Ampersand, Tornillo, and Citizens United: The First Amendment, Corporate Speech, and the NLRB

64 Pages Posted: 3 Dec 2013  

Harry G. Hutchison

Centre for the Study of Law & Public Policy at Oxford; Regent University - School of Law

Date Written: December 2, 2013

Abstract

Contrary to the Citizens United validation of a firm’s speech rights, and disregarding the possibility that government speech/press regulation could conceivably facilitate the outright regulation of the press, the NLRB recent opinion in Ampersand shrinks a newspaper’s First Amendment rights. Although it is possible that press activity plays an important role in public affairs as an antidote to government overreach and abuses of power, the NLRB deploys its power in a way that may threaten the free press. The NLRB’s decision in Ampersand fits conveniently, accidentally, or consciously within an arrangement illuminated by the dissent in Citizens United. This arrangement implies that when rights-bearing individuals pool their economic and ideological resources to form a firm that enters into commerce, their constitutional rights do not necessarily remain intact for a variety of public welfare reasons. Whether the latter claim is correct or not, the NLRB’s Ampersand opinion materializes as part of a wide-ranging labor movement effort to resuscitate unionization, premised on the thesis that workers’ yearning for an effective voice in the governance of their workplace has not waned in the face of union decline.

Opposing the NLRB’s decision-making in Ampersand, this Article defends Ampersand as a “person” within the meaning of the Constitution; a “person” that is, and ought to be entitled to control the editorial content of its newspaper despite the counterclaims of reporters seeking to organize within the meaning of the NLRA. Lastly, this Article concedes that any defense of speech/press rights for employers must contend with the persistent efforts of labor advocates to diminish what the Constitution appears to protect. This maneuver suggests that speech/press rights are likely to remain contingently unstable in our postmodern world, which teeters between freedom and government coercion.

Keywords: business organization, communication rights, corporate form, editorial freedom, for-profit firm, Justice John Paul Stevens, Kenneth Arrow, limited liability company, LLCs, National Labor Relations Act, Section 7, participatory management, reporter autonomy, workplace democracy

JEL Classification: K19, K31

Suggested Citation

Hutchison, Harry G., Ampersand, Tornillo, and Citizens United: The First Amendment, Corporate Speech, and the NLRB (December 2, 2013). NYU Journal of Law & Liberty, Vol. 8, No. 2, Forthcoming; George Mason Law & Economics Research Paper No. 13-68. Available at SSRN: https://ssrn.com/abstract=2362489

Harry G. Hutchison (Contact Author)

Centre for the Study of Law & Public Policy at Oxford

Belsyre Court, 57 Woodstock Road
Oxford 0X2 6HJ
United Kingdom

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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