The Public's Companies

Abstract

This Article uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (ESG) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG? The studies’ results are consistent with understandings that both public and private companies have greater public obligations than they do as a matter of law, including obligations to respect customer and employee speech and political rights. They are also consistent with a view that business decisions by both public and private firms may credit non-shareholder interests—those of employees, the environment, or the community—over shareholder-value maximization. Together, these results point to the potential of public corporate-law understanding to influence contemporary debates by reinforcing, or countering, political actors’ policy agendas.

Keywords: corporate governance, public/private securities regulation, free speech, stakeholder governance