Building a 'New Institutional' Approach to Corporate Speech
58 Pages Posted: 28 Mar 2008
Date Written: 2008
This Article represents the second installment in a three-part series designed to articulate a New Institutional approach to corporate speech that could foil the otherwise inevitable collision between the commercial speech doctrine and the Supreme Court's disparate approach to corporate political speech.
The problem arises because corporations are attempting to escape regulation or liability in a variety of settings by investing commercial messages with just enough political content to render the amalgam of politically tinged corporate speech fully protected under the First Amendment. Why would this strategy work? If corporate speech is political, existing Supreme Court jurisprudence suggests that government should play almost no role in regulating the speech, regardless of its truth or falsity. In contrast, if the corporate speech is commercial, the commercial speech doctrine permits governmental regulation to ensure consumers and investors receive truthful information. This dichotomy in the Supreme Court's approach creates a perverse incentive for corporations to engage in an artful alchemy of mixing just enough political content with otherwise commercial speech to garner the most stringent constitutional protection. As corporations practice that alchemy with increasing frequency and sophistication, a wide array of regulatory regimes face potential constitutional attack.
The first Article in the series, Corporate Speech, Securities Regulation and an Institutional Approach to the First Amendment, 48 WM. & MARY L. REV. 613 (2006), brought to light the impending jurisprudential train wreck in the realm of securities regulation and suggested that an institutional analysis of speech rights might prevent the collision. In this second work, the project is to construct a comprehensive philosophical and methodological framework for a New Institutional approach to corporate speech jurisprudence that courts could adopt as cases of politically tinged corporate speech arise in other contexts. The project emphasizes a multidisciplinary approach to institutional theory, utilizing concepts culled from works in political science, sociology, economics and the law. The third Article in the series will demonstrate how to implement the analytical construct and methodologies described here by marshalling fresh empirical data and arguments to solve a pressing corporate speech problem.
Keywords: First Amendment, Commercial Speech, Corporate Political Speech, Jurisprudence, Institutional Theory
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