OUR FRIENDS AT The Wall Street Journal and The Washington Star have taken us to task for having fallen into a "trap." The "trap" concerns our position on the Supreme Court's recent ruling that corporations have contractual right of free speech. By arguing for freedom of speech for corporations that publish newspapers and against it for those that do not, we are said to make an awful mistake. "Why is it a bad thing for Mobil Oil Corporation to make its public policy views known, but a good thing for The Washington Post Company to do so? The Journal asked. The answer has more to do with the Constitution and the government's regulatory power than with "goodness" or "badness." And the "trap," if one exists, is one the court has made it impossible to elude.
We had argued that there was ample precedent for a decision limiting the speaking rights of corporations to those matters that directly affect their business. That would have meant that Mobil, unless it bought or founded a newspaper, could speak out as an entity only on matters concerning energy and other aspects of its business, while a newspaper could continue to speak on all matters, its business being the dissemination of news and opinion.
The difference between our view and that of the court concerns which part of the 14th Amendment the corporate right to speak out rests on. We think it should rest on that section protecting "property." The court has ruled, on the contrary, that it rests on the section protecting "liberty." The difference is huge. "Liberty" encompasses such diverse entitlements as freedom of religion, freedom of association and freedom from the obligation to incriminate oneself. At least some of these now extend to corporations, just as they extend to flesh-and-blood people. The court will have to start sorting out which do and which do not extend to both and whether there may be two or more meanings of such concepts as free speech: one for real people - individuals - and one for corporations. Once there come into existence two, or more, meanings for these basic constitutional rights, the court will be for likelier to tip the balance against an individual in a hard, close case.
It is true that the more limited version of speech for which we argued doesn't begin to provide all the answers. It would leave some tough questions unanswered: What are the matters that do directly affect a corporation's business? Which corporations are in the publishing business? Should states grant sweeping rights to speak and to publish to all corporations, or should they attempt to limit the exercise of those rights in some way? And, of course, our view would raise no barrier to the acquisition of a newspaper by Mobil, let us say, if it really wanted to express its views on all public issues.
But the advantage of our position is this: To hold it you do not have simultaneously to limit the government's power to regulate corporations. Until now a corporation, as such, has not had a constitutional right to public a newspaper. It rights to publish depended upon the terms of the charter granted to it by a government. Some charters limit the corporations holding them to specified businesses; most do not. Until the court spoke, there was little doubt that a state could, if it chose, limit banks to the banking business.
Now, however, a bank can certainly argue anyway that such a limitation is invalid as it applies to its ability to acquire or found a newspaper. And since corporations are now said to have a right of free speech, can government bar any of them from the newspaper business? We await with interest the court's action on the Federal Communication Commission's cross-ownership rules that limit, among other things, the rights of a corporation owning a television station to found or acquire a newspaper.
These problems arise out of the court's own insistence on endowing corporations - artificial "persons" - with the legal attributes of human beings. It started to do that a century ago when it concluded, on quite flimsy evidence, that Congress meant to include corporations in the word "person" when it drafted the 14th Amendment. As long as such artificial persons had only "property" rights, the amount of government control over them remained substantial. Now they have begun to acquire "liberty" rights as well - and it it far from clear how that will affect the balance of power between them and government in the future.