In Democracy in America, Alexis de Tocqueville praised Americans’ impulse to associate for political, commercial and “a thousand other kinds” of reasons. De Tocqueville observed that these associations—both the “immense and very small” —served an essential function in preserving democracy and pursing equality. “As soon as several of the inhabitants of the United States have conceived a sentiment or an idea that they want to produce in the world, they seek each other out; and when they have found each other, they unite. From then on, they are no longer isolated men, but a power one sees from afar, whose actions serve as an example; a power that speaks, and to which one listens.”

According to Professor Ron Colombo, de Tocqueville’s view of American associations is the key to understanding when the First Amendment should protect corporate speech, an argument he makes in his new book, The First Amendment and the Business Corporation. Colombo, a member of the Hofstra School of Law faculty, discussed the book in presentations to students and faculty on March 26, 2015. 

Speaking to students, Colombo critiqued the Obama Administration’s position that the First Amendment guarantees should apply to not-for-profit corporations, like church-sponsored hospitals, but not to for-profit corporations, like Hobby Lobby. The distinction is a “poor proxy” for an otherwise important constitutional distinction, he explained.

“Under this framework, a not-for-profit corporation is assumed to be characterized by some socially useful values and is therefore entitled to protected speech, while a for-profit corporation is presumed to pursue only shareholder profits and therefore lacks the ability to engage in speech worth protecting.” This formalist approach, among other weaknesses, fails to account for not-for-profits like the National Football League and for-profits like Starbucks, Whole Foods, and Chick-fil-A he continued.

Colombo proposed that instead of relying on the not-for-profit/for-profit distinction, courts should inquire into how “Tocquivillian” an entity is. “An association that includes common goods among its aims – rather than one that is merely a nexus of individualized goods – should have protected speech, regardless of its organizational form,” he said.

Though Colombo concedes his proposed analysis would pose some administrative challenges, he argues that it is more consistent with the goal of protecting speech in the marketplace of ideas that contributes to the pursuit of democratic truth.     

--Jay Stirling | March 30, 2015