Legal Commentary

First Amendment Rights vs. Rights to Vote / Be a Candidate

By Eugene Volokh

The Washington Post reports:

After the Supreme Court declared that corporations have the same rights as individuals when it comes to funding political campaigns, the self-described progressive firm [Murray Hill Inc., a small, five-year-old Silver Spring public relations company] took what it considers the next logical step: declaring for office.

Behind the stunt, I take it, is a substantive argument I?ve heard others make before ? because corporations can?t run for office (or, in other versions of the argument, can?t vote), they shouldn?t be able to spend money to support or oppose candidates for office, either.

But that can?t be right. After all, the Washington Post spends money to support or oppose candidates for office ? you can?t run an editorial without spending money ? and presumably has a constitutional right to do so (or so nearly all advocates of campaign finance restrictions seem to acknowledge). Likewise for overtly opinionated magazines. Yet newspaper and magazine corporations can?t run for office, or vote, either.

Likewise, advocacy groups ? the NRA, the Sierra Club, and the like ? have the right to spend money to support or oppose candidates for office. Yet the Sierra Club can?t be elected to office, and the NRA can?t vote.

The same is true of others. If you as a New Yorker want to spend money to speak in favor of or against a candidate for office in Alabama, you?re free to do so. Yet you can?t be elected to office in Alabama, or vote in Alabama. If you want to spend money to speak about candidates in several states, you can do that, though obviously you may only vote in one place, and be elected to office from one place. If you?re 20, you?re free to spend money to speak about Congressional candidates, even though you can?t be elected to Congress.

There?s nothing that says that First Amendment rights are limited only to those people who may vote, or who may hold office. The argument that corporations shouldn?t have First Amendment rights ? or, more precisely, the argument that nonmedia business corporations shouldn?t have First Amendment rights, while media corporations and nonprofit advocacy groups do have such rights ? because corporations can?t be elected to office, or can?t vote, thus doesn?t make sense.

Thanks to Steve Rappoport for the pointer.

A note about the media analogy:

Some people argue that media speakers should have more rights than nonmedia speakers, because only media speakers are protected by the Free Press Clause, while the others are only protected by the Free Speech Clause. For reasons I?ve given before, that?s not historically sound: The historical evidence suggests that ?press? in the Free Press Clause refers to technologies of mass communication and protects anyone who uses those technologies, rather than just referring to some supposedly favored industry. Nor is it normatively appealing, I think, to treat a certain industry (which has its own institutional biases) as constitutionally favored over others.

But beyond this, let?s assume for the sake of argument that the Free Press Clause just applies to those in the media industry, and the rest of us are only covered by the Free Speech Clause. That still doesn?t explain why Free Press Clause rights differ from Free Speech Clause rights with respect to whether they can be exercised by entities that aren?t entitled to vote or hold office.

If we think the freedom of speech part of ?the freedom of speech, or of the press? protects only voters or people eligible to be elected to office, why shouldn?t the freedom of the press part of the same text likewise protect only voters or people eligible to be elected to office (such as individual citizens who are eligible to vote and who own newspapers as individuals)? Or if only individuals have Free Speech Clause rights because rights can only belong to individuals, why shouldn?t Free Press Clause rights likewise be seen as belonging only to individuals (again, those individuals who own newspapers)? Or if the government may demand surrender of Free Speech Clause rights as a condition of the benefit provided by the corporate form, why may it not equally demand surrender of Free Press Clause rights?

Full post as published by The Volokh Conspiracy on March 15, 2010 (boomark / email).