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 interest.

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 interests.

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 ...

Controlling Corporations

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