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(A talk I gave at the University of Oklahoma in March, 2011, in the heat of the moment when the Citizens United ruling depleted my respect for The Supreme Court and illuminated my doubts about the viability of American jurisprudence. The talk was arranged by Professor of History David Chappell.)

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

As you all know, about 14 months ago, in Citizens United, Appellant v. Federal Election Commission, the Supreme Court invalidated most federal restrictions on what has been called corporate “speech” in election campaigns. Although the ruling removes restrictions on campaigning by all kinds of corporations, including labor unions and other non-profit advocacy groups across the political spectrum, the Court’s conservative majority made amply clear, during the oral arguments and in the ruling itself, that it was especially eager to liberate for-profit business corporations to dive into election campaigns. Business corporations are quite different from municipal corporations and private, non-profit corporations; and they’re relative late-comers to the Constitutional landscape.

I’m not a lawyer, or even what you would call a student of law. And I’ve never started or run a for-profit corporation, although my father did just that in a small business he kept going for almost fifty years. The only for-profit corporations I’ve worked for in my own adult life have been “the press,” which is the only kind of business that is named explicitly in the First Amendment for protection from any government abridgement of its freedom of speech. So what can I bring to a discussion of the so-called “speech” of non-media business corporations?

The short answer is that I hope that I can shed some light on who are the “speakers” that the First Amendment’s framers intended to protect, because I spend a lot of time engaging with speakers of speech that isn’t constrained by the focused professional expertise of lawyers or the focused material resources of commercial interests – ordinary citizens whose primary interests aren’t professional or commercial but republican — with a small “r” and who therefore have the least resources or protection, especially if the First Amendment itself is interpreted to privilege more powerful interests that are only posing as citizens and whose principals these days, aren’t necessarily even Americans.

I’m going to argue that corporations that justify their existence as maximizers of returns to swirling agglomerations of abstract shareholders aren’t persons whose rights to freedom of speech the First Amendment was meant to protect; they’re not even aggregations of persons the way, say, the National Rifle Association is. Yet, for late-comers like me to this discussion, the Citizens United ruling was like the thirteenth chime of a clock that not only startles you but makes you question the integrity of the previous twelve chimes and, indeed, of the clock itself. I mean that the ruling exposed for me and some others a century of jurisprudence on corporations that is little more than a record of how this country has lied to itself about the contradiction-in-terms that it was becoming as a liberal capitalist republic that is also a corporate state. As a way of thinking about these tensions, corporate law has been as self-encapsulating and delusional as the thinking of the Hapsburg Court, circa 1914. It has obfuscated the essential republican claim that we need freedom of speech in politics because we are conflicted beings who have to juggle incommensurable values and priorities – such as wealth and stability. Politics is the place we discuss and provisionally settle these conflicts, but the price of admission to political discussion has to be an acknowledgment of the conflicts, within oneself as well as within the world. By law and charter, a business corporation cannot acknowledge those conflicts, much less reckon intelligently or responsibly about them.

Since the United State is or claims to be a republican “nation of laws, not men,” lawyers like to think of themselves as guardians of the republic, and businesspeople like to think that they are its enablers, not only materially but — if you believe business idealists like George Gilder — creatively, inspirationally, and even pedagogically, in that they teach us all the virtues of self-government – the private virtues, that is, like self-discipline, frugality, and planning, without which there would be no resources for cultivating public virtues such as the ability and inclination to deliberate with others and even to rise above one’s immediate self-interest and find a higher and better self in contributing to the common good.

The founders called the republican citizen of this type “disinterested,” meaning that he served no interest but that of making public deliberation itself go well.  This wasn’t as saintly as it sounds to us now because it was understood to be a real and pressing necessity because, unlike monarchies and theocracies, which are rooted in sacred, mythic ties of blood and soil and in pre-market traditions of honor that offer a stable if limited dignity in return for loyalty and obedience, the republican ethos and identity are staked on an individualistic, vaguely Protestant, almost gnostic liberal experiment in self-governance that locates dignity in personal autonomy and in purely voluntary self-sacrifice to a common good. But a liberal capitalist republic’s jurisprudence gives much higher priority to individual freedom from public obligations than it does to meeting those obligations and even to cultivating the public virtues that are necessary to meet them.

Some people will always rightly devote most of their energies to generating wealth or to making contributions to religion, art, entertainment, recreation. But citizens should care for the res publica at times. Republics need public virtues because they have “no other adhesives, no bonds holding themselves together, except their citizens’ voluntary patriotism and willingness to uphold some public authority,” as the historian Gordon Wood put it. So they rely on a mixture of pragmatism, faith, and fakery that is probably better exemplified by Jack Nicholson than by John Roberts. The early 20^th Century philosopher Santayana wrote that the American is “an idealist working on matter…. There is an enthusiasm in his sympathetic handling of material forces which goes far to cancel the illiberal character it might otherwise assume,” making the American “successful in invention, conservative in reform, and quick in emergencies.”

Santayana added that because the American is an individualist, “his goodwill is not officious. His instinct is to think well of everybody, and to wish everybody well, but in a spirit of rough comradeship, expecting every man to stand on his own legs and to be helpful in his turn.  When he has given his neighbor a chance he thinks he has done enough for him; but he feels it is an absolute duty to do that. It will take some hammering to drive a coddling socialism into America.” Indeed, the This American favored not redistribution of the material but inner renewal of the spiritual in ways that would temper self-aggrandizement with social obligation by re-centering the self in its commitments to advance the common good. “This linkage of American material productivity with an outpouring of the spirit over the whole world, of material with spiritual blessings, is and remains the key to American self justification,” wrote Sacvan Bercovitch, a scholar of the Puritan mission.

This is what the conservative majority of the Roberts Court sincerely believe they’re defending  – or at least it’s what they tell us that they are defending. They may indeed believe it, although the oral arguments I want to cite from the Citizens United case suggest so much more fakery than faith, or else such monumentally willful innocence atop duplicity, duplicity that the Court’s reasoning is wholly un-American by Santayana’s standards, and even by Jack Nicholson’s.  So my short answer to the claim that lawyers and businesspeople are guardians and enablers of the republic is that they do have critical roles to play in the republican scheme of things but that ultimately it falls to the rest of us determine at times what their roles are and are not and to remind them of those limits. One of those ultimate decision times is approaching, not least because the Supreme Court’s conservative majority has misconstrued both the law and business world so badly that it has compromised the republic in ways it may take a second American Revolution or a second Civil War to repair. 

The American Revolution rejected a divine-right monarchy, of course, but it’s worth remembering that although that monarchy’s metaphysical and mercantile presumptions were fanciful and unjustified, they had long been endorsed ardently by most colonists, at least through the early 1770s. If we apply founders’ early republican standards   – call it their “original intent” — to the Roberts Court’s presumptions about corporate rights, we begin to see that today’s presumptions about corporate “rights” are as fanciful as those of a divine-right monarchy and that they’re certainly as unjustified as the prerogatives of the East India Company — which, you may recall, prompted the original Tea Party and was the kind of business Adam Smith considered subversive of free markets and free men. Smith would have abhorred our regime of corporate-welfare and casino-finance capitalism, and we may need a second American revolution to reconcile it with republican ideals and entrepreneurial individualism. Our pretense that there is no yawning abyss separating republican principles from the business-corporate principles that are being enshrined in Constitutional law is the big lie of our time, and John Roberts is its Chief Justifier.

The American Civil War was fought at least in part to defend the republic against the institutionalization of human slavery in the early Constitution and in later Supreme Court rulings like Dred Scott. And even despite the Civil war it took a second civil-rights revolution, one that had to be conducted sometimes against and outside settled legal doctrine as well as within it, to get most lawyers and businessmen to what is ultimately in everyone’s highest and best interest.

But the Civil War also defended and expanded the corporate state, and it accelerated a restoration of mercantilism. The Roberts Court is driving that restoration now, and in the process it’s reducing citizenship to a fig leaf for our naked enslavement by private bureaucracies in a slippery but enveloping web of degrading come-ons, inscrutable but contractually entrapping fine print, and foreclosed political options. Many lawyers are part of this problem, some of them with the peculiarly obdurate small-mindedness that lawyers tend to mistake for an energizing discipline, and a few of them with something pretty much like malevolence. But some lawyers are larger-minded, and we need them badly, and I’m grateful to be drawing here from two professors of law, Milton Regan, at Georgetown, and Daniel J.H. Greenwood, at the University of Utah, among many others.

I would also draw distinctions among business people, this time separating the relatively small number of huge, publicly traded corporate conglomerates, which are corrupting our government and skewing our public deliberations, from the 96 percent of business corporations whose principals are like my late father and most other business entrepreneurs. Even before the Roberts Court invited the conglomerates to jump into election campaigning, as many of them will now have to do, if only because their competitors are doing it, they were already shaping Americans’ political and economic choices and hopes, first by employing so many of us and second by marketing certain habits and patterns of consumption to us in a relentless, multi-billion-dollar campaign to replace public virtues with private stupefaction and greed to foreclose political and economic alternatives that most of us no longer even imagine. As Greenwood notes, every automobile commercial is propaganda for a system of energy consumption and transportation planning that is overdue for radical reconfiguration.

 But in a republic, we’re supposed to imagine such alternatives and implement some of them, not as purely self-interested investors or labor sellers but as citizens free to deliberate about the larger good. This means that we’re supposed to determine and re-determine the rules under which business corporations exist, let alone operate. As Greenwood presents the challenge,

[E]conomic efficiency is best promote by flexibility, rapid adjustments to changing conditions, and a mobile labor market. A sophisticated culture and well-raised children, however, require stable intergenerational families and stable communities. The conflict cannot be avoided: a mobile and flexible labor market requires families without strong community roots, children raised away from their grandparents (or with their parents late at work), and the worry and stress of actual or threatened unemployment…. Citizens must decide… whether the prefer the excitement and challenge of a constantly changing capitalist economy or prefer the comfort of predictability that comes with stability and decline. In a democratic society, the resolution of these conflicts – or at least their debate – is the central task of politics. To allow markets or private bureaucrats with legally determined duties to pursue particular agendas to decide when or to what degree we should be market-driven… is to coop the central task of democratic politics.

In this view, we, the people, as flesh-and-blood human beings, are the only ones empowered to deliberate about and decide these things, and our rights in doing so, including freedom of speech, are protected by the Constitution not only because we need them to deliberate freely but also because, as the brilliant and independent American historian David Chappell put it in a private letter that I came upon in my archives, “individual human beings had the weaknesses and limitations of a single mortal body that they needed protection from superhuman conglomerations that are immortal and infinitely expandable.”

To which I would add only that it’s precisely because we, as embodied, mortal beings, are vulnerable to physical and psychological pressures that we’re also uniquely driven to imagine reaching beyond that vulnerability and to deepen our strengths and dignity by finding ways to achieve goods in common, like a clean environment or truly free markets, that we cannot achieve as narrowly self-interested money makers and consumers.

Corporations can’t deliberate beyond their mandated pursuit of the bottom-line and market share. Like the computer Watson, they’re not vulnerable in the ways human being are and so cannot truly be free in the ways that human beings are, either. If corporations could freeze in winter or feel anguish when someone else is sick or oppressed, if they could be subject to imprisonment or the death penalty, then they would deserve the right to free speech. But all they really are is engines that we, the people, let some other people set up and operate for limited purposes that the corporations are constrained by law, charter, and competitive pressures to pursue single-mindedly. And the people who actually establish, invest in, or work for those corporations are constrained, while they’re engaged with them, to pursue those particular purposes within bounds that all of us have the right and power to establish. But when these corporate investors and employees deliberate with the rest of us as free citizens about how best to charter and regulate these engines and how to set limits on how they do employ some of us and reward investors, then our public discussions — including our choices of representatives to develop and implement our policies – can’t rightfuly be boxed in, inundated, degraded, or intimidated by the very entities that we ourselves set up for the vital but limited purpose of generating wealth.

Precisely because these engines haven’t our mortality or, therefore, our morality, we intend for them to treat us as abstractions in limited circumstances and for a limited purpose  – to treat us, if we’re shareholders, as if we were beings who never want the company to do anything that wouldn’t maximize its returns to us as investors; or, if we’re corporate employees, to treat us only as sellers of labor to corporate managers who can direct our energies on the job solely to increase the company’s profits and market share.

To a frightening degree, this is what we truly become: Cogs in bureaucracies, couch-potato consumers at home, with all the predictably tawdry – and well-marketed — escapes and false compensations. Of course, any individual citizen can be narrowly self-interested almost all of the time, but the difference between that citizen and a corporation is that he or she has many and conflicting needs and purposes and can at least potentially be appealed to in debate to change his or her mind and priorities. But if those appeals are drowned out or foreclosed by pressing realities that corporate priorities impose on us all, political stupefaction is a consequence: As a corporate shareholder through mutual funds and retirement funds, I have no idea which companies I own this afternoon that I didn’t own this morning, and my ownership of them is driven solely by the click of a broker’s mouse based on a calculation of its stock price. If I and most of my fellow citizens decide that this single-purpose understanding of our capabilities has begun to undermine our capacity to entertain and enforce other public purposes, we have the right to restrict or disband our legally created corporate engines that have become abusive and destructive of our rights. They have no rights against us.

But they may have the power. And they may exercise it not diabolically or malevolently but mindlessly, because they do it so single-mindedly, with a kind of willed innocence. Demagogues since Thucydides’ time have always twisted the meanings and emotional valences of public words to present their murky private purposes as noble public ones. Sometimes they even fool themselves, like Muammar Qadaffi, into thinking that they are only serving the common good. Corporations do that, too, when they get into public speech that disguises their true interests, as every BP or CSX commercial I see on PBS certainly does.

The problem that Citizens United has made worse for us as citizens is that it has drawn business corporations into this game even more directly: When we’re electing fellow-citizens to make the rules under which we may be employed or rewarded as investors by large corporations or, indeed, addressed by them, the capacity of our elections to determine all this freely turns out to depend not just on what positions candidates take and which of them survives robust debate, but on how much money the candidates can spend to address millions of us, repeatedly, via commercial television, often bypassing our deliberating brains and hearts and reaching for our lower viscera on their ways to our wallets. Here is where the shift from mindlessness to malevolence begins, no matter how softly purring and gently authoritative the announcer’s hired voice.

The problem isn’t only that candidates themselves can be corrupted by the quid pro quo of campaign money for selective silence or obedience; it’s also that the public debate is itself thereby skewed or drowned out by speech that is not free but purchased. Here the medium of speech itself, the medium of expensive but effective commercial television, does conquer the message, because of what the message costs to disseminate, and I would add that by the time the Roberts Court is finished, even the internet, which played an important role in Barack Obama’s victory by stimulating millions of small contributions outside of the corporate message machine, will have become more commercial, with higher barriers to individual entry. The Citizens United ruling may be the Roberts Court’s response to the fact that. In 2008 the internet — developed originally by government, even if not by Al Gore – hadn’t yet been harnessed to maximum profit-seeking.

The question that I think that Citizens United forces us to ask is how we, the people, have gotten caught up, first, in allowing big business corporations to give or withhold enough of our candidates’ campaign money to abridge their freedom of speech, and, second, in allowing corporations to speak directly for their abstracted interests in the political arena as if they were originators of free speech and deliberation in their own right, like any other citizen, and not the over-determined purchasers of speech that they really are.

The single end that for-profit corporations are licensed and constrained to pursue is a good and necessary one. A lot of genius is harnessed into it, and, yes, when the corporations themselves are harnessed to a robust republic, that “linkage of American material productivity with an outpouring of the spirit over the whole world, of material with spiritual blessings, is and remains the key to American self justification.” But that linkage has been broken because the global pursuit of profit by corporations that have outgrown their juridical and entrepreneurial origins has actually destroyed or perverted the flesh-and-blood communities in which civic virtue might have been cultivated, and it has also undermined American sovereignty. Profit-seeking is not an end to which a republic’s other purposes can be confined or reduced without destroying the republic itself and, with it, individual citizens’ freedom and dignity.

We have many, inventive ways of assuring ourselves that this is not happening. We have let it happen because, being human, we have succumbed to the subtle and irresistible temptations of idolatry, temptations that go back to the popular worship of the Golden Calf at the foot of Mt. Sinai. The justices in the Roberts Court majority are the high priests of that idolatry, which sets up the tool as the master. To my mind, there is a special circle in Hell reserved for those priests who have every reason to know better than to worship false gods, and the sign that Chief Justifier Roberts is headed there is that, exactly one year and a day before he delivered the Citizens United ruling, he flubbed his administration of the inaugural oath to Barack Obama at the most sacred of the republic’s ceremonies.

What the Justices said in those oral arguments on September 9, 2009, was drowned out by the chatter about President Obama’s important speech to Congress on health care that same day. But the consequences of the ruling that followed four and a half months later have already been immense for the United States, let alone for Obama’s health-care hopes, and I think that there will be more consequences that the justices themselves didn’t anticipate. To compare the ruling with what the justices said in the oral arguments, you’d have to conclude that they didn’t learn anything from the arguments, because they didn’t intend to:

• Questioning Solicitor General Elena Kagan in the oral arguments as she defended the federal regulations against direct corporate participation in campaigns, Justice Antonin Scalia wondered if he was being “too cynical” to suspect that Congress had enacted those curbs on corporate electioneering to shield its own members against well-funded challengers. Kagan had to inform him that business gives 10 times more to incumbents, who can and do return the favor many times over. She couldn’t resist adding that, far from protecting incumbents, the McCain-Feingold campaign-finance law “may be the most self-denying thing Congress has ever done.” That drew a few chuckles in the court, but outside the hearing that day, Sen. Russell Feingold noted that, indeed, the stench of legislative corruption by business had shamed Congress into passing such laws.

Apparently Scalia had had no idea, and the ruling just dropped the subject, asserting simply that “the anti-corruption interest is not sufficient to displace” the corporate right to speech.

Maybe the justices’ nostrils are as blocked as their ears, but, whatever the real dimensions of corruption, the real issue here is that debate among citizens is being skewed and drowned by the simulacra of “free speech” by voices that are hired by non-corporeal entities that cannot be swayed by debate, as citizens sometimes are, to rise above their bottom lines. Real citizens can speak for business interests any time, but then others can speak back to them and have a chance of persuading them.  By the way, wealthy individuals like the Koch brothers or Soros are do have unfair advantages to the extent that they amassed their fortunes under rules set up by public officials who’d been “bought” by people like themselves. But at least the Koch brothers and Soros are flesh and blood individuals who may be induced to debate and re-think their positions.

• Outside the September hearing, Feingold’s co-sponsor, Sen. John McCain, rejected “the [conservative majority’s] premise that corporations have rights as citizens” — rights to free speech, for example.  But inside the Court, Scalia kept emphasizing that 96 percent of the corporations that were being “silenced” by the curbs are single-shareholder, “mom and pop” hairdressers and car dealerships” that can’t overwhelm public debate. Kagan had to remind Antonin the Innocent that a small corporation’s sole owner can use its resources to speak out as a citizen anytime in his or her own voice, without implicating  or offending anyone else who may be involved in the business as a customer or investor.

But now that the curbs on outright corporate electioneering have been removed, big businesses, whose “owners” change hourly at the click of a broker’s mouse, will indeed overwhelm public elections, and to only one end: While living, breathing citizens sometimes rise above their self-interests as corporate employees and consumers to make choices for greater good, a business corporation’s charter and shareholders don’t allow it to do that. (Hence all those corporate PBS commercials pretending that they do.)

Yet this week’s ruling insists that “by taking the right to speak from some,” public regulation “deprives the disadvantaged person or class of the right to use speech to establish… respect for the speaker’s voice” and deprives “the public of the right… to determine for itself what speech and speakers are worthy of consideration.”

•  Scalia even added, in a concurring opinion, that to “impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”

I’ve never thought of big corporations as “disadvantaged” in speaking. And, impressed though I suppose we all should be by Scalia’s “modern free economy,” I’m reluctant to “celebrate…the addition” of corporate speech to public life. Has it really been missing? Has anyone been depriving us of our right to determine that business’ views deserve consideration? Don’t people like James Kramer  and Lawrence Kudlow and many members of universities’ economics departments give us these perspectives non-stop? Isn’t that one reason why so high a proportion of every college’s graduating seniors flock to corporate recruiters every spring even in years when many other options are available?

• What’s really in short supply is truthful information about who’s in the driver’s seat. In the oral arguments, Chief Justifier Roberts fretted that the Government was being “extraordinarily paternalistic” in assuming that shareholders like me can’t “keep track “of what corporations are doing with our investments and withdraw our money if we don’t like their political positions. Kagan had to remind this Alice in Wonderland that most people with retirement plans don’t even know which corporations they “own,” let alone whether their investments are being misused. I don’t feel patronized at all by restrictions on what a corporation may do politically with my money.

The ruling four months later blandly assured us that new technology makes it easier to know and that “corporate democracy” rectifies abuses.

• In the September oral arguments, Justice Kennedy was stirred by the deep thought that bans on corporate electioneering silence those who know the most about the very industries that Congress regulates. Kagan reminded him that no law keeps corporate lobbyists from swarming all over Congress, where they even draft legislation. By barring direct campaign expenditures, she said, “we’re only separating persuasion [in lobbying] from coercion.” That struck me as a show-stopping point, but the majority ignored, it.  Kennedy, writing for the majority, quoted Scalia’s claim that the legislation “muffles the voices that best represent the most significant segments of the economy.” 

Citizens United will amplify many times over the distortion of our public life by “artificial being[s], invisible, intangible, and existing only in contemplation of law,” as Chief Justice John Marshall described corporations nearly 200 years ago. We, the people, create them, regulate them, bail them out, license them for specific purposes, and have every right to bar them from using shareholders’ investments to overwhelm the democratic process.

The ruling thwarts that right with soaring abstractions (see Roberts’ concurring opinion) about corporations as voluntary associations of citizens joined in a “common cause.”  This “common cause” assumption also frees labor unions and the iconic “mom and pop” corporations to campaign for their favored candidates, too. But unions and small businesses get weaker as big businesses’ power over public life gets stronger, because big business doesn’t put the public interest before profits. The justices just pretend that the two are the same -even though the biggest corporations are evolving beyond American control, in ways the Court also doesn’t mention.

Long before the ruling, the free speech that corporations already exercised so vigorously and ubiquitously as consumer marketers and trainers of labor and funders of think tanks was transforming our public life beyond anything envisioned by the framers, whose “original intent” the conservative justices invoke defensively in the ruling but can’t square with the founders’ own suspicion of corporations, as Justice John Paul Stevens showed in the Court minority’s devastating dissent. Stevens quotes Theodore Roosevelt’s admonition to Congress in 1905 that “All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be… an effective method of stopping the evils aimed at in corrupt practices acts.”

Congress has never gotten that far, but it has tried periodically since 1907, because the stench of money in politics was so great, as Feingold said in September. He warned then that a ruling like this “would prevent us from legislating,” from regulating what we ourselves had created. Now, says Michael Waldman of New York University School of Law’s Brennan Center,”Exxon or any other firm could spend [immense] sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care.”

Justice is properly blind, but not as blind and small-minded as the men who lifted the hems of their black robes hypocritically above the muck of political and economic life that made laws like McCain-Feingold so necessary. In the oral arguments they behaved like ordinary lawyers who, since they already know their client and the side they’re representing, ask only rhetorical questions, not open-minded ones.  Judges are supposed to be better than that, but when Kagan gave the conservative Justices answers that challenged their premises and facts, they simply changed the subject.

In fairness, not only the Justices changed the subject. Even the ACLU bought the line that the ruling defends “freedom of speech” against “censorship.” But, again, nothing in the campaign-finance laws that the court eviscerated ever barred big business from inundating us with its “speech.” Nor is “corruption,” conventionally understood, the only or even the main issue. The debasement of public debate is the main issue. 

Finally: A liberal capitalist republic has to rely on a critical mass of its citizens to uphold certain public virtues and beliefs that neither the liberal state itself nor markets alone can do much to nourish or even enforce, because the state and markets are committed to defend individual autonomy, in ways that make it hard for them to judge between bold civic spirits and selfish free-riders. Somehow, therefore, the citizens and leaders of such a republic have to be trained all the more intensively.  That’s what the free press and liberal education are for, but when corporate and statist currents overwhelm their offerings, the republic is not far from its fall.

A note about the First Amendment: When it was framed, the only way one could exercise freedom of speech was to open one’s mouth, or write a letter, or pay or persuade the owner of a printing press to disseminate what one wanted to say. So the framers added “the press” to the Constitution  because it was the only form of public speech extant beyond a person’s actually giving a speech to whoever was within the sound of his voice.  But even just by specifying  that industry,  the framers acknowledged the importance of money to speech. And now that “the press” is often owned by precisely the kind of publicly traded conglomerate I’ve been denouncing, the question has been raised why the “speech” of other, non-media conglomerates shouldn’t be protected, too.

The answer is that media corporations agree to be platforms on which anyone can speak – sometimes they even pay the speakers for their trouble, as a newspaper’s opinion page does, but supposedly without placing limits on what viewpoints they can express. No non-media corporation will provide a platform for views antithetical to its business premises. Even conglomerate media corporations seldom do it fairly. If anything, public power may be needed to impose stronger “fairness” and “equal time” standards on these disembodied engines of profit in order to facilitate robust debate.

Daniel H.J. Greenwood: “Essential Speech: Why Corporate Speech is Not Free,” 83 Iowa Law review 995, August 1998

Milton C. Regan, Jr., “Corporate Speech and Civic Virtue,” in Debating Democracy’s Discontent, edited by Anita Allen and Milton Regan, Jr., Oxford University Press, 1998

Jim Sleeper, “Corporate Free Speech? Since When?” The Boston Globe, Sept. 5, 2008

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