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Work in Progress: Corporations Should Not have the Right to Remain Silent

June 03, 2009

Should corporations have the right to remain silent? Penn Law Professor Tobias Wolff argues that they should not, especially when that right interferes with the government’s efforts to disseminate educational and safety information to the public.

The First Amendment prohibits the government from compelling speech. For Wolff, the amendment’s compelled speech clause places two separate but overlapping burdens on the government: to safeguard an individual’s right to remain silent and to create an informed populace. In free speech cases, however, the Supreme Court has focused mostly on the individual’s rights, at the expense of analyzing the impact that a regulation may have on promoting rich public debate, said Wolff. 
 
Wolff said that the focus on the individual speaker’s autonomy began with West Virginia v. Barnette, in which the Supreme Court struck down a statute that forced children to recite the pledge of allegiance at school. The court offered two reasons. The first was to protect an individual’s right to speak his own mind and the second to limit the power of the state to regulate public discourse, even if the state had noble intentions, for the larger goal of safeguarding dissent.
 
Since then, Barnette has come to stand mainly for the autonomy of speakers. The Supreme Court has used that principle to increasingly empower for-profit corporations, but arguments based on speaker autonomy “are categorically inappropriate for corporate actors,” said Wolff. 
 
In Pacific Gas & Electric v. Public Utilities Commission of California, the Supreme Court asserted that corporations possess many of the same rights as individual speakers. The decision effectively opened the door for corporations to take advantage of rights that had previously been available only to individuals.  
 
Seeking to widen the public discourse, the commission mandated that PG&E include informational materials supplied by TURN, a consumer protection group, in four of the twelve monthly billing statements. The commission had reasoned that the extra space in the billing envelopes belonged to customers, and that TURN’s newsletter wouldn’t impose an additional postage fee. Although PG&E could counter TURN’s messages with its own newsletter in the remaining eight statements, the company argued that the requirement violated its rights of autonomy and self-expression. 
 
The Supreme Court allowed the company to characterize the state regulation as compelled speech and then proceeded to strike it down as unconstitutional because it put PG&E in a position where it might be forced either to appear to agree with TURN’s views or to respond. That reasoning only works, said Wolff, if PG&E is treated as an individual speaker.   
 
Since PG&E, corporations have increasingly used arguments based on self-expression and autonomy to evade measures designed to disseminate information and promote commerce through industry-based advertising, said Wolff. 
 
For Wolff, corporations should only be able to seek First Amendment protection when a regulation negatively impacts public discourse.