Case Argued November 9, 1977
Decided April 26, 1978
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First National Bank of Boston et al. v. Bellotti, Attorney General of Massachusetts
Appeal from the Supreme Judicial Court of Massachusetts (No. 76-1172).
Appellants, national banking associations and business corporations, wanted to spend money to publicize their views opposing a referendum proposal to amend the Massachusetts Constitution to authorize the legislature to enact a graduated personal income tax. They brought this action challenging the constitutionality of a Massachusetts criminal statute that prohibited them and other specified business corporations from making contributions or expenditures “for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation.” The statute specified that “[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation.” On April 26, 1976, the case was submitted to a single Justice of the Supreme Judicial Court of Massachusetts on an expedited basis and upon agreed facts. Judgment was reserved and the case was referred to the full court. On September 22, 1976, the court directed entry of a judgment for appellee and issued its opinion upholding the constitutionality of the statute after the referendum, at which the proposal was rejected. Held:
- 1. The case is not rendered moot by the fact that the 1976 referendum has been held and the proposal for a constitutional amendment defeated. The 18-month interval between legislative authorization of placement of the proposal on the ballot and its submission to the voters was too short for appellants to obtain complete judicial review, and likely would be too short in any future challenge to the statute; and in view of the number of times that such a proposal has been submitted to the electorate, there is reasonable expectation that appellants again will be subjected to the threat of prosecution under the statute. Weinstein v. Bradford,
423 U.S. 147, 149
- 2. The portion of the Massachusetts statute at issue violates the First Amendment as made applicable to the States by the Fourteenth. Pp. 775-795.
- (a) The expression proposed by appellants, namely, the expression of views on an issue of public importance, is at the heart of the First Amendment’s concern. There is no support in the First or Fourteenth Amendment, or in this Court’s decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation that cannot prove, to a court’s satisfaction, a material effect on its business. Although appellee suggests that this Court’s decisions generally have extended First Amendment rights only to corporations in the business of communications or which foster the self-expression of individuals, those decisions were not based on the rationale that the challenged communication materially affected the company’s business. They were based, at least in part, on the Amendment’s protection of public discussion and the dissemination of information and ideas. Similarly, commercial speech is accorded some constitutional protection not so much because it pertains to the seller’s business as because it furthers the societal interest in the “free flow of commercial information.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
425 U.S. 748, 764 Pp. 776-783.
- (b) The asserted justifications for the challenged statute cannot survive the exacting scrutiny required when the legislative prohibition is directed at speech itself and speech on a public issue. This statute cannot be justified by the State’s asserted interest in sustaining the active role of the individual citizen in the electoral process and preventing diminution of his confidence in government. Even if it were permissible to silence one segment of society upon a sufficient showing of imminent danger, there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government. And the risk of corruption perceived in this Court’s decisions involving candidate elections is not present in a popular vote on a public issue. Nor can the statute be justified on the asserted ground that it protects the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. The statute is both underinclusive and overinclusive in serving this purpose, and therefore could not be sustained even if the purpose itself were deemed compelling. Pp. 788-795.
371 Mass. 773, 359 N. E. 2d 1262, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and STEVENS, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 795. WHITE, J., filed a dissenting opinion, in [435 U.S. 765, 767] which BRENNAN and MARSHALL, JJ., joined, post, p. 802. REHNQUIST, J., filed a dissenting opinion, post, p. 822.
Francis H. Fox argued the cause for appellants. With him on the briefs was E. Susan Garsh.
Thomas R. Kiley, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Francis X. Bellotti, Attorney General, pro se, and Stephen Schultz, Assistant Attorney General. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed by Henry Paul Monaghan for the Associated Industries of Massachusetts, Inc., et al., and by Jerome H. Torshen, Jeffrey Cole, Stanley T. Kaleczyc, Jr., and Lawrence B. Kraus for the Chamber of Commerce of the United States. William C. Oldaker filed a brief for the Federal Election Commission as amicus curiae urging affirmance. Briefs of amici curiae were filed by Mike Greely, Attorney General, and Jack Lowe, Special Assistant Attorney General, for the State of Montana; by James S. Hostetler for the New England Council; and by Ronald A. Zumbrun, Robert K. Best, John H. Findley, Albert Ferri, Jr., and W. Hugh O’Riordan for the Pacific Legal Foundation.
MR. JUSTICE POWELL delivered the opinion of the Court.
In sustaining a state criminal statute that forbids certain expenditures by banks and business corporations for the purpose of influencing the vote on referendum proposals, the Massachusetts Supreme Judicial Court held that the First Amendment rights of a corporation are limited to issues that materially affect its business, property, or assets. The court rejected appellants’ claim that the statute abridges freedom of speech in violation of the First and Fourteenth Amendments. The issue presented in this context is one of first impression in this Court. We postponed the question of jurisdiction to our consideration of the merits. 430 U.S. 964 (1977). We now reverse.
The statute at issue, Mass. Gen. Laws Ann., ch. 55, 8 (West Supp. 1977), prohibits appellants, two national banking [435 U.S. 765, 768] associations and three business corporations, 1 from making contributions or expenditures “for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation.” The statute further specifies that “[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation.” A corporation that violates 8 may receive a maximum fine of $50,000; a corporate officer, director, or agent who violates the section may receive a maximum fine of $10,000 or imprisonment for up to one year, or both. 2 [435 U.S. 765, 769]
Appellants wanted to spend money to publicize their views on a proposed constitutional amendment that was to be submitted to the voters as a ballot question at a general election on November 2, 1976. The amendment would have permitted the legislature to impose a graduated tax on the income of individuals. After appellee, the Attorney General of Massachusetts, informed appellants that he intended to enforce 8 against them, they brought this action seeking to have the statute declared unconstitutional. On April 26, 1976, the case was submitted to a single justice of the Supreme Judicial Court on an expedited basis and upon agreed facts, in order to settle the question before the upcoming election. 3 Judgment was reserved and the case referred to the full court that same day. [435 U.S. 765, 770]
Appellants argued that 8 violates the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and similar provisions of the Massachusetts Constitution. They prayed that the statute be declared unconstitutional on its face and as it would be applied to their proposed expenditures. The parties’ statement of agreed facts reflected their disagreement as to the effect that the adoption of a personal income tax would have on appellants’ business; it noted that “[t]here is a division of opinion among economists as to whether and to what extent a graduated income tax imposed solely on individuals would affect the business and assets of corporations.” App. 17. Appellee did not dispute that appellants’ management believed that the tax would have a significant effect on their businesses. 4 [435 U.S. 765, 771]
On September 22, 1976, the full bench directed the single justice to enter judgment upholding the constitutionality of 8. An opinion followed on February 1, 1977. In addressing appellants’ constitutional contentions, 5 the court acknowledged that 8 “operate[s] in an area of the most fundamental First Amendment activities,” Buckley v. Valeo, 424 U.S. 1, 14 (1976), and viewed the principal question as “whether business corporations, such as [appellants], have First Amendment rights coextensive with those of natural persons or associations of natural persons.” 371 Mass. 773, 783, 359 N. E. 2d 1262, 1269. The court found its answer in the contours of a corporation’s constitutional right, as a “person” under the Fourteenth Amendment, not to be deprived of property without due process of law. Distinguishing the First Amendment rights of a natural person from the more limited rights of a corporation, the court concluded that “whether its rights are designated `liberty’ rights or `property’ rights, a corporation’s property and business interests are entitled to Fourteenth Amendment protection. . . . [A]s an incident of such protection, corporations also possess certain rights of speech and expression under the First Amendment.” Id., at 784, 359 N. E. 2d, at 1270 (citations and footnote omitted). Accordingly, the court held that “only when a general political issue materially affects a corporation’s business, property or assets may that corporation claim First Amendment protection for its speech or other [435 U.S. 765, 772] activities entitling it to communicate its position on that issue to the general public.” Since this limitation is “identical to the legislative command in the first sentence of [ 8],” the court concluded that the legislature “has clearly identified in the challenged statute the parameters of corporate free speech.” Id., at 785, 359 N. E. 2d, at 1270.
The court also declined to say that there was “no rational basis for [the] legislative determination,” embodied in the second sentence of 8, that a ballot question concerning the taxation of individuals could not materially affect the interests of a corporation. Id., at 786, 359 N. E. 2d, at 1271. In rejecting appellants’ argument that this second sentence established a conclusive presumption in violation of the Due Process Clause, the court construed 8 to embody two distinct crimes: The first prohibits a corporation from spending money to influence the vote on a ballot question not materially affecting its business interests; the second, and more specific, prohibition makes it criminal per se for a corporation to spend money to influence the vote on a ballot question solely concerning individual taxation. While acknowledging that the second crime is “related to the general crime” stated in the first sentence of 8, the court intimated that the second sentence was intended to make criminal an expenditure of the type proposed by appellants without regard to specific proof of the materiality of the question to the corporation’s business interests. 6 Id., at 795 n. 19, 790-791, 359 N. E. 2d, at 1276 n. 19, [435 U.S. 765, 773] 1273-1274. The court nevertheless seems to have reintroduced the “materially affecting” concept into its interpretation of the second sentence of 8, as a limitation on the scope of the so-called “second crime” imposed by the Federal Constitution rather than the Massachusetts Legislature. Id., at 786, 359 N. E. 2d, at 1271. But because the court thought appellants had not made a sufficient showing of material effect, their challenge to the statutory prohibition as applied to them also failed.
Appellants’ other arguments fared no better. Adopting a narrowing construction of the statute, 7 the Supreme Judicial Court rejected the contention that 8 is overbroad. It also found no merit in appellants’ vagueness argument because the specific prohibition against corporate expenditures on a referendum solely concerning individual taxation is “both precise and definite.” Id., at 791, 359 N. E. 2d, at 1273-1274. [435 U.S. 765, 774]Finally, the court held that appellants were not denied the equal protection of the laws. 8
Because the 1976 referendum has been held, and the proposed constitutional amendment defeated, we face at the outset a question of mootness. As the case falls within the class of controversies “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), we conclude that it is not moot. Present here are both elements identified in Weinstein v. Bradford, 423 U.S. 147, 149 (1975), as precluding a finding of mootness in the absence of a class action: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.”
Under no reasonably foreseeable circumstances could appellants obtain plenary review by this Court of the issue here presented in advance of a referendum on a similar constitutional amendment. In each of the legislature’s four attempts to obtain constitutional authorization to enact a graduated income tax, including this most recent one, the period of time between legislative authorization of the proposal and its submission to the voters was approximately 18 months. This proved too short a period of time for appellants to obtain complete judicial review, and there is every reason to believe that any future suit would take at least as long. Furthermore, a decision allowing the desired expenditures would be an empty gesture unless it afforded appellants sufficient opportunity prior to the election date to communicate their views effectively.
Nor can there be any serious doubt that there is a “reasonable expectation,” Weinstein v. Bradford, supra, that appellants [435 U.S. 765, 775] again will be subject to the threat of prosecution under 8. The 1976 election marked the fourth time in recent years that a proposed graduated income tax amendment has been submitted to the Massachusetts voters. Appellee’s suggestion that the legislature may abandon its quest for a constitutional amendment is purely speculative. 9 Appellants insist that they will continue to oppose the constitutional amendment, and there is no reason to believe that the Attorney General will refrain from prosecuting violations of 8. 10 Compare Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 -547 (1976), with Spomer v. Littleton, 414 U.S. 514, 521 (1974).
Meanwhile, 8 remains on the books as a complete prohibition of corporate expenditures related to individual tax referenda, and as a restraining influence on corporate expenditures concerning other ballot questions. The criminal penalties of 8 discourage challenge by violation, and the effect of the statute on arguably protected speech will persist. Storer v. Brown, 415 U.S. 724, 737 n. 8 (1974); see American Party of Texas v. White, 415 U.S. 767, 770 n. 1 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2 (1972). Accordingly, we conclude that this case is not moot and proceed to address the merits.
The court below framed the principal question in this case as whether and to what extent corporations have First Amendment [435 U.S. 765, 776] rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations “have” First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether 8 abridges expression that the First Amendment was meant to protect. We hold that it does.
The speech proposed by appellants is at the heart of the First Amendment’s protection.
- “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama,
310 U.S. 88, 101 -102 (1940).
The referendum issue that appellants wish to address falls squarely within this description. In appellants’ view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State. See n. 4, supra. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement.
As the Court said in Mills v. Alabama, 384 U.S. 214, 218 (1966), “there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free [435 U.S. 765, 777] discussion of governmental affairs.” If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 11 and this is no less true because the speech comes from a corporation rather than an individual. 12 The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.
The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation’s business interests. In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment’s protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment. 13 [435 U.S. 765, 778] The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection. We turn now to that question.
The court below found confirmation of the legislature’s definition of the scope of a corporation’s First Amendment rights in the language of the Fourteenth Amendment. Noting that the First Amendment is applicable to the States through the Fourteenth, and seizing upon the observation that corporations “cannot claim for themselves the liberty which the Fourteenth Amendment guarantees,” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), the court concluded that a corporation’s First Amendment rights must derive from its property rights under the Fourteenth.
This is an artificial mode of analysis, untenable under decisions of this Court.
- “In a series of decisions beginning with Gitlow v. New York,
- (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. That principle has been followed and reaffirmed to the present day.” Joseph Burstyn, Inc. v. Wilson,
- -501 (1952) (footnote omitted) (emphasis supplied).
[435 U.S. 765, 780]Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, see Gitlow v. New York, 268 U.S. 652, 666 (1925) (opinion of the Court); id., at 672 (Holmes, J., dissenting); NAACP v. Alabama ex rel. Patterson,357 U.S. 449, 460 (1958); Stromberg v. California, 283 U.S. 359, 368 (1931); De Jonge v. Oregon, 299 U.S. 353, 364 (1937); Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431 (1926), and the Court has not identified a separate source for the right when it has been asserted by corporations. 15 See, e. g., Times Film Corp. v. Chicago, 365 U.S. 43, 47 (1961); Kingsley Int’l Pictures Corp. v. Regents, 360 U.S. 684, 688 (1959); Joseph Burstyn, supra. In Grosjean v. American Press Co., 297 U.S. 233, 244 (1936), the Court rejected the very reasoning adopted by the Supreme Judicial Court and did not rely on the corporation’s property rights under the Fourteenth Amendment in sustaining its freedom of speech. 16 [435 U.S. 765, 781]
Yet appellee suggests that First Amendment rights generally have been afforded only to corporations engaged in the communications business or through which individuals express themselves, and the court below apparently accepted the “materially affecting” theory as the conceptual common denominator between appellee’s position and the precedents of this Court. It is true that the “materially affecting” requirement would have been satisfied in the Court’s decisions affording protection to the speech of media corporations and corporations otherwise in the business of communication or entertainment, and to the commercial speech of business corporations. See cases cited in n. 14, supra. In such cases, the speech would be connected to the corporation’s business almost by definition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation’s business.
The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate. 17 Mills v. Alabama, 384 U.S., at 219 ; see [435 U.S. 765, 782] Saxbe v. Washington Post Co., 417 U.S. 843, 863 -864 (1974) (POWELL, J., dissenting). But the press does not have a monopoly on either the First Amendment or the ability to enlighten. 18 Cf. Buckley v. Valeo, 424 U.S., at 51 n. 56; [435 U.S. 765, 783] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389 -390 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964); Associated Press v. United States,326 U.S. 1, 20 (1945). Similarly, the Court’s decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas. 19See Red Lion Broadcasting Co. v. FCC, supra; Stanley v. Georgia, 394 U.S. 557, 564(1969); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967). Even decisions seemingly based exclusively on the individual’s right to express himself acknowledge that the expression may contribute to society’s edification. Winters v. New York, 333 U.S. 507, 510(1948).
Nor do our recent commercial speech cases lend support to appellee’s business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to the seller’s business as because it furthers the societal interest in the “free flow of commercial information.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 764 (1976); see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 95 (1977). 20[435 U.S. 765, 784]
We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The “materially affecting” requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication.
Section 8 permits a corporation to communicate to the public its views on certain referendum subjects – those materially affecting its business – but not others. It also singles out one kind of ballot question – individual taxation – as a subject about which corporations may never make their ideas public. The legislature has drawn the line between permissible and impermissible speech according to whether there is a sufficient nexus, as defined by the legislature, between the issue presented to the voters and the business interests of the speaker.
In the realm of protected speech, the legislature is constitutionally [435 U.S. 765, 785]disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972). If a legislature may direct business corporations to “stick to business,” it also may limit other corporations – religious, charitable, or civic – to their respective “business” when addressing the public. Such power in government to channel the expression of views is unacceptable under the First Amendment. 21 Especially where, as here, the legislature’s suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, 22 the First Amendment is [435 U.S. 765, 786] plainly offended. Yet the State contends that its action is necessitated by governmental interests of the highest order. We next consider these asserted interests.
The constitutionality of 8’s prohibition of the “exposition of ideas” by corporations turns on whether it can survive the exacting scrutiny necessitated by a state-imposed restriction of freedom of speech. Especially where, as here, a prohibition is directed at speech itself, 23 and the speech is intimately related to the process of governing, “the State may prevail only upon showing a subordinating interest which is compelling,” Bates v. Little Rock, 361 U.S. 516, 524 (1960); see NAACP v. Button, 371 U.S. 415, 438-439 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S., at 463 ; Thomas v. Collins, 323 U.S. 516, 530 (1945), “and the burden is on the government to show the existence of such an interest.” Elrod v. Burns, 427 U.S. 347, 362 (1976). Even then, the State must employ means “closely drawn to avoid unnecessary abridgment . . . .” Buckley v. Valeo, 424 U.S., at 25 ; see NAACP v. Button, supra, at 438; Shelton v. Tucker, 364 U.S. 479, 488 (1960).
The Supreme Judicial Court did not subject 8 to “the critical scrutiny demanded under accepted First Amendment [435 U.S. 765, 787] and equal protection principles,” Buckley, supra, at 11, because of its view that the First Amendment does not apply to appellants’ proposed speech. 24 For this reason the court did not even discuss the State’s interests in considering appellants’ First Amendment argument. The court adverted to the conceivable interests served by 8 only in rejecting appellants’ equal protection claim. 25 Appellee nevertheless advances two principal justifications for the prohibition of corporate speech. The first is the State’s interest in sustaining the active role of the individual citizen in the electoral process and thereby preventing diminution of the citizen’s confidence in government. The second is the interest in protecting the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. However weighty these interests may be in the context of partisan candidate elections, 26 [435 U.S. 765, 788] they either are not implicated in this case or are not served at all, or in other than a random manner, by the prohibition in 8.
Preserving the integrity of the electoral process, preventing corruption, and “sustain[ing] the active, alert responsibility [435 U.S. 765, 789] of the individual citizen in a democracy for the wise conduct of government” 27 are interests of the highest importance. Buckley, supra; United States v. Automobile Workers, 352 U.S. 567, 570(1957); United States v. CIO, 335 U.S. 106, 139 (1948) (Rutledge, J., concurring); Burroughs v. United States, 290 U.S. 534 (1934). Preservation of the individual citizen’s confidence in government is equally important. Buckley, supra, at 27; CSC v. Letter Carriers, 413 U.S. 548, 565 (1973).
Appellee advances a number of arguments in support of his view that these interests are endangered by corporate participation in discussion of a referendum issue. They hinge upon the assumption that such participation would exert an undue influence on the outcome of a referendum vote, and – in the end – destroy the confidence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee’s arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, 28 or that [435 U.S. 765, 790] there has been any threat to the confidence of the citizenry in government. Cf. Wood v. Georgia, 370 U.S. 375, 388 (1962).
Nor are appellee’s arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections, e. g., United States v. Automobile Workers, supra; United States v. CIO, supra, simply is not present in a popular vote on a public issue. 29 To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution “protects expression which is eloquent no less than that which is unconvincing.” Kingsley Int’l Pictures Corp. v. Regents, 360 U.S., at 689 . We noted only recently that “the concept that government may restrict the speech of some elements of our society in order [435 U.S. 765, 791] to enhance the relative voice of others is wholly foreign to the First Amendment . . . .” Buckley, 424 U.S., at 48 -49. 30 Moreover, the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. 31 They may consider, in making their [435 U.S. 765, 792] judgment, the source and credibility of the advocate. 32 But if there be any danger that the people cannot evaluate the information and arguments advanced by appellants, it is a danger contemplated by the Framers of the First Amendment. Wood v. Georgia, supra. In sum, “[a] restriction so destructive of the right of public discussion [as 8], without greater or more imminent danger to the public interest than existed in this case, is incompatible with the freedoms secured by the First Amendment.” 33
Finally, appellee argues that 8 protects corporate shareholders, an interest that is both legitimate and traditionally within the province of state law. Cort v. Ash, 422 U.S. 66, 82-84 (1975). The statute is said to serve this interest by preventing the use of corporate resources in furtherance of [435 U.S. 765, 793] views with which some shareholders may disagree. This purpose is belied, however, by the provisions of the statute, which are both underinclusive and overinclusive.
The underinclusiveness of the statute is self-evident. Corporate expenditures with respect to a referendum are prohibited, while corporate activity with respect to the passage or defeat of legislation is permitted, see n. 31, supra, even though corporations may engage in lobbying more often than they take positions on ballot questions submitted to the voters. Nor does 8 prohibit a corporation from expressing its views, by the expenditure of corporate funds, on any public issue until it becomes the subject of a referendum, though the displeasure of disapproving shareholders is unlikely to be any less.
The fact that a particular kind of ballot question has been singled out for special treatment undermines the likelihood of a genuine state interest in protecting shareholders. It suggests instead that the legislature may have been concerned with silencing corporations on a particular subject. Indeed, appellee has conceded that “the legislative and judicial history of the statute indicates . . . that the second crime was `tailor-made’ to prohibit corporate campaign contributions to oppose a graduated income tax amendment.” Brief for Appellee 6.
Nor is the fact that 8 is limited to banks and business corporations without relevance. Excluded from its provisions and criminal sanctions are entities or organized groups in which numbers of persons may hold an interest or membership, and which often have resources comparable to those of large corporations. Minorities in such groups or entities may have interests with respect to institutional speech quite comparable to those of minority shareholders in a corporation. Thus the exclusion of Massachusetts business trusts, real estate investment trusts, labor unions, and other associations undermines the plausibility of the State’s purported concern for the persons who happen to be shareholders in the banks and corporations covered by 8. [435 U.S. 765, 794]
The overinclusiveness of the statute is demonstrated by the fact that 8 would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure. Ultimately shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues. 34 Acting through their power to elect [435 U.S. 765, 795] the board of directors or to insist upon protective provisions in the corporation’s charter, shareholders normally are presumed competent to protect their own interests. In addition to intracorporate remedies, minority shareholders generally have access to the judicial remedy of a derivative suit to challenge corporate disbursements alleged to have been made for improper corporate purposes or merely to further the personal interests of management.
Assuming, arguendo, that protection of shareholders is a “compelling” interest under the circumstances of this case, we find “no substantially relevant correlation between the governmental interest asserted and the State’s effort” to prohibit appellants from speaking. Shelton v. Tucker, 364 U.S., at 485 .
Because that portion of 8 challenged by appellants prohibits protected speech in a manner unjustified by a compelling state interest, it must be invalidated. The judgment of the Supreme Judicial Court is Reversed. [by a vote of 5-4]
Note: To keep the size of this page manageable, footnotes and concurring and dissenting opinions are omitted. Many law websites host that material. We highly recommend reading the dissent of Justice William H. Rehnquist.
For an extensive collection of resources relating to the Bellotti case and stripping corporations of their power to influence ballot questions, see our library of resources on Corporations and Ballot Initiatives or on Corporate Personhood.
Of related interest: Memo by Justice Lewis Powell (author of the majority opinion) to the U.S. Chamber of Commerce, written weeks before his appointment to the Supreme Court, in which he called for an aggresive expansion of corporate legal and political power.