The Distillery: The Constant Evolution of the First Amendment

The Distillery: A Money in Politics Digest will provide a periodic look at the latest legal research in the ongoing national debate about the role of money in politics.

Interpretation of the First Amendment has changed radically in the past few decades, with a sharp increase in free speech cases brought by corporations seeking to protect or expand their financial interests, according to an insightful article by Harvard Law Professor John Coates. While Coates understandably laments the current state of affairs, his observations could also lead to an optimistic conclusion: the malleability of the Supreme Court’s First Amendment jurisprudence means that the Roberts Court’s understanding of the free speech clause may in time cede to decisions more friendly to common-sense campaign finance rules.

Coates’ article reviews the development of corporations since the 18th century to show that business entities were originally “heavily intertwined with government.” Coates then argues that various longstanding laws restrict corporations’ speech in several ways, such as forbidding misleading speech and compelling speech in certain settings. After showing that the First Amendment was not invoked as a protection for corporate speech for most of the nation’s history, he examines several decisions in the mid-20th century that turned the tide. Perhaps most important was a 1980 case holding that the government could only regulate commercial speech if it sought to protect a substantial interest and restricted no more speech than necessary to serve that interest. Since that decision, corporate invocation of the First Amendment to protect financial interests has grown markedly.

To Coates and many other critics of the Court’s recent First Amendment jurisprudence, this doctrinal development is frustrating. One main reason is because critics believe the First Amendment was not intended to protect corporate rights to self-expression or economic interest, and another is that the protection of corporate political spending has allowed businesses “to turn law into a lottery, reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”

The Roberts Court has set back the cause of campaign finance reformers, and Coates’ conclusions about the development of the corporate First Amendment cases put a fine point on the problem. Yet as reformers work to develop new jurisprudential theories that will pave the way for meaningful reform, his article serves as a much-needed reminder of the constant evolution of the First Amendment. The First Amendment as understood by Justice Holmes in 1907 would be almost unrecognizable today:  he wrote that the Amendment did not apply to the states, and that the free speech clause was intended only to prevent previous restraints on publication, not subsequent punishment of impermissible speech. The Court never struck down a law under the First Amendment until 1931, and its protection of commercial speech did not emerge until several decades later.

Thus, the protections afforded by the First Amendment are surely in part a reflection of society’s understanding of free speech and its purpose. That is no guarantee that court decisions will directly reflect popular viewpoint, and they certainly shouldn’t aim to do so — the First Amendment is designed to protect unpopular viewpoints that might otherwise be suppressed by a majority-controlled government. But just as corporate-friendly decisions have coincided with a widespread push for protection of business interests, scholarship and public thought that advocates a broader understanding of the purpose of the First Amendment may lead to campaign finance decisions that better reflect the struggle for democratic legitimacy.

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