The New Right’s Dangerous Attitude on Corporate Rights

The turn against corporate speech rights shows how some conservatives are willing to violate principles for partisan gain.

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To every thing there is a season, and a time to every purpose under the heaven: a time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted; a time to kill, and a time to heal; a time to break down, and a time to build up … A time to love, and a time to hate; a time of war, and a time of peace. —Ecclesiastes 3:1-3, 8 

In 2010, the conservative legal movement claimed a major victory as the Supreme Court ruled in Citizens United v. FEC that corporations enjoy robust First Amendment rights and are thus free to finance political advertisements. Citizens United was the harvest of 30 years of careful sowing by an extensive network of conservative legal institutions that had propelled six of the nine sitting justices all the way onto the Supreme Court. Progressive legal analysts quickly labeled it the “Corporate Court” or “Big Business Court.” Legal historians may well look back at 2010s as a highwater mark of corporate rights unmatched since the Lochner era in the early 20th century, when the court struck down a New York state law that had set a maximum work week for bakers, and over the next three decades struck down other regulations regarding transportation, banking, and other industries.

But whereas progressives led a post-Lochner backlash that secured a sweeping expansion of federal government oversight of the economy, corporate rights are now under attack by the very conservative movement that once secured those rights. The fusionist political priorities of the conservative legal movement, forged in the business-friendly Reagan Revolution of the 1980s, are increasingly out of step with today’s new right and its populist critique of corporations as aiders and abettors of a woke kulturkampf. 

Thus, when Disney issued a somewhat tepid press release signaling the company’s opposition to Florida’s new law prohibiting classroom instruction on gender identity or sexual orientation in early elementary school, it sparked a conservative backlash and consumer boycott. Accusations that Disney harbors pedophilic groomers went viral, to the delight of activists who wanted to punish corporations for taking the other side in the woke wars. 

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  1. Joe1776

    I wish governments did not take action against Chick fil A. But they did and I am not sure there was a constitutional violation in doing it. And the result is Chick Fil A changed its tune.

    "Given the ongoing, massive shift in American public opinion on gay marriage over the past 20 years, betting against rising popular support for transgender rights is a fool’s throw of the dice."

    Roll of the dice? As if this just happened by chance? No it was because of government bullying people and corporations like Chic Fil A. This change in view did not just happen out of the blue. You act like suddenly everyone supports gay marriage as if the actions of governments against places like Chick fil A had no impact on that cultural change. Of course the actions against Chic fil A and other people had and impact. They are having an impact right now. Places are getting sued and losing because they tell a man he can not wear the women's dress code. The constitution nor the Civil rights law did not change. Rather people are being bullied into believing, or at least acting like they believe, this nonsense.

    I don't like government taking this action either. But is there a constitutional argument that government's can't do what they did to Chic Fil A? If so present it and lets argue for that principled guard rail. But the solution can't be let the left do this all the time and we just let them control the culture until all Christians are hated as bigots. That is the path we are going down and I happen to care about that.

    The rapid change of our views on gay marriage is an argument how conservatives will continue to rapidly lose ground in the culture wars if they allow democrats to use government to force corporations into compliance with their values and we don't. You can not fight a bully by just repeatedly taking punches to the gut.

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    Ben Connelly

    Corporations are people too!

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    Dexember

    Abbott and De Santis are hurting Florida and Texas with their blatant attempts at appealing to populist, MAGA types so they can run for President. But they, and the lemmings in their state legislatures, are ruining the hard work of competent governance by past Republicans. Jeb Bush, Rick Perry and the other “establishment” Republicans built up steady economies with simple and “boring” governance that was effective. They are both ruining the built up reputation of their states as good for businesses. If this doesn’t stop soon, the people of Texas and Florida will find that the jobs and money that had flowed from the West Coast and Northeast will now go someplace else.

    But they plan to be ruining the whole country from the White House by then.

    The Texas abortion law is a disgrace. Mississippi has a more common sense and plain spoken law that doesn’t empower citizens to sue each other and limits abortion to a reasonable 16 weeks.

    And the problem with the internet is not that a website or app moderates it’s users or content. The problem is that there is no recourse to solve disputes, because 230 is too broad, to include NO lawsuits. So the analogy of a theater choosing to not allow someone to rent it out is correct. The problem is that the internet, with 230, is like the theater was rented to someone but then the theater owner secretly stops people from entering the building (shadow banning) or suddenly cancels some showings but not others. In the real world, the renter would be pissed and have recourse to seek redress for the transaction. But the current transaction of service/convenience for personal data is not able to be redressed. This is the problem, not the free speech of either party.

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      JohnF

      That's not what 230 is actually about. 230 protects sites (like this one) from being sued for something that a third-party posts on their site. If you libel me in this comments section, I can sue you, but I can't sue The Dispatch. However, if David French libels me in an article published on this site, The Dispatch is fair game.
      The thing that determines what content a site might remove (or suspend a user for posting) is the Terms of Service that we all voluntarily accept. If you want a Facebook or Twitter account, you agree to follow their Terms of Service, which defines what you can or cannot post, how you will treat others, and how you will use the service. The ToS also says explicitly what actions the site may take if they feel you have violated the ToS. If you have an account on that site, you have agreed to those terms and granted them the right to take down any of your content that 𝒕𝒉𝒆𝒚 deem to be inappropriate. Their club, their rules. If you want to be a member, you agree to follow their rules.
      If 230 went away tomorrow, that wouldn't change.
      Republican politicians have created a false narrative of the "silencing of conservative voices." No one has ever been kicked off Twitter for citing Milton Friedman or quoting Edmund Burke. Although Ted Cruz, Josh Hawley, and Rand Paul all rail against "censorship" on FB and Twitter, all three of them have accounts on both platforms and Cruz is very active on Twitter. When "conservative voices" have been suspended (I put that in quotes because almost all of the people who have been suspended are odious fringe types like Alex Jones, Roger Stone, and Steve Bannon) it is because they posted misinformation, made threats, or posted the names and addresses of the parents of the kids killed at Newtown, not because they advocated for smaller government or free markets.

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        Dexember

        I am not concerned with Ted Cruz, Alex Jones, etc. I don’t hold water for them.

        And while I understand that 230 is protecting the Dispatch from liability for this comment section, that is not all it’s doing.

        If you put into your rental agreement that I signed, that you (the landlord), can kick me off the property in an hour, you still can’t actually do that in most states. The state law would force the landlords hand to go through a process that required more due process and arbitration. Even though they signed it. Section 230, to my understanding, also codifies the internet sites right to act with impunity towards those that are on their site in this regard. They are free of liability for how they edit, modify and publish other peoples work.

        That certainly blurs the line with the Dispatch staff. The Dispatch comments section does not make the Dispatch money, correct me if I’m wrong, while a basic user on Facebook IS making them money. Not just ads, which is passive, but the actual collection of data and profiling that is a transaction.

        And even if I’m wrong about 230 as the cause, my point is that a transaction has taken place. But it’s not apparent to most people, and clarity on this point would strengthen the environment.

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          Jeff Greene

          Being able to comment on Dispatch articles and being part of such a community of erudite thinkers is a benefit of being a subscriber, and therefore is an inducement to membership and makes Dispatch money. Not like advertising, but it is another reason to subscribe.

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          JohnF

          230 doesn't grant "impunity", it simply says that a site doesn't give up the third-party liability protection if it makes an effort to moderate but misses a particularly egregious post. This goes back to a case in the early 90's, when Prodigy was sued because a user had posted defamatory statements about a stockbroker. Prodigy lost the case because they were moderating content but hadn't taken down those posts. Conversely, in a similar case against Compuserve, the judge ruled that, because Compuserve had NOT tried to manage any content, they couldn't be held responsible for any end user posts. Here's a good article explaining things if you're interested:
          https://www.theverge.com/2019/6/21/18700605/section-230-internet-law-twenty-six-words-that-created-the-internet-jeff-kosseff-interview
          Your landlord analogy isn't appropriate. There are laws governing landlord-tenant relationships because substantial tangible damages could occur (including death) if someone is just tossed out on the street. No one has ever died because their Tweet was taken down or their account was suspended.
          A more appropriate analogy is to a private club. If you join Mar-a-Lago, for example, you will agree to abide by their dress code, which requires that men wear a jacket and tie in the dining room and prohibits jeans. If you show up for dinner in a speedo, they will refuse to seat you. If you make a fuss about it, they will ask you to leave. If you try the same thing for the next three days, they will probably kick you out of the club. They can do that because they set the rules up front and you agreed to abide by them when you joined.
          What's important to consider here is that the rules that these companies create exist mostly to make their products more desirable. No one is going to be happy paying $14K in annual dues (along with the cost of the meal) to then sit through a dinner next to a table of fat guys in speedos. Similarly, social media site users don't want to have to wade through a site full of pornography, propaganda, or pitches for quack remedies, and they certainly don't want to face abuse and threats from other users.
          Interestingly, the ToS for Trump's Truth Social are pretty much the same as Facebook's or Twitter's. It even says:
          𝑊𝑒 ℎ𝑎𝑣𝑒 𝑡ℎ𝑒 𝑟𝑖𝑔ℎ𝑡, 𝑖𝑛 𝑜𝑢𝑟 𝑠𝑜𝑙𝑒 𝑎𝑛𝑑 𝑎𝑏𝑠𝑜𝑙𝑢𝑡𝑒 𝑑𝑖𝑠𝑐𝑟𝑒𝑡𝑖𝑜𝑛, (1) 𝑡𝑜 𝑒𝑑𝑖𝑡, 𝑟𝑒𝑑𝑎𝑐𝑡, 𝑜𝑟 𝑜𝑡ℎ𝑒𝑟𝑤𝑖𝑠𝑒 𝑐ℎ𝑎𝑛𝑔𝑒 𝑎𝑛𝑦 𝐶𝑜𝑛𝑡𝑟𝑖𝑏𝑢𝑡𝑖𝑜𝑛𝑠; (2) 𝑡𝑜 𝑟𝑒-𝑐𝑎𝑡𝑒𝑔𝑜𝑟𝑖𝑧𝑒 𝑎𝑛𝑦 𝐶𝑜𝑛𝑡𝑟𝑖𝑏𝑢𝑡𝑖𝑜𝑛𝑠 𝑡𝑜 𝑝𝑙𝑎𝑐𝑒 𝑡ℎ𝑒𝑚 𝑖𝑛 𝑚𝑜𝑟𝑒 𝑎𝑝𝑝𝑟𝑜𝑝𝑟𝑖𝑎𝑡𝑒 𝑙𝑜𝑐𝑎𝑡𝑖𝑜𝑛𝑠 𝑜𝑛 𝑡ℎ𝑒 𝑆𝑖𝑡𝑒; 𝑎𝑛𝑑 (3) 𝑡𝑜 𝑝𝑟𝑒-𝑠𝑐𝑟𝑒𝑒𝑛 𝑜𝑟 𝑑𝑒𝑙𝑒𝑡𝑒 𝑎𝑛𝑦 𝐶𝑜𝑛𝑡𝑟𝑖𝑏𝑢𝑡𝑖𝑜𝑛𝑠 𝑎𝑡 𝑎𝑛𝑦 𝑡𝑖𝑚𝑒 𝑎𝑛𝑑 𝑓𝑜𝑟 𝑎𝑛𝑦 𝑟𝑒𝑎𝑠𝑜𝑛, 𝑤𝑖𝑡ℎ𝑜𝑢𝑡 𝑛𝑜𝑡𝑖𝑐𝑒.
          If you compare section 8 in their ToS (https://help.truthsocial.com/legal/terms-of-service/) you'll see that it prohibits the same things that most people who have been "censored" on Twitter have done.
          https://help.truthsocial.com/legal/terms-of-service/

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    Adam Bridge

    More to the point: the New Right (cough cough - today's GOP) will violate ANYTHING for political gain. I'd be watching their grandmothers in case they're sold down the river.

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    Rajeev

    Was there ever a time in which the Republican Party (non-Libertarian tiny wing of it) was in favor of free speech rights? Seems to me that anytime any corporation or entities expressed a view that didn't gel with theirs they would want government punishment.

    In 2011, when a mosque was attempted to be built at Park 51, prominent New York Republicans tried to use government to stop it. Additionally, around 50% of Republicans polled said that they don't have the right to build there.

    The suppression of Tech is another in the long line of trying to regulate corporations. The way the Christian right came down on music, movies, and in particular video games in the 1990s was all about using big government to restrict the public square.

    That's not to say Democrats have anything to put forward on the issue anymore. The ACLU was a heroic left-leaning organization because it protected free speech. Now over the past 3 years it only seems interested in protecting free speech it likes making the whole impact of the organization minimal compared to what it once was. Some of the younger Democratic members of congress throw the word boycott out so much it should be considered a default reaction to anything they might disagree with.

    Honestly, proud to be a Dispatch member to support David French in this issue. I haven't seen anyone take such a public stance on this issue legitimately fighting for both sides to have a pluralistic society. It's a shame that his views have been controversial because they are so ingrained into the best of American founding doctrine and precedent but the fact he's had to defend it vigorously from prominent figures speaks to the ridiculous level of tolerance in modern times.

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    Robert Knudson

    Bravo.

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  7. Token Liberal

    The Supreme Court has been solicitous of First Amendment rights for conservatives, see Citizens United and Hobby Lobby. If they are truly devoted to neutral principles, courts will ultimately strike down these actions by Abbott and DeSantis. However, the early returns (looking at you, Fifth Circuit) are not promising.

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    Paul Reichardt

    As someone who was strongly opposed to the CU ruling at the time, I’m glad that I was wrong about the outcome that it was the anti-(small-d) democratic speech apocalypse that I feared. In 2016 Hillary Clinton had strong corporate backing and massively outspent Donald Trump but still lost.

    I saw CU not as granting an extension of individual free-speech rights but rather a supplementary special set of privileges for those associated with powerful interests, such as unions and corporations.

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    Paul Reichardt

    It’s probably just me but whenever I read that Ecclesiastes passage, I hear Roger McGuinn’s jangly Rickenbacker 360/12 in my head. You know, the opening guitar line to the Byrd’s song.

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    Rjosephpaquette

    Small but important point. Citizen United didn’t give free speech rights to corporations. (Nor personhood, no matter how many times that error is repeated by left leaning people.) The ruling states that people have free speech rights and those rights are not lost by legal affiliations such as a corporation, a union, or even in the case of Citizens United, a non-profit.

    This fact is a simple counter argument to any liberal (or now conservative) who wants to argue about the “rights” of corporations. People have rights.

    Hat tip to flagship podcast AO for fine tuning my constitutional understanding.

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      Pat Riot

      Definitely. Note that Democrats don't complain as much about CU or even campaign financing in general anymore now that *they* are on the corporate gravy train as well.

      For me, blaming "money in politics" is like blaming "the lawyers" or something. Money is just part of the system. The *real* problems are in the *ideas* being espoused, not the money spent to spread them.

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        rlritt

        When were politicians of any party not on the gravy train?. Money in politics is the problem. But the money pays advertisers. You can make laws against advertisers

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          Rjosephpaquette

          Freedom of speech applies to advertisers too.

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          Pat Riot

          Republicans traditionally raised way more money than Democrats in years past. Now days it depends on the election cycle but they are comparable.

          I think you could take every single dime out of politics and it wouldn't make any difference, net-net.

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    2. Duane Truitt

      Correct. Corporations are comprised of persons who collectively work together, and never gave up their rights to free speech by doing so. Corporations are just like churches, social organizations, political parties, and other forms of business organization like partnerships, LLCs, LLPs, etc.

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