Corporate Speech in Citizens United vs. Federal Election Commission

SpazioFilosofico 16:47-79 (2016)
  Copy   BIBTEX

Abstract

In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the 5-4 majority, held that “[b]y suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which person or entities are hostile to their interests” (Citizens United vs. Federal Election Commission 558 U.S. 38-9 (2010); emphasis added). Much of the language of the opinion, and some of its reasoning, as this passage illustrates, presupposes that corporations are agents capable of speech, and that it is (at least in part) in the light of this that limitations on political advocacy by corporations are prohibited by the Constitution. While there are other strands in the argument, they are interwoven with the conception of the corporation as agent and speaker, with its voice and its viewpoints. The dissenters on the court objected on precisely this point (among others). Justice Stevens wrote sarcastically in his dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, that “[u]nder the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech” (558 U.S. 33 (2010)). Justice Sotomayor suggested in oral argument that the Court’s century-old practice of treating corporations as persons rests on a conceptual mistake. My concern in this essay is not with the question whether the restrictions violate the Constitution. There are many issues that bear on this which will be outside the scope of my discussion. My concern is with the proper conceptual framework for understanding the agency of corporations and corporate speech, and the role that conceptions of these play in the background of the majority’s reasoning. The issue is legal, but it also has philosophical, conceptual and semantic aspects. It will be the latter aspects, and their potential to shed light on legal reasoning, that are my main focus. An adequate framework requires saying what properly speaking the corporation is, how agency is expressed through the corporation, whose agency it is, centrally whether the corporation is an agent or person in its own right, and in what sense it can be said to be capable of speech. I draw on recent work in collective action theory, particularly with respect to the semantics of collective action sentences (Ludwig 2007) and the analysis of the proxy agency in collective action (Ludwig 2014), to show (i) that corporations are neither genuine agents nor (therefore) capable of engaging in genuine speech, (ii) that consequently the First Amendment does not apply to corporations per se, and (iii) that a better understanding of the mechanisms of corporate agency casts doubt on more indirect arguments for extending the First Amendment to “corporate speech” as well.

Links

PhilArchive

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Corporate Speech as Commercial Speech.Jeffrey Nesteruk - 2007 - Business Ethics Quarterly 17 (1):97-103.
Democratic Equality and Corporate Political Speech.Jon Mahoney - 2013 - Public Affairs Quarterly 27:137-156.
Corporate Speech as Commercial Speech.Jeffrey Nesteruk - 2007 - Business Ethics Quarterly 17 (1):97-103.
Business Ethics After Citizens United: A Contractualist Analysis.David Silver - 2015 - Journal of Business Ethics 127 (2):385-397.
The free will of corporations.Kendy M. Hess - 2014 - Philosophical Studies 168 (1):241-260.
How Autonomy Alone Debunks Corporate Moral Agency.David Rönnegard - 2013 - Business and Professional Ethics Journal 32 (1-2):77-107.
Proxy Agency in Collective Action.Kirk Ludwig - 2013 - Noûs 48 (1):75-105.
Free speech and offensive expression.Judith Wagner DeCew - 2004 - Social Philosophy and Policy 21 (2):81-103.
Corporate versus individual moral responsibility.C. Soares - 2003 - Journal of Business Ethics 46 (2):143 - 150.
Antecedents of Corporate Political Finance Disclosure.Naomi A. Gardberg, Donald H. Schepers & Louis Lipani - 2011 - Proceedings of the International Association for Business and Society 22:424-435.
Hate Speech, Dignity and Self-Respect.Jonathan Seglow - 2016 - Ethical Theory and Moral Practice 19 (5):1103-1116.
The freedom of collective agents.Frank Hindriks - 2007 - Journal of Political Philosophy 16 (2):165–183.
United States v Stevens: Gnawing Away at Freedom of Speech or Paving the Way for Animal Rights? [REVIEW]Irina Knopp - 2011 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 24 (3):331-349.

Analytics

Added to PP
2016-07-18

Downloads
404 (#47,090)

6 months
64 (#67,043)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Kirk Ludwig
Indiana University, Bloomington

Citations of this work

No citations found.

Add more citations

References found in this work

Speech Acts: An Essay in the Philosophy of Language.William P. Alston - 1970 - Philosophical Quarterly 20 (79):172-179.
Speech Acts.J. Searle - 1969 - Foundations of Language 11 (3):433-446.

View all 10 references / Add more references