Back to the Future: A New Approach to Corporate Political Expression
| Author | Ronan Costello |
| Position | Senior Sophister LLB candidate, Trinity College Dublin |
| Pages | 121-142 |
BACK
TO
THE
FUTURE:
A
NEW
APPROACH
TO
CORPORATE
POLITICAL
EXPRESSION
RONAN
COSTELLO*
Introduction
The
corporation's
right
to
freedom
of
expression
in
the
political
context
has
been
a
contentious
issue
for
decades.
Following
the
controversial
decision
of
the
United
States
Supreme
Court
in
Citizens
United
v
Federal
Electoral
Commission,'
the issue
has
taken
on
new
significance
following
the
endowment
of
corporations
with
the
same
right
to freedom
of
expression
as
individuals,
a
move
which
could
have
potentially
corrupting
consequences
for
democracy.
This article
will
examine
the
terminology
that
has
come
to
define
this
debate
in
the
United
States
from
first
principles,
with
particular
emphasis
on
the
critically
flawed
notion
of
"the
free
market
of
ideas"
and
the
assumptions that
are
made
in
relation
to
its
characteristics.
By
deconstructing
this
term,
coined
more
than
ninety
years
ago in
a
political
climate
that
bears
no
relation
to
today's
congested,
media-driven
political
environment,
an
argument
will
be
made
for
the
equalisation
of
the
political
marketplace.
In order
to
frame
this
discussion,
this
article
will
first discuss
the
modern American political
marketplace.
A
comparison
of
the
competing
models
of
free
speech
will
then
be
undertaken. Following
this,
an
analysis
of
the
case law
that preceded
Citizens
United
is
necessary
to
properly
appreciate how
the
free
market
of
ideas
concept
became
embedded
in
the
psyche
of
American
jurists. Citizens
United
itself
will
then
be
examined,
and
conclusions
drawn
on
the
need
for
a
fundamental
re-examination
of
the
political
marketplace
and how
it
should
be
regulated.
A
final
comment
will
be
made
as
to how
developments
in
the
US
might
inform
the
development
of
the
law
on
corporate
political
expression
in
Ireland.
*
Senior
Sophister
LLB
candidate,
Trinity
College
Dublin.
The
author
would
like
to
acknowledge
the
helpful suggestions
of
Dr
Deirdre
Ahern
and
Donncha
0
Conmhui.
The
author
would
also
like
to
thank
Neal
O'Riain,
his long-term roommate,
for
his
insightful
comments.
1
Citizens
United
v
Federal
Electoral
Commission
130
S
Ct
876
(2010)
[hereinafter
Citizens
United].
C
2011
Ronan Costello
and
Dublin
University
Law
Society
Trinity
College
Law
Review
Defining
the
modern
political
marketplace
It
is
necessary
to
define the
scope
of
"political marketplace"
as
the
term
will
be
used
throughout
this
article.
In
a
democratic society,
it
is
axiomatic
that
there
be
free
trade
of
ideas in
the
context
of
informal
political
conversation
between individuals,
however,
this
work
will not
focus on
this
element
of
political expression.
Rather,
it
is
concerned
with
the
"political
marketplace,"
a
distinct element
of
political expression which
is
characterised
by
the
central
role
it
accords
to
the
media.
In
the
political
marketplace,
rival campaigns
compete
not
only
over ideologies but,
crucially, over the
finite
space
and
time available
in
television,
radio,
print,
and
internet advertising
to express
their
views. Reliance
on
these
forms
of
communication
means
that
there
is
a
limited
amount
of
"space"
available
in
the
media-driven political
marketplace.
Thus,
unlike
the
economic
marketplace,
where there
is
no
limit
to
the
"space"
available
for
business
ventures,
there
is
a
definite limit
on
the
volume
of
speech
that
can
be
publicly
disseminated
through
media. Moreover,
speech
produced
and
disseminated
in
a
certain
time
and place,
regardless
of
the
type
of
media
employed,
by
definition
removes
the
opportunity
for
other speech
to
be
disseminated
in
that
time
and place,
further
limiting
the
"space"
available
in
the
political
marketplace.
It
is
with
this
in
mind
that
the
competing
theories
of
free
speech
must
be
evaluated.
The
competing
models
of
free
speech
In
Whitney
v
California,
2
Justice
Brandeis
outlines
the
rationale
behind
the
classic
formulation
of
free
speech:
[t]hose
who
won
our
independence
believed
...
that
public discussion
is
a
political
duty;
and
that
this should
be a
fundamental principle
of
the
American
government.
They
recognized
the
risks
to
which
all
human
institutions
are
subject.
But they
knew that order
cannot
be
secured
merely
through
fear
of
punishment
for
its
infraction;
that
it
is
hazardous
to
discourage
thought,
hope
and
imagination;
that
fear
breeds repression;
that repression
breeds
hate;
that
hate
menaces
stable
government;
that
the
path
of
safety
lies
in
the
opportunity to
discuss
freely
supposed
grievances
and
proposed
remedies;
and
that
the
fitting
remedy
for evil
counsels
is
good
ones.
Believing
in
the
power
of
reason
as
applied
through
public
discussion,
they
eschewed
silence
coerced
by
law-the
argument
of
force
in
its
worst
form.
2
Whitney
v
California
274
US
357
(1927).
[Vol.
14
122
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