Topic: Does the First Amendment protect advertisements? "Commercial speech," also known as advertising, is protected by the 1st Amendment of the U.S. Constitution. This type of speech enjoys somewhat less 1st Amendment protection from governmental encroac

I. Introduction

In the thirty years since the Supreme Court controversially decided that commercial advertising is protected by the First Amendment, n3 though not as protected as, say, political speech, the scope of commercial speech has remained uncertain. A 1998 lawsuit charging Nike with misrepresenting its overseas labor practices n4 illustrates how much is at stake. Nike argued that its responses to accusations of sweatshop labor addressed debates about globalization that were matters of "public concern," and therefore warranted the highest level of First Amendment protection. n5 The plaintiff argued that Nike's statements were no different from ordinary commercial advertising, warranting only the lower degree of protection appropriate for [*382] commercial speech. n6 The United States Supreme Court accepted review, but instead of providing the "expected . . . landmark ruling on the free speech rights of corporations," n7 the Court dismissed certiorari as improvidently granted. n8 The lawsuit settled soon thereafter, n9 but its unanswered questions are bound to recur. How they are resolved is of enormous consequence, as made clear by the large number of amici briefs filed in Nike by organizations representing consumers, labor, environmentalists, civil libertarians, campaign finance law watchdogs, state governments, big business, and advertisers. n10

The importance of deciding what speech is commercial is illustrated by the fact that it was generally agreed that resolving whether the statements complained of in Nike were commercial speech would be dispositive in determining whether Nike could be found liable. n11 More generally, the ability of consumer campaigns to influence corporate behavior with respect to the environment, labor practices, and other areas of public impact depends on public access to accurate information about that behavior. Such access becomes more difficult as it becomes more difficult to hold corporations accountable for misinformation. n12 Indeed any oversight of corporate behavior requires the power to regulate corporate speech, including, the power to compel corporations to provide information and to penalize them for misinformation. n13 As Nike demonstrates, such ability will depend in large part on whether the speech in question can be classified as commercial. Still more generally, anyone concerned about corporate dominance over public discourse should be concerned about the [*383] question of which corporate public speech is commercial and may therefore be subject to some regulation. n14

In this Article, I defend a thesis that offers a simple solution to the problem of classifying communications like those for which Nike was sued: all speech by publicly traded for-profit business corporations n15 is commercial. n16 No corporate speech is entitled to more than the second- tier First Amendment protection accorded to commercial speech. n17

Even readers sympathetic in principle to this suggestion may fear that such an approach has been foreclosed by the Supreme Court's decisions of the last three decades. In First National Bank of Boston v. Bellotti, the Court's first decision focusing on corporate political speech in the context of campaign finance reform, the Court found "no support . . . for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation." n18 While Bellotti continues to be cited in commercial speech decisions for the proposition that speech should not be treated differently because made by a corporation, n19 subsequent campaign finance decisions, upholding special limits on corporate speech, have largely been ignored in the commercial speech context. n20 Since Bellotti, the Court has upheld restrictions on corporate spending and fund-raising in connection with federal elections, n21 on corporate contributions to non-profit advocacy [*384] corporations, n22 and on corporate spending on issue advertising ("soft money" expenditures), n23 while finding analogous restrictions on personal spending n24 or spending by advocacy groups n25 to be unconstitutional.

It is hard to imagine the Court upholding similar limitations on corporate spending on, say, product advertising. Thus, ironically, it appears that, with respect to limitations on advertising expenditures, corporations' speech on matters of public concern is less protected than is their commercial speech-just the opposite of commercial speech doctrine concerning regulation of advertising content. Although there may be ways of making sense of this apparent anomaly, n26 it highlights the extent to which commercial speech doctrine has been insulated from developments in campaign finance doctrine. I argue that the rationale for treating corporations differently in the campaign finance context applies equally to any corporate speech on matters of public concern. n27 That rationale, in brief, is that corporate speech is not the speech of any speakers.

The Article begins with a brief introduction to commercial speech doctrine, followed by a brief preliminary argument for the conclusion that corporate speech is always commercial, based on the legal requirement that all corporate activity be directed toward profit. The principal argument comes in Part III, which surveys the First Amendment interests that might be implicated in corporate speech. Corporations cannot have free speech rights for their own sake; their speech is protected for the sake of actual human speakers and listeners. However, no speaker interests are at stake in corporate speech: it is not the speech of shareholders, officers or directors, or any other constituency. Meanwhile, case law and theoretical [*385] considerations suggest that listener interests alone merit only a reduced degree of protection under the First Amendment. n28 Moreover, even from the standpoint of listeners, corporate speech is of particularly low interest, precisely because it is not the speech of any speaker. Finally, in Part IV, I address objections that reduced protections for corporate speech would tilt the "playing field" of public debate unfairly, and that it may be difficult in principle or in practice to draw lines between corporate speech and other speech-such as that of the press-that unquestionably merits full First Amendment protection.

II. PRELIMINARIES

A. Commercial Speech Doctrine

The idea that the First Amendment might protect commercial advertising is fairly new. In 1942 the Supreme Court found it "clear" that the Constitution does not restrain regulation of "purely commercial advertising." n29 That assumption remained unchallenged until the 1970s, when the Court began to signal concern for commercial speech, n30 culminating in the declaration that purely commercial speech is not "wholly outside the protection of the First Amendment." n31 At the same time, the Court noted that commercial speech may require "a different [lesser] degree of protection . . . ." n32 Over the last twenty years the Court has moved (albeit inconsistently) toward finding increasing protections for commercial speech, n33 amidst much disagreement about the degree of protection to which commercial speech is entitled, and even some disagreement about whether truthful commercial speech should be treated [*386] differently from other speech at all. n34 Still, the doctrine remains that commercial speech is protected by the First Amendment, but less so than speech considered more central to the purposes of the First Amendment, n35 notably political speech. n36

Because of "its subordinate position in the scale of First Amendment values," commercial speech is "subject to 'modes of regulation that might be impermissible in the realm of noncommercial expression.'" n37 Specific differences in the treatment of commercial speech include less tolerance of false or misleading speech, n38 more readily allowing speech to be compelled, n39 the inapplicability of overbreadth doctrine, n40 greater tolerance of prior restraints, n41 and, most controversially, n42 less rigorous standards for [*387] allowing truthful speech to be regulated to achieve other government ends. n43

1. What is Commercial Speech?

The Court has hesitated to define commercial speech, n44 referring often to a "common sense distinction" between commercial and other speech. n45 The various characterizations offered have been more along the lines of paradigm cases or factors to consider. Roughly, "commercial speech" may be said to refer to traditional product advertisements and whatever seems sufficiently similar to be treated equivalently.

The best known characterization of commercial speech is speech that "does no more than propose a transaction." n46 But that formula is better understood as a paradigm example n47 than as a definition or necessary condition. n48 The Court has also characterized commercial speech more broadly as speech "proposing a commercial transaction," without the proviso that it do nothing more. n49 In applying the doctrine, the Court has treated as commercial various speech bearing only an indirect relation to proposing a transaction, including trade names, n50 professional identification on attorney's letterhead and business cards, n51 real estate [*388] "Sold" signs (not just "For Sale" signs), n52 alcohol content printed on beer bottle labels, n53 and a condom distributor's pamphlet "discussing at length the problem of venereal disease and the use and advantages of condoms in aiding prevention." n54

The other often cited characterization comes from Central Hudson: commercial speech is "expression related solely to the economic interests of the speaker and its audience." n55 This characterization likewise does not provide necessary and sufficient conditions for commercial speech. Already in a concurrence to Central Hudson itself this characterization was criticized for failing to provide sufficient conditions: "Nor should the economic motivation of a speaker qualify his constitutional protection; even Shakespeare may have been motivated by the prospect of pecuniary reward." n56 Nor can it be a necessary condition for commercial speech that it relate solely to the interests of its audience. It has always been part of the Court's rationale for protecting commercial speech that it does not relate solely to the audience's economic interests, but also to political interest in how the economy should be managed. n57 Even focusing only on the interests of potential consumers, any product ads that make claims about the satisfaction offered by a product, its esthetic value, its hipness, or even its quality or safety, relate to listeners' non-economic interests. n58

However, it does seem relevant-perhaps decisive-if the speech relates solely to the speaker's economic interests. After all, it is implausible that Shakespeare's motivation for writing was solely pecuniary, n59 and even more implausible that his pecuniary motivation determined the content of his plays. While no one thinks that courts should probe speakers' motivations, certain sorts of speech, e.g., ordinary product advertising, may be thought of as inherently economically motivated, and therefore to be classified as commercial speech.

At best, then, the Court's "definitions" of commercial speech are rough pointers. Commercial speech is speech closely related to effecting [*389] commercial transactions (perhaps, speech whose occurrence would make no sense apart from that connection), and/or speech whose occurrence and content are motivated largely by the speaker's economic interests.

Nor has the Court engaged in much analysis of how to decide whether a specific instance of speech is commercial; it has usually simply assumed that the speech before it is commercial or that it is not. n60 The Court's most extensive analysis came in Bolger, where the Court found that the joint presence of advertising context, specific product references, and economic motivation supported the conclusion that the speech before it was commercial. n61 But the Court expressly cautioned that the presence of all three characteristics is neither necessary nor sufficient for a given instance of speech to be commercial. n62 A Nike ad showing nothing but the Nike logo and the slogan "Just do it," perhaps accompanied by footage of beautiful people running, is commercial speech if anything is, though it does not refer to any specific products. What seems decisive is again the economic motivation of the speaker, as well as some intention to promote a commercial transaction.

2. Why Protect Commercial Speech?

The principal rationale given for protecting commercial speech is the interests of consumers and of society in general in "the free flow of commercial information." n63 In deciding that commercial speech is protected by the First Amendment, the Virginia Pharmacy court pointed to three reasons the free flow of commercial information is important: access to information about product prices and the like has obvious value to consumers; n64 society has an interest in prudent allocation of resources, which is served when individual spending decisions are informed; n65 and even if the First Amendment is thought to protect only the exchange of political ideas, commercial information is relevant to debate about how the economic system should be regulated or altered. n66

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However, in the subsequent thirty years, commercial speech doctrine has undergone a striking devolution. n67 Although justified on the basis of listener interests, the idea that corporations have free speech rights has taken on a life of its own. While the lawsuit in Virginia Board was brought by those who actually wanted to receive the information, n68 subsequent Supreme Court commercial speech cases ostensibly decided on the basis of the interest in receiving information have all been brought by regulated advertisers. n69 The particular information-receiving interests at stake have become ever less compelling, and eventually seem hardly to matter to the decision.

The first decision affording First Amendment protection to commercial advertisements implicated an independent constitutional concern-the right to an abortion. n70 The case that squarely decided that commercial speech was protected by the First Amendment, concerned a Virginia ban on price advertising by pharmacists. n71 The justification for striking down that ban had much to do with the sympathetic nature of the informational interests at stake: the Court stressed that those most hurt by the ban were the poor, sick, and aged, n72 with limited mobility, for whom drug price information was "more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities." n73

Based on such benign precedents, the Court soon found that the public's interest in "information" n74 extended to receiving advertising promoting electricity use during an energy shortage. n75 A remarkable [*391] extension of this doctrine came in 1986. n76 In response to complaints about a utility's practice of including newsletters with political editorials in its monthly billing envelopes, state regulators had ordered the utility also to include printed material from a non-profit utility watchdog organization. n77 The Supreme Court held that the order to provide another perspective violated the utility's First Amendment rights. n78 Incredibly, the decision to strike down the order to provide additional information was justified on the basis of "the public's interest in receiving information." n79 In fact the decision makes sense only if expressive interests are attributed (however implausibly) to the utility itself. n80

More recently, while the Court still relies on precedents that justify commercial speech protections on the basis of the public's interest in receiving information, that interest recedes even further into the background. In a recent case striking down restrictions on tobacco product advertising, the Court's primary concern was the interest of "tobacco retailers and manufacturers . . . in conveying truthful information about their products to adults." n81 Although lip service was paid to adult consumers' "corresponding interest in receiving truthful information about tobacco products," n82 the ensuing discussion of the advertising regulations at issue focused entirely on the burdens to retailers, not to consumers. n83

3. Why Protect Commercial Speech Less Than Other Speech?

Three principal reasons have been advanced why ordinary protections for false or misleading speech should not apply to commercial speech: n84 (1) particular commercial harms are associated with false or misleading [*392] commercial speech; n85 (2) a commercial speaker is usually in the best position to verify claims about his products or operations; n86 and (3) the profit motive makes commercial speech less easily chilled by regulation. n87 None of these rationales adequately explain why false commercial speech should receive less protection than false political speech.

(1) Granting that commercial harms may have severe consequences to its victims, it is not clear that those harms are more severe than the consequences of a political candidate misleading the public about the dangers of some environmental or economic policy, or about the evidence of the military threat posed by another country. In any event, even if commercial speech is often particularly harmful, that suggests only that it will more often be permissible to regulate commercial speech on some neutral standard of preventing harm, not that there should be a different-and lower- standard for when regulations of commercial speech are permissible, as prescribed by the Central Hudson framework. n88

(2) There is some merit to the idea that a business is in the best position to verify its claims about, for example, the contents and qualities of its own products and how they were manufactured, as well as, for that matter, working conditions in its factories. However, the same rationale could apply to false statements by political candidates about their personal histories, professional record, etc. n89

(3) Commentators have rightly criticized the effort to justify greater restrictions on commercial speech on the basis of its greater durability, pointing out both that the degree of chilling effect will depend in large part on the magnitude of the threatened penalties, n90 and that economic motivations for speech are not always more powerful than other motivations. n91 Such criticisms do not go far enough. In a way, the Court has it backward: because commercial speech is by definition motivated by profit, it will be completely deterred when the cost of the expected penalty [*393] becomes greater than the expected gain in revenue. Commercial speech necessarily has its price. Non-commercial speech need not: think of the speaker who sincerely utters "Give me liberty or give me death."

In criticizing the Supreme Court's justifications for affording lesser protection to commercial speech, I do not mean to support those who propose eroding or abandoning the distinction. The point is that the Court has failed to explain satisfactorily why commercial speech merits less protection. A more plausible explanation is that commercial speech simply fails to implicate certain concerns that justify First Amendment protections in many other contexts. I will argue in Part III that those concerns have to do with protecting the rights of speakers. I turn first to an initial defense of the thesis that all corporate speech should be treated as commercial speech.

B. Corporate Speech is Commercial: The Fiduciary Responsibility Argument

The officers and directors (hereinafter referred to collectively as managers) of a for-profit corporation have a fiduciary responsibility to the corporation's shareholders to pursue corporate profits. n92 Any corporate expenditures not directed toward this end constitute "waste" of corporate assets. n93 It follows that all legitimate corporate expenditures must be commercial in a sense, including expenditures to publish speech. n94

The principle that corporate expenditures must be directed toward creating profits has been developed in the context of corporate philanthropy. Because they appear to violate this principle, charitable contributions by for-profit corporations were deemed at common law to violate the rights of shareholders. n95 In the 20th century charitable contributions by corporations came to be upheld on the theory that they would ultimately redound to the financial benefit of the corporation by creating good will or community prosperity. n96 While the right of corporations to make charitable contributions is no longer seriously [*394] questioned, this rationale continues to be the principal basis for their permissibility.

The foregoing is no longer unqualifiedly true: modern decisions upholding corporate contributions have relied in substantial part on general policy considerations. n97 But such considerations are generally accompanied by findings that the donations are in the corporation's financial interests. n98 A weightier qualification is that corporate charitable contributions are now authorized by statute in every state. n99 In many cases those statutes expressly divorce this authority from any showing of specific benefit to the corporation. n100 Still, the prevailing doctrine remains that it is the expected benefit to the corporation-good will or the prosperity of the community expected to patronize its business-that makes corporate donations permissible, n101 and donations are still typically justified by managers on this basis. n102 Moreover, to the extent that corporate charitable donations are authorized apart from any expected economic benefit to the corporation, this is considered an exception to the usual rules limiting corporate expenditures to ones expected to profit the corporation. n103 The [*395] exception is generally limited to contributions made for the public welfare or for charitable, scientific or educational purposes. n104 It is doubtful that much corporate political advertising (or Nike's claims about working conditions in its overseas factories) falls into this category. n105

In short, all corporate expenditures-including expenditures for corporate speech-are supposed to further the interests of the corporation, and the interests of the corporation are purely economic. Thus any speech financed by a for-profit corporation, if it is not a misappropriation of corporate funds, is commercial, in that the only legitimate criterion for deciding to fund the speech is whether it serves the commercial interests of the company.

So, any legitimate corporate speech is in a sense commercial. Granted, it need not follow that it would be commercial speech, as defined by the Supreme Court. When considering corporate speech, the Court has often denied that the identity of the speaker may determine the degree of protection to which speech is entitled, n106 and has often taken for granted that various instances of corporate speech are not commercial. n107

But in fact, the Court's official characterizations of commercial speech fail to undermine the conclusion that all corporate speech is commercial. First, if "commercial speech" is supposed to capture a "common sense" classification n108 that is natural to make, even if difficult to define precisely, then it is significant that the fiduciary responsibility argument implies that corporate speech must be commercial in a natural, non-doctrinal sense of 'commercial.' Second, as discussed in Part II.A.1., about all that can be salvaged from the Court's official characterizations of commercial speech is that commercial speech is motivated solely by the speaker's economic interests, and is related to furthering commercial transactions. The legal constraints discussed in this section make it mandatory that any corporate expenditures-including expenditures to publish speech-meet these two characteristics.

A fuller defense of the suggestion that the First Amendment status of corporate speech in general should be assimilated into that of commercial [*396] speech will require a fuller inquiry into the First Amendment interests at stake in corporate speech. I turn now to such an inquiry.

III. SPEAKERS, LISTENERS, AND CORPORATE SPEECH

The argument begins by defending the premise that if the First Amendment applies to corporate speech, it is not because there is a constitutional interest in vindicating the rights of corporations per se, but because restrictions on corporate speech might implicate the First Amendment rights of people. n109 Restrictions on corporate speech are sometimes thought to infringe on people's interest in broadcasting their views. I refer to this sort of interest as "speaker interests." More commonly, restrictions on corporate speech are thought to implicate the interests of prospective recipients of the speech. Those interests could be the interests of an actual audience in receiving certain information or exposure to certain viewpoints, or they could be general societal interests in the free exchange of information and ideas. I refer to both as "listener interests." n110 Associated with each sort of interest are rights arguably protected by the First Amendment: "speaker rights," i.e., rights to express and broadcast one's views, and "listener rights," i.e., rights to receive information and ideas, or the right to a free exchange of ideas in the society at large. n111

The argument then is simply this. First, no person's speaker rights are infringed by restrictions on corporate speech. Second, listener interests standing alone warrant only a lesser degree of First Amendment protection-like that accorded commercial speech.

I also argue, third, that speech that is not the speech of any person is less worthy of protection than other speech even on the basis of listener interests. This last claim, however, is not essential for my argument: the first two claims are sufficient to justify the conclusion that corporate speech is entitled to less than maximal First Amendment protection. (Alternatively, the first and third claims are also sufficient by themselves, even if the second is rejected.)

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Before proceeding further, I defend the premise that there is no First Amendment interest in protecting corporate speech for the sake of the free speech interests of the corporation itself. If that premise seems too self-evident to require a defense, so much the better.

A. The First Amendment Rights of Corporations Themselves

From the beginning, the Supreme Court's application of the First Amendment to corporate speech has been justified on the basis of the rights of people, not of corporations themselves. In the landmark decision first deciding that corporate political speech was protected by the First Amendment, the Court made this basis explicit:

The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. . . . The First Amendment . . . serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights . . . . Instead, the question must be whether [the challenged statute] abridges expression that the First Amendment was meant to protect. n112

Indeed it is hard to fathom on what basis corporations might be thought to have independent First Amendment rights of their own. As is often observed, none of the standard theoretical explanations of the importance of protecting speakers' rights make sense with respect to corporations. n113

The right to speak freely may be justified on the basis that self-expression is essential for human flourishing or for basic liberty. n114 Corporations are not normally thought to have needs for self-expression. n115 Similarly, it would be odd to worry about violations of corporations' autonomy, n116 or affronts to their dignity, n117 as one might worry about persons whose right to express their beliefs was squelched. n118

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Alternatively, freedom of speech may be considered essential to democratic decision-making; n119 the right to elect political leaders is meaningless if citizens and office seekers are not allowed to criticize the government. Corporations are not citizens; democratic ideals are not violated when corporations are denied the right to vote. Thus corporate speech need not be protected on such grounds. n120

Of the standard explanations of the importance of free speech, the only one that might apply to corporate speech is the general public value of the free exchange of ideas and information. The Supreme Court relied on a theory of this sort in finding that corporate speech on matters of public concern was constitutionally protected, basing its decision on the First Amendment's "role in affording the public access to discussion, debate, and the dissemination of information and ideas." n121 Such free exchange may be valued as conducive to knowledge, on the view that it increases the likelihood of truth coming to be recognized (and personal beliefs coming to be better justified). n122 Or it may be valued for its contribution to autonomous agency, as allowing informed choice among available alternatives. n123 Exposure to debate among different viewpoints and the ability to receive relevant information may be considered essential for democratic decision-making. n124 On any of its elaborations, this justification of freedom of speech is based on the interests of listeners. As applied to corporations, it is based not on any rights or interests of the corporation itself, but on the interests and rights of the people who might receive corporate communications (or who might have an interest in there being free discussion of the issues).

The barely intelligible idea that corporations could have independent rights of their own, apart from the interests of affected persons, might be suggested by judicial decisions establishing that corporations are persons [*399] for various legal purposes. But this manner of speaking does not mean that corporations have feelings, interests in self-expression, or other characteristics of human beings that make them persons. While a full discussion of the doctrine of corporate personhood would be beyond the scope of this Article, n125 two points will help to make clear that there is no conflict between that doctrine and the thesis that corporations have no constitutional rights for their own sake.

First, it has never been held that because corporations are considered legal persons for some purposes, it follows that they have all the rights of persons. To the contrary, when constitutional rights have been found to apply to corporations, it has always been on a right-by-right basis, based on discussion of the applicability of the particular right in question. n126

Second, the applicability of various constitutional protections to corporations has generally been justified, as with First Amendment protections in Bellotti, as a means of protecting the constitutional rights of people. In the California railroad tax cases, the earliest decisions imputing constitutional rights to corporations, it was repeatedly stated explicitly that the reason for applying constitutional protections to corporations was to protect the constitutional rights of people- specifically the corporation's shareholders: "whenever a provision of the constitution, or of a law, guaranties to persons the enjoyment of property, . . . the benefits of the provision extend to corporations, and . . . the courts will always look beyond the name of the artificial being to the individuals whom it represents." n127 When the Court first stated (in dicta) that Fourth [*400] Amendment protections against unreasonable searches and seizures apply to corporations, its reasoning was similar: "A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity." n128

It makes sense that it may often be more efficient to allow a corporation to bring a legal challenge to an alleged deprivation of property, rather than requiring each shareholder to bring her own action to recover losses. n129 The reasonableness of some of the courts' other imputations of constitutional rights to corporations is less apparent. n130 But nothing in constitutional jurisprudence points to any ground for corporate rights other than the rights of people, nor does the metaphor of corporate personhood provide any basis for finding that corporations in themselves possess any of the characteristics of personhood that might be thought to imply the possession of intrinsic rights.

I have argued that the idea that corporations might have rights for their own sake, apart from people's rights, is not readily intelligible, much less supported by any doctrine. However, the argument of this Article depends [*401] only on the narrower claim that corporations do not have First Amendment rights of free expression for their own sake, apart from people's First Amendment rights, a claim that could hardly be contested.

B. Speaker Rights and Corporate Speech

A corporation itself, I have argued, has no intrinsic right to speak. But does it follow that no rights of speakers are infringed by restrictions on corporate speech? On one hand, regulation of corporate speech does not prevent any shareholder, manager, or anyone else from speaking in her own voice on any issue. n131 But the Court has long recognized that freedom of speech includes the right to "amplif[y]" one's voice by combining it with the voices of others of like mind. n132 Justice Scalia has argued on this basis that restrictions on corporate spending on political issue advertising are unconstitutional. n133

But are there really any speakers whose right to amplify their voice in this way is infringed by regulation of corporate speech? In this section, I defend a negative answer to this question, by surveying the various speakers whose rights might be infringed.

1. Shareholders

The most obvious candidates for speakers whose rights to free expression might be infringed by regulation of corporate speech would be the theoretical owners of the corporation, on whose behalf the corporation is traditionally taken to speak-the shareholders. But it is implausible that a corporation's political speech speaks for its shareholders. n134 Many shareholders may disagree with the political positions taken by a [*402] corporation in which they invest; other shareholders may be undecided orindifferent. Even those who do agree did not for the most part invest in order to express their political views. n135 If Nike's speech about overseas working conditions were indeed contributions to debate about a matter of public concern, as its advocates maintain, rather than just sales pitches, there would be no more reason to think that its views were those of a given shareholder than that they were those of anyone else. That may be slightly over-stated, in that some potential investors with strong views about globalization might refrain from investing in Nike because of those views. Thus the average Nike investor might be slightly more likely than the average citizen to agree with the Nike perspective on globalization. But only very slightly, especially in view of the high proportion of securities owned by pension funds, mutual funds, or other institutional investors, n136 with little or no control by the beneficiary as to choice of investments. n137 The further Nike's speech ventures beyond proposing a commercial transaction-"the core notion of commercial speech" n138 -the less reason there is to think that Nike is speaking for its investors. And when Nike's speech does fall within those narrow bounds, it speaks for investors only in the sense of acting as their business agent, not in the sense of representing their beliefs.

While the Court has not paid attention to this point in its commercial speech jurisprudence, it has acknowledged it in the context of campaign finance reform. There the Court has upheld some degree of regulation of corporate speech largely on the ground of the possible divergence between the political positions taken by a corporation and the views of its shareholders, though it has conceived of the relevance of this divergence in a somewhat different way. Essentially, the Court has reasoned that, although corporations have free speech rights, those rights may be overridden by the compelling state interest in protecting shareholders from having their money used to support ideas with which they disagree. That interest was considered compelling, because, on the accepted doctrine that [*403] funding speech is speech, n139 such use of shareholders' money would amount to compelled shareholder speech, in violation of shareholders' free speech rights.

This reasoning was first introduced in 1982, when the Court upheld a federal campaign finance reform statute that prohibited corporations and labor unions from spending general funds to influence federal elections. n140 The Court found that such restrictions did infringe on First Amendment associational rights, n141 but that those rights were "overborne" n142 by two asserted government interests, the second of which was "to protect the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed." n143

In 1990 the Court upheld a state statute prohibiting corporations from spending treasury funds to support or oppose political candidates. n144 The Court found that the regulation did "burden expressive activity." n145 Nevertheless, the regulations were justified by the "compelling state interest" n146 in remedying "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." n147 The Court apparently reasoned that, because shareholders do not usually buy stock in order to support political ideas, corporate political expenditures-unlike most other political expenditures-do not reflect public support of any ideas-hence the "distorting effects" of corporate spending. n148 The concern for shareholder speaker interests was made more explicit in Justice Brennan's concurrence: "A stockholder might oppose the use of corporate funds drawn from the general treasury-which represents, after all, his money-in support of a [*404] particular political candidate." n149 The need to protect individuals from having their money used to support candidates that they may oppose was again cited in 2003 in upholding prohibitions on corporate election-related spending. n150 Allowing corporations to set up independent political action committees made corporate political participation possible "without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members." n151

The importance of protecting shareholders from funding political speech with which they do not agree was not the only rationale offered by the Court for upholding restrictions on corporate speech, but it was the only one that successfully explained why corporate speech should be treated differently from speech by people or other organizations. The principal other rationale advanced for restricting corporate political spending was that corporate spending poses special dangers of political corruption, because the special privileges associated with corporate form allow for the amassing of large sums of capital, n152 which "can unfairly influence elections." n153 However, ever since Buckley, the Court has held that any limits on individual spending are unconstitutional, meaning that the amassing of large sums of capital is not in itself sufficient to justify regulation of expenditures. n154 Nor does it seem sufficient if those large sums were amassed though the state-conferred benefits of the corporate form: the Court has never suggested that individual expenditures might be limited when the source of the individual wealth is investments in corporate stock. The decisive consideration distinguishing corporate expenditures from others must have been the possibility of using shareholders' money for political purposes they do not support. n155

The foregoing rationale for limiting corporate spending could appear to threaten the "freedom to engage in association for the advancement of beliefs and ideas[, which] is an inseparable aspect of . . . freedom of [*405] speech." n156 After all, National Association for the Advancement of Colored People (NAACP), the advocacy organization whose rights were being defended in the preceding passage, might also broadcast statements with which some members disagree. n157

The difference is that people join and contribute to organizations such as the NAACP precisely for the purpose of making their views heard. n158 Knowing that they will not agree with every position espoused by the organization, members and other contributors judge that on balance their views will find more expression if they support the organization than otherwise, and support the organization for that reason. n159 As Dan-Cohen puts it, members "trade accuracy for volume" in broadcasting their views. n160 Therefore, restrictions on political speech by such advocacy organizations do infringe on the speaker interests of members. In contrast, regardless of whether they agree with, disagree with, or have no views at all concerning Nike's corporate position on globalization, investors simply do not invest in Nike in order to "pool[] financial resources for expressive purposes." n161 Consequently, regulation of corporate speech does not infringe their interests as speakers.

The significance of this contrast between business corporations and advocacy organizations has been recognized by the Court in the context of regulations on spending. Three years after upholding restrictions on corporate political spending, the Court found that, despite their corporate form, political action committees "designed expressly to participate in political debate, are quite different from the traditional corporations organized for economic gain," and therefore could not constitutionally be [*406] subject to similar regulations. n162 A year later the Court found it unconstitutional to apply limits on corporate political spending to an anti-abortion advocacy group. n163 In contrast to shareholders (and union members), who need to be protected from corporations (or unions) using their money "for purposes that [they] may not support," n164 "[i]ndividuals who contribute to [the advocacy group] are fully aware of its political purposes, and in fact contribute precisely because they support those purposes." n165

In a dissenting opinion in Austin, n166 Justice Scalia sharply criticized the rationale that restrictions on corporate political spending could be justified on the basis of protecting shareholder speaker interests:

A person becomes a member of that form of association known as a for-profit corporation in order to pursue economic objectives, i.e., to make money. . . . [I]n joining such an association, the shareholder knows that management may take any action that is ultimately in accord with what the majority (or a specified supermajority) of the shareholders wishes, so long as that action is designed to make a profit. That is the deal. . . . His only protections . . . are (1) his ability to persuade a majority (or the requisite minority) of his fellow shareholders that the action should not be taken, and ultimately (2) his ability to sell his stock. n167

Various commentators have pointed out the inadequacies of these shareholder protections. n168 But for present purposes the cogency of such responses to Scalia does not matter. Scalia is not claiming that corporate speech is the speech of shareholders. To the contrary, according to his view, shareholders essentially have no speaker interests in the corporation's speech-they invest for reasons unrelated to expressing their political or social views. His target is Brennan's concurrence, which, following the majority opinion in Right to Work, n169 argues that limitations [*407] on corporate speech actually protect shareholder speaker interests. n170 The analysis of Right to Work and Brennan's Austin concurrence presumably implies a forteriori that limitations on corporate speech do not infringe shareholder speaker interests. n171 Thus the Court appears united in its rejection of the view that protecting corporate speech serves to protect shareholder speaker interests.

If there is an interest in "protect[ing] the individuals who have paid money into a corporation . . . for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed," there is a similar interest in protecting Nike investors from having their money used to support views about globalization to which they may be opposed. At any rate, the Court's campaign finance jurisprudence-including Scalia's dissent in Austin-supports at least the conclusion that corporate speech on matters of public concern is not an exercise of shareholder speaker interests. So, if any speaker rights are infringed by regulation of such speech, they are not those of shareholders.

2. Managers

If corporate speech on public affairs is not shareholder speech, perhaps it can be considered an exercise of the speaker rights of the managers who set the relevant corporate policies and commission the speech in question. While restrictions on corporate speech might not completely muzzle such a manager, who can still speak out in her own voice on any issue, they would substantially limit her ability to broadcast her message. Such restrictions might thus be thought analogous to limiting the political spending of an individual, or even to denying an individual access to certain media of communication.

[*408]

But, as discussed in Part II.B, the proper criterion for deciding on corporate speech expenditures is whether the speech is expected to be profitable for the corporation. A manager has no more right to use corporate funds to broadcast his own views than he has to use them for his personal enrichment. n172 There is no First Amendment right to broadcast one's views with "other people's money." n173

If, on the other hand, the responsible managers are not broadcasting their own views, but conscientiously fulfilling their fiduciary responsibilities by broadcasting those views they believe to be in the best economic interests of the corporation, then there is no longer reason to view the speech in question as their speech. Managers' speaker interests are not infringed if they are prevented from broadcasting messages that do not express their own beliefs. n174

[*409]

What if the manager's own views coincide with those she thinks are in the corporation's interests? It would be wrong to say that such convergence is entirely accidental. It may well be easier for managers to do their jobs if they identify with the corporate point of view; those with views sympathetic to the corporation may be more likely to be promoted to positions of authority. Such convergence may decrease the degree of "role-distance" subjectively experienced, but it doesn't affect the analysis. To the extent that the manager is acting as faithful agent of corporate interests, it is those interests that determine the "output" of corporate speech. n175 The manager who shares the corporation's views may be compared to a printer working for the New York Times, who finds he agrees with the editorials he is printing. The editorials are not his expression-they would read identically even if he held different views. (This would be true even if he took the job because he tends to agree with Times editorials.) If a manager's own views did influence (perhaps unconsciously) what perspective she regarded as in the corporation's best interest, she would again be moving in the direction of illegitimately appropriating corporate resources to propound her own viewpoint.

In short, to the extent that the managers responsible for authorizing the contents of corporate political communications base their decisions on what is in the corporation's best economic interests, the speech is not theirs. To the extent that those decisions are based on their own views, managers have no right to use corporate funds to broadcast the speech. So, in neither case would regulation of the speech in question infringe managers' speaker rights.

One might wonder whether the foregoing argument relies too heavily on the assumption that shareholders are the real owners of corporate assets, an assumption which could reasonably be viewed as a legal fiction. That assumption has been challenged in particular by the "nexus of contracts" theory of the corporation proposed by 'Law and Economics' scholars. n176 On this view, corporations should be seen not as belonging to shareholders, but as embodying a series of contracts by which investors provide capital to entrepreneurs in hopes of a favorable rate of return. n177 It has been suggested that a contractarian view of the corporation makes it harder to justify treating corporate speech differently under the First Amendment from speech by persons. n178 And indeed, Justice Scalia seems to appeal to [*410] such a view of the corporation when he attacks the rationale that limitations on corporate political spending protect shareholders' First Amendment interests: "in joining such an association, the shareholder knows that management may take any action . . . , so long as that action is designed to make a profit. That is the deal." n179

But again the most that follows is that shareholders' speaker rights do not require government regulation of managers' use of corporate assets to finance political speech. It by no means follows that such regulation infringes managers' speaker rights.

Perhaps the First Amendment, in combination with the right of freedom of contract, could be thought to imply a right for managers to as much financing of their speech as they could possibly achieve through free bargaining, notwithstanding any inequality in bargaining position. n180 But even if managers have a right to seek contracts calling for corporate funding of their speech, it does not follow that the state must require shareholders to accept such a contract as a condition of corporate investment. But that is what the state would be doing if it declared that it is unconstitutional to prevent managers from using corporate funds to finance speech in support of their own views. In any event, restrictions on corporate speech would not prevent the management of a given firm from seeking to contract for arrangements according to which, as part of managers' compensation, shareholders must contribute a contracted-for sum of money to finance the broadcasting of managers' political and social views. If it seems unlikely that shareholders would consent to such a bargain, that is all the more reason for thinking that this is not the bargain actually struck, n181 and that restricting corporate political speech would serve to enforce, rather than undermine, the actually intended bargain.

Other corporate constituencies represent even less plausible candidates for speakers whose First Amendment rights might be infringed by regulation of corporate speech.

3. Spokespersons

To the extent that the person who actually delivers the corporate speech is different from the one who determines its contents, it is even less plausible that speaker interests are at stake. The employee who merely delivers a statement drafted by others, or who writes up a statement whose content is determined by others, is even more like Dan-Cohen's AT&T [*411] operator. n182 The speech simply is not his. If anything, his speaker interests are constrained, rather than realized, if he is asked to say things he does not believe. n183 A spokesperson may feel disappointed if restrictions on corporate speech result in his losing opportunities to be seen or heard on television by a large audience. But no First Amendment interests are at stake in the desire of some individuals to have their face widely seen or their (literal) voice widely heard.

4. Workers

Other corporate employees lack input into the contents or delivery of corporate speech. n184 Therefore, the speaker interests of those employees cannot be infringed by regulation of corporate speech.

Some speech motivated by corporate interests may be perceived to be in the interests of workers as well, insofar as corporate prosperity may be thought to lead to increased job security or opportunities for advancement for workers. But that does not make it the worker's own expression. Moreover, a corporation is just as likely to advocate policies that lessen protections or benefits for workers. It is implausible that Nike's speech on globalization is a medium for self-expression of the production workers employed by the Asian manufacturers with whom it contracts, or of its own domestic employees whose jobs or wages may be threatened by Nike's reliance on those Asian workers.

To the contrary, it is common for corporate employers to restrict their employees' speech-even off the job-to minimize interference with the corporate message. n185 While such restrictions, at least by private employers, are usually not considered constitutionally problematic, because they are taken not to involve state action, n186 they illustrate the [*412] implausibility of the claim that corporate speech furthers employees' speaker interests. The point is illustrated by a 1983 debate on whether to rehear a Third Circuit decision that was unusually protective of the speaker rights of a corporate employee. n187 One judge criticized the opinion, among other reasons, for "fail[ing] to consider . . . the first amendment interests of corporations." n188 In other words, far from being exercised through corporate speech, the speaker interests of workers might need to be sacrificed to vindicate corporate speech rights.

5. Advertisers

Finally, restrictions on corporate speech could be thought to infringe the speaker interests of the writers and producers of corporate advertising (hereinafter advertisers). Although advertisers, like spokespersons, are principally mouthpieces for someone else's message, the creativity they bring to the presentation of that message might be considered self-expression protected by the First Amendment. If regulation of corporate speech is likely to result in an overall decrease in the quantity of corporate advertising because of fears of liability, it might be thought that advertisers' speaker interests would be infringed by a decrease in the opportunities for self-expression of this sort. But that concern is based on empirically questionable premises, as well as a dubious conception of the First Amendment.

First, it is far from clear that regulations on corporate speech would in fact result in fewer opportunities for advertisers. Regulations compelling certain disclosures could lead to an increase in advertising opportunities. Regulations requiring greater accuracy in advertising could lead to more clarifications and increased give-and-take between rival points of view, potentially resulting in an overall increase in advertising. They could also lead to more careful production of advertisements, increasing the number of creative jobs in the advertising industry.

More importantly, it is implausible that the probability of such consequences has any bearing on the constitutionality of regulations of corporate speech. Let us suppose that writing or producing advertising provides more of an outlet for artistic creativity than most other high-paying jobs, and that such creativity may be thought of as a form of self-expression. True, the First Amendment protects manner of expression as well as content, and it has been held to protect non-propositional expression, such as music. n189 Nevertheless, it is doubtful that the First [*413] Amendment extends so far as to protect opportunities for creativity for the sake of creativity-as opposed to creativity as a means of expressing one's own viewpoint. A government regulation that incidentally resulted in a decrease in well-paid opportunities for musicians would not for that reason be deemed to burden First Amendment interests. Or suppose instead that government regulation of the garment industry had the effect that garment workers had fewer opportunities to be creative in their stitching. That would be an unfortunate consequence, but it is implausible that the regulation would therefore violate the First Amendment.

Of course, there are important differences between stitching and speech. But the most notable difference is that speech is more usually associated with expression of a point of view. (If some stitching expressed a point of view, it too would be considered speech for First Amendment purposes, like flag burning.) n190 The stitching example supports the conclusion that there is no First Amendment interest in protecting opportunities for creativity for their own sake, apart from expressing a point of view. If that is right, no First Amendment interests of advertisers are implicated in regulation of corporate speech.

In summary, restrictions on corporate political speech do not violate the speaker rights of any person, because corporate speech is not the expression of any person. It is not the expression of shareholders, because it is made regardless of whether shareholders agree with it, and shareholders do not invest in order to support it. It is not the expression of managers, because, if managers are acting responsibly, decisions about the content of corporate speech are not made on the basis of their own beliefs. In any event, managers do not have a constitutional right to use corporate resources to express their own views. It is even clearer that corporate speech is not the expression of corporate mouthpieces who have no input into its content, or of other workers. Nor is it the expression of advertisers, in that it does not express their viewpoint either, even if it does afford them some opportunities for creativity.

C. Free Speech and the Protection of Listener Interests

I have argued so far that corporations have no speech rights of their own, and that restrictions on corporate speech do not infringe any persons' speaker rights. If that is correct, extending First Amendment protections to corporate speech could be justified only on the basis of listener interests. I argue in this section that listener interests alone support a lesser degree of protection for speech than do speaker interests. A complete defense of this [*414] thesis would requirea full-fledged theory of the purposes of protecting free speech. Instead I advance several considerations. I argue first that much First Amendment jurisprudence makes sense only on the premise that listeners' rights to receive speech are not as weighty as speakers' rights to express themselves. I then argue that this premise is plausible: it is hard to make theoretical sense of a strong right to receive speech. Finally, I argue that the differences between the rights of listeners and speakers provide the best explanation of the lesser protection accorded commercial speech.

1. Listener Interests in Supreme Court Jurisprudence

a. The Assumption that Listener Interests are Secondary

Much First Amendment jurisprudence is unintelligible apart from an implicit assumption that listener rights merit less absolute protection than do speaker rights.

Most strikingly, it has never been disputed that it is the speaker who 'owns' the speech interest, so to speak. It is the speaker who can choose to waive, or bargain away, his right to 'inform' the public. n191 This principle applies even where First Amendment protections are justified on the basis of listener interests, as with commercial advertising. Cigarette or alcohol distributors, for example, may agree to refrain from certain kinds of advertising. n192 This would be difficult to understand, if the public's right to receive the advertising were accorded as much weight as speakers' rights. n193

The assumption that a potential speaker may waive his right to speak follows from the widely accepted premise that the First Amendment protects against compelled speech. n194 But that premise itself reflects the greater weight accorded to speaker interests in comparison to listener interests. Compelled speech is considered unconstitutional because it infringes on the speaker's rights of free expression. n195 From the listener's [*415] standpoint, on the other hand, it is hard to see why compelled speech is not often a good thing. Granted, not all compelled speech is informative: consider compelled recitation of the Pledge of Allegiance. But when a cigarette manufacturer is required to state on every package that cigarette smoking may be harmful to one's health, useful information is conveyed. n196

Another example of this primacy comes from the context of campaign finance regulation, where the Court has upheld limits on contributions to campaigns, while striking down limits on what an individual may spend in direct support of her own candidacy or on direct broadcasting of her own views. n197 While holding that the First Amendment applies to both, the Court has distinguished between the two largely on the ground that, unlike spending limits, contribution limits entail "only a marginal restriction upon the contributor's ability to engage in free communication," n198 because a contribution expresses only general support, not the particular beliefs or reasons of the contributor. n199 In other words, a restriction on contributions is a significantly lesser infringement of speaker interests in expression. n200 But it is not a lesser infringement of listener interests: if a would-be contributor is prevented from contributing $ 1 million to the candidate of her choice, listeners are "deprived" of $ 1 million worth of communications as much as if the same person is prevented from spending $ 1 million to broadcast her own views. n201 So, listener interests in contributions and [*416] expenditures for political communications are much the same, but expenditures receive greater protection because they are taken to implicate speaker interests to a significantly higher extent.

In this context the Court has stated: "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." n202 This often quoted formula too illustrates the priority given to speaker interests over listener interests. From the standpoint of listeners' interests, it is hard to see why it would not be a good thing to suppress one source of information, if doing so would allow the same information, and more besides, to be received from another source. n203 But from the standpoint of speaker interests, the formula makes sense. n204 A speaker's interest in expressing her views can reasonably be seen as a fundamental aspect of political liberty or personal autonomy that should not be violated-no matter how benign the intended effects. Thus the Buckley formula privileges the speaker standpoint over the listener standpoint.

Ironically, a similar priority can be seen in Kleindienst v. Mandel, n205 a case often invoked as a precedent for recognizing strong listener rights under the First Amendment. n206 Mandel was a European Marxist academic, who had been invited to address various audiences in the United States, but was denied a visa to enter. n207 While it was conceded that his rights as a speaker were not protected by the First Amendment, because he was neither a citizen nor a resident of the United States, his exclusion was challenged as infringing on the First Amendment rights of U.S. citizens to hear his views. n208 The Court agreed that First Amendment concerns were implicated by the interests of those who wanted to hear Mandel, but in the end upheld his exclusion under the plenary power of Congress over the [*417] admission of aliens. n209 There is no doubt that Mandel's right to deliver lectures would have been upheld had he been a U.S. citizen, though listeners' interests would have been the same in either case. Thus, despite dicta affirming listeners' rights, n210 the outcome was analogous to that of the campaign finance cases just discussed: equal listener interests do not receive equal protection when the speaker rights are not recognized as equal.

More recently, the Court has cited a number of precedents, including Mandel, for recognizing the First Amendment importance of listener interests. In the remainder of this section I argue that, like Mandel, none of those cases in fact recognized listener rights as strong as speaker rights. n211 Listener rights have become prominent in Supreme Court jurisprudence only since the Court has become interested in finding some rationale for protecting commercial speech and corporate political spending.

b. Precedents Allegedly Supporting Listener Rights

One commonly cited precedent for the right to receive information is Stanley v. Georgia, where the Court found prosecution for private possession of obscene materials to be unconstitutional. n212 Despite language referring to a "right to receive information and ideas, regardless of their social worth," n213 the case was really about a right to privacy-the appellant's "right to satisfy his intellectual and emotional needs in the privacy of his own home . . . [and] the right to be free from state inquiry into the contents of his library." n214 Stanley did not protect either listeners' or speakers' rights in the public sphere: prohibitions against distributing the same obscene materials were not struck down. n215

Red Lion Broadcasting Co. v. FCC upheld a fairness doctrine requiring radio stations to provide airtime for response to persons attacked on air. n216 This case was genuinely decided on the basis of listener rights: rejecting radio stations' complaints that the requirement violated their First Amendment rights, the Court held: "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." n217 [*418] However, that holding was tied to the specific context of radio broadcasting. Because only a finite number of broadcast frequencies are available, some applicants must be denied broadcast licenses. Therefore, "it is idle to posit an unabridgeable First Amendment right of broadcast comparable to the right of every individual to speak, write, or publish." n218 Thus, the fairness doctrine could be upheld, not because listener rights trumped speaker rights, but because no speaker rights were violated. n219 Moreover, the holding was not that a fairness doctrine was constitutionally required, but only that it was constitutionally permissible. n220 Red Lion and similar cases provide no support for the idea that the First Amendment protects listener interests to the same degree that it protects speaker interests.

Perhaps the strongest intimation, outside the context of commercial or corporate speech, of a constitutional right to receive information comes from Lamont v. Postmaster General. n221 Lamont concerned a statute under which the Post Office would destroy unsealed mail from foreign countries that was determined to be 'communist political propaganda,' unless the addressee requested the mail in writing. n222 This requirement was found "an unconstitutional abridgement of the addressee's First Amendment rights." n223

Presumably, if the statute had applied to domestic mail as well, there would have been no doubt that it was unconstitutional; so, even here, the rights of listeners may be viewed as less robust than those of speakers. In any event, the statute directly implicated the addressee's rights of political association and dissent in a way that the loss of a single voice from public debate would not. It was also expressly aimed against a certain point of view in a way that restrictions on corporate speech are not. And it concerned communications actually sought by the recipient. n224

In Procunier v. Martinez, another case on the right to receive mail, the Court struck down interference with prisoners' mail on the basis of outside correspondents' interests in receiving mail from inmates, as well as in having their communications to inmates received. n225 But the Court expressly denied that the decision was based on positing listener rights: "We do not deal here with difficult questions of the so-called 'right to [*419] hear' . . . but with a particular means of communication in which the interests of both parties are inextricably meshed." n226

Classic cases on the First Amendment rights of labor n227 are sometimes cited as precedents for a public right to receive information or ideas. But although those cases justify free speech protections in terms of a general public interest in full, free discussion, it is speakers, not listeners, who are held to be protected directly. n228 Early strong statements of a right to receive information explicitly derive that right from a right to transmit, n229 implying the priority of the latter right.

In short, precedents provide only limited support for a right to receive communications where no one has a right to transmit them, and still less support for vesting such a right in the general public, independent of any indication of interest in receiving the communications. On the other side, differing levels of protection for campaign contributions and expenditures, or for communications originating from alien and domestic speakers, as well as the general presumption against the constitutionality of compelling speech, make sense only on the premise that listener interests in communications in which there is no protected speaker interest are less protected by the First Amendment than are communications that involve speaker interests. In the following subsection, I argue that this premise makes good sense both because listener rights are less fundamental, and because it is problematic to appeal to listener rights as a basis for protecting speech that listeners are unlikely to want.

2. Theoretical Considerations

It is widely supposed that many fundamental constitutional and statutory provisions protect innate human rights, n230 sometimes called "natural rights," n231 that exist in some sense independent of-and provide the justification for-their legal recognition. For example, most of us [*420] believe that it is not our laws that make murder a violation of the rights of the victim; rather, we have laws against murder because we believe that murder violates the victim's rights. For two reasons, the right to receive information can less readily be understood as an innate human right than can a right to express one's views freely to whomever may listen.

First, the idea of a right to receive information (or ideas, etc.) is problematic, in that there seems to be no one with a corresponding obligation to provide information. Rights are necessarily correlated with obligations. If I have a negative right not to be killed, then others must have a corresponding negative obligation not to kill me. n232 I can have no positive right to the food I need to live, unless someone has a corresponding obligation to provide that food. It is not problematic in this respect to suppose that I have a right to express my views, because it is plausible enough that others have a corresponding obligation not to suppress my expression. In contrast, it is problematic to posit a positive right to receive information, because it does not seem plausible that anyone has a corresponding obligation to supply information. As noted in the preceding section, even when speech is protected on the basis of listener interests, no one doubts that the speaker has the right to refrain from that speech. n233 No one has suggested that the First Amendment obligates the government-or anyone else-to take positive steps to make information or ideas available. n234 Moreover, the Bill of Rights in general tends to protect negative rights-rights to be free from government interference. n235 Thus, to the extent that the First Amendment is interpreted as implying a positive right to receive information (rather than merely a negative right not to be silenced), it becomes somewhat anomalous.

A natural response might be that the First Amendment does not confer a positive right to receive information, but only a right not to have the state interfere with one's receipt of information, just as First Amendment protection of expression is usually thought to guarantee speakers neither the resources to broadcast their views nor even freedom from suppression by any party, but only the right not to have their expression suppressed by the state. But even if the legal protections of speakers and listeners are analogous in this way, this response fails to address the difference in their justification. The legal right not to have one's expression suppressed by the government can be understood as protecting an innate right of free expression. But the legal right not to have the government interfere with [*421] one's receipt of information can less readily be understood as similarly protecting an innate right.

Nor is it so clear that First Amendment free speech protections apply only against government interference. "There is no sanctuary in the First Amendment for unlimited private censorship . . . ." n236 "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." n237 On occasion courts have recognized limits on private employers' authority to silence or compel employee speech. n238

The second reason for doubting that there is an innate right to receive information is simply the intuition that receiving information seems more a desirable good than a right that may not be violated. n239 There is a "strong sense" of 'right' that implies a degree of immunity from utilitarian balancing. n240 For example, suppose that three hospital patients are dying because organ transplants are unavailable, and that killing a fourth, healthy person, and distributing his organs among the patients could save the lives of all three. The collective welfare would presumably be maximized by doing so (saving three lives at the cost of one). n241 If it nevertheless seems wrong to do so, it is because we suppose that the fourth person has a right in a strong sense not to be killed, whereas the patients do not have a similar strong right to receive transplants of necessary organs.

Because it is inherent in political liberty or in personal autonomy, freedom to express one's views can plausibly be seen as a non-instrumental right of this sort, such that it is wrong to violate that right, even for the sake of some better outcome, just as one might judge it wrong to kill an innocent person, even to save three innocent lives. n242 As noted supra, the Court's rejection of "restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others" n243 reflects such a view. In contrast, receiving information may better be seen as simply a desirable good, in that it is generally reasonable to trade off the [*422] value of receiving certain information against the value of receiving other information, or even of realizing other values.

It would be an overstatement to say that speaker rights protect basic political liberty, whereas listener interests in receiving information and ideas concern only a desirable social good that does not implicate fundamental liberty interests. It would be a denial of liberty for a state to prevent its citizens from receiving communications from outside its borders. Still, this appears a lesser denial of liberty than if it stifled free exchange of ideas among its own citizens. n244

The example of the state that excludes outside communications suggests that there might be a general interest in-and perhaps right to-open debate in one's society, that is stronger than listeners' interest in receiving communications themselves. But if there is such a general interest that is not reducible to a conjunction of speakers' and listeners' interests, the only further interest that might enter the mix would be an interest in third party communications. For example, while I may believe myself adequately informed about global warming, and have no interest in speaking publicly on the topic, it may be important to me that my fellow citizens receive information about the issue. But it is hard to see how a right that others receive certain information or ideas could be a more fundamental right than listeners' own right to receive them. If the latter is not a right in a strong sense, then neither is the former.

If listener rights (including those of third parties) are indeed less fundamental than speaker rights, then it makes sense to accord lesser protection to speech-such as corporate speech-that is protected only for the sake of listener rights than to speech that is protected for the sake of speaker rights.

Most crucially, even if there were a right in a strong sense to receive information or ideas, it is not clear that such a right would confer on others a right to impart the information, as seems assumed in much commercial and corporate speech doctrine. In general, to say that one has a right to something is to say that one may have it if one wishes. n245 For example, my rights are violated if someone takes my property against my wishes, but they are not violated if someone takes it with my permission. It would seem then that if I have no desire to receive certain information, my rights [*423] are similarly not violated if I am deprived of that information. If that is right, then it is hard to understand how listeners' rights could give advertisers a right to convey messages to listeners that do not want to receive them. And for many advertisements, it is far from clear that anyone wants to receive them. n246 If no one wants to receive advertising stimulating desire for tobacco products, then listeners' rights-even if they were rights in a strong sense- could provide no basis for tobacco companies to claim a right to foist such advertising on the public. While there may be greater public interest in receiving certain other corporate communications, there is no reason to attribute to corporations a general right to purvey advertising on the basis of listeners' rights, apart from a showing that someone wants to receive the communications at issue.

Even if listeners do want to receive corporate communications, and even if it is not correct that listener rights are less fundamental than those of speakers, at any rate different protections make sense where the principal concern is with protecting listener interests. As already suggested, from the standpoint of protecting listeners, it may sometimes be reasonable to suppress some speech to allow other speech to flourish. n247 Compelled speech may often serve listener interests. A focus on listener interests also makes it more reasonable to penalize false statements. Even on the understanding that false statements are protected not for their own sake, but to avoid chilling the exchange of ideas, n248 the calculation of costs and benefits can be expected to differ where speakers' rights are not a concern. Where the chief concern is with receiving information, it might more often be reasonable to risk some chilling effects in order to prevent people from being misled.

These differences call to mind ways in which commercial speech is treated differently from, say, political speech. I argue in the next subsection that this resemblance is not accidental. At least one prominent First Amendment scholar has made a strong case that the distinction between the (listener's) interest in receiving information and the (speaker's) interest in self-expression provides the best analysis of how and why to distinguish commercial speech from more protected speech. n249 I have argued that the only reason for protecting corporate speech is to protect listener interests. Therefore, if commercial speech doctrine is [*424] geared toward protecting listener interests, that supports the conclusion that any corporate speech should be classified as commercial, regardless of its content.

3. Commercial Speech and Listener Interests

From the beginnings of commercial speech doctrine, the principal rationale for protecting commercial speech at all has been listener interests. n250 In the first Supreme Court decision to suggest that some commercial advertising might be protected by the First Amendment, the reason given for protecting the advertisement at issue was that it "conveyed information of potential interest and value to a diverse audience." n251 The decision that "squarely" decided that the First Amendment applied to commercial speech justified that conclusion on the basis of the interests of consumers and of society in general in "the free flow of commercial information." n252 According to the case that established the still operative framework for scrutinizing regulations on commercial speech, "The First Amendment's concern for commercial speech is based on the informational function of advertising." n253 Similar ideas can be found throughout commercial speech jurisprudence. n254

Granted, in more recent decisions the Court has sometimes said that it is not only listener interests that are implicated in regulation of commercial speech. n255 Nevertheless, listener interests continue to predominate in explanations of why commercial speech should be protected, n256 and the Court has stated explicitly that they are primary: "the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides." n257

[*425]

To the extent that any interests of speakers may be implicated in commercial speech, those interests are primarily-if not entirely-economic, rather than expressive. n258 It is not clear that protection of such interests calls for stricter scrutiny than due process would require for non-speech regulations potentially infringing economic interests. Although the Court has insisted that the First Amendment protects speaker interests that are purely economic, n259 that is not to say that such interests merit the same degree of protection. n260 Under both the Central Hudson and Bolger analyses, n261 if speech is motivated only by economic interests, that is relevant to classifying it as commercial speech. But the point of so classifying it is to determine that it is entitled to less protection. Thus received commercial speech doctrine already implies that speech that implicates no non-economic speaker interests merits less protection.

That commercial speech does not significantly implicate non-economic speaker interests is a plausible explanation of "the subordinate position of commercial speech in the scale of First Amendment values." n262 The correctness of this explanation is supported by the weakness of the Court's usual explanations of the lesser First Amendment status of commercial speech. n263

In any event, that fact makes sense of many of the differences in how commercial speech is treated. Where principally listener interests are at stake, it makes sense that there would be greater leeway to compel speech n264 and to regulate false or misleading statements. The Court has explicitly endorsed such reasoning on occasion: "When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, . . . the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review." n265 Regarding compelled disclosures, "[b]ecause the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant's constitutionally protected interest in not providing any particular factual [*426] information in his advertising is minimal." n266 Others have argued that the focus on protecting listeners explains why overbroad regulations and perhaps prior restraints are less objectionable in the context of commercial speech. Because information is fungible, from the listener's perspective little harm is done if some speakers are deterred from speaking, as long as it is likely that some other speaker will deliver the same message; "public discourse," in contrast, serves other values that are undermined by suppression of the speech of any speaker. n267 The purpose of the overbreadth doctrine is to protect unknown vulnerable speakers who may otherwise be silenced by overbroad regulation; there is no comparable reason to think that listener interests cannot adequately be safeguarded by protecting those listeners or speakers actually affected. n268

In short, the fact that commercial speech only minimally implicates speaker interests explains why it should be less protected. If that explanation is correct, all corporate speech must fall into the less protected category, for no speaker rights are implicated in corporate speech.

D. Listeners' Interest in Receiving Corporate Speech

I argued earlier that corporations have no interest of their own in free speech, n269 and that corporate speech is not the speech of any person. n270 Therefore, if there are reasons to protect corporate speech, they have to do with listeners' interests in receiving it. I then argued in the preceding section that listener interests warrant less stringent (or in any event different) protection than do speakers' interests in expressing their views, and that it is problematic for advertisers to claim protection for their speech on the basis of putative listener interests in receiving the speech. n271 In this section I argue further that, even from the standpoint of listener interests alone, the value of corporate speech is particularly low-precisely because [*427] it is not the speech of any person, i.e., it is not offered as an expression of any person's actual beliefs.

The generally accepted view that listeners have an interest in hearing purportedly informative speech or in hearing debate among different points of view presupposes that speakers in general at least aim at truth. n272 Corporate speech does not. To say that corporate speech is not the speech of any person is to say that, unlike most non-defective speech, it is propounded not because it expresses any person's beliefs, i.e., not because any person believes it to be true, but for entirely different reasons. n273

Ironically, it is this very characteristic that underlies one of the most commonly advanced arguments for protecting corporate speech: that corporate communications convey a unique message, which might be lost to listeners if corporate speech were not protected. n274 Corporate messages are supposed to be unique in that they are often "the joint and undifferentiated product of complex decision-making processes," n275 resulting in speech that is "irreducibly 'organizational,'" n276 "emanating from the organization without being traceable or reducible to individual utterances." n277 It follows that the resulting speech may not represent the beliefs of anyone involved.

To the extent that the resulting messages are believed, individuals will repeat them in their own voice, and so, those messages will not be lost even if the corporation is silenced. The reason that some unique corporate messages could be lost is that corporate speech is "externally motivated, and being exempt from the requirement of sincerity, it is avowedly cut off from the speaker's own identity and psychological state. [Therefore, the speaker] may be neither inclined nor able to perform the same speech acts outside of her office hours . . . ." n278 In other words, those corporate messages that are unique and irreplaceable are so simply because no one believes them!

In the words of Meiklejohn, arguably the foremost proponent of a listener- oriented approach to the First Amendment, "[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be [*428] said." n279 If a given instance of corporate speech is actually believed by its authors (or utterers), they can be expected to repeat it in their own voice "outside of office hours;" so, there is no reason to think it will be lost n280 if corporate speech is not protected. n281 Conversely, if its authors would not repeat it in their own voice, it is unlikely to be something "worth saying."

Such a formulation may raise alarms. It is widely agreed that the First Amendment implies that it is not the role of government to judge what is worth saying; n282 government should be as neutral as possible in allowing the free exchange of ideas. But this principle need not extend to promoting ideas that are not anyone's, that do not even aim at truth. n283

On any account of why speech may have value for listeners, untrue speech has less value: it does not contribute to listeners' knowledge, nor does it provide a basis for informed decision-making. Free speech protections extend to untrue speech as well, in part because penalizing false speech could chill debate-including true speech, n284 and in part because government regulators are not trusted reliably to distinguish true from false speech. n285

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In addition, even false speech is taken to contribute to the social project of arriving at true, justified beliefs: the free exchange of ideas and arguments, including false ideas and unsound arguments, is supposed to help us to sort out which ideas are true, and to strengthen the justification for our beliefs. n286 But attributing this sort of value to false speech presupposes that most speech at least aims at truth. Other perspectives are worth listening to and offer the possibility of learning from them, insofar as they are the perspectives of other truth-seekers. While it is often difficult to distinguish willfully false speech with sufficient reliability to regulate it, such speech does not contribute to the social pursuit of knowledge, and, where distinguishable, is not protected. n287

Corporate speech is a special case in that, as a class, it simply does not aim at truth. n288 It need not be willfully false, but it is advanced for reasons independent of its truth or falsity. As explained earlier, it is the fiduciary responsibility of the authors of corporate speech to decide its content, not on the basis of whether it is believed to be true, but on the basis of whether it is believed to serve the corporation's financial interests. n289 For this reason, corporate speech does not contribute significantly to the social epistemic project.

For comparison, imagine a complex computer algorithm capable of constructing coherent sentences, randomly generated. Imagine further that it can put together sentences to construct arguments with some degree of facial plausibility-enough not to appear simply absurd, but otherwise without regard to the truth of any of the sentences. It would be implausible to hold that listeners have a strong interest in receiving such strings of sentences, or that listeners' rights would be violated if they were prevented from receiving those strings. Corporate speech is of similarly low value to listeners. Although it may be more strategically oriented, it is similarly not truth-directed. Granting the premise that government should be as neutral as possible in allowing the free exchange of ideas, to discriminate against speech that is not anyone's is as principled and neutral as a television station refusing to give equal time to broadcasting sentences randomly generated by computer. n290

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If anything, classifying all corporate speech as commercial would entail less government intrusion and less scope for government judgment about the merits of specific speech than is entailed by the case-specific inquiry called for under current doctrine into the content and context of specific instances of corporate speech that may or may not be commercial. n291 It may be countered that if the goal is to minimize intrusive government judgments about the value of various speech, that goal would better be served by ceasing to classify some speech as commercial and thereby worthy of lesser protection. n292 But abandoning such classifications wouldnot do away with the need to make comparable distinctions. For example, in defending their proposal to treat commercial speech like any other speech, Kozinski and Banner argue that doing so would not render unconstitutional statutes regulating consumer fraud and the like. n293 But such statutes require government inquiry at least as intrusive as those called for under commercial speech doctrine into the content, context, consequences, and intent of various statements by commercial speakers.

In summary, the claim that corporate speech embodies a unique message that would otherwise be lost is correct only when the message lacks credibility. This judgment of credibility is not one made by a censoring government. Rather, a message's lack of credibility is demonstrated if no one chooses to advance it without being paid to do so. Failure to protect messages that are "unique" in this way does not significantly infringe listener interests.

In the remainder of this section, I consider several further objections to the thesis that corporate speech has particularly low value for listeners.

The argument that corporate speech has low value for listeners rests on the assumption that the public pursuit of knowledge is advanced better when people argue for points of view they genuinely believe than when [*431] they seek reasons to support a point of view advantageous to certain interests. Against that assumption, it has been suggested that material incentives to promote a viewpoint serve to marshal the strongest arguments available for that viewpoint, allowing its strength to be tested against other viewpoints. n294 Thus, for example, our legal system calls for attorneys to be hired to make the best possible case for each side, regardless of their own personal beliefs, in the expectation that the truth is most likely to emerge when opposing points of view are each zealously advocated.

This counter-argument falls short. First, the idea that truth will emerge from 'zealous advocacy' presupposes a two-sided dispute, in which both sides are represented. n295 In the case of corporate speech, a few views are represented by paid advocates (often with large budgets for publicity), while countless other possible views are unrepresented. Second, even the legal model does not call for unrestrained advocacy by each side. To the contrary, the legal system aspires to an ideal of rational argumentation: rules of evidence are supposed to minimize the likelihood that jurors will be misled by prejudicial, confusing, or otherwise misleading arguments. n296 Few comparable checks operate on corporate advertising. For these reasons, it is implausible that zealous advocacy by corporate spokespersons serves as part of a process likely to enlighten listeners.

A different sort of objection can be derived from several Supreme Court dissents, according to which corporate political speech, contrary to the thesis of this section, has particularly high value: "Corporations, after all, are the engines of our modern economy. They facilitate complex operations on which the Nation's prosperity depends. To say these entities cannot alert the public to pending political issues that may threaten the country's economic interests is unprecedented." n297 In contrast to views according to which corporate voices should be regulated to curb the excessive influence of corporations, according to this view corporate voices are of particular interest to potential listeners precisely because of their influence.

While such arguments have some superficial plausibility, on reflection it is not clearwhat special "information" listeners are supposed to receive from corporations. It might be informative to hear the candid thoughts of an experienced corporate executive about the expected effects of various [*432] policies. But such speakers do not have difficulty finding fora in which to broadcast their views widely. There is no reason to suppose that the official position of some corporation on such issues would be similarly informative. That position is likely to consist principally of predictable communications serving the short-term interests of that corporation as judged by those who set its policies.

Intertwined with the foregoing sort of arguments, one sometimes finds the argument that it is particularly important to safeguard the voices of powerful non- government entities, because they are uniquely able to serve as checks on government power. As Justice Scalia put it: "To eliminate voluntary associations-not only including powerful ones, but especially powerful ones-from public debate is . . . to augment the always dominant power of government." n298

This defense of corporate speech points to a fundamental theoretical disagreement underlying many legal debates, including those about campaign finance reform, media regulation, and government regulation of business in general. The viewpoint represented by Scalia sees central government as the principal threat to individual liberty in today's United States. Just as the constitutional scheme seeks to safeguard individual liberty by dividing government power among several branches, and between federal and state levels, that can curb each others' excesses, so, according to this view, individual liberty is similarly protected by the existence of private organizations powerful enough to serve as meaningful checks on government. n299 Much as limiting the rights of aristocrats and wealthy bourgeois in 18th century Europe would not have empowered the people, but would have solidified the autocratic power of the king, so limiting the voices of wealthy individuals or powerful businesses today would weaken the only elements of society powerful enough to check the natural tendency of government toward tyranny. n300

The opposing view sees government in the contemporary United States not so much as an independent center of power, like an 18th century king, but as an apparatus for exercising power, control of which is contested among various parties, but which is captured largely-and always in danger of further capture-by large for-profit corporations. The task for protectors of liberty, from this perspective, is not so much limiting government power, as limiting the control of government by the most powerful elements of society-large for-profit corporations.

[*433]

It is far beyond the scope of this Article to advance this long-standing debate. But to the extent that corporations are analogized to another branch of government (one neither elected nor required to serve the public interest), it is anomalous to claim free speech rights for them on this basis. n301 The First Amendment does not protect government speech; it protects against government power.

IV. OBJECTIONS

A. Does Treating Corporate Speech Differently Distort Debate Unfairly?

Probably the most prevalent argument in favor of extending broad First Amendment rights to corporations is that it is unfair to apply less protective standards to corporate speech, particularly in a debate between corporations and their critics, as when Nike responded to accusations that many of its products were made under sweatshop conditions. n302 That argument goes something like this: the speech of Nike's critics is highly protected by the First Amendment. According to the doctrine of New York Times Co. v. Sullivan n303 and its progeny, purveyors of false criticisms of Nike could be held liable for defamation only if it could be shown that they knew their criticisms were untrue or that they published them with reckless disregard for whether they were true, n304 a standard known as "actual malice," n305 or subsequently as "New York Times malice." n306 Meanwhile, Nike was sued under California unfair competition n307 and false advertising n308 laws, according to which it could be held liable for any false statement, however inadvertent. Thus, if such statutes are constitutional, one side of the debate is inhibited by facing readier exposure to liability for false statements. This disparity is supposed to distort public debate by unfairly tilting the playing field against Nike.

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This charge of unfairness could be understood in several ways: as unfairness to certain speakers, as unfairness to Nike itself, or as detriment to the public's interest in open, fair debate on matters of public concern.

The first version of the charge can readily dismissed. If I am right that a corporation cannot be presumed to speak for its shareholders or any other constituency, then there are no speakers treated unfairly by restrictions on Nike's speech.

The suggestion that there might be some unfairness to Nike itself can be dismissed almost as quickly. Nike is a commercial corporation. The only interests it has are commercial. The only harms it can suffer are commercial. The only harm that Nike shareholders can suffer from harm to Nike is that their Nike investments lose value, not harms relating to their First Amendment rights.

The same supposed asymmetry deplored with respect to debates about overseas sweatshop conditions applies to debates about matters that are uncontroversially commercial. It is settled doctrine that Nike may constitutionally be held liable- under any reasonable standard a legislature may impose-for false statements in its traditional commercial advertising, e.g., statements about price or product quality. But when a noncommercial speaker, such as Consumer Reports, falsely presents Nike's products or prices in an unfavorable light, it too is entitled to the heightened protections of Sullivan. n309 If such asymmetrical exposure to liability is not unfair in the context of disagreements over product quality, then there is no reason to view it as unfair to Nike in the context of debates over workshop conditions-or over globalization generally. Nike Corporation does not have any noncommercial interest in the ideas it propounds.

Such asymmetries in the law of liability are reasonable in either context. They may be justified in part on the ground that a business may be expected to be in a better position than other parties to verify claims about its own products and operations. The public interest in receiving reliable commercial information may be served best by a legal regime that allows more room for error to disinterested purveyors of such information, in order to avoid chilling their contribution.

In any event, regardless of whether such asymmetries represent sound policy, they are in no way unfair to Nike or its shareholders. Any disadvantage to Nike is shared by the businesses with which it competes for market share. Any burden to the industry as a whole fails to make such laws constitutionally more problematic than any other commercial regulation that may impose some costs on business for the benefit of the public. The fact that the legal regulations have to do with speech does not make them more unfair to Nike, as Nike itself has no speaker interests. [*435]

So, if the alleged difference in standards for liability between Nike and its critics has any First Amendment import, that import must be understood in terms of the public's interest in open, fair debate of issues of public concern, n310 i.e., in terms of listener interests. In fact any supposed asymmetry is illusory. The debate supposedly stacked against Nike was widely characterized as one between Nike and opponents of globalization. But that characterization is misleading. Opponents of globalization are for the most part disinterested parties. The plaintiff against Nike was simply a concerned citizen, bringing suit under the now-repealed 'citizen attorney general' provision of California's fair business practices laws. n311 His First Amendment rights should be compared to the rights of disinterested defenders of Nike's practices, not to Nike's rights. Nike's own speech protections are more properly compared to those of interested parties on the other side-the Chinese, Vietnamese, and Indonesian workers, most of them women under age twenty-four, n312 who make Nike's shoes. On either of these fairer characterizations of the debate, it is clear that the playing field is not tilted against Nike.

The idea that Nike's voice needs to be protected in order to safeguard the public interest in fair debate is ludicrous on its face. To listen to defenders of Nike's free speech rights, one would think that the U.S. airwaves were dominated by the voices of Nike's overseas laborers, while Nike was unable to receive a hearing. The courts' formalist approach to the First Amendment is supposed to prohibit consideration of such realities as the inability of Asian sweatshop workers to compete for the ear of the American public against Nike's billion-dollar budget for public relations. n313 I argue first that such formalism is misplaced when no speaker interests are threatened, and second that, even from a formalist perspective, it is incorrect that treating its speech as commercial would disadvantage Nike.

The Court's refusal to take speakers' actual resources into account makes sense only insofar as it is based on concern for speaker rights that might be impaired by restrictions on the expenditures of those with greater resources. n314 Such concerns do not apply to corporate speech, where no [*436] speaker rights are at stake. If one is to take seriously the official view that listeners' principal interest in "robust debate on matters of public concern" is to allow them to reach an informed judgment about the disputed issues, then the ideal debate, from the standpoint of listeners, would be one in which all views get an equal chance to be heard. That ideal may not be achievable, nor even fully coherent- how many viewpoints are there, and what counts as a viewpoint that should be heard? Still, where concerns about violating speaker rights are absent, there is no reason for First Amendment jurisprudence not to consider inequality in actual ability to be heard.

Courts have been sensitive to such considerations in the context of traditional broadcast media, where the limited number of broadcast frequencies available has the consequence that more speech for one speaker necessarily means less speech for another. n315 But the following statement applies equally in other contexts:

[N]ot all free speakers have equally loud voices, and success in the marketplace of ideas may go to the advocate who can shout loudest or most often. Debate . . . in which only one party has the financial resources and interest to purchase sustained access to the mass communications media is not a fair test of either an argument's truth or its innate popular appeal. . . . [W]here . . . one party to a debate has a financial clout and a compelling economic interest in the presentation of one side unmatched by its opponent, . . . the purpose of rugged debate is served, not hindered, by an attempt to redress the balance. n316

Courts have occasionally recognized similar considerations in non-broadcast contexts. One of the reasons given for setting a more stringent standard for liability for defamation of public figures than for defamation of private persons was that public figures "usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements." n317 Reasoning similarly, the Court declined to extend a higher level of protection to a credit report, on the ground that in this context there was no need for "special protection to ensure" robust debate on public issues. n318 The same could well be said of Nike's speech. After all, the disparity in resources between Nike and its overseas workers is not a contingency of a particular [*437] case, but reflects a pattern to be expected in disputes between corporations and people-the very point of incorporation is to concentrate more capital than would otherwise be possible.

Even from a formalist perspective, treating Nike's speech as commercial would not tilt the conditions of debate against Nike. Recall that the interested parties on the other side of this debate-the workers whose working conditions were at issue- were not U.S. citizens, and consequently were entitled to only limited First Amendment protections. n319 Those limited protections, provided for the sake of listener interest, apply to Nike's statements as well, even if they are classified as commercial speech. Moreover, corporations have the formal advantage of limited liability: a corporation such as Nike could use undercapitalized subsidiaries to put forward questionable claims, while insulating the parent corporation from liability. n320

It is true that anti-Nike viewpoints could also be represented by many U.S. citizens, with full speaker rights under the First Amendment, including organizations whose principal purpose is to oppose globalization. That brings us to the second fair way to characterize the debate. The First Amendment rights of disinterested critics of Nike should be compared not to those of Nike, but to those of disinterested defenders of Nike's position. Disinterested parties wishing to defend globalization in general or Nike's overseas labor practices in particular can do so on the same terms as opponents of either. If anything distorts the debate, it is the special amplification that corporate support makes possible for certain voices. n321

The idea that subjecting Nike's corporate speech to easier standards for liability impairs one side of the debate appears plausible only because it is implicitly assumed that no one else would represent Nike's side of the [*438] debate, i.e., Nike's position is too bankrupt-intellectually or morally-to be defended by anyone not paid to do so. In short, the 'tilted playing field' objection amounts simply to a variant of the 'unique corporate voices will be lost' objection, and the same response applies: holding corporate speech to a higher standard neither infringes on the rights of any speaker nor interferes with the desired outcome that "everything worth saying shall be said." n322

B. Drawing Lines between Corporate Speech and More Protected Speech

Even if it seems plausible that no speech by business corporations has any claim to greater protection than commercial speech, it may be questioned whether it is possible to draw a principled distinction between organizations that should be treated as commercial for First Amendment purposes and those that should not. If the foregoing analysis is correct, the crucial question on which to base such distinctions is whether the speech of the organization implicates non-economic speaker interests. We have already seen that corporate form is not enough on which to base a distinction: advocacy organizations with corporate form do implicate speaker interests. n323 The distinction between for-profit and not-for- profit corporations may likewise be insufficient: Austin suggests that some not-for- profit corporations do not implicate speaker interests. n324 Inversely, the New York Times Company is a for-profit corporation, but it is not plausible that all speech by the New York Times should be treated as commercial speech. Some non- press business corporations may have an ideological character that makes one hesitate to characterize all their speech as purely commercial either. And if the contrast between utilitarian organizations and those that represent expressive interests is crucial, how are labor unions to be classified? A different kind of line-drawing problem concerns which speech should be attributed to the organization. When is the public speech of a corporate manager her own, entitled to the highest level of First Amendment protection, and when is it corporate speech? In [*439] this section, I attempt to show that principled answers are available to such questions. While there may be difficult borderline cases, the judgments called for will be similar to judgments that courts already need to make.

1. Non-Profit Advocacy Organizations

Little more needs to be said here. As argued earlier, because members join advocacy organizations to broadcast their beliefs, regulation of such organizations' speech infringes members' speaker interests. n325 In contrast, corporate speech is not a broadcasting of anyone's beliefs, nor is it intended to be.

The point is not that corporate speech is necessarily the speech of an agent, that there is unlikely to be unanimity of viewpoint among members (shareholders), or that an agent may execute his fiduciary responsibilities imperfectly. All of this is true of advocacy organizations as well. The key contrast is that the fiduciary responsibility of a spokesperson for an advocacy organization is to express, as best as possible, the beliefs of its membership. A corporate spokesperson has no corresponding responsibility to express the beliefs of shareholders or any constituency. Her responsibility is to issue those communications she judges to be in the best economic interests of the organization.

Distinguishing between for-profit and non-profit corporations may often roughly track the distinction at issue, but it does so imperfectly. The crucial distinction is that between "expressive" and "utilitarian" organizations, in Dan-Cohen's terminology, where an expressive organization is one whose speech is intended to represent the views of its members. n326 Some non-profit corporations may fall on the non-expressive side of the divide, as the Supreme Court found with respect to the Michigan Chamber of Commerce in Austin. n327 (It is relevant, though, that the Chamber of Commerce could be viewed as largely representing for-profit corporations. n328 )

Distinguishing between utilitarian and expressive organizations does not prevent any novel practical difficulties. Courts already need to draw such distinctions in the context of campaign finance regulation, n329 and in deciding whether an association is sufficiently expressive that it may [*440] legally discriminate against protected categories in its membership or employment practices. n330

2. Business Organizations with a Social Agenda

Some businesses might be established specifically for the purpose of promoting some political or social agenda. For example, anti-globalization activists might establish a business for the purpose of demonstrating non-exploitative approaches to international trade. What then if such a business is set up as a for-profit corporation? It could even be marketed in such a way that its investors share the political/social goals of the organizers. In such a case, organizational speech might well implicate speaker interests, and therefore the rationale for treating corporate speech as commercial seems less applicable.

In practice, however, it could be difficult to distinguish such 'advocacy businesses.' Almost any corporation could recast its mission in terms of some social agenda. Nike could maintain that its use of Asian contractors was intended to demonstrate the benefits of globalization, while another corporation could maintain that it intended to demonstrate the social benefits of relying on domestic manufacturing. Higher protection for the speech of business corporations with a social agenda would require intrusive inquiry and potentially arbitrary judgments as to the motivations of entrepreneurs and investors. On the other hand, not distinguishing 'advocacy businesses' risks failing to accord higher protection to some speech that does implicate speaker interests.

One solution might be to treat speech by for-profit corporations as commercial in general, but allow an exception for corporations whose articles of incorporation expressly allowed profit maximizing to be balanced against some other stated social or political corporate goal. Particular speech by such a corporation could be classified as commercial or not, according to the standards currently used to decide whether speech is commercial, without the presumption that all its speech is commercial (unless perhaps a court finds pretextual the stated alternative corporate objectives).

If the foregoing proposal proves unfeasible, it would be acceptable to treat all speech by for-profit corporations with social agendas as commercial. If the principal differences in treatment for commercial speech concern greater accountability for false statements about a business' own practices or products, and greater leeway for compelling information about those, then why not hold corporations with social agendas to the same standard? It may seem odd to suggest that when anti- [*441] globalization activists criticize Nike, their speech should be highly protected, but that when they form an alternative business, the same speech should become less protected. But it must be remembered that those same activists lose no protection for criticisms of Nike in their own voice. Their rights are not infringed if their use of corporate funds to this end does not receive the same level of protection.

It would seem, however, that at least one class of publicly traded for-profit corporations needs to be treated differently-the press.

3. The Press

The New York Times Company, like many news companies, is a publicly traded for- profit corporation. If the thesis that all corporate speech is commercial entailed that anything published in the Times is commercial speech, that would count heavily against the thesis. But that inference can be resisted on several grounds.

A principled distinction can be drawn between speech of the New York Times Company and speech in the New York Times. The former is speech that is part of doing business, like the speech of any other business. When the company makes representations to potential subscribers about the reliability of its delivery services, or to distributors, suppliers, or workers about benefits, there is no reason those representations should receive higher protection than does analogous commercial speech by any other corporation. n331 The same should be true of company representations to the public about how well it treats its employees, suppliers, or the environment. In contrast, published articles or opinion pieces may more properly be viewed as speech of their respective authors than as speech of the New York Times Company. n332 Even unsigned editorials may be taken to be the speech of the editorial staff. At any rate, they are not ordinary business speech, but the product of the particular business. Crucially, the earlier arguments of this Article do not apply to them: unlike the speech of the New York Times Company, there is no fiduciary obligation that editorials maximize the profitability of the company (even if there may be pressures in that direction).

An alternative approach could find in the free press clause of the First Amendment a principled reason for treating the press differently. n333 Given [*442] that it has always been accepted that the free speech clause protects written publications of all sorts, the press clause is in danger of appearing redundant, unless it is understood to provide some particular protection for the press. n334 Such an approach is in keeping with longstanding jurisprudence recognizing the unique role of the press as a check on government misconduct. n335 There is precedent for singling out the press for special protection: campaign finance laws often explicitly exempt media companies from restrictions on corporate spending and contributions. n336 The Court has usually found those exemptions unproblematic. n337

What then if the Nike Corporation starts its own newspaper, disseminating misleading statements about its products or its overseas business practices, and then claims that it would violate freedom of the press to treat those statements as commercial speech? Or what if Nike simply buys the New York Times to the same end? If the parent company merely creates or allows a perception that favorable publicity for Nike will lead to reporters' and editors' professional advancement, the result may not differ much from the situation at many actual newspapers and broadcast companies. Unfortunate as it may be, the speech of reporters and editors may often be influenced by external pressures; such pressures are not enough to make the resulting speech that of the company, rather than that of the individual speaker. On the other hand, if the parent company orders specific content about its own practices-analogous to Nike's 'press releases'-to be published in its newspaper, it might be reasonable to treat [*443] such content as the speech of the parent company. One can imagine a spectrum of intermediate cases, in which the parent company doesn't dictate specific content, but orders its business practices to be featured prominently and favorably. But the possibility of difficult borderline cases should not obscure the fact that the distinction between speech of the press and ordinary business speech of a parent corporation will be quite clear in most cases.

Where there are difficult cases near the borders, those difficulties should be no greater than in other contexts in which courts have had to distinguish between genuine press publications and commercial-or other-activity that may be more closely regulated. For example, the Federal Election Campaign Act (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), includes various regulations that apply to the content of publications and broadcasts by companies controlled by candidates or political parties, but not to that of independent newspapers and broadcasts by independent media companies. n338 The Investment Advisors Act prohibits investment advice by professionals who are not registered investment advisors, but exempts from this prohibition "the publisher of any bona fide newspaper, news magazine or business or financial publication of general and regular circulation." n339 Likewise, news stories are exempted from the requirement that broadcasters provide equal time to candidates for public office. n340 To enforce any of these statutes, courts must distinguish bona fide, independent press from campaign newsletters, investment newsletters, and the like, requiring judgments analogous to those that would be required to determine whether an article appearing in a Nike-owned newspaper is a bona fide news article or Nike's corporate speech. n341 In fact such distinctions could be needed even in conventional commercial speech cases. If a newspaper editorialized in favor of a transaction in which it had an economic interest, that would presumably not be commercial speech, while the same content in a non-newspaper format might be. n342

Judicial analyses in those other contexts could serve as starting points for distinguishing press speech from corporate speech in close cases. For example, in applying the press exemption to the Investment Advisers Act, the Supreme Court has reasoned that "a 'bona fide' publication would be [*444] genuine in the sense that it would contain disinterested commentary and analysis as opposed to promotional material." n343 The publications in question in that case were found to fall under the exclusion, in part because "they are published by those engaged solely in the publishing business and are not personal communications masquerading in the clothing of newspapers, news magazines, or financial publications. Moreover, there is no suggestion that they contained any false or misleading information, or that they were designed to tout any security in which petitioners had an interest." n344 Drawing on this precedent, the D.C. Circuit held in another case that "presentation of articles as objective reporting, if in fact the articles are paid for by the company featured, would be inherently misleading," and so, would not fall under the bona fide press exemption. n345 Distinguishing a genuine newspaper from an outlet for corporate publicity could be guided by similar criteria, and should prove no more difficult. n346

4. Labor Unions

It is less clear where labor unions fit in a scheme that distinguishes expressive organizations from utilitarian ones. In recent decades, campaign finance law has tended to treat corporations and unions the same, n347 though [*445] it has sometimes been suggested that restrictions on unions' election-related expenditures and contributions are less constitutionally problematic than identical restrictions on those of corporations. n348

In fact, however, restrictions on unions' political spending are more problematic than analogous restrictions on corporations. While a principal purpose of unions may be to look out for the economic interests of their members, unions also serve as vehicles for political expression, in ways that ordinary for-profit corporations do not. Various contrasts between unions and corporations reflect this difference. n349 Union members are generally more involved in organizational decision-making than are shareholders of a publicly traded corporation. Many important decisions in large unions are made at the local level. n350 Union leaders are elected, and many major questions are decided by vote, in a one person-one vote system. n351 In contrast, while in theory shareholders elect directors and can present resolutions on corporate policy at annual meetings, they have unequal voting rights, many shares are controlled by institutional investors or holding companies, and they have little authority over directors. n352 Union members are also likely to identify with their roles as union members more than shareholders identify with theirs, as illustrated by the unlikelihood of finding groups of shareholders engaged in the cheering or chanting that can be found at union rallies or pickets.

Unions should probably be viewed as hybrids of utilitarian and expressive organizations. A union is most like an expressive organization in the early stages of union organizing, when it is similar to any other group seeking to vindicate rights or effect social or political change. It becomes more like a utilitarian organization as it becomes institutionalized, e.g., after it becomes recognized as an official bargaining representative, especially where union membership becomes a condition of employment.

Political speech by such an established union might be tantamount to coerced speech by members who disagree but are required to pay dues. [*446] Therefore, it may be inappropriate to treat all union speech simply as collective advocacy speech. At the same time, unlike corporate political speech, much union political speech does implicate speaker interests. Therefore, union speech cannot all be classified as commercial speech either. Just how union political speech should be treated under the First Amendment is a difficult question, n353 but it does not point to any difficulties regarding how to treat corporate political speech.

5. Other Forms of Business Organization

Does the argument that corporate speech does not implicate speaker interests extend to other forms of business organization? It does not apply to sole proprietorships, where there is no meaningful difference between speech of the proprietorship and speech of the proprietor. Whether a statement by a business proprietor is commercial speech would depend on the content and context of the statement in question. In partnerships or closely held corporations, there is some distinction between the speech of the organization and the speech of associated parties. But to the extent that investor-owners have more direct involvement in and control over what the business does, it is less clear that no speaker interests are implicated in the business' speech. Therefore, it may not be appropriate to treat all speech by a partnership or closely held corporation as commercial speech.

6. Individual Speech by Corporate Officials

The line-drawing questions examined so far concern distinctions between corporations and other organizations whose speech might merit a higher level of protection. A different sort of line-drawing problem arises in distinguishing corporate speech from speech by corporate spokespersons in their own voice. In order to treat all corporate speech as commercial without infringing on the rights of corporate managers and other spokespersons to broadcast their own views, courts must be able to determine when the public comments of an executive about her company are the company's speech, and hence commercial, and when they are simply her own personal views.

[*447]

Again, whatever difficulty may arise in deciding close cases, the legal questions here are no different from those that arise regularly in other contexts. For example, when liability attaches to speech by a corporate officer, courts need to decide whether the speech is that of the corporation to determine whether the corporation should be held liable. More generally, the question of whether a corporate officer is speaking for the corporation or herself is the familiar question of whether she is acting as a corporate agent, and a wide body of agency law is available to address it. Relevant factors include whether the speech is within the scope of the corporate officer's duties, perhaps whether it would reasonably be taken by listeners to represent the corporate view, and who pays for the speech. If the speech is specifically paid for by the corporation, that would be strong evidence that it is corporate speech. If it is not directly paid for, one might still ask whether it is supported by corporate resources, as when a corporate jet is used to fly an officer to deliver a speech, or when corporate staff, as part of their work responsibilities, help to draft or research a speech.

The analysis required is no different from that required in applying commercial speech doctrine currently. For example, when an officer publicly makes false claims about his company's products, such that those claims would uncontroversially be commercial speech if attributed to the company, they would not necessarily be commercial if they are expressions of his own views, unconnected to the company's marketing.

In summary, none of the putative difficulties in distinguishing commercial corporations from organizations whose speech should be more protected, or in distinguishing corporate speech from individual speech, constitute significant objections to the proposal that all corporate speech be treated as commercial. There are principled grounds for distinguishing other sorts of organizations. Close cases will be decidable according to criteria that courts already rely on in other contexts. Reduced protections for the speech of commercial corporations need not imply reduced protections for speech by the press, advocacy organizations, or even unions, nor for the speech of corporate managers or employees in their own voice.

V. CONCLUSION

I have argued that, because it is not an exercise of the speaker rights of any person, speech by a publicly traded commercial corporation is entitled to no more constitutional protection than (at most) that accorded commercial speech. I have not considered whether or to what extent constitutionally permissible regulation of corporate speech is desirable as a matter of policy. Nor have I examined the limits of what regulation is constitutionally permissible, i.e., what is the minimum level of protection constitutionally required for corporate speech-or commercial speech [*448] generally. It follows from my argument that corporations could constitutionally be held liable for false statements about any topic on a lesser showing than New York Times malice. The argument leaves open, however, whether strict liability, as per the California statutes under which Nike was sued, is constitutional, or whether some intermediate standard, such as negligence, is required by the First Amendment. It also leaves open whether the First Amendment limits the severity of the penalties that may be imposed for false statements by corporations.

But if it is correct that no rights in a strong sense are implicated in corporate speech, it might be reasonable to conclude that there are no constitutional limits on penalties or liability standards, provided only that the regulatory and punitive regime may reasonably be judged to serve the public interest. The same may be true concerning the still more controversial question of when (or whether) true corporate speech advocating legal activity may constitutionally be regulated or suppressed. Alternatively, penalties for false speech and regulation of truthful speech by corporations could be thought to be justified only if they can reasonably be judged to serve general First Amendment interests in free discussion more than they hinder them. (And some will argue that regulations of truthful speech advocating lawful activity never do so.) But at any rate, it follows that weighing corporations' speaker interests against the First Amendment interests of other parties is misconceived, as is the principle that it is illegitimate to silence corporate voices so that other voices may be heard. Because corporate speech vindicates no one's expressive interests, restrictions can in principle be justified by showing that listener interests will be benefited more than they will be harmed.

I have argued that commercial speech doctrine should take notice of developments in First Amendment law regarding campaign finance regulation. But the implications of making the connections run in both directions. In particular, the conclusion that all corporate speech is commercial implies that, contrary to Bellotti, Austin, and McConnell, n354 regulation of corporate election-related expenditures may be subjected to less than strict scrutiny.

The arguments of this Article are not just of theoretical interest, but are arguments that could prevail in court. They have proceeded from within the existing framework of First Amendment law, extrapolating from accepted doctrine concerning the justification of protections for commercial speech, the treatment of corporate speech under campaign finance law, the secondary weight traditionally accorded in practice to [*449] listener interests under the First Amendment, and the fiduciary responsibilities of corporate managers. While my conclusions may not be necessarily entailed by-or in some cases entirely consistent with-established legal doctrine, nor is it likely that today's Supreme Court would accept them, they could be accepted without major breaks with established precedent or its underlying principles. That is, it is not difficult to "get there from here."

In arguing from within received doctrine, I have accepted for purposes of argument the theoretical framework the courts have used as a basis for ascribing to listeners a strong epistemic interest in "open debate" (meaning debate free from direct government restraints, though not free from government-supported structures imposed by an economic system marked by great inequality). But the relation between listeners' ability to receive messages unimpeded by government interference and a general societal interest in knowledge and justified belief-or autonomy-has been, at best, grossly oversimplified in First Amendment jurisprudence in several respects. First, power imbalances-and consequent imbalances in ability to be heard-among individuals and groups with different perspectives may obscure understanding more than would a simple lack of debate. n355 Second, natural science, the area of inquiry most widely regarded as achieving gains in knowledge, does not proceed on the basis that all voices or viewpoints merit equal hearing, nor that the hearing an idea receives should be proportional to the funds available to broadcast it; free inquiry is balanced by deference to expertise. For example, referees of scholarly journals, as well as universities, exercise gate-keeping functions over debate.

Finally, whatever pitfalls may attach to allowing government to judge the value of speech, one may question the Court's insistence that more speech is always better, or that all speech contributes-however marginally-to autonomy or to the social pursuit of knowledge. The Justices have been quick to label any restrictions on advertising in order to prevent behavior from being influenced in undesirable ways as "manipulation" of citizens' minds. n356 Such manipulation is central to what [*450] the First Amendment is supposed to protect against: "The essence of . . . forbidden censorship is thought control." n357 But what if much commercial advertising is closer to thought control, or to manipulation on the order of subliminal advertising, hypnotism, or injection with drugs increasing suggestibility, than to advancing reasoned discourse? If so, regulation might actually protect listener autonomy. A similar complaint was raised against popular culture in general (and radio in particular) over sixty years ago by Meiklejohn: "It is misinterpretations such as this which . . . are giving the name 'freedoms' to the most flagrant enslavements of our minds and wills." n358

Legal Topics:

For related research and practice materials, see the following legal topics:

Constitutional LawBill of RightsFundamental FreedomsFreedom of SpeechCommercial SpeechAdvertisingConstitutional LawBill of RightsFundamental FreedomsFreedom of SpeechPolitical SpeechConstitutional LawBill of RightsFundamental FreedomsFreedom of SpeechScope of Freedom

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