Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine

By Deven R. Desai. Full text here.

Corporate speech is out of balance. Corporations now enjoy expanded speech rights, but the ability to speak about corporations is restricted. This situation must change. That corporations are people for First Amendment questions is a fait accompli. We can debate the merits or wisdom of that fact, but the fact remains. This Article argues that under current Supreme Court jurisprudence, corporations are not only people for speech purposes, but corporations are often public figures.

Corporations no longer exist in a purely commercial world. Like other public figures, corporations affect public affairs, take political positions, engage in matters of public concern and controversy, and have reputations. Corporate policies intersect with and shape a host of political issues, from fair trade to gay rights to organic farming to children’s development to gender bias to labor and more. Thus Google urges countries to embrace gay rights; Mattel launches a girl power campaign; activists question Nike’s labor practices, McDonald’s food processing, and Shell Oil’s business practices; and bloggers police the Body Shop’s claims about its manufacturing practices. The social, political, and commercial have converged, and corporate reputations rest on social and political matters as much as, if not more than, commercial matters.

A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines, corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the same legal rights as natural persons. They should be subject to the same limits as other powerful, public figures.