Because of the Supreme Court’s January decision in Citizens United, ads going out to the public within sixty days of the election are no longer subject to rigorous reporting requirements that once deterred corporations and unions from attaching their funds to these high profile mud-slinging matches. See Citizens United v. FEC, ___ U.S. ___, 130 S. Ct. 876 (2010). The Court held that the First Amendment protects corporate and union “electioneering” speech from the regulatory requirements of the Bipartisan Campaign Reform Act.
This opinion has drawn criticism. Recently, Chris Coons, a candidate for one of the U.S. Senate seats from Delaware, argued, “The free speech rights of corporations, I don’t think deserve the free speech rights of living breathing humans.” Michael Falcone & Amy Walter, The Note: Dem-Mentum in the Senate, ABCNews.com, (Oct. 14, 2010), http://blogs.abcnews.com/thenote/2010/10/the-note-dem-mentum-in-the-senate.html. Mr. Coons raised an interesting question – why does the Supreme Court of the United States grant free speech rights to corporations? Surprisingly, despite the amount of attention the Court has given this question, there is no clear answer.
Justice Kennedy’s lengthy opinion for the Court in Citizens United covers every conceivable legal issue in a protracted battle with the dissenting justices over the application of important foundational analyses: stare decisis, statutory interpretation, and constitutional construction. Yet the dissenters never challenged Justice Kennedy’s recitation of the Court’s doctrine on corporate First Amendment rights.
Justice Kennedy’s analysis of why a corporation has constitutionally protected First Amendment rights rests almost entirely on the Court’s earlier opinion in First Nat. Bank of Boston v. Bellotti. 435 U.S. 765 (1978). The revolution in Bellotti was not that corporations have constitutionally protected rights in political speech. Rather, the revolution was that the Bellotti Court steered First Amendment analysis out of its doctrinal blackhole regarding why corporations are treated like “living breathing humans” by avoiding the question entirely. The Court boldly maintained that the lower court asked the “wrong question” because it focused on whether corporations have rights that are coextensive with natural persons. Id. at 776. The “right question” was whether the asserted speech was of the kind that the First Amendment seeks to protect. Id.
The Court’s analysis of the “right question” has intellectual appeal. Unlike other amendments in the Bill of Rights, the First Amendment does not limit itself to “persons.” Compare U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”) with U.S. Const. amend. II (“[T]he right of the people to keep and bear Arms, shall not be infringed.”) (emphasis added); U.S. Const. amend IV (“The right of the people to be secure in their persons, houses, papers, and effects . . . .”) (emphasis added); U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”) (emphasis added); U.S. Const. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) (emphasis added); U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) (emphasis added).
Nevertheless, the problem is that the First Amendment prohibits Congress, not states, from abridging the freedom of speech. See U.S. Const. amend. I. Certainly the First Amendment applies to states despite the language of the First Amendment because it is incorporated through the Fourteenth Amendment’s due process clause. But like the Fifth Amendment, the protections bestowed by the Fourteenth Amendment are limited to “persons.” However, in its holding, the Court maintains that it need not address that question because it is the “wrong question.”
The Court never adequately addressed the question until it analyzed the “wrong” question – whether corporations have a First Amendment right that is coextensive with natural persons. The Court concluded that even if that was the right question, the lower court erred in its analysis when it held that corporate First Amendment rights are only incorporated through the term “property” in the Fourteenth Amendment. The Court noted that the First Amendment has always been incorporated through the term “liberty,” not “property.” Id. at 779. Of course, whether it is property or liberty, it is still limited by the term person. To address this problem, which it handled in two short footnotes, see id. at 780 n.15, 16, the Court cited Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886), Covington & Lexington Turnpike R. Co. v. Sanford, 164 U.S. 578 (1896), and Grosjean v. American Press Co., 297 U.S. 23 (1936). A quick examination of the latter two opinions reveals that, like Bellotti, both opinions merely cite to Santa Clara County without additional analysis.
To retrace those steps, the Citizens United conclusion that corporations are entitled to First Amendment rights relies upon Bellotti, which relies upon Covington and Grosjean, which rely entirely upon Santa Clara County, the apparent patient zero for this infectious idea. So what is the analysis in Santa Clara County that the corporate First Amendment doctrine hinges upon? “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.” Santa Clara County, 118 U.S. 394. Moreover, the quoted paragraph is not even a part of the opinion. It was added by the Court reporter in the opinion summary.
Therefore, despite the attention the Court has given this issue, the legal question of what rationale supports a corporation’s status as a “person” looms circularly analyzed within the Court’s corporate constitutional rights jurisprudence. We are left returning to the question that began this inquiry: why are corporations entitled to constitutional protections?
Two reasons corporations are entitled to constitutional protection are as follows. Corporations are citizens of the United States and are taxed. Even though corporations are citizens based on a legal fiction, they are still citizens. Because corporations are citizens, they are taxed and cannot vote. Therefore, by extending First Amendment rights to corporations, the Court has attempted to remedy the problem. This is why I believe corporations have Constitutional protection.
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