Remembering a major victory for free speech, 40 years later

May 18, 2018   •  By Thomas Wheatley   •    •  , ,

A landmark Supreme Court decision marked its 40th birthday late last month.

It’s worth celebrating. The case, known as First National Bank of Boston v. Bellotti, challenged the constitutionality of a Massachusetts law that censored speech by corporations on ballot measures. The law included criminal penalties.

In a 5-4 decision, the Court struck down the law, reversing the Massachusetts Supreme Judicial Court. “We … find no support” the Court held, “for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation…”

Given the ongoing assault on free speech today, we should rejoice in knowing what a formidable barrier Bellotti is to such Orwellian attacks. This is for three reasons.
First, Bellotti reinforces long-standing precedent. When the Court decided Citizens United v. FEC in 2010, many Americans scoffed at the idea of corporate free speech. Some believed that by recognizing corporate speech rights, the Court had taken an unprecedented step.

But that’s wrong — very wrong. For decades, the Supreme Court has recognized a corporation’s right to free speech. The Citizens United opinion alone cites 25 cases supporting this point, the first cited case being Bellotti, though it was not the first such decision. Nor, as some have suggested, has the Court ever recognized a so-called “media exemption,” which would grant press outlets full First Amendment protection, but not other corporations. Indeed, the Court has explicitly rejected that argument.

“Because the First Amendment was meant to guarantee freedom to express and communicate ideas,” wrote Chief Justice Burger in a concurring opinion in Bellotti, “I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.” First Amendment protection for corporate speech — all corporate speech — is as American as apple pie. And it always has been.

Second, Americans of all political stripes have long reaped the rewards of the sort of corporate speech protected by Bellotti and earlier rulings. Take, for example, the civil rights movement.

In 1964, the New York Times defeated a dubious libel suit brought by white southerners in part because the newspaper, a corporation, was able to invoke First Amendment protection. More recently, a corporation was able to publish a scathing indictment of President Trump and his administration. Whether you enjoyed “Fire and Fury: Inside the Trump White House” or not, the book owes its existence, at least in part, to cases building off of Bellotti.

Finally, Bellotti reflects sound research concluding corporate money has little effect on election results. Incumbents often mention how much they would like to ban corporate money in politics, usually under the theory that corporate money somehow contaminates our politics and gives the wealthy an unfair advantage. But research reveals this theory is mostly false. As early as 1994, studies have shown that campaign spending “has an extremely small impact on election outcomes, regardless of who does the spending.” As an example, in 2012, Karl Rove’s super PAC, American Crossroads, spent $117 million, 90 percent of which ended up supporting a losing candidate.

Not only does corporate money not drown out public opinion, it often helps amplify citizens’ voices. Take, for example, the facts of Bellotti. Massachusetts lawmakers didn’t impose the ban on corporate speech out of concern for the integrity of their constituency’s voice. They had the opposite problem—corporate money was too good at rallying public opposition to the Legislature’s plans, which included a state constitutional amendment to permit a graduated income tax.

It’s doubtful Bellotti will ever get the wide recognition it deserves. But after surviving decades of baseless fear-mongering from campaign finance reform advocates, Bellotti’s central holding has cured into a treasured piece of free speech law. That’s worth celebrating.


This post originally ran in The Hill on May 18th 2018.

Thomas Wheatley

Share via
Copy link
Powered by Social Snap