Political Speech

Political speech is speech on issues of political and social importance. The First Amendment to the United States Constitution provides that the government cannot restrict an individual's right to speak regardless of what the government might think about that speech. The First Amendment originally referred only to Congress, but today it applies to all levels of government.

Scholars justify the First Amendment's protection of the right to freedom of expression in several ways. One of the primary justifications for protecting freedom of expression is self-governance. A working democracy depends on the ability of individuals to freely discuss politics without fear of being censured. Another justification is the attainment of truth. The idea is that truth will be found only if society is able to test concepts through open discussion. The freedom to criticize government is also seen as a stabilizing force in society. Unrest comes when individuals are not free to voice their displeasure and seek change. And finally, expression is seen as necessary for human self-fulfillment or self-realization. The ability to express oneself is what sets humans apart from animals, and therefore the right to freely express oneself is crucial to human dignity and integrity.

In determining whether government regulation of political speech is constitutional, the courts use the standard of strict scrutiny. That is, the government must establish that it has a compelling interest to protect through the regulation and that the regulation is narrowly tailored to achieve that interest. Because of the importance of ensuring a robust public debate on political issues, some false political speech is permitted. For example, individuals can libel or defame political figures with impunity provided their statements were not made with actual malice—knowledge of falsity or reckless disregard of the truth. The purpose is to prevent speakers from being chilled by the threat of government censure.

Until 1978, corporations were not thought to have First Amendment rights because they cannot achieve self-fulfillment. Beginning in 1978, however, the U.S. Supreme Court came to recognize that corporations do contribute to public policy debates and that individuals have a First Amendment right to hear what corporations have to say on policy issues. The purpose of political speech by a corporation is not to promote a product or service, but rather to voice the corporation's views or position on a matter of public importance. Such speech falls within the realm of public relations.

The first case in which corporate political speech was recognized involved a Massachusetts law prohibiting a corporation from speaking on referendum proposals unless those proposals materially affected the corporation. The First National Bank of Boston challenged the law because it wanted to publicize its views on a proposed constitutional amendment that would have granted the state legislature the right to impose a graduated income tax on Massachusetts residents. First National opposed the amendment and sought to inform its customers of its position via a public relations campaign.

In denying the bank's claim, the lower court had said the issue was whether corporations had First Amendment rights. The court concluded they did not, but the Supreme Court disagreed. The Court said that the issue was not whether corporations had the same speech rights as natural persons, but whether the speech in question was protected by the First Amendment. In other words, the content of the speech determined the protection granted, not the nature of the speaker. Voters were entitled to hear First National's views on the topic; therefore, the bank's speech was protected by the First Amendment. The speech was not made less [Page 628]important because it came from a corporation rather than from an individual.

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