree of First Amendment standing. So, at most, a private company has First Amendment rights that derive from its owners only to the extent that its speech is in the control of a majority of its owners on a one-owner-one-vote basis. This is clearly going to be a difficult standard to meet in practice, except for some kinds of closely-held corporations, partnerships and so on. The effect of this is that the speech of corporations can be reasonably regulated by the government.

It should be noted that one of the arguments advanced in Bellotti and rejected by the majority was that restrictions on corporate political speech in general protected the financial interests of minority shareholders who might disagree with the majority on some issue, framing the expenditure of corporate funds on such communication to be a form of waste. I’m not sure the argument presented this way actually works, since corporate law would already provide a remedy for wasteful expenditures of any kind, and I think the proper frame should not rest on the number of shares owned (which is traditionally what being a minority shareholder rests on). Maybe shareholders are not the right stakeholders at all, or maybe employees should be included with them. Just putting this out there.


December 2, 2013