Should corporations have the same free speech rights as individuals, or is their status a “fictional” people such that they can be more tightly regulated? A recent Supreme Court decision suggests that the stanards should and will be different — but what are the implications for churches and other religious groups?
California Justice Joyce Kennard wrote in her decision in the case:
- When a corporation, to maintain and increase its sales and profits, makes public statements defending labor practices and working conditions at factories where its products are made, those public statements are commercial speech that may be regulated to prevent consumer deception.
Corporations are not human beings — they are fictional persons, creations of the law for legal and pragmatic purposes. The Supreme Court dismissed an appeal of the California court’s decision, finding that First Amendment protections for free speech do not apply to corporations like Nike in the same way that they apply to real human beings. A corporate executive can certainly say whatever she likes when acting as an individual, but when conducting the business of her company and acting as an instrument for company policy, different standards apply.
To a large extent, that seems to be a very reasonable position. Commerical speech does appear to be different from other speech and if such a distinction is valid, the only way to maintain it is to make a distinction between those engaging in the speech: private individuals or for-profit businesses seeking commerce.
But what about organizations which aren’t for-profit businesses seeking commerce? Take for example the Roman Catholic Church: does a sermon made by a priest qualify as individual speech covered by the First Amendment, or is it commercial speech that can be more tightly regulated? As another example, consider an official statement issued by a bishop — which category does that fall into?
Most people, I think, would be inclined to categorize such acts as free speech that is protected by the First Amendment, but what makes them different from a press release issued by an executive of Nike or Coca Cola? Well, the former do invovle a religious organization and religion does receive special protection by the First Amendment, so perhaps we should consider a different example.
What about a non-religious non-profit corporation, like the United Way or the Boy Scouts? If they issue a press release about their organizational policies, is that free speech which is protected by the First Amendment? Once again, this sounds perfectly reasonable — and even if the press release is less than truthful and contains little more than propaganda, it would still be protected. But why?
It seems that the issue here is the expression of a “point of view” — an opinion which may or may not be true, but which we certainly believe. When we express an opinion in an effort to get someone to buy a car, we are doing something slightly different from when we express an opinion in an effort to get someone to “buy” our ideas on religion or politics.
This is a very subtle distinction, however, and it may not always be easy to maintain in practice. After all, religious organizations and non-religious non-profit groups do solicit money, either as donations or in exchange for goods and services. Why should they get privileges unavailable to Coca Cola or General Motors?
Nike’s statements may or may not have been truthful; they may or may not have been propaganda. Why is “commercial propaganda” held to different standards than “religious propaganda” or “political propaganda”? Granted, commercial propaganda is designed to help a corporation sell products and secure a profit, but is lying in pursuit of that worse than lying in pursuit of political office? Corporations that lie are fined and sued; politicians who lie simply put a spin on things and end up getting elected.
Perhaps we are looking at his incorrectly. If we find that this inconsistency is unacceptable, perhaps the solution is not to grant commercial speech the same protections as other forms of speech; maybe it would be better to hold the other forms of speech to the same standards as commercial speech?
This is ethically dubious because it would surely weaken important free speech principles. It is pragmatically problematic because with commercial speech it is often possible to identify clear damages from fraud which would not be easy to find when it comes to religious or political speech.
Different standards is probably the best way to go, even if justifying them is difficult. We should understand at least why it would be too problematic to hold all of them to the exact same standards and what the implications are for each. Sometimes, sound ethical reasoning requires not being shackled to consistency above all else — while it is an important principle, it can’t necessarily be the one that overrides all others.
