Corporate speech refers to the rights of corporations to advertise their products and to speak to matters of public concern.
Commercial speech, as manifested through advertising, and political speech in the form of contributions and expenditures on behalf of candidates and political issues must be considered in assessing whether a corporation has the same rights under the First Amendment as people.
Regulation of commercial speech must survive intermediate scrutiny to pass constitutional muster, but political speech of a corporation must survive strict scrutiny.
Following are Supreme Court cases involving corporate speech and the First Amendment.
Austin v. Michigan Chamber of Commerce (1990) upheld against a First
Amendment challenge a law prohibiting nonprofit corporations from using
general revenues for politics.
BE and K Construction Co. v. NLRB (2002) interpreted the First Amendment
right to petition and ruled that the employers could not be punished for
filing a losing lawsuit.
Buckley v. Valeo (1976) said limits on campaign contributions did not
violate the First Amendment freedom of expression, but limits on campaign
spending were unconstitutional.
Burwell v. Hobby Lobby Stores, Inc. (2014) said the government could not
require corporations to provide coverage for contraceptives that violated
the owners’ religious beliefs.
Cammarano v. United States (1959) said businesses cannot deduct from their
taxes money spent to influence legislation. The Court said the law did not
violate the First Amendment.
Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)
clarified First Amendment protection of commercial speech, determining when
it could be regulated.
In a landmark 2010 decision, a divided Supreme Court used the First
Amendment to invalidate a campaign regulation that banned corporate and
union spending in political elections.
In Consolidated Edison Co. v. Public Service Commission (1980), the Court
recognized and expanded the First Amendment free speech rights of
corporations.
FEC v. Beaumont (2003) said laws barring corporations’ direct candidate
contributions do not violate the First Amendment rights of nonprofit
advocacy groups.
FEC v. Massachusetts Citizens for Life (1986) found that while a nonprofit
corporation violated the Federal Election Campaign Act, its application
violated the First Amendment.
First National Bank of Boston v. Bellotti (1978) ruled that a state
restriction on political contributions by corporations violated the First
Amendment.
In Hobby Lobby Stores v. Sebelius (2012), a circuit court upheld the
Affordable Care Act against a First Amendment challenge, citing a lack of
clear legal rights.
Little Sisters of the Poor Saints Peter and Paul v. Pennsylvania (2020)
said the First Amendment allowed employers to opt out of providing
contraceptive coverage on moral grounds.
McConnell v. Federal Election Commission (2003) upheld major provisions of
the Bipartisan Campaign Reform Act of 2002, rejecting claims that the act
stifled First Amendment rights.
National Labor Relations Board v. Virginia Electric and Power (1941)
examined if illegal activity can be shown on the basis of words otherwise
protected by the First Amendment.
Nike v. Kasky (2003) raised, but did not resolve, contemporary issues
regarding First Amendment protection for corporate speech in matters of
public concern.
Prudential Insurance Co. of America v. Cheek (1922) gives a glimpse into
First Amendment doctrine prior to the incorporation of the free speech
clause to the states.
The Supreme Court in 1982 declined to rule that religious liberty
guaranteed in the First Amendment allowed an Amish farmer to not pay Social
Security taxes on behalf of his workers because of his religious beliefs.
In United States v. Lee, the Court ruled it would be problematic to create
a religious liberty exception for taxes.
Zubik v. Burwell (2016) dealt with regulations requiring employers to
provide contraception coverage to their employees and how these regulations
affected religious liberty rights.