On Corporate Speech

1) In the case study, Nike, as a company, took a proactive stance to defend its actions of outsourcing labor against protesting activists. Nike traveled to the universities, where undergraduate liberal arts students raged war against Nike by coercing the administrations not to sign athletic deals due to its questionable outsourcing practices. In response, Nike held open forums with students to address concerns. Despite Nike’s attempted openness, some viewed its actions as false advertising. Marc Kasky, an activist in San Francisco, argued that Nike was released falsities and sued for false advertising. Therefore the question as to whether Nike, as an entity, should have the right to express opinions comes to fruition.

C. Edwin Baker’s, “The First Amendment and Commercial Speech,” describes four reasons commercial speech should not be protected under the First Amendment. The first he cites is that market forces dictate a company’s opinions (Barker, 2009). However, when a company is founded on certain cultural values, many would argue that market forces have no standing to dictate a company’s stance. The second Barker presents is commercial speech is not attributed to a person but rather to a set of ideas or an entity. A company is not a living-breathing organism and should not be given rights. The third reason is that companies are bound by state regulations due to market transactions rather. The final reason Baker outlines is, “commercial speech generally should not be protected to the extent that constitutional rights of free speech ought to be regarding dissent,” (Baker, 2009, p. 981).

While Baker outlines some interesting points, his argument curtails the issue by concentrating on minute issues. Yes, companies are not individuals. Yes, companies are slaves to the market. However, more and more companies are building foundations of moral relevancy. There is a consumer high demand that companies have moral standing, without the protection of commercial speech, business cannot evolve. Perhaps the relationship between free speech and commercial speech needs to be re-examined.

2) In “Corporate Personhood and the Rights of Corporate Speech,” Adam Winkler argues that at the time of the founding, America’s founding fathers had little thought about corporations’ rights as there were only six corporations chartered in the U.S. at that time and the notion that corporations and the power they hold today was inconceivable at that time. Since the founding corporations have become a huge factor in business and culture of America, however, Winkler argues, companies have never had the same rights as individuals. Winkler states, “In the 1970s, the Supreme Court held that corporations have some free speech rights in Central Hudson Gas v. Public Service Commission 28 (commercial speech) and First National Bank of Boston v. Bellotti” (Winkler, 2007, p. 863). However, despite the ruling, corporations do not have the same or equivalent rights to individuals. For example, Winkler states, corporations cannot use their treasury funds to support candidates for office. Thus whenever corporate officials wish to support a candidate, they do so with their personal funds. However, when a known corporate official funds a candidate, many Americans tie the official to the corporation they represent. Winkler outlines five rights that corporations do possess: 1) commercial speech 2) electoral speech 3) a right to candidate-related speech 4) non-election speech.

Jess M. Krannich argues in “The Corporate ‘Person’: A New Analytical Approach to a Flawed Method of Constitutional Interpretation” that corporations have three major personality distinctions: the artificial entity theory, the real entity theory, and the aggregate entity theory. Each of these theories has been adapted to fit the American ideation of corporations as the nations and corporations have transformed since its founding. Based on the two sources and their reasoning, corporations have gained rights during the past 200 years that the founders may have never considered. Through legal battles, corporations now are protected under certain umbrellas to have and distribute their opinions; however, corporations are not as protected as individuals. And many argue that they should not be to protect and regulate their employees, as well as the general public.

References

Baker, E. (2009). The First Amendment and commercial speech. Indiana Law Journal, 84, 981- 999.

Krannich, J. M. (2005). The corporate “person”: A new analytical approach to a flawed method of constitutional interpretation. Loyola University Chicago Law Journal, 37, 61-109.

Shaw, W. H. (2011). Business ethics: A textbook with cases (7th ed.). Boston, MA: Wadsworth, Cengage Learning.

Winkler, A. (2007). Corporate personhood and the rights of corporate speech. Seattle University Law Review, 30, 863-875.