Free Speech, Inc.

Lisa Danetz is a staff attorney at the National Voting Rights Institute and the lead author of the amicus brief submitted to the Supreme Court on behalf of ReclaimDemocracy.org in the pending Nike v. Kasky case. This article was first published on TomPaine.com

The Supreme Court should decide a case by the end of this month that seemingly pits multiple issues--all significant to democracy advocates--against each other: the First Amendment versus decent working conditions overseas and consumer protection. California anti-sweatshop activist Marc Kasky took Nike to task in April 1998 for allegedly making false statements about its labor practices in Third-World factories, slapping the company with an unfair competition and false advertising lawsuit under California law. Nike claims the suit would unconstitutionally silence its speech on an important public issue.

Technically, the Court must determine whether the statements at issue should be considered "commercial" or "non-commercial" speech. Practically speaking, though, the case is about a different but equally important question -- one likely to be decided with no discussion. Namely, do corporations have the same First Amendment rights as individuals? The issue goes beyond advertising and business practices, directly addressing corporate participation in the political process, and how the government should -- or shouldn't -- regulate this participation. Finding an answer demands an understanding of the legal history surrounding corporations and corporate personhood, a grasp of the intentions underlying the First Amendment -- and finally, a healthy dose of common sense.

The Constitution, the Bill of Rights and the Civil Rights Amendments (which include the Fourteenth Amendment) were never intended to apply to corporations. Nowhere does the Constitution or any of its amendments mention corporations, although the drafters were all clearly aware of corporate existence. Indeed, early in our nation's history, Chief Justice Marshall warned against automatically granting constitutional rights to corporations:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence."

Marshall was on to something. As creations of state law, corporations do not -- and should not -- receive the same protections as individuals. The state grants corporations certain advantages (such as limited liability) to help them make money. It's not unreasonable, then, for the government to make sure corporations don't use their economic benefits to gain unfair advantage in other arenas of civic life.

In a bizarre twist, the Court's initial grant of "personhood" to corporations, such that they enjoy constitutional protections at all, is attributed to an 1886 Supreme Court decision that refused to address the issue. In published versions of the ruling, a court reporter inaccurately summed up the case as deciding that corporation were "persons" entitled to protection by the Equal Protection Clause, when in fact the Court explicitly avoided doing just that. Yet for some reason, the Supreme Court has adopted that as the meaning of the case.

Since that time, the Supreme Court has extended some constitutional protections to corporations, and denied others. For example, corporations enjoy due process protection and some limited free speech, but are not protected by the Fifth Amendment's right to guard against self-incrimination, by the "privileges and immunities" clause of the Fourteenth Amendment, nor by the Fourth Amendment's right to privacy. The Court has made these determinations on an ad hoc basis, with little consistency as to why and when a corporation enjoys constitutional protection.

At some point, the Court needs to articulate a rationale for deciding which rights to extend to these bodies. Corporations do need certain limited rights, after all, in order to function. They must be able to defend themselves from lawsuits, so they require the protection of the due process clause as it applies to property. Media companies must enjoy freedom of press to operate in the news business.

That said, there is no reason whatsoever to extend more First Amendment protections to corporations. The First Amendment promotes communication as a means of self-expression, self-realization, and self-fulfillment. The First Amendment was also intended to protect the integrity of the political process by allowing the free flow of debate and information, and to protect the rights of listeners. Granting corporations the same speech rights as individuals advances none of these purposes.

A corporation is a concept, not a natural person with opinions. Chief Justice Rehnquist has stated, "To ascribe to such artificial entities [as corporations] an 'intellect' or 'mind' for freedom of conscience purposes is to confuse metaphor with reality." In other words, a business has no need for self-expression or self-fulfillment.

As for advancing public debate, people do not invest their money in a business expecting it to promote certain views. The corporation's speech on such issues, therefore, does not reflect the actual views of shareholders, managers or directors. Rather, the speech reflects only the guiding principle of the business corporation: enhancement of corporate profit and shareholder gain.

This is not to say that participants in a corporation will disagree with the "corporate view." Some will certainly agree -- especially the executives and corporate spokespeople who created the view. The point is, corporations are no proxy for the executives, employees, investors, or customers who stand behind the corporation. The people within a corporation are able to speak as individuals on political and other issues. They may advance their ideas with their own resources. They don't need to rely on corporate spokespeople using wealth amassed through business practices rather than through the sway of particular ideas.

And regarding the issue of the free flow of ideas, a serious power imbalance exists between business corporations and individuals. When corporations use their treasuries to pontificate on whatever issues tickle their fancies -- or line their pocketbooks -- they can use their wealth advantage to drown out the speech of individuals, who may have strongly held beliefs but possess no war chest to bankroll their efforts.

Full First Amendment protection is neither necessary to fulfill corporate purposes nor desirable for society. Allowing corporations to use their money -- gained by the sale of their products, not by the strength of their ideas -- to advance certain political causes distorts the democratic process, and skews the information available to the public. The strength of the corporate voice does not reflect the collective appeal of its ideas, but only the profitability of its business plan. And because corporations are richer, their message will dominate over the views of individuals.

If Nike wins this lawsuit, the Supreme Court will have decided that corporations enjoy the same First Amendment protection as you and me. Nike's statements about its business practices will be exempted from regulation. And Nike and its fellow corporations will be allowed to exert greater influence over public debate and the political process than any individual can. Before the Supreme Court takes us down that road, it ought to weigh carefully the impact of this arrangement on American democracy.

©2003 Lisa Danetz

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