The thrust of my NRO piece is that there was no lost Golden Age of free speech, where the First Amendment was read broadly or even literally. In general, the constitutional protections for free speech are broader now than they ever have been; they’re certainly broader than they were for most of the nation’s history, from the 1790s until the 1950s. And this is true of speech on political and religious matters — such as speech that criticizes elected officials, government policy (even in wartime), judicial decisions, and religious opinions — as well as of art, entertainment, commercial advertising, pornography, and other kinds of speech.
Several correspondents asked me, though, to say more about the Supreme Court’s upholding the ban on pre-election independent expenditures by corporations and unions. I think the Court got this wrong, as I said in the NRO piece itself, and also here and here, though I think that the Court was probably right on the other half of the case, which upheld the limits on various campaign contributions (see Part III of this article for my general defense of contribution limits). Might this be one area in which we have seen a retreat from historically accepted constitutional protections, even when in other areas we’ve seen advances?
I don’t think so; to explain why, let me chart out a rough history of corporate and union speech as I understand it.
To begin with, I’m unaware of any real discussion of corporate or union speech rights at around the time of the Framing. Unions as we now know them (organizations of workers with significant government-created powers) didn’t exist, and corporations were much rarer than they are today. There were municipal corporations — government entities, such as cities, which had the corporate form — and some private business corporations (such as banks), but they were created for limited purposes, and through special statutes passed by legislatures. The legislatures granted a particular corporation a charter, and the corporation could then only do those things that its charter authorized. I know of no early 1800s cases that discussed whether corporations had the free speech rights that people had. There just wasn’t much discussion of the subject.
In the 1800s, states began to pass general incorporation laws, which let people create corporations without any special legislative intervention. In the late 1800s, as the courts began to protect economic liberty under the rubric of “substantive due process,” they also began to treat corporations as having substantial constitutional rights, too (see here for why I think that’s generally the correct result). But corporations were not always treated the same as individuals; and in 1907, Congress specifically banned money contributions to federal election campaigns by corporations. In 1925, this was strengthened to apply to nonmonetary contributions. In the 1940s, this was extended to unions. And in 1947, it was extended to cover independent expenditures as well as contributions.
In First National Bank of Boston v. Bellotti (1978), the Supreme Court cast this into some doubt when it held that, as a general matter, corporations do have free speech rights, and may express their views in ballot measure elections. (Arch-liberal Justices Brennan and Marshall, as well as arch-conservative Justice Rehnquist and Justice White, who was generally fairly conservative, dissented; Justice Rehnquist took the view that would have most restricted corporate speech.) But in Austin v. Michigan Chamber of Commerce (1990), the Court held that corporate speech may be limited in candidate elections; and last month’s decision in McConnell v. FEC reaffirmed that.
Now I say it again: I think that corporations and unions should be free to communicate their views (or, to be more precise, the views of their managers representing their stockholders or members), even if this means spending a good deal of money. (Contributions may be a different matter, as I’ve mentioned above.) But I don’t think that history, tradition, or the original meaning of the First Amendment is on my side here. The original meaning is neutral; the recent history is against me; the 1800s history is harder to figure out. Again, there’s no lost Golden Age of First Amendment protection for corporate speech that those darned liberals on the Supreme Court have retreated from. I’m hoping for broader free speech protection in the future — not mourning for a mythical broad free speech protection of the past.
Nor do I think that textual absolutism is the solution here. First, as I’ve mentioned before, the Court has never taken an absolutist view of the First Amendment; even if it should do this, we shouldn’t assume that the liberal Justices’ cavalier treatment of the text is the problem — Justices of all political stripes have rejected First Amendment absolutism. (In fact, the one Justice who most called himself an absolutist, Justice Hugo Black, was generally seen as a radical liberal, though it turns out that even he really didn’t believe in absolute free speech protection, despite what he said.)
Second, even if we stick with the strict text, there remains the problem: When may the government say “if you want this government benefit (e.g., a government job, a subsidy, access to government property), you must agree to these conditions”? I know of no-one who is a First Amendment absolutist even as to that question — who believes, for instance, that government employees have a First Amendment right to reveal confidential government data (e.g., people’s tax returns), or to swear at customers or coworkers with impunity. There’s always some concession that, no, these aren’t really violations of the prohibition on abridging the freedom of speech, because the government can impose certain restrictions as a condition of giving people a government paycheck.
The same issue comes up as to corporations and unions, which get significant government benefits. When may the government say “In exchange for the benefits of the corporate form, or for the special legal powers that unions have, we will insist that you not spend money on election-related speech”? (Most corporations are state-chartered, so that benefit is actually provided by the state government, not the federal government; but I don’t think this matters, given the modern Congressional authority over interstate commerce, which would give Congress the power to preempt or modify state-granted charters.) That’s a really tough question — but the First Amendment text doesn’t answer this question any more than it answers the question “When may the government say ‘In exchange for a government paycheck, we will insist that you not reveal the tax return data that you’ll be asked to process’?”
Again, I’m not saying that restrictions on corporate or union independent expenditures on political campaigns should be upheld. I think they shouldn’t be, and I have faulted the Court for upholding them. But the argument can’t just be “The Justices are stripping away traditional First Amendment protections” or “The Justices are refusing to follow the clear constitutional text.”
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