55 Pages Posted: 10 Apr 2011 Last revised: 2 May 2011
Date Written: 2011
In the wake of the January, 2010 Supreme Court decision in Citizens United, special interest groups, citizens, and politicians alike have engaged in a rigorous debate about the role of corporate speech within our democratic process. The First Amendment issues raised in Citizens United - to that extent do corporations have a constitutionally protected right to participate in and influence our elections through expenditures - evoke larger questions about the roles, rights, and responsibilities of corporations within our society. This article concludes that the Supreme Court did not reference corporate law principles when analyzing the fundamental First Amendment debate in Citizens United and therefore rested its reasoning upon five flawed assumptions: (1) economic motivation of corporate speech, even corporate political speech, deserves no discount, (2) presence of a singular corporate voice, (3) insignificant threat of compelled speech, (4) lack of regulated speech, based solely on the identity of the corporate speaker, and (5) inapplicability of the equalization rationale to corporate speech. By examining the constitutional questions evoked in Citizens United through a corporate law lens, these assumptions are shown to be false. These flawed assumptions underlying the Court’s reasoning undermine the Court’s conceptualization of corporations and its holding that corporate political speech cannot and should not be treated differently from individual political speech.
Keywords: corporations, corporate law, personhood, free speech, First Amendment, corporate speech, corporate political speech, political speech
JEL Classification: K00, K22, K30, K39
Suggested Citation: Suggested Citation
Tucker, Anne M., Flawed Assumptions: A Corporate Law Analysis of Free Speech and Corporate Personhood in Citizens United (2011). Case Western Reserve Law Review, Vol. 61, p. 495, 2011; Georgia State University College of Law, Legal Studies Research Paper No. 2011-06. Available at SSRN: https://ssrn.com/abstract=1805932