Corporate Speech and the Rights of Others

30 Constitutional Commentary 335 (2015)

UC Davis Legal Studies Research Paper No. 442

27 Pages Posted: 7 Aug 2015 Last revised: 18 Aug 2015

See all articles by Thomas Wuil Joo

Thomas Wuil Joo

University of California, Davis - School of Law

Date Written: August 5, 2015

Abstract

The Supreme Court is often erroneously criticized for giving business corporations the constitutional rights of human persons. In fact, constitutional decisions protecting corporations tend to be based not on the rights of corporate “persons,” but on the rights of other persons: human individuals such as shareholders or persons who listen to the content of corporate speech. Shareholders’ property and privacy interests have been invoked to protect corporations from regulatory takings and from unreasonable searches, for example.

In the First Amendment context, Citizens United and other opinions have invoked the rights of others in a different way, invalidating corporate speech regulations on the ground that they infringe upon the public’s right to hear corporate messages. These “rights of others,” however, can conflict with the rights of other others: corporate shareholders who might not want corporate assets used to express such messages.

The Court has dismissed this concern with the inaccurate assertion that shareholders control a corporation’s messages through “corporate democracy.” This contention, and not corporate constitutional “personhood,” is the true fallacy of corporate speech jurisprudence. Corporate governance is not democratic. In the interests of money-making efficiency, the law concentrates power in professional managers. As intended, this arrangement is likely to benefit shareholders financially. But it does not give them meaningful input into corporate decision-making, leaving them open to the misuse of corporate property. Thus the “rights of others” may justify the regulation of corporate speech.

Keywords: Corporations, First Amendment, free speech, campaign finance, Citizens United

JEL Classification: G38, K22

Suggested Citation

Joo, Thomas Wuil, Corporate Speech and the Rights of Others (August 5, 2015). 30 Constitutional Commentary 335 (2015); UC Davis Legal Studies Research Paper No. 442. Available at SSRN: https://ssrn.com/abstract=2640303

Thomas Wuil Joo (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
400 Mrak Hall Dr.
Davis, CA 95616-5201
United States
(530) 754-6089 (Phone)
(530) 752-4704 (Fax)

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