Corporations and the First Amendment: Free Speech Rules (Episode 6)
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Corporations and the First Amendment: Free Speech Rules (Episode 6)

September 16, 2019


Here are the five rules of free speech and corporations. Rule one. Corporations have First Amendment rights. The Supreme Court’s first decision protecting individual’s free expression rights came in 1931. It’s first decision protecting a corporation’s free expression rights came just five years later in 1936. That decision involved a newspaper corporation. But the courts first decision protecting a non-media business corporation’s free expression rights came five years after that in 1941. From the 1950’s onward, many court decisions protected for-profit corporations. Indeed the very first American court decision striking down a state’s statute on free speech grounds took place in 1894. And it protected the rights of a corporation. When the Supreme Court split sharply over corporate speech in the 2010 Citizens United case, no one doubted that the First Amendment protects corporations generally. The question was whether there was an exception for corporate speech supporting or opposing political candidates. Why is this so? Partly because corporations partly are, after all, made up of people. If the government takes a corporations property, that doesn’t hurt the corporation in some abstract sense, it hurts the corporation’s stockholders. If the government stops the New York Times company from criticizing the president, that restricts the First Amendment rights of the newspaper’s editors. Rule two. The media doesn’t have any greater First Amendment rights than other speakers. The freedom of the press isn’t the freedom of a business category called “the press.” It has been understood since the 1700’s as the freedom of all to use the printing press and its technological heirs. There are some statutes that give institutional media special additional rights beyond what the First Amendment gives them. But the Constitution doesn’t distinguish reporters from bloggers, or media businesses from other businesses. This means that the First Amendment protects General Motors and Walmart as much as it protects the New York Times or CNN or the New Republic. If GM’s corporate speech could be restricted, then the New York Time’s speech could be too. And because the New York Times’ speech can’t be restricted, neither can GM’s. This, by the way, means that First Amendment law doesn’t have to decide who is media and who isn’t. Is Google media? How about Amazon? Which sells electronics, sells books, and makes movies. The Supreme Court doesn’t have to decide because all corporations have First Amendment rights regardless of whether they are media. Rule three. Union’s have free speech rights too. Citizens United struck down the federal law that banned both corporations and unions from speaking out for or against political candidates. Rule four. Individual stockholders can’t veto corporations political spending, whether those corporations publish newspapers or make widgets. Generally speaking, American corporations are run on majority of shared rules basis. Individual objectors can generally sell their stock, but they can’t order managers around. That’s a familiar rule for all sorts of spending. If you don’t like Ben and Jerry’s liberal messages, you don’t have to buy their ice cream. But you can’t just buy a share and then demand that they stop saying things that you, as a minority stockholder, dislike. Likewise, if you don’t like a company’s charitable contributions, or the tone of it’s advertising, or it’s speech opposing unionization, you can’t stop such corporate action even if you own shares. And you can’t control the New York Times editorial policy even if you are a stockholder. The same is true for spending about policital candidates. If a corporation wants to endorse a candidate, dissenting shareholders can’t stop that anymore than they can stop any of the corporations other action or speech. Rule five. Corporate and union direct contributions to candidate campaigns can be sharply limited, though independent spending is fully protected. The rationale for this is complicated, but basically direct contributions of money to candidates, whether by corporations or individuals, are less constitutionally protected than speech. Including expensive speech by those corporations or individuals. So to sum up. Restrictions on corporate speech generally violate the First Amendment to the same extent that restrictions on individual speech do. Some justices think there should be an exception for speech supporting or opposing candidates, and maybe ballot measures, but all the justices agree that the general rule is that corporations have free speech rights. The institutional media get no special First Amendment rights beyond what others have. So if corporate speech could be restricted, speech by corporate-owned newspapers, magazines, book publishers, movie studios, and the like, could be restricted too. Union speech is constitutionally protected also. The objecting minority shareholders can’t block corporate speech with which they disagree. Just as they can’t block corporate charitable contributions, advertising campaigns, or product designs with which they disagree. Corporate and union direct contributions to candidate campaigns can be sharply limited. Though independent spending is fully protected. I’m Eugene Volokh and I approve this message.

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  1. i feel that a point that nobody talks about the big tech is that now days many goverment institutions use social media to be in contact with the population, if a person is ban from social media then the big tech companies are violating their rights to interact with their representatives, imagine the scenario that an important statement by the president via twitter, but because you have been ban from twitter you did not read the message

  2. Huh, as an employee of an Investor owned company it sure feels like they run the show. They are the most important entity in decision making, with employees and customers being the last consideration.

  3. This discusses the free speech rights of corporations but does not discuss the separate topic of civil liability. Some corporations are shielded from civil liability by claiming to be neutral platforms. But if they chose to exercise editorial control over the material on their sites, then are they neutral platforms? This has not yet been resolved in court, but if they lose that status, then they could become liable for what's posted on their site.

  4. Great. So we now know that corporations have speech rights. Now, what about corporations that attempt to limit the speech of thier employees based on the politics of the corporation or its board. EG: Corporation finds out that employee X has been supporting Candidate Y on thier own time and NOT as a corporate representative. Corporation supports Candidate Z. Corporation fires Employee X based on some nebulous violation of corporate policy regarding being involved in politics. and/or "creating a negative workplace atmosphere" based on their personal politics, irrespective of whether they ever even brought politics up in the workplace.

    Is this legal or illegal and why?

    (My personal take for full disclosure is that this should not be legal as a corporation has no right to demand that their employees live or believe in any specific way, and demanding that they do is a violation of the employee's civil rights.)

  5. The corporate us inc. Must be exposed and ended.
    That is the Stallin statue in the room.
    We have veered way off course and have been sucked into the storm.
    We need a CAPTAIN to bring us about.
    We have a president, vice president, CEOs of corporation .
    That is why you have " police " they are policy enforcers not " LAWMEN " .
    Do your homework.

  6. So the next question is, can communications-based corporations change the quality of or completely deny their communications services unequally for those who use said services, based on the differences between the political views of the corporation versus the individual users' political views, or do they have a legal responsibility to treat all the political views of the users of their communications services equally?

  7. The issue isn't corporate spending in campaign adverts. The issue is when the donations are hidden from the voters. Fair enough?

  8. As a corporate employee for 20+ years, employment is at the will of the corporation. The communism begins there. Employees are not free to speak.

  9. It's obvious the first ammendment is only applied to the printing press. The founding fathers could not have possibly foreseen the future development of automatic assault printers and electronic mass printers (the internet)

  10. Corporations do not have the right to vote. When a corporations exercises political free speech, makes political donations and alters business practices for political purposes; they are voting. This is also a primary source of political corruption. How is it possible that a corporation has a greater vote than the people? Corporations should have to lobby the people for anything they want politically.
    You ask, well what about "The Press". The press at the corporate level should only report the facts not opinion. They should be able to report the opinions of individuals. Opinions should never be stated as fact and the credentials of the individual should be made clear.

  11. Then a corporation promoting it self as a public platform, has no right to censor speech it does not like. But, as a private company publisher, they should be held accountable for bias on their platform and not have Chapter 23 protections. Got it

  12. What recourse (under the law) does ReasonTV have if Google decided to ban their channel for no other reason than it disagrees the corporate managers political opinions?

  13. I don’t care what corporations say
    I just think politicians or candidates can’t accept a certain amount of money from one individual or corporation

  14. Bahaha, Truly Orwellian. The only problem is the great power these groups of people (as you call them), wield over individual(s). Is it truly free speech if no one hears it? Is it truly free speech, for "these groups" to choose who runs for office, and back them with unlimited amounts of money? Where is the representative government in all of this? Clearly, "these groups" have way more influence than the individual, or even a large group of individuals.

    The don't buy, or don't vote for, is a tired failure of an argument, since choices are not unlimited.

    Corporations are destroying personal liberty, because of a few un-elected individuals interpretation of the law. No way SCOTUS could be wrong, right?

    Another false interpretation is that the framers of the constitution had corporations in mind while writing the 1st. You seem to have embraced that fully, and thrown aside any representative government of, by and for the people. It's sad when people like Reason, who make these ignorant videos, refuse to learn history.

  15. In other words, YouTube, Facebook, twitter etc. exercise their free speech by limiting yours….checkmate dumbasses, you got punked, again.

  16. Courts obviously erred in granting free speech to corporations. Speech is the utterance of sound to express concepts. Corporations do not have the ability to create sound, let alone the ability to conceive of concepts to express. Speech is limited to humanity. Cats and dogs have the ability to create concepts, but they don't have the ability of speech as humans do. That puts cats and dogs one step ahead of corporations.

    Corporations are merely concepts delineated on paper and those concepts are talked about. People are elected or appointed to represent concepts, but the concept itself, ie a corporation has no capability of speech or creating a concept. Those abilities are limited to humanity, for which the First Amendment was intended.

    The press is composed of individual people for which the concept of free press was conceived. Neither the New York Times nor ReasonTV have any more ability to speak and create concepts than corporations. It's the individuals within those organizations that are the real press.

  17. In Canada we have a Prime Minister (Crime Minister) that just gave $600 million to "approved" publications. Think about that.

  18. I don't have a problem with a corporation saying that they support this or that candidate or proposed law. My problem is that they are allowed to buy politicians with money. If say, GM wants to support Bernie, they can buy commercials that say; "GM supports Bernie", the money should not go to Bernie's campaign. This would make it clearer to the public who to support or not support by their purchases, Also, investors would have more say in what the company is doing, since it would be more open.
    Individuals on the other hand should be able to waste their own money any way they want as long as there is no expectation of performance.

  19. Still … the very concept of corporations as having ANY rights … which derive from our natural biologic existence … is bogus and should be legislated away. Just my 2-pfenig worth.

  20. YouTube exemptions to the constitution were based on the stipulation that they remain a neutral service provider, not a publisher, and is the primary reason Facebook YouTube google and Twitter all avoid numerous lawsuits, and thus are classified as some type of public commons, rather than as a publisher liable to any part of the public at large for any damages such businesses knowledgeably permitted to be printed. Should they continue to violate The primordial basis of their immunity, implicitly or explicitly, they will have to be stripped of said privileges, which to begin with – The necessitation of their granting immunity to what counts as constitutional legislation, implies severe ineptitudes, and inherent conflicts to a business’ progress, not of the original founding document which sets legal precedent for legality and tolerance of any and all subsequent laws, as much as subsequent countless pieces of legislation accrued for over 200 years of history, made in response, and without respect to other pieces of legislation, or reform thereof, leading to numerous complications as a result of innumerable explicit legal precedents set by each piece of legislation, any number of which can be invoked in any number of situations, even situations not specifically envisioned.

  21. Citizens United was never about free speech but forcing the government to recognize corporations (not businesses) as people and that was an incredibly stupid decision. Corporations and businesses are not the same thing. A corporation is made up of persons like a business but the corporations struc6erects a barrier of protection so that the executives of the corporation are able to direct the actions of said corporation whole being protected from the consequences of those actions. This ruling provides corporate executives a perverse level of power because they get special privileges by being recognized as a person but being protected from the actions if that person and Reason and courts think this is a good thing so what has this decision lead to? Corporations have even more influence over elections whole individuals who are not corporate executives have less.

    Corporations dont need to be recognized as persons for free speech because the executives already have it. This decision was about granting corporate executives even more special rights and Privileges than they already had and its disgusting.

    This would be less if a bad thing if we had true free competition but these corporations have used their free speech to ensure politicians friendly to preventing competition are the ones who get elected and this is what Reason believes is a good thing. I love Reason but sometimes you people's obsessions make you blind to reality

  22. This time I listened to this video, an advertiser asked the question "What is the difference between a human being and a dog?" In the context of liberty AND THIS VIDEO, presumably for humanity, I would ask "What is the difference between a human being and a corporation?" In another thread of comments, Zarkow didn't seem to comprehend that question. He seems to think they are one and the same, besides Zarkow's trouble in looking up words in a dictionary, words such as "speech", the definition of which is rather pertinent to this video.

    Has anyone ever heard a corporation give speech? I don't think so. Certainly representatives of corporations have, but not the corporations themselves. Sure no one would deny the right of free speech to corporate representatives, as they are human beings. But let's hear from the corporation itself, not a representative. I don't believe we can, as corporations are not capable of speech at all to express any concept.

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