Ampersand, Tornillo, and Citizens United: The First Amendment, Corporate Speech, and the NLRB
Opposing the “conceit that corporations must be treated identically to natural persons in the political sphere,” and appalled by the Supreme Court’s putative rejection of “a century of history,” which distinguished corporations from human beings, Justice Stevens stressed that not a scintilla of evidence indicates the Framers believed that the First Amendment would preclude regulation of speech based on the corporate form. In offering a defense of prior case law upholding speech regulations based on the speaker’s identity and snubbing the possibility that the logic of prior cases would likely apply most directly to newspapers and other media firms, he asserts that soulless corporations have historically labored under a “cloud of disfavor.” Notwithstanding the force of Justice Stevens’ argument and his claim that the Court’s failure to accept his intuition disfavoring speech rights for corporations “threatens to undermine the integrity of elected institutions across the Nation,” the First Amendment rights of business organizations and employers have been sustained in a number of cases. This is true whether the free speech and free press provisions of the First Amendment ought to read separately or, alternatively, whether these provisions suggests that all individuals, whether users of mass communications technologies or not, have the same freedom. This conclusion with-stands scrutiny despite the fact that “the Press Clause of the First Amendment remains perhaps one of the most ill-defined and least-understood rights prescribed . . . by the founders.” In any case, the speech/press rights of entities have prevailed against an effort to apply a state’s antidiscrimination statute to a newspaper, a state attempt to mandate that political candidates have the right-of-reply against adverse editorials, and a federal endeavor to smother employer speech during a labor union organizing and election campaign.
