Campaign Finance, Corporate Free Speech, and Television

I currently live in Pittsburgh, which was the location for a recent NPR report on campaign ads financed by corporate money. Indeed, when watching television these days, sometimes literally the only commercials are either for the networks own shows or for/against a political candidate. This has caused me to go back and reexamine my thoughts about the Citizens United decision, and to think about the relationship between campaign finance, corporate free speech rights, and television. These are my thoughts, and I'd be interested to hear yours.

Should corporations have any free speech rights?

I would have a lot of trouble saying that corporations have no free speech rights at all. If Corporation X wanted to spend its money publishing and distributing a book every two years right before election day that evaluated every member of Congress, I would be hard-pressed to find such activity unprotected. The idea of banning books or pamphlets of any sort bothers me a great deal (as would banning any modern electronic versions of such things). However, is this just instinctive revulsion to the idea of "banning books"? Could I make a constitutional argument that banning corporate books is not protected speech?





Even if banning books bothers me, however, banning TV advertisements bothers me less, but I'm not sure why. Is television somehow special? If so, why? My first instinct is that it is because the barriers to entry are so incredibly high that only the richest people/corporations can afford to run ads on TV. While this is certain true for other forms of media, the cost of buying a 30-second advertisement on a popular TV station can be astronomical. Does this cost barrier to advertisement create a difference when it comes to First Amendment rights? I cannot think of a Constitution-based reason why it would.

Advertisements, Issue Ads, and Campaign Ads: How far does corporate "speech" extend?

Even given the above discussion, I think the Constitution protects the right of corporations to advertise their products on television. TV is, after all, the medium from which most Americans still receive their news and information, and prohibiting a company from advertising on the soapbox of television would trouble me a great deal. Legislating that (for example) Kellogg's does not have a right to advertise Corn Flakes on network TV would seem to me to be a gross infringement of the First Amendment.

However, what if we step away from advertisements directed towards people as consumers and think about ads directed towards people as voters. Even the McCain-Feingold law drew a line between "candidate ads" and "issue ads." Even before Citizens United, a corporation could run as many issue ads as it wanted, saying things like, "Congress is killing our jobs with runaway spending. Call your Congressman to complain about this." As long as the ad did not say, "Vote against Congressman John Doe in November," it was not limited by McCain-Feingold.

So, we have three forms of advertisements: Consumer, issue, and candidate. Is there a constitutional line that divides these forms of speech?

On the one hand, candidate ads—the type of advertisement that Congress has been most strict in regulating—seem to be the most basic form of free speech protected by the First Amendment. What could be more central to free speech than advocating for a particular candidate for office? On the other hand, candidate ads also seem to be the area of speech where we are most afraid of corporate influence.

Indeed, there seems to be an interesting paradox here. The closer an issue is to the "core" of democratic free-speech rights, the more "natural" it seems that Congress should be able to limit that sort of speech from corporations.

For-profit vs. Non-profit Corporations: Are there different types of "people"?

Does my schizophrenia on corporate speech have something to do with the nature of for-profit corporations versus non-profit corporations? Non-profit organizations, after all, need all the free-speech rights of real people, because such organizations allow people to pool their money for the purposes of political advocacy. In many cases, positions would not make it into the public discourse without the ability of non-profits to pool resources.

For-profit corporations, on the other hand exist for a single purpose: making money for their shareholders. Any speech in which a for-profit corporation engages is necessarily secondary to its goals. Should the "speech rights" of a corporation therefore be limited to forms of speech directly related to its goal of selling more of its goods or services?

However, if the for-profit nature of a for-profit corporation does make a constitutional difference when it comes to free speech rights, where is the line? Advertisements would probably be protected (provided they are not false or misleading). But what about issue ads? Isn't it relevant to Corporation X's business to run an ad saying, "Congress is thinking about raising taxes, which will destroy jobs. Call your Congressman!"? Is there a difference of a constitutional magnitude when it runs an ad saying, "John Doe voted to raise taxes. Vote against him!"? If there is a constitutional line between product ads and political ads? Between issue ads and candidate ads? Is Citizens United correct after all?

Summary

As in all cases, if I'm going to say, "Citizens United was incorrectly decided," I need to think of a reason why, and a good dividing line between what sort of corporate behaviors are protected and what sort are not. Any thoughts?