Corporate Speech and the First Amendment: History, Data, and Implications

John C. Coates, IV

Harvard Law School

February 27, 2015

Constitutional Commentary, Forthcoming

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

Number of Pages in PDF File: 41

Keywords: First Amendment, corporations, Court of Appeals, Virginia Pharmacy, Bellotti, Central Hudson

JEL Classification: D72, K10, K22, K23, K42, L51

Open PDF in Browser Download This Paper

Date posted: March 9, 2015 ; Last revised: May 14, 2015

Suggested Citation

Coates, IV, John C., Corporate Speech and the First Amendment: History, Data, and Implications (February 27, 2015). Constitutional Commentary, Forthcoming . Available at SSRN: https://ssrn.com/abstract=2566785 or http://dx.doi.org/10.2139/ssrn.2566785

Contact Information

John C. Coates (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
Feedback to SSRN

Paper statistics
Abstract Views: 11,532
Downloads: 2,514
Download Rank: 3,354