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Corporate Speech as Commercial Speech: A Response to Mayer's Nike V. Kasky Analysis

Published online by Cambridge University Press:  23 January 2015

Jeffrey Nesteruk
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Abstract:

Raising the issue of corporate moral agency in our examination of the morality of corporate speech is important for two fundamental reasons. Each reason suggests we exercise caution in conflating corporations and individuals as the law often does. First, raising the issue of corporate moral agency is important to the aim of providing a framework for ethically evaluating corporate speech. It is tempting to proceed as if the nature of corporate speech is self-evident. But this is hardly the case. Corporations are not natural persons, and we mustn't assume corporate speech is indistinguishable from human speech. Before we can ethically evaluate corporate speech, we must first clarify what corporate speech is. This requires an understanding of the fundamental nature of the corporate entity, including its moral status. Second, raising the issue of corporate moral agency is important if we wish to promote morally responsible corporate speech. Any diminished moral capacity on the corporation's part would suggest a core role for the strong legal reinforcement of any ethical aspirations here. In promoting morally responsible corporate speech, ethical injunctions uncoupled from an effective legal regime may hold only limited promise.

Type
Special Section on Commercial Speech
Information
Business Ethics Quarterly , Volume 17 , Issue 1 , January 2007 , pp. 97 - 103
Copyright
Copyright © Business Ethics Quarterly 2007

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References

Notes

1. Don, Mayer, Kasky v. Nike and the Quarrelsome Question of Corporate Free Speech, 17 Bus., Ethics Q. 65, 81 (2007).Google Scholar

2. Id. at 88.

3. For an account of the historical struggles of the law in conceptualizing the corporation, see Herbert, Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo., L.J. 1593 (1988).Google Scholar For a work offering a multidisciplinary look at the corporation, including its conceptual status, see CORPORATIONS AND SOCIETY: POWER AND RESPONSIBILITY (Warren Samuels and Arthur Miller, eds.) (1987).

4. Professor Mayer at one point alludes to this, asking, “Should corporations have the same free speech rights as natural persons?” Mayer, supra note 1, at 70.

5. For an excellent analysis and critique of how the corporation's profit-making aim influences its character and actions, see LAWRENCE E. MITCHELL, CORPORATE IRRESPONSIBILITY: AMERICA'S NEWEST EXPORT (2001).

6. This is a view of the corporation that Thomas Donaldson has referred to as the Structural Restraint view. See THOMAS DONALDSON, CORPORATIONS AND MORALITY 23–24 (1982). On this view, the corporate entity is not a moral agent due to the manner in which its structure controls its decision-making. For an influential argument favoring this view, see John, Ladd, Morality and the Ideal of Rationality in Formal Organizations, 54 Monist 488 (1970).Google Scholar

7. An economic analysis of corporate law has provided a normative basis for this profit-making aim. Frank Easterbrook and Daniel Fischel warn against broadening the corporation's goals. “One reason is obvious: a manager told to serve two masters (a little for the equity holders, a little for the community) has been freed of both and is answerable to neither. Faced with a demand from either group, the manager can appeal to the interests of the other. Agency costs rise and social wealth falls.” FRANK H. EASTERBROOK & DANIEL R. FISCHEL, THE ECONOMIC STRUCTURE OF CORPORATE LAW 38 (1991).

8. For a full development of my own view of how corporate decision-making differs from individual moral choice, see Jeffrey, Nesteruk, Bellotti and the Question of Corporate Moral Agency, 1988 Colum. Bus. L. Rev. 683.Google Scholar

9. But Lawrence Mitchell does insist on the role of legal constraints in corporate decisionmaking. See MITCHELL, supra note 5.

10. To be sure, there are many companies—companies such as Johnson & Johnson and the New York Times—that transcend this characterization of large, publicly held corporations. Within the context of this analysis, such companies should be regarded as exemplars of what the proposed rebuttable presumption (see infra notes 19–23 and accompanying text) is designed to foster in a larger number of companies: the integral inclusion of ends or goals beyond profit into corporate decision-making.

11. For the argument that corporations too are full-blown moral agents, see PETER FRENCH, COLLECTIVE AND CORPORATE RESPONSIBILITY (1984).

12. See Nesteruk, supra note 8, at 698–99.

13. Within the law, the connection has revolved around the law's treatment of the corporation as a person. For an historical account of the law's treatment of the corporation as a person, see Gregory, Mark, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987).Google Scholar

14. For an insightful analysis of organizational rights, see MEIR DAN-COHEN, RIGHTS, PERSONS, AND ORGANIZATIONS: A LEGAL THEORY FOR BUREAUCRATIC SOCIETY (1986).

15. For example, diminished corporate moral agency would limit the corporation's capacity for self-fulfillment, a key value underlying the First Amendment. For an assertion of this value, see THOMAS EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6 (1970). If corporate speech fails to embody fully this key value of the First Amendment, then corporate speech may be deserving of less First Amendment protection.

16. Mayer, supra note 1, at 72.

17. Id.

18. Id. On the analysis I am pursuing here, even when a corporate speaker makes appeals to its audience's non-economic interests, this will not alter the fundamental character of corporate speech. For, as I have argued, the particular quality of corporate speech springs not from its ostensible content, but from its underlying motivation.

19. Ian Lee makes this point. “[T]here is almost always a plausible profit-oriented rationalization for an act of corporate social responsibility.” Ian Lee, Is There a Cure for Corporate “Psychopathy?” AM. BUS. L.J. (forthcoming).

20. For another proposal that would grant corporations a measure of freedom from government regulation in exchange for instituting a more effective form of self-regulation, see JAY SIGLER & JOSEPH MURPHY, INTERACTIVE CORPORATE COMPLIANCE: AN ALTERNATIVE TO REGULATORY COMPULSION (1988).

21. Peter French deserves credit for focusing inquiry into corporate moral agency on the corporation's own decision-making structure. See FRENCH, supra note 11.

22. Mayer, supra note 1, at pp. 77–81.

23. Id., at 81.