Corporations and Free Speech
Multinational Monitor magazine , May 1998
It is time to rethink the notion of free speech for corporations.
Free speech guarantees are supposed to ensure vibrant civic
debate, but it is corporations that dominate the public debate
which should be the province of an engaged citizenry. Corporations
take advantage of the speech rights which the Supreme Court says
the Constitution provides to them, to dominate the campaign funding
process, drown out citizen speech, contest advertising restrictions
and block citizen organizing.
Corporations also now pose an increasingly serious, direct
threat to citizens' speech. Corporations intimidate citizens from
exercising their constitutionally guaranteed speech rights with
SLAPP suits (strategic lawsuits against public participation),
which threaten activists with massive liability for speaking out
against corporate wrongdoing. In SLAPPs, corporations charge activists
with libel or slander or similar claims for criticizing the company.
Corporations know they will lose the vast majority of SLAPPs,
but they also know that time and expense involved in defending
against a suit will distract the defendants and deter others from
exercising their speech rights.
Now a new set of speech deterring "veggie-libel"
laws- drafted by and shepherded through state legislatures by
agribusiness interests-is exacerbating the problem by providing
a statutory cause of action for corporations to employ against
people who publicly criticize the safety of the food supply.
At the same time, corporations have evolved a new set of tools
to shield from public scrutiny critical information stored in
corporate records rooms. Environmental audit laws permit companies
to conceal internal documents that show how the companies are
damaging the environment [see "The Corporate Right to Cover
Up"]. And corporations are increasingly relying on secrecy
agreements in lawsuit settlements to prevent information discovered
in consumer suits about dangerous products from being made public.
In sum, citizens' effective free speech protections are being
squeezed by big corporations, while big corporations arc gaining
and exercising an ever-expanding panoply of speech rights, as
well as the right to conceal of information of critical public
Through a sort of "rights creep," corporations over
the last two decades have steadily expanded their legal entitlements.
Corporations are increasingly treated in the law as if they were
people, or deserving of even greater rights than people.
Corporations, however, have resources far beyond those available
to real persons, and giving corporations the right to contribute
to issue advertising campaigns, for example, ensures the corporate
point of view will be able to overwhelm citizen perspectives.
Corporations also benefit from a host of characteristics - limited
liability, perpetual life, inability to be imprisoned-that advantage
them over people in economic and political contests and that immunize
them from many of society's sanctions.
But the most important point is the most obvious: corporations
are not, in fact, people. They are socially created institutions
which were designed to, and should be made to, serve society's
Since democracy is supposed to be rule by the people, not
by corporations, corporations should only receive democracy's
bedrock rights to the extent it furthers, or at least does not
interfere with, civic power. They should not have a "right"
to make political contributions or participate in the political
process. They should not have "rights" to advertise.
Their "right" to remain silent should never trump citizen
interests in conveying information.
Since corporations are not people, they should never be able
to bring defamation, slander or libel claims against real people,
and certainly not against those who speak from non-economic motives.
Injuries to a person's reputation touch on person's standing in
the community and dignity; harms to ~ company's goodwill are matters
of economics. The idea that a corporation could sue a person for
"disparaging" a food product should be laughed out of
state and court houses across the United States.
And since corporations are not people, their "privacy
rights" or similar privileges should, in general, be subordinate
to the public's right to know. Legal maneuvers such as secrecy
agreements and environmental audit privileges should be banned.
Corporations should not have the "right" to conceal
information that could prevent the infliction of injury or disease.
"Rights" are the expression of a people's or a constituency's
hard-won political gains, etched into democracy's tablet of fundamental
rules. Simultaneously, rolling back rights diminishes a constituency's
power. For the last two-and-a-half decades, corporations have
won most of the important political conflicts in the United States,
as well as around the world. It is time for citizens to organize
and mobilize to reverse the corporate winning streak ...