Can Commercial Corporations Engage in Non-Commercial Speech?


I argue that all speech by commercial corporations, regardless of content, should be classified as “commercial speech,” a category not protected as fully as speech closer to the core of First Amendment concerns. Although this position is not currently accepted, surprisingly, it is supported by various aspects of accepted legal doctrine.

After a short critical introduction to commercial speech doctrine, I argue briefly that the legal requirement that all corporate activity be directed toward profit entails that all authorized corporate speech must be commercial in a significant sense. The principal part of the paper then surveys the First Amendment interests that might be implicated in corporate speech. Corporations cannot have free speech rights for their own sake; their speech is protected for the sake of actual human speakers and listeners. However, no speaker interests are at stake in corporate speech: it is not the speech of shareholders, officers or directors, or any other constituency. Meanwhile, case law and theoretical considerations suggest that listener interests alone merit only a reduced degree of protection under the First Amendment. Moreover, even from the standpoint of listeners, corporate speech has particularly low interest, precisely because it is not the speech of any speaker. Finally, I address objections that reduced protections for corporate speech would distort public debate unfairly, and that it may be difficult in principle or in practice to draw lines between corporate speech and other speech—such as that of the press—that unquestionably merits full First Amendment protection.


Constitutional Law

Date of this Version

February 2006