Corporate Speech & the First Amendment: History, Data, and Implications
![handle is hein.journals/ccum30 and id is 227 raw text is:
CORPORATE SPEECH & THE FIRST
AMENDMENT: HISTORY, DATA, AND
IMPLICATIONS
John C. Coates IV*
This Article draws on empirical analysis of court decisions,
history, and economic theory (a) to show that corporations have
begun to displace individuals as the direct beneficiaries of the
First Amendment, a shift from individual to business First
Amendment cases is recent but accelerating, and (b) to outline an
argument that such cases typically reflect a form of socially
wasteful rent seeking-not only bad law and bad politics, but also
increasingly bad for business and society. Basic facts about
corporations in history are reviewed, regulation of commercial
speech in U.S. history is summarized, and the emergence of the
First Amendment in case law is retold, with an emphasis on the
role of constitutional entrepreneur Justice Lewis Powell
prompting the Supreme Court to invent corporate speech rights.
The chronology shows that First Amendment doctrine long post-
dated pervasive regulation of commercial speech, which long pre-
dated the rise of the U.S. as the world's leading economic power-
a chronology with implications for originalists, and for policy
analysis of the value of commercial speech rights. The Article
then analyzes Supreme Court and Courts of Appeals decisions to
quantify what others' have noted qualitatively: corporations have
* John F. Cogan Professor of Law and Economics, Harvard Law School. Thanks
for helpful discussions-but no blame for the contents of this paper-should go to John
Bonifaz, Ben Clements, Jeff Clements, Clarke Cooper, Ron Fein, Jill Hasday, Vicki
Jackson, Geoff Stone, Ava Scheibler, Leo Strine, Mark Tushnet, and to participants at the
legal symposium on Advancing a New Jurisprudence for American Self-Government and
Democracy, co-sponsored by Harvard Law School and Free Speech For People on Nov. 7,
2014, and at a Last Lecture at Harvard Law School on February 11,2015. Any errors are
mine. For disclosure of financial interests potentially relevant to this Article, see Faculty
Disclosures re: Related Outside Interests and Activities, HARV. L. SCH. [http://perma.cc
/TrH6-LNFE].
1. See, e.g., Thomas Jackson & John Jefferies, Commercial Speech: Economic Due
Process and the First Amendment, 65 VA. L. REV. 1 (1979); Frederick Schauer, First
Amendment Opportunism, in LEE C. BOLLINGER & GEOFFREY R. STONE, EDS.,
ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 174-97 (2002); TAMARA](ViewImageLocal?handle=hein.journals/ccum30&div=17&collection=&method=preview&ext=.png&size=3)
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Corporate Speech & the First Amendment: History, Data, and Implications
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