Who gets to speak?


So I was planning on blogging on the First Circuit's en banc decision in U.S. v. Textron, Inc., which holds that a taxpayer's accrual workpapers discoverable by the government:   http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2631EB.01A.  The decision has significant practical impact, in that these materials put a big neon sign on the soft underbelly of a taxpayers' exposure to tax liability claims.  The decision also has some interesting potential effects as a general legal matter regarding the scope of work product privilege.

But I am so annoyed by a story I heard on Maine public radio this morning as I drove to work, I'm going to talk about that instead.  This was an interview with two Maine attorneys, prompted by the Supreme Court's decision to hear a case about First Amendment campaign rights (Citizens United v. FEC).  In this interview, they opine essentially, and as further explained in written materials that they've posted, that corporations shouldn't have the right to speak.  

Now the specific minutiae of FEC laws and regulations are complex and I'm not going to talk about the merits of any particular side in the pending Supreme Court case.  But the broadside that corporations don't or shouldn't have First Amendment rights to speak is wrong and disturbing, respectively.

The idea that protection of corporate speech is somehow an aberrant new proposition suggested by activist conservative judges is loopy.  Longstanding Supreme Court precedent protects corporate speech, like First National Bank of Boston v. Belotti, 435 U.S. 765 (1978) and the many rulings citing that decision.  A ban on corporate speech would also violate longstanding equal protection principles.  See Pacific Gas Electric Co. v. PUC, 475 U.S. 1, 8 (1986) (“The identity of the speaker is not decisive in determining whether speech is protected.   Corporations and other associations, like individuals, contribute to the “discussion, debate, and the dissemination of information and ideas” that the First Amendment seeks to foster”); Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 117 (1991) (“The government's power to impose content-based financial disincentives on speech surely does not vary with the identity of the speaker.”); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657 (1990) (“The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment ").  The judges so opining in these decisions are not exactly the right-wing of the bench either, e.g. Thurgood Marshall in Austin.  

There are good reasons why the Supreme Court has found that corporations have many personal rights, like speech, under the Constitution – including the fact that a corporation consists of a group of people.  If we start banning one group's speech, how and where do we draw the line?  If corporations can't speak, then neither should unions, right?  And what about political parties – they're just an amalgam of people, aren't they?  If a drug company wants to talk about health reform, and can't, why should a group of doctors or the AMA be able to talk about it?  If you try to start parsing on the basis of a profit motive, then there are lots of individuals saying lots of things for their own profit, much of which is political – what's the difference?  What's a "good" corporation or speaker versus a bad one? If I make a green product, shouldn't I be allowed to advocate new environmental regulations, even if I'm incorporated and I'd make more money selling my product if the regulations were enacted?  Does an individual reporter get to say something that the incorporated Washington Post can't?      

It's because you cannot draw these lines, and because we believe in civil rights, that our law is based on the fundamental premise that the solution to speech you don't like isn't to ban it, or ban that speaker, but rather to have more speech, in response.

Perhaps I wouldn't have been so annoyed had the reporter given the itsiest bit of pushback (you'd think that a member of the Fourth Estate might have some qualms about eliminating speech rights for vast swaths of speakers), or, worse, if bills to ban corporate speech didn't regularly pop up in the Maine Legislature.  Our representatives have enough to deal with without having to process clearly unconstitutional proposals.  Worse, if one of these bills were actually passed, it would trigger a civil rights claim so fast it would make your head spin — and the plaintiff would be entitled to attorneys' fees, draining state coffers at a particularly inopportune time.  I'd rather my taxes not go to trying to defend a clearly unconstitutional suppression of speech.