“Justifying Corporate Speech Regulation Through a Town-Meeting Understanding of the Marketplace of Ideas”

Abstract

The debate between the majority and the dissenting justices in the Supreme Court's 2003 decision in McConnell v. Federal Election Commission refocused attention on one particularly intense dispute in First Amendment law that has been simmering among the Justices over the past quarter-century: corporate speech doctrine. Although the Court extended First Amendment protection to corporate political media spending in relation to referenda in 1978, subsequent cases have permitted regulation of such spending in order to prevent corruption of democratic processes in candidate elections. The Supreme Court's most recent case on corporate speech highlighted the potential for the Court to shift its jurisprudence back toward a laissez-faire doctrine that would more greatly advantage corporate participants in the marketplace of ideas and signaled the continuing relevance of scholarly and judicial debate on the subject. Dissenting justices have argued repeatedly that there is no basis in principle or in law why business corporations should be denied full First Amendment rights. This monograph argues that such a position contradicts a significant body of relevant case law, but more broadly how the reasoning that forms the constitutional basis for regulation of corporate political spending can compellingly be expressed through the procedural tenets of Alexander Meiklejohn's town-meeting model of the First Amendment. The monograph draws upon those tenets to advance a highly principled theory for considering corporate speech jurisprudence in a manner that most truly advances freedom of the political marketplace and democratic debate.