A corporation is a "legal person" under the law. But do Corporation have Constitutional rights?
Clearly all corporations do have at least some Constitutional Rights. Clearly the government cannot, consistently with the Fifth Amendment to the U.S. Constitution, seize Deere's headquarters to use it as the new the new Federal Building without affording Deere due process, and without paying fair compensation for the taking.
And yet a great many Americans question whether corporations have First Amendment rights, such as the right to engage in "political speech".
So, does a business corporation have a Constitutional Right to engage in "political speech?"
Or should the right of corporate "political speech" be limited to media companies such as the NY Times, NBC, Fox News, CNN and the AP?
That is what the Citizens United Case was about. There the court held that business and not-for-profit corporations had a First Amendment right to spend their general funds to engage in "political speech" without the necessity of setting up PACs to handle "special funds" for that purpose.
But why? Imagine Congresswoman Cortez is running for re-election promising to end commercial airline service. Image that all the great media corporations, including ABC, NBC, CBS, CNN, MSNBC, Fox News, The NY Times, the Washington Post, etc. all endorse her re-election. Does Boeing have to sit silent? Or should Boeing be able to spend corporate funds to tell the public that Cortez "is an idiot whose policies would do irreparable harm to the American people, and destroy Boeing?" Can Boeing run ads endorsing her opponent, who believes commercial air travel is essential to the welfare of the American people?
Citizens United held that counter-speech is the remedy provided by the First Amendment. If media corporations can support Cortez and her agenda, Boeing, a business corporation, must have the same right to engage in "political speech" to defeat Cortez and her agenda. While the First Amendment guarantees that a free press has a right to engage in "political speech," it no where limits free speech to giant media corporations.
Now a major new First Amendment battle is looming. Conservatives believe they are being silenced by Google, Facebook, Twitter, etc. These giants are also business corporations. So what are their First Amendment rights? Citizens United strongly presages that they will be found to possess the same
Free Speech rights as any other media or business corporation.
Since the earliest days of our Republic, certain newspapers have been overtly partisan. The Federalists has their partisan newspaper, the Gazette of the United States. To counter that, the National Gazette was founded with the support of Madison and Jefferson, at a time when Jefferson was Washington's Secretary of State. Jefferson hired Philip Freneau to serve as editor and put him on the State department payroll. The paper inveighed against Alexander Hamilton's financial policies as "numerous evils ... pregnant with every mischief." It accused Washington of harboring "monarchial" tendencies.
Our First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press." Nobody ever better explained "Why" than Justice Hugo Black in NY Time Co. v. U.S. (The Pentagon Papers case), wrote
"Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: 'Congress shall make no law... abridging the freedom... of the press....' Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.
"In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors."
If that is so, and Citizen United recently said that it is, Congress can make no law requiring Google, Facebook or Twitter to be "fair and balanced." The remedy left to Conservatives is "counterspeech." They are entirely free tocreate a search engine and social media platforms with a "conservative bias." In this light, I would not be surprised if my liberal friends who have inveighed against Citizens United suddenly do not embrace it.
But up until now, Google, et al, have portrayed themselves as "common carriers" - rather like the "soap box" of yore in Chicago's Bughouse Square. As "common carriers," they could not be held responsible for what their 'users" were saying. They merely provided the neutral "soap box" or "megaphone." For that they were granted immunity from suit for things their "users" said.
But if they are now engaging in advancing liberal idea, and blocking conservative ideas, they are no longer mere "common carriers." They have become partisans, rather like the National Gazette. As such, they should enjoy all the same First Amendment rights and immunities as the Washington Post and Breitbart.
No more; no less.
This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on July 5, 2020
Copyright 2020, John Donald O'Shea
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