{"id":30889,"date":"2021-06-29T12:57:02","date_gmt":"2021-06-29T17:57:02","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment1\/freedom-of-speech-for-corporations.html"},"modified":"2024-08-01T15:34:51","modified_gmt":"2024-08-01T20:34:51","slug":"freedom-of-speech-for-corporations","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment1\/freedom-of-speech-for-corporations.html","title":{"rendered":"Freedom of Speech for Corporations"},"content":{"rendered":"\n
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Freedom of Speech for Corporations<\/h1>\n
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\n By Balrina Ahluwalia, Esq.<\/a> | Legally reviewed by Edward Maggio, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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We know the First Amendment protects our right to free speech as individuals, but what about companies or corporations? In this article, we explore the Supreme Court\u2019s interpretation of this right as applied to corporate, or commercial, speech.<\/p>\n\n <\/div>\n\n

The first ten amendments to the U.S. Constitution<\/a>, also known as the Bill of Rights<\/a>, were ratified by an emerging America in 1791. They were intended to curtail governmental power and safeguard individual liberties.<\/p>\r\n

The First Amendment\u2019s<\/a> free speech clause reflects these democratic ideals. It reads:<\/p>\r\n

\u201cCongress shall make no law\u2026abridging the freedom of speech.\u201d<\/i><\/p>\r\n

From this language, we can see that the constitutional right to free speech begins as a limitation on Congress<\/a>, our federal legislature. Through the passage of the Fourteenth Amendment<\/a> and the doctrine of incorporation<\/a>, the U.S. Supreme Court<\/a> has determined this limitation on Congress actually extends to governmental entities of any type and at any level.<\/p>\r\n

What Does Free Speech Mean?<\/b><\/h2>\r\n

The First Amendment protects our free speech rights from government action restricting them. In this context, government action is often referred to as state action<\/a>.<\/p>\r\n

This protection generally applies to government regulation of private speech but not government speech<\/a>. Likewise, it doesn\u2019t typically apply to private regulation of speech. However, the Court has established limited circumstances where private actors may be considered state actors in this context.<\/p>\r\n

Of course, this right to free speech (or freedom from restriction) is not absolute. Supreme Court precedent has established several categories of permissible restrictions on speech. Likewise, the Court has established legal standards<\/a> and frameworks for determining whether a government restriction on speech violates the First Amendment.<\/p>\r\n

The Supreme Court has also determined that free speech includes free expression<\/a>. This means that protected speech can include forms of non-speech, including conduct and the written word.<\/p>\r\n

For example, messaging on a T-shirt or refusing to salute the American flag are considered speech or expression protected by the First Amendment.<\/p>\r\n

Are There First Amendment Rights on Social Media?<\/b><\/h2>\r\n

The First Amendment right to free speech generally protects private speech from governmental restrictions. It doesn\u2019t protect against speech restrictions imposed by private entities<\/a>.<\/p>\r\n

Social media sites are generally owned and operated by private companies. As a result, they\u2019re not bound by the First Amendment. Accordingly, any regulations they may impose on speech are not subject to First Amendment protections.<\/p>\r\n

What Is Commercial Speech?<\/b><\/h2>\r\n

Commercial speech, or speech by corporations, is speech that proposes a commercial transaction. It also includes some expression related to the economic interests of the speaker and its audience.<\/p>\r\n

A common example of commercial speech is a particular product or service advertisement. Such speech can also take the form of a corporation speaking on a matter of public concern.<\/p>\r\n

Standards for Commercial Speech Restrictions<\/b><\/h2>\r\n

In 1980, the Court determined that commercial speech is entitled to First Amendment protection in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York<\/i><\/a>.<\/p>\r\n

In doing so, the Court established the intermediate scrutiny standard of review for commercial speech restrictions. This means that government regulations of commercial speech must meet the Central Hudson<\/i> test to be upheld.<\/p>\r\n

However, if a government restriction specifically targets commercial speakers for unfavorable treatment, a more rigorous standard of review might be warranted. This stems from the principle that the government cannot limit speech simply because it opposes the message conveyed, a core tenet of the First Amendment.<\/p>\r\n

Do Corporations Have First Amendment Free Speech Rights?<\/b><\/h2>\r\n

Before Central Hudson<\/i>, the Supreme Court held that commercial speech wasn\u2019t entitled to First Amendment protection.<\/p>\r\n

In 1942, the Supreme Court declared that the First Amendment didn\u2019t protect commercial speech in Valentine v. Chrestensen<\/i><\/a>. In this case, the Court reviewed a local ordinance banning the distribution of \u201ccommercial and business advertising matter\u201d in the streets. A city cop told businessman Chrestensen that, unlike advertisements, materials dedicated to information or public protest could freely be disseminated.  <\/p>\r\n

As a result, Chrestensen produced and disseminated two-sided leaflets in public. One side of the pamphlets promoted his submarine tour enterprise, while the reverse side featured a protest against the city’s refusal to grant specific docking privileges.<\/p>\r\n

After the police tried to stop him from disseminating the two-sided leaflet, Chrestensen sued. He contended the local ordinance violated his First Amendment rights. The matter ultimately went to the Supreme Court.<\/p>\r\n

The Court affirmed the state\u2019s right to restrict commercial speech and upheld the ordinance as applied to Chrestensen\u2019s two-sided pamphlets. Although one side included non-commercial speech, the Court explained that this didn\u2019t protect corporations from government speech restrictions.<\/p>\r\n

The Court also established the Chrestensen<\/i> doctrine. The doctrine provided that commercial speech, or expression promoting commercial activities, isn\u2019t entitled to First Amendment protection. According to the doctrine, this holds true regardless of how the expression is communicated.<\/p>\r\n

How Has the Supreme Court Interpreted the First Amendment to Corporate Speech?<\/b><\/h2>\r\n

The Court adhered to the Chrestensen<\/i> doctrine for over two decades. Its approach, however, began to shift in the 1970s. It started to move in the direction that commercial speech did have some social value and was thus entitled to constitutional protection<\/a>, though not at the same level as non-commercial speech.<\/p>\r\n

Bigelow v. Virginia<\/b><\/h3>\r\n

In the 1975 Bigelow v. Virginia<\/i><\/a> <\/i>case, the Court addressed a state law criminalizing publications that encouraged abortion. In Bigelow<\/i>, a Virginia newspaper editor published an advertisement informing readers that safe and legal abortions were available in New York. The ad also provided details on how to go about getting an abortion in New York.<\/p>\r\n

The state convicted the editor for violating the state statute. The Supreme Court, however, reversed the conviction. The Court held the statute, as applied here, unconstitutionally violated the editor\u2019s First Amendment rights.<\/p>\r\n

The Court rejected the state court\u2019s ruling that the First Amendment doesn\u2019t protect paid commercial speech. In doing so, the Supreme Court cited its 1964 holding in New York Times v. Sullivan<\/i><\/a>. The New York Times<\/i> Court clarified that speech doesn\u2019t lose First Amendment protection just because it appears in the form of a commercial ad.<\/p>\r\n

The Bigelow<\/i> Court held the same here. It found that the ad included content beyond pure commercial speech. Viewing the ad as a whole, it communicated information about matters of potential public concern. It included non-commercial information about how to lawfully go about obtaining an abortion in New York.<\/p>\r\n

Although Virginia sought to limit its residents’ access to this information, the First Amendment banned the state from keeping truthful information from them. The Court thus determined that the restriction as applied here was unconstitutional. However, dissenting Justices Rehnquist and White found the ad to be a \u201cclassic commercial proposition\u201d that didn\u2019t enjoy First Amendment protection.<\/p>\r\n

The following year, the Court explicitly established<\/a> for the first time that purely commercial speech is entitled to First Amendment protection. It explained that there\u2019s a consumer interest in the unrestricted stream of commercial information.<\/p>\r\n

This interest is just as strong, if not stronger, than the interest in current political issues. As the Court noted, \u201cthe free flow of commercial information is indispensable\u201d to a free enterprise system.<\/p>\r\n

The Central Hudson Test<\/b><\/h3>\r\n

In 1980, the Court established the standard for analyzing the constitutionality of commercial speech restrictions in <\/i>Central Hudson Gas & Electric Corp. v. Public Service Commission of New York<\/i><\/a>. In Central Hudson<\/i>, the Court reviewed a New York state public service commission policy prohibiting all utility companies\u2019 promotional ads encouraging the use of electricity.<\/p>\r\n

Central Hudson Gas & Electric<\/i> contended the policy violated its First Amendment commercial speech rights. The Court recognized that commercial speech is protected by the First Amendment. The Court also acknowledged the important role commercial speech can play in sharing information with consumers and the general public.<\/p>\r\n

It then established a four-part test for determining whether a restriction on commercial speech is constitutional. Specifically, the Central Hudson test requires that:<\/p>\r\n