In House - The FindLaw Corporate Counsel Blog

Corporations: When Is It Time to Speak Up?

One appellate court said President Trump's latest travel ban "drips with religious intolerance, animus and discrimination." It's one thing for a court to say that, but should corporations ever speak up against policies they find destructive?

Major corporations, like Ford, Google, and Facebook, have spoken out loudly against the president's policies. They have become part of a diverse choir for corporate speech, causing companies to consider the difficult question about when to exercise their First Amendment rights.

Corporate Speech Is Not Business as Usual

Ford, Google, Facebook, Tesla, Goldman Sachs, JPMorgan, GE, Starbucks, Citigroup, and other companies have criticized the travel ban because it is bad for business. They need workers based on their credentials, not their countries of origin.

The corporate backlash may just be starting, as the president backs away from trade agreements that could change supply chains to America. Trump called the North American Free Trade Agreement the "worst trade deal maybe signed anywhere," leaving affected industries wondering what to do or say next.

Alex Baiocco, a fellow at the Center for Competitive Politics, said big business has traditionally sponsored Republicans, while Democrats have argued against corporate voices in politics. But the new White House rhetoric has been a game-changer.

"Support for political speech rights should not depend on agreeing with the speech taking place or disliking the politicians currently in power," he wrote for the Hill. "But if heightened partisanship results in heightened support for the First Amendment, that's still a win for free speech."

"Citizen's United" and the Media

After the Supreme Court freed up corporate speech in Citizens United v. Federal Election Commission in 2010, companies reportedly spent $600 million on campaigns during the 2012 elections. But according to a Harvard Law School study in 2015, business interests in free speech cases before the high court have been accelerating for decades.

While the First Amendment was written to protect free speech for people, corporations have begun to displace individuals as its direct beneficiaries, according to John C. Coates, who wrote the study of 13,000 cases from 1946 to 2014.

Floyd Abrams, in his new book "The Soul of the First Amendment," said that the evolution of corporate speech has even bedeviled the press. The New York Times, for example, criticized Citizens United for not explaining why non-media corporations should have the same protections as the press.

Justice Samuel Alito answered in a speech soon after: "The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations: namely, media corporations. Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech."

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