Abstract: No publishing company has ever been denied First Amendment protection because it was incorporated. In First National Bank of Boston v. Bellotti, however, the Supreme Court confronted for the first time questions about the impact of corporate identity on the First Amendment protections available to non-media businesses. This Article explains why Justice Powell’s opinion for the Bellotti Court avoided confronting the assertion that non-media corporations lacked the First Amendment protection afforded natural persons or media corporations. Instead of focusing on the speaker, Powell focused on the speech. In doing so, Powell laid the theoretical foundation of Citizens United v. FEC.
Using the papers of Justice Powell, as well as those of Justices Brennan, White, Marshall and Blackmun, this Article explicates the crafting of the Bellotti opinion. Powell was constrained because none of his colleagues would support an opinion aligning corporate First Amendment rights with those of individuals or the press. By shifting the emphasis from the speaker to the speech and stressing the harm to the audience’s right to receive expression caused by government distortion of the marketplace of ideas, Powell found an easier path to five votes. In effect, though, Powell was able to place Bellotti in the same constitutional space as press cases where corporate identity is immaterial to First Amendment analysis.
Abstract: Students new to the study of First Amendment law often grapple with the complexity and ambiguity of its parameters, a sensation familiar to all who encounter legal analysis and scholarship […]