Essential Speech: Why Corporate Speech is Not Free

Abstract

In a democracy, the citizens are the only legitimate sources of law. It follows inexorably that corporations, not being citizens, cannot be legitimate political actors. The problem of corporate speech is further complicated by the internal rules of corporate governance. When corporations speak, they do so by decision of their managers, who are constrained by fiduciary duties and economic pressure of the stock market to advocate for a single value: maximum profit for shares. In a multifaceted culture of manifold and various values, it is inevitable that the pursuit of profit, valuable as it is, will conflict with other important goals. But role-constrained corporate managers may not consider those other values, even in circumstances where they, or any other corporate participant, would view them as important. Because corporate speakers are barred from considering the full range of values critical to any citizen's analysis, corporate speech cannot reflect the actual views of any citizen or human being with a claim on corporate assets. Instead, it is legally constrained advocacy, using corporate resources, on behalf of a purely imaginary principal, reflecting only one side of the conflicts around which our politics revolves. It follows that current First Amendment doctrine is backwards. The speaker matters; instead of corporate speech being protected, it should be suspect. To grant a tool a right against the citizens who use it is a form of political idolatry that ought to be abhorrent to any democratic regime.