First Nat. Bank of Boston v. Bellotti
Opinion of the Court
delivered the opinion of the Court.
In sustaining a state criminal statute that forbids certain expenditures by banks and business corporations for the purpose of influencing the vote on referendum proposals, the Massachusetts Supreme Judicial Court held that the First Amendment rights of a corporation are limited to issues that materially affect its business, property, or assets. The court rejected appellants’ claim that the statute abridges freedom of speech in violation of the First and Fourteenth Amendments. The issue presented in this context is one of first impression in this Court. We postponed the question of jurisdiction to our consideration of the merits. 430 U. S. 964 (1977). We now reverse.
I
The statute at issue, Mass. Gen. Laws Ann., ch. 55, § 8 (West Supp. 1977), prohibits appellants, two national banking
The court also declined to say that there was “no rational basis for [the] legislative determination,” embodied in the second sentence of § 8, that a ballot question concerning the taxation of individuals could not materially affect the interests of a corporation. Id., at 786, 359 N. E. 2d, at 1271. In rejecting appellants’ argument that this second sentence established a conclusive presumption in violation of the Due Process Clause, the court construed § 8 to embody two distinct crimes: The first prohibits a corporation from spending money to influence the vote on a ballot question not materially affecting its business interests; the second, and more specific, prohibition makes it criminal per se for a corporation to spend money to influence the vote on a ballot question solely concerning individual taxation. While acknowledging that the second crime is “related to the general crime” stated in the first sentence of § 8, the court intimated that the second sentence was intended to make criminal an expenditure of the type proposed by appellants without regard to specific proof of the materiality of the question to the corporation’s business interests.
Appellants’ other arguments fared no better. Adopting a narrowing construction of the statute,
II
Because the 1976 referendum has been held, and the proposed constitutional amendment defeated, we face at the outset a question of mootness. As the case falls within the class of controversies “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911), we conclude that it is not moot. Present here are both elements identified in Weinstein v. Bradford, 423 U. S. 147, 149 (1975), as precluding a finding of mootness in the absence of a class action: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.”
Under no reasonably foreseeable circumstances could appellants obtain plenary review by this Court of the issue here presented in advance of a referendum on a similar' constitutional amendment. In each of the legislature’s four attempts to obtain constitutional authorization to enact a graduated income tax, including this most recent one, the period of time between legislative authorization of the proposal and its submission to the voters was approximately 18 months. This proved too short a period of time for appellants to obtain complete judicial review, and there is every reason to believe that any future suit would take at least as long. Furthermore, a decision allowing the desired expenditures would be an empty gesture unless it afforded appellants sufficient opportunity prior to the election date to communicate their views effectively.
Nor can there be any serious doubt that there is a “reasonable expectation,” Weinstein v. Bradford, supra, that appel
Meanwhile, § 8 remains on the books as a complete prohibition of corporate expenditures related to individual tax referenda, and as a restraining influence on corporate expenditures concerning other ballot questions. The criminal penalties of § 8 discourage challenge by violation, and the effect of the statute on arguably protected speech will persist. Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974); see American Party of Texas v. White, 415 U. S. 767, 770 n. 1 (1974); Rosario v. Rockefeller, 410 U. S. 752, 756 n. 5 (1973); Dunn v. Blumstein, 405 U. S. 330, 333 n. 2 (1972). Accordingly, we conclude that this cáse is not moot and proceed to address the merits.
Ill
The court below framed the principal question in this case as whether and to what extent corporations have First Amend
A
The speech proposed by appellants is at the heart of the First Amendment’s protection.
“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.. .. Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 101-102 (1940).
The referendum issue that appellants wish to address falls squarely within this description. In appellants’ view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State. See n. 4, supra. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement.
As the Court said in Mills v. Alabama, 384 U. S. 214, 218 (1966), “there is practically universal agreement that á major purpose of [the First] Amendment was to protect the free
The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation’s business interests. In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment’s protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment.
B
The court below found confirmation of the legislature’s definition of the scope of a corporation’s First Amendment rights in the language of the Fourteenth Amendment. Noting that the First Amendment is applicable to the States through the Fourteenth, and seizing upon the observation that corporations “cannot claim for themselves the liberty which the Fourteenth Amendment guarantees,” Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), the court concluded that a corporation’s First Amendment rights must derive from its property rights under the Fourteenth.
“In a series of decisions beginning with Gitlow v. New York, 268 U. S. 652 (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. That principle has been followed and reaffirmed to the present day.” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 500-501 (1952) (footnote omitted) (emphasis supplied).
The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate.
Nor do our recent commercial speech cases lend support to appellee’s business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to' the seller’s business as because it furthers the societal interest in the “free flow of commercial information.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 764 (1976); see Linmark Associates, Inc. v. Willingboro, 431 U. S. 85,95 (1977).
We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The “materially affecting” requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication.
Section 8 permits a corporation to communicate to the public its views on certain referendum subjects — those materially affecting its business — but not others. It also singles out one kind of ballot question — individual, taxation — as a subject about which corporations may never make their ideas public. The legislature has drawn the line between permissible and impermissible speech according to whether there is a sufficient nexus, as defined by the legislature, between the issue presented to the voters and the business interests of the speaker.
In the realm of protected speech, the legislature is consti
IV
The constitutionality of § 8’s prohibition of the “exposition of ideas” by corporations turns on whether it can survive the exacting scrutiny necessitated by a state-imposed restriction of freedom of speech. Especially where, as here, a prohibition is directed at speech itself,
The Supreme Judicial Court did not subject § 8 to “the critical scrutiny demanded under accepted First Amendment
A
f Preserving the integrity of the electoral process, preventing ^corruption, and “sustain [ing] the active, alert responsibility
Appellee advances a number of arguments in support of his view that these interests are endangered by corporate participation in discussion of a referendum issue. They hinge upon the assumption that such participation would exert an undue influence on the outcome of a referendum vote, and — • in the end — destroy the confidence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee’s arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969). But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts,
Nor are appellee’s arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public -office. The risk of corruption perceived in cases involving candidate elections, e. g., United States v. Automobile Workers, supra; United States v. CIO, supra, simply is not present in a popular vote on a public issue.
B
Finally, appellee argues that § 8, protects corporate shareholders, an interest that is both legitimate and traditionally within the province of state law. Cort v. Ash, 422 U. S. 66, 82-84 (1975). The statute is said to serve this interest by preventing the use of corporate resources in furtherance of
The underinclusiveness of the statute is self-evident. Corporate expenditures with respect to a referendum are prohibited, while corporate activity with respect to the passage or defeat of legislation is permitted, see n. 31, supra, even though corporations may engage in lobbying more often than they take positions on ballot questions submitted to the voters. Nor does § 8 prohibit a corporation from expressing its views, by the expenditure of corporate funds, on any public issue until it becomes the subject of a referendum, though the displeasure of disapproving shareholders is unlikely to be any less.
The fact that a particular kind of ballot question has been singled out for special treatment undermines the likelihood of a genuine state interest in protecting shareholders. It suggests instead that the legislature may have been concerned with silencing corporations on a particular subject. Indeed, appellee has conceded that “the legislative and judicial history of the statute indicates . . . that the second crime was ‘tailor-made' to prohibit corporate campaign contributions to' oppose a graduated income tax amendment." Brief for Appellee 6.
Nor is the fact that § 8 is limited to banks and business corporations without relevance. Excluded from its provisions and criminal sanctions are entities or organized groups in which numbers of persons may hold an interest or membership, and which often have resources comparable to those of large corporations. Minorities in such groups or entities may have interests with respect to institutional speech quite comparable to those of minority shareholders in a corporation. Thus the exclusion of Massachusetts business trusts, real estate investment trusts, labor unions, and other associations undermines the plausibility of the State’s purported concern for the persons who happen to be shareholders in the banks and corporations covered by § 8.
Assuming, arguendo, that protection of shareholders is a “compelling” interest under the circumstances of this case, we find “no substantially relevant correlation between the governmental interest asserted and the State’s effort” to prohibit appellants from speaking. Shelton v. Tucker, 364 U. S., at 485.
V
Because that portion of § 8 challenged by appellants prohibits protected speech in a manner unjustified by a compelling state interest, it must be invalidated. The judgment of the Supreme Judicial Court is
Reversed.
Appellants are the First National Bank of Boston, New England Merchants National Bank, the Gillette Co., Digital Equipment Corp., and Wyman-Gordon. Co.
Massachusetts Gen. Laws Ann., ch. 55, §8 (West Supp. 1977), provides (with emphasis supplied):
“No corporation carrying on the business of a bank, trust, surety, indemnity, safe deposit, insurance, railroad, street railway, telegraph, telephone, gas, electric light, heat, power, canal, aqueduct, or water company, no company having the right to take land by eminent domain or to exercise franchises in public ways, granted by the commonwealth or by any county, city or town, no trustee or trustees owning or holding the majority of the stock of such a corporation, no business corporation incorporated under the laws of or doing business in the commonwealth and no officer or agent acting in behalf of any corporation mentioned in this section, shall directly or indirectly give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or other valuable thing for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting or antagonizing the interests of any political party, or influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation. No question submitted to the voters solely concerning the taxation of the income, property or transactions of individuáis shall be deemed materially to affect the property, business or assets of the corporation. No person or persons, no political committee, and no person acting under the authority of a political com*769 mittee, or in its behalf, shall solicit or receive from such corporation or such holders of stock any gift, payment, expenditure, contribution or promise to give, pay, expend or contribute for any such purpose.
“Any corporation violating any provision of this section shall be punished by a fine of not more than fifty thousand dollars and any officer, director or agent of the corporation violating any provision thereof or authorizing such violation, . . . shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than one year, or both.”
This was not the first challenge to § 8. The statute’s legislative and judicial history has been a troubled one. Its successive re-enactments have been linked to the legislature’s repeated submissions to the voters of a constitutional amendment that would allow the enactment of a graduated tax.
The predecessor of § 8, Mass. Gen. Laws, ch. 55, § 7 (as amended by 1946 Mass. Acts, ch. 537, § 10), was first challenged in Lustwerk v. Lytron, Inc., 344 Mass. 647, 183 N. E. 2d 871 (1962). Unlike § 8, § 7 did not dictate that questions concerning the taxation of individuals could not satisfy the “materially affecting” requirement. The Supreme Judicial Court construed §7 not to prohibit a corporate expenditure urging the voters to reject a proposed constitutional amendment authorizing the legislature to impose a graduated tax on corporate as well as individual income.
After Lustwerk the legislature amended § 7 by adding the sentence: “No question submitted to the voters concerning the taxation of the income, property or transactions of individuals shall be deemed materially
The most recent amendment was enacted on April 28, 1975, when the legislature further refined the second sentence of § 8 to apply only to ballot questions "solely” concerning the taxation of individuals. 1975 Mass. Acts, ch. 151, § 1. Following this amendment, the legislature on May 7, 1975, voted to submit to the voters on November 2, 1976, the proposed constitutional amendment authorizing the imposition of a graduated 'personal income tax. It was this proposal that led to the case now before us.
Appellants believe that the adoption of a graduated personal income tax would materially affect their business in a variety of ways, including, in the words of the court below,
“discouraging highly qualified executives and highly skilled professional personnel from settling, working or remaining in Massachusetts; promoting a tax climate which would be considered unfavorable by business corporations, thereby discouraging them from settling in Massachusetts with ‘resultant adverse effects’ on the plaintiff banks’ loans, deposits, and other services; and tending to shrink the disposable income of individuals avail*771 able for the purchase of the consumer products manufactured by at least one of the plaintiff corporations.” 371 Mass., at 777, 359 N. E. 2d, at 1266.
In contrast to its approach in the previous challenges to the predecessor of § 8, see n. 3, supra, the court determined that it had to address appellants’ constitutional challenge because “[t]he statutory amendment to § 8 makes it clear that the Legislature has specifically proscribed corporate expenditures of moneys relative to this proposed amendment.” 371 Mass., at 780, 359 N. E. 2d, at 1268. This was clear from the language of the second sentence of § 8 and from the legislature’s synchronized amendment of § 8 and approval of the submission of the ballot question to the voters.
For purposes of this decision we need not distinguish between the “two crimes” identified by the Supreme Judicial Court. Mr: Justice White, dissenting, conveys an incorrect impression of our decision when he states, post, at 803, that we have not disapproved the legislative judgment that the personal income tax issue could not have a material effect on any corporation, including appellants. We simply have no occasion either to approve or to disapprove that judgment. If we were to invalidate the second sentence of § 8, thereby putting a ballot question concerning taxation of individuals on the same plane as any other ballot question, we still would have to decide whether the “materially affecting” limitation in the general
Conversely, we would have to reach the question of the constitutionality of the “second” and more restrictive crime only if we first concluded that it is permissible under the First Amendment to limit corporate speech to matters materially affecting the corporation’s business, property, or assets Because the “materially affecting” limitation bars appellants from making their proposed expenditures under either the first or second sentence of § 8, we must decide whether that limitation is constitutional.
The court stated that § 8 would not prohibit the publication of “in-house” newspapers or communications to stockholders containing the corporation’s view on a graduated personal income tax; the participation by corporate employees, at corporate expense, in discussions or legislative hearings on the issue; the participation of corporate officers, directors, stockholders, or employees in public discussion of the issue on radio or television, at news conferences, or through statements to the press or “similar means not involving contributions or expenditure of corporate funds”; or speeches or comments by employees or officers, on working hours, to the press or a chamber of commerce. 371 Mass., at 789, 359 N. E. 2d, at 1272.
Because of our disposition of appellants’ First Amendment claim, we need not address any of these arguments.
Most of the States, and the District of Columbia, impose graduated personal income taxes. U. S. Dept, of Commerce, Bureau of the Census, State Government Tax Collections in 1977, Table 9, p. 13 (1977). Several States impose a graduated tax on corporate income. Advisory Commission on Intergovernmental Relations, Significant Features of Fiscal Federalism, Vol. II, Table 113, pp. 219-222 (1977).
We are informed that the Attorney General also has threatened one of the appellants with prosecution under § 8 for an expenditure in support of a local referendum proposal concerning a civic center. Brief for Appellants 22 n. 7, A-l.
F-reedo-m of expression has particular significance with respect to government because “[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.” T. Emerson, Toward a General Theory of the First Amendment 9 (1966). See also A. Meiklejohn, Free Speech and Its Relation to Self-Government 2L-26 (1948).
The individual’s interest in self-expression is a concern of the First Amendment separate from the concern for open and informed discussion, although the two often converge. See G. Gunther, Cases and Materials on Constitutional Law 1044 (9th ed. 1975); T. Emerson, The System of Freedom of Expression 6 (1970). The Court has declared, however, that “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). And self-govenment suffers when those in power suppress competing views on public issues “from diverse and antagonistic sources.” Associated Press v. United States, 326 U. S. 1, 20 (1945), quoted in New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964).
Nor is there any occasion to consider in this case whether, under different circumstances, a justification for a restriction on speech that would
The Massachusetts court did not go so far as to accept appellee’s argument that corporations, as creatures of the State, have only those rights granted them by the State, See Brief for Appellee 4, 23-25. Cf. Mr. Justice White’s dissent, post, at 809; Mr. Justice Rehnquist’s dissent, post, p. 822. The court below recognized that such an extreme position could not be reconciled either with the many decisions holding state laws invalid under the Fourteenth Amendment when they infringe protected speech by corporate bodies, e. g., Linmark Associates, Inc. v. Township of Willingboro, 431 U. S. 85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, supra; Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952), or with deeiáons affording corporations the protection of constitutional guarantees other than the First Amendment. E. g., United States v. Martin Linen Supply Co., 430 U. S. 564 (1977) (Fifth Amendment double jeopardy); G. M. Leasing Corp. v. United States, 429 U. S. 338, 353 (1977) (Fourth Amendment). In any event, appellee’s argument is inapplicable to two of the appellants. National banks are creatures of federal law and in
In cases where corporate speech has been denied the shelter of the First Amendment, there is no suggestion that the reason was because a corporation' rather than an individual or association was involved. E. g., Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376 (1973); Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957). Corporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against compulsory self-incrimination, Wilson v. United States, 221 U. S. 361, 382-386 (1911), or equality with individuals in the enjoyment of a right to privacy, California Bankers Assn. v. Shultz, 416 U. S. 21, 65-67 (1974); United States v. Morton Salt Co., 338 U. S. 632, 651-652 (1950), but this is not because the States are free to define the rights of their creatures without constitutional limit. Otherwise, corporations could be denied the protection of all constitutional guarantees, including due process and the equal protection of the laws. Certain “purely personal” guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the “historic function” of the particular guarantee has been limited to the protection of individuals. United States v. White, 322 U. S. 694, 698-701 (1944). Whether or not a particular guarantee is “purely personal” or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.
It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394 (1886); see Covington & Lexington Turnpike R. Co. v. Sandford, 164 U. S. 578 (1896).
The appellant in Grosjean argued that “[t]he liberty guaranteed by the fourteenth amendment against deprivation without due process of law is the liberty of NATURAL not of artificial persons.” Brief for Appellant in Grosjean v. American Press Co., O. T. 1935, No. 303, p. 42; see 297 U. S., at 235. See also Hague v. CIO, 307 U. S. 496, 518 (1939) (opinion of Stone, J.). But see NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958); NAACP v. Button, 371 U. S. 415 (1963).
The semantic reasoning of the court below would lead logically to the conclusion that the protection afforded speech by corporations, or, for that matter, other artificial entities and associations, would differ depending on whether the source of the alleged abridgment was a State or the Federal Government. But the States do not have greater latitude than Congress to abridge freedom of speech. The dissenting opinion of Mr. Justice Rehnquist, post, at 823, is predicated on the view that the First Amend
By its terms, § 8 would seem to apply to corporate members of the press. The court below noted, however, that no one “has . . . asserted that [§ 8] bars the press, corporate, institutional or otherwise, from engaging in discussion or debate on the referendum question.” 371 Mass., at 785 n. 13, 359 N. E. 2d, at 1270 n. 13. Because none of the appellants claimed to be part of the institutional press, the court did not “venture an opinion on such matters.” Ibid.
The observation of Mr. Justice White, post, at 808 n. 8, that media
If we were to adopt appellee’s suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by appellants, the result would not be responsive to the informational purpose of the First Amendment. Certainly there are voters in Massachusetts, concerned with such economic issues as the tax rate, employment opportunities, and the ability to attract new business into the State and to prevent established businesses from leaving, who would be as interested in hearing appellants’ views on a graduated tax as the views of media corporations that might be less knowledgeable on the subject. “[P]ublic debate must not only be unfettered; it must also be informed.” Saxbe v. Washington Post Co., 417 U. S. 843, 862-863 (1974) (Powell, J., dissenting).
Mr. Justice White’s dissenting view would empower a State to restrict corporate speech far more narrowly than would the opinion of the Massachusetts court or the statute under consideration. This case involves speech in connection with a referendum. Mr. Justice White’s rationale would allow a State to proscribe the expenditure of corporate funds at any time for the purpose of expressing views on “political [or] social questions” or in connection with undefined “ideological crusades,” unless the expenditures were shown to be “integrally related to corporate business operations.” Post, at 803, 805, 806, 816, 819, 821. Thus corporate activities that are widely viewed as educational and socially constructive could be prohibited. Corporations no longer would be able safely to support — by contributions or public service advertising — educational, charitable, cultural, or even human rights causes. Similarly, informational advertising on such subjects of national interest as inflation and the worldwide energy problem could be prohibited. Many of these “causes” and subjects could be viewed as “social,” “political,” or “ideological.” No prudent corporate management would incur the risk of criminal penalties, such as those in the Massachusetts Act, that would follow from a failure to prove the materiality to the corporation’s “business, property or assets” of such contributions or advertisements. See n. 21, infra.
The suggestion in Mr. Justice White’s dissent, post, at 807, that the First Amendment affords less protection to ideas that are not the product of “individual choice” would seem to apply to newspaper editorials and every other form of speech created under the auspices of a corporate body. No decision of this Court lends support to such a restrictive notion.
It is somewhat ironic that appellee seeks to reconcile these decisions with the “materially affecting” concept by noting that the commercial speaker would “have a direct financial interest in the speech,” Brief for Appellee 19, and n. 12. Until recently, the “purely commercial” nature
In emphasizing the societal interest and the fact that this Court’s decisions have not turned on the effect upon the speaker’s business interests, we do not say that such interests may not be relevant or important in a different context.
Even assuming that the rationale behind the “materially affecting” requirement itself were unobjectionable, the limitation in § 8 would have an impermissibly restraining effect on protected speech. Much valuable information which a corporation might be able to provide would remain unpublished because corporate management would not be willing to risk the substantial criminal penalties — personal as well as corporate — provided for in § 8. New York Times Co. v. Sullivan, 376 U. S., at 279; Smith v. California, 361 U. S. 147, 151 (1959); Speiser v. Randall, 357 U. S. 513, 526 (1958). As the facts in this case illustrate, management never could be sure whether a court would disagree with its judgment as to the effect upon the corporation’s business of a particular referendum issue. In addition, the burden and expense of litigating the issue — especially when what must be established is a complex and amorphous economic relationship — would unduly impinge on the exercise of the constitutional right. “[T]he free dissemination of ideas [might] be the loser.” Smith v. California, supra, at 151; see Freedman v. Maryland, 380 U. S. 51, 59-60 (1965).
Cf. Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 175-176 (1976).
Our observation about the apparent purpose of the Massachusetts Legislature is not an endorsement of the legislature’s factual assumptions about the views of corporations. We know of no documentation of the notion that corporations are likely to share a monolithic view on an issue such as the adoption of a graduated personal income tax. Corporations, like individuals or groups, are not homogeneous. They range from great multinational enterprises whose stock is publicly held and traded to medium-size
It is too late to suggest “that the dependence of a communication on the expenditure of money itself operates to introduce a nonspeech element or to reduce the exacting scrutiny required by the First- Amendment.” Buckley v. Valeo, 424 U. S., at 16; see New York Times Co. v. Sullivan, 376 U. S., at 266. Furthermore, § 8 is an “attempt directly to control speech . . . rather [than] to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern.” Speiser v. Randall, 357 U. S., at 527. Cf. United States v. O’Brien, 391 U. S. 367 (1968).
The court justified its deferential standard of review more explicitly in its discussion of appellants’ equal protection claim:
“We think that the appropriate standard of review on this issue is not the strict scrutiny that the plaintiffs suggest is apposite but, rather, is the traditional scrutiny involving economic matters. While we agree with the plaintiffs that where free speech is involved strict scrutiny is required . . . , we have already concluded that the plaintiffs do not possess First Amendment rights on matters not shown to affect materiaEy their business, property or assets.” 371 Mass., at 793, 359 N. E. 2d, at 1275 (citations omitted).
The court reasoned that the inclusion of business corporations in § 8, but not entities such as unincprporated associations, partnerships, labor unions, or nonprofit corporations, might be attributable to the fact that the latter entities do not have shareholders: “Section 8 could represent a legislative desire to protect such shareholders against ultra vires activities . . . .” Id., at 794, 359 N. E. 2d, at 1275. The court found justification for the noninclusion of other entities that have shareholders, such as business trusts and real estate investment trusts, in the supposition that “the Legislature may justifiably have concluded that such trusts did not present the type of problem in this area presented by general business corporations.” Ibid. The court did not specify which “type of problem” it meant.
In addition to prohibiting corporate contributions and expenditures for the purpose of influencing the vote on a ballot question submitted to the voters, § 8 also proscribes corporate contributions or expenditures “for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting, or antagonizing the interests of any political party.” See n. 2, supra. In this respect, the statute is not unlike many other state and federal laws regulating corporate participation in partisan candidate elections. Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, or other means of influencing candidate elections. Cf. Pipefitters v. United States, 407 U. S. 385 (1972); United States v. Automobile Workers, 352 U. S. 567 (1957); United States v. CIO, 335 U. S. 106 (1948). About half of these laws, including the federal law, 2 U. S. C. § 441b (1976 ed.) (originally enacted as the Federal Corrupt Practices Act, 34 Stat. 864), by their terms do not apply to referendum votes. Several of the others proscribe or limit spending for “political” purposes, which may or may not cover referenda. See Schwartz v. Romnes, 495 F. 2d 844 (CA2 1974).
The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. See United States v. Automobile Workers, supra, at 570-575; Schwartz v. Bomnes, supra, at 849-851. The importance of the governmental interest in preventing this occurrence has never been doubted. The case before us presents no comparable problem, and our consideration of a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections. Cf. Buckley v. Valeo, supra, at 46; Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U. Pa. L. Rev. 386, 408-410 (1977).
United States v. Automobile Workers, supra, at 575.
In his dissenting opinion, Mr. Justice White relies on incomplete facts with respect to expenditures in the 1972 referendum election, in support of his perception as to the “domination of the electoral process by corporate wealth.” Post, at 811; see post, at 810-811. The record shows only the extent of corporate and individual contributions to the two committees that were organized to support and oppose, respectively, the constitutional amendment. It does show that three of the appellants each contributed $3,000 to the “opposition” committee. The dissenting opinion makes no reference to the fact that amounts of money expended inde
Even if viewed as material, any inference that corporate contributions “dominated” the electoral process on this issue is refuted by the 1976 election. There the voters again rejected the proposed constitutional amendment even in the absence of any corporate spending, which had been forbidden by the decision below.
See Schwartz v. Romnes, supra, at 851; C&C Plywood Corp. v. Hanson, 420 F. Supp. 1254 (Mont. 1976), appeal docketed, No. 76-3118 (CA9, Sept. 21, 1976); Pacific Gas & Elec. Co. v. Berkeley, 60 Cal. App. 3d 123, 131 Cal. Rptr. 350 (1976); Advisory Opinion on Constitutionality of 1975 Pub. Act 227, 396 Mich. 465, 491, 493-495, 242 N. W. 2d 3, 13, 14-15 (1976).
Appellee contends that the State’s interest in sustaining the active role of the individual citizen is especially great with respect to referenda because they involve the direct participation of the people in the lawmaking process. But far from inviting greater restriction of speech, the direct participation of the people in a referendum, if anything, increases the need for “ ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” New York Times Co. v. Sullivan, 376 U. S., at 266 (quoting Associated Press v. United States, 326 U. S., at 20).
Mr. Justice White argues, without support in the record, that because corporations are given certain privileges by law they are able to “amass wealth” and then to “dominate” debate on an issue. Post, at 809, 821. He concludes from this generalization that the State has a subordinating interest in denying corporations access to debate and,, correspondingly, in denying the public access to corporate views. The potential impact of this argument, especially on the news media, is unsettling. One might argue with comparable logic that the State may control the volume of expression by the wealthier, more powerful corporate members of the press in order to “enhance the relative voices” of smaller and less influential members.
Except in the special context of limited access to the channels of communication, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), this concept contradicts basic tenets of First Amendment jurisprudence. We rejected a similar notion in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). There we held that the First Amendment prohibits a State from requiring a newspaper to make space available at no cost for a reply from a candidate whom the newspaper has criticized. The state court had held that “free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court’s view, furthered the ‘broad societal interest in the free flow of information to the public.’ ” Id., at 245. Far more than in the instant case, allegations were there made and substantiated of a concentration in the hands of a few of “the power to inform the American people and shape public opinion,” and that “the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues.” Id., at 250.
Government is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves. See Thornhill v. Alabama, 310 U. S. 88, 95 (1940); Meiklejohn, The First Amendment is an Absolute, 1961 S. Ct. Rev. 245, 263. The First Amendment rejects the “highly paternalistic” approach of statutes like § 8 which restrict what the people may hear. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U. S., at 97; Whitney v. California, 274 U. S. 357, 377
The State’s paternalism evidenced by this statute is illustrated by the fact that Massachusetts does not prohibit lobbying by corporations, which are free to exert as much influence on the people’s representatives as their resources and inclinations permit. Presumably the legislature thought its members competent to resist the pressures and blandishments of lobbying, but had markedly less confidence in the electorate. If the First Amendment protects the right of corporations to petition legislative and administrative bodies, see California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510-511 (1972); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127, 137-138 (1961), there hardly can be less reason for allowing corporate views to be presented openly to the people when they are to take action in their sovereign capacity.
Corporate advertising, unlike some methods of participation in political campaigns, is likely to be highly visible. Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected. See Buckley, 424 U. S., at 66-67; United States v. Harriss, 347 U. S. 612, 625-626 (1954). In addition, we emphasized in Buckley the prophylactic effect of requiring that the source of communication be disclosed. 424 U. S., at 67.
Thomas v. Collins, 323 U. S. 516, 537 (1945).
Appellee does not explain why the dissenting shareholder’s wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders. Mr. Justice White’s repeatedly expressed concern for corporate shareholders who may be “coerced” into supporting “causes with which they disagree” apparently is not shared by appellants’ shareholders. Not a single shareholder has joined appellee in defending the Massachusetts statute or, so far as the record shows, has interposed any .objection to the right asserted by the corporations to make the proscribed expenditures.
The dissent of Mr. Justice White relies heavily on Abood v. Detroit Board of Education, 431 U. S. 209 (1977), and Machinists v. Street, 367 U. S. 740 (1961). These decisions involved the First Amendment rights of employees in closed or agency shops not to be compelled, as a condition of employment, to support with financial contributions the political activities of other union members with which the dissenters disagreed.
Street and Abood are irrelevant to the question presented in this case. In those cases employees were required, either by state law or by agreement between the employer and the union, to pay dues or a “service fee” to the exclusive bargaining representative. To the extent that these funds were used by the union in furtherance of political goals, unrelated to collective bargaining, they were held to be unconstitutional because they compelled the dissenting union member “ 'to furnish contributions of money for the propagation of opinions which he disbelieves ....’” Abood, swpra, at 235 n. 31 (Thomas Jefferson as quoted in I. Brant, James Madison: The Nationalist 354 (1948)).
The critical distinction here is that no shareholder has been “compelled” to contribute anything. Apart from the fact, noted by the dissent, that compulsion by the State is wholly absent, the shareholder invests in a corporation of his own volition aiid is free to withdraw his investment at any time and for any reason. A more relevant analogy, therefore, is to the situation where an employee voluntarily joins a union, or an individual voluntarily joins an association, and later finds himself in disagreement
Dissenting Opinion
with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.
The Massachusetts statute challenged here forbids the use of corporate funds to publish views about referenda issues having no material effect on the business, property, or assets of
By holding that Massachusetts may not prohibit corporate expenditures or contributions made in connection with referenda involving issues having no material connection with the corporate business, the Court not only invalidates a statute which has been on the books in one form or another for many years, but also casts considerable doubt upon the constitutionality of legislation passed by some 31 States restricting corporate political activity,
I
There is now little doubt that corporate communications come within the scope of the First Amendment. This, however, is merely the starting point of analysis, because an examination of the First Amendment values that corporate expression furthers and the threat to the functioning of a free society it is capable of posing reveals that it is not fungible with communications emanating from individuals and is subject to restrictions which individual expression is not. Indeed, what some have considered to' be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all
Of course, it may be assumed that corporate investors are united by a desire to make money, for the value of their investment to increase. Since even communications which have no purpose other than that of enriching the communicator have some First Amendment protection, activities such as advertising and other communications integrally related to the operation of the corporation’s business may be viewed as a means of furthering the desires of individual shareholders.
The self-expression of the communicator is not the only value encompassed by the First Amendment. One of its functions, often referred to as the right to hear or receive information, is to protect the interchange of ideas. Any communication of ideas, and consequently any expenditure of funds which makes the communication of ideas possible, it
I recognize that there may be certain communications undertaken by corporations which could not be restricted without impinging seriously upon the right to receive information. In the absence of advertising and similar promotional activities, for example, the ability of consumers to obtain information relating to products manufactured by cor
It bears emphasis here that the Massachusetts statute forbids the expenditure of corporate funds in connection with referenda but in no way forbids the board of directors of a corporation from formulating and making public what it represents as the views of the corporation even though the subject addressed has no material effect whatsoever on the business of the corporation. These views could be publicized at the indi
The governmental interest in regulating corporate political communications, especially those relating to electoral matters, also raises considerations which differ significantly from those governing the regulation of individual speech. Corporations are artificial entities created by law for the purpose of furthering certain economic goals. In order to facilitate the achievement of such ends, special rules relating to such matters as limited liability, perpetual life, andcthe accumulation, distribution, and taxation of assets are normally applied to them. States have provided corporations with such attributes in order to increase their economic viability and thus strengthen the economy generally. It has long been recognized, however, that the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process. Although Buckley v. Valeo, 424 U. S. 1 (1976), provides support for the position that the desire to equalize the financial resources available to candidates does not justify the limitation upon the expression of support which a restriction upon individual contributions entails,
The Court’s opinion appears to recognize at least the possibility that fear of corporate domination of the electoral process would justify restrictions upon corporate expenditures and contributions in connection with referenda but brushes this interest aside by asserting that “there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts,” ante, at 789, and by suggesting that the statute in issue represents an attempt to give an unfair advantage to those who hold views in opposition to positions which would otherwise be financed by corporations. Ante, at 785-786. It fails even to allude to the fact, however, that Massachusetts’ most recent experience with unrestrained corporate expenditures in connection
This Nation has for many years recognized the need for measures designed to prevent corporate domination of the political process. The Corrupt Practices Act, first enacted in 1907, has consistently barred corporate contributions in con
II
There is an additional overriding interest related to the prevention of corporate domination which is substantially advanced by Massachusetts’ restrictions upon corporate contributions: assuring that shareholders are not compelled to support and financially further beliefs with which they disagree where, as is the case here, the issue involved does not materially affect the business, property, or other affairs of the corporation.
This is not only a policy which a State may adopt consistent with the First Amendment but one which protects the very freedoms that this Court has held to be guaranteed by the First Amendment. In Board of Education v. Barnette, 319 U. S. 624 (1943), the Court struck down a West Virginia statute which compelled children enrolled in public school to salute the flag and pledge allegiance to it on the ground that the First Amendment prohibits public authorities from requiring an individual to express support for or agreement with a cause with which he disagrees or concerning, which he prefers to remain silent. Subsequent cases have applied this principle to prohibit organizations to which individuals are compelled to belong as a condition of employment from using compulsory dues to support candidates, political parties, or other forms of political expression which which members disagree or do not wish to support. In Machinists v. Street, 367 U. S. 740 (1961), the Court was presented with allegations that a union shop authorized by the Railway Labor Act, 45 U. S. C. § 152 Eleventh, had used the union treasury to which all employees were compelled to contribute “to finance the campaigns of candidates for federal and state offices whom [the petitioners] opposed, and to promote the propagation of political and economic doctrines, concepts and ideologies with which [they] disagreed.” 367 U. S., at 744. The Court recognized that compelling contributions for such purposes presented constitutional “questions of the utmost gravity” and consequently construed the Act to prohibit the use of compulsory union dues for political purposes. Id., at 749-750. Last Term,
Presumably, unlike the situations presented by Street and Abood, the use of funds invested by shareholders with opposing views by Massachusetts corporations in connection with referenda or elections would not constitute state action and, consequently, would not violate the First Amendment. Until now, however, the States have always been free to adopt measures designed to further rights protected by the Constitution even when not compelled to do so. It could hardly be plausibly contended that just because Massachusetts’ regulation of corporations is less extensive than Michigan’s regulation of labor-management relations, Massachusetts may not constitutionally prohibit the very evil which Michigan may not consti
The Court assumes that the interest in preventing the use of corporate resources in furtherance of views which are irrelevant to the corporate business and with which some shareholders may disagree is a compelling one, but concludes that the Massachusetts statute is nevertheless/ invalid because the State has failed to adopt the means best suited, in its opinion, for achieving this end. Ante, at 792-795. It proposes that the aggrieved shareholder assert his interest in preventing the expenditure of funds for nonbusiness causes he finds unconscionable through the channels provided by “corporate democracy” and purports to be mystified as to “why the dissenting shareholder’s wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders.” Ante, at 794, and n. 34. It should be obvious that the alternative means upon the adequacy of which the majority is willing to predicate a constitutional adjudication is no more able to satisfy the State’s interest than a ruling in Street and Abood leaving aggrieved employees to the remedies provided by union democracy would have satisfied the demands of the First Amendment. The interest which the State wishes to protect here is identical to that which the Court has previously held to be protected by
Finally, even if corporations developed an effective mechanism for rebating to shareholders that portion of their investment used to finance political activities with which they disagreed, a State may still choose to restrict corporate political activity irrelevant to business functions on the grounds that many investors would be deterred from investing in corporations because of a wish not to associate with corporations propagating certain views. The State has an interest not only in enabling individuals to exercise freedom of conscience without penalty but also in eliminating the danger that investment decisions will be significantly influenced by the ideological views of corporations. While the latter concern may not be of the same constitutional magnitude as the former, it is far from trivial. Corporations, as previously noted, are created by the State as a means of furthering the public welfare. One of
The necessity of prohibiting corporate political expenditures in order to prevent the use of corporate funds for purposes with which shareholders may disagree is not a unique perception of Massachusetts. This Court has repeatedly recognized that one of the purposes of the Corrupt Practices Act was to prevent the use of corporate or union funds for political purposes without the consent of the shareholders or union members and to protect minority interests from domination by corporate or union leadership.
The Court today purports not to foreclose the possibility that the Corrupt Practices Act and state statutes which prohibit corporate expenditures only in the context of elections to public office may survive constitutional scrutiny because of the interest in preventing the corruption of elected representatives through the creation of political debts. Ante, at 788 n. 26. It does not choose to explain or even suggest, however, why the state interests which it so cursorily dismisses are less worthy than the interest in preventing corruption or the appearance of it. More importantly, the analytical framework employed by the Court clearly raises great doubt about the Corrupt Practices Act. The question in the present case, as viewed by the Court, “is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection,” ante, at 778, which it answers in the negative. But the Court has previously held in Buckley v. Valeo that the interest in preventing corruption is insufficient to justify restrictions upon individual expend
In my view, the interests in protecting a system of freedom of expression, set forth supra, are sufficient to justify any incremental curtailment in the volume of expression which the Massachusetts statute might produce. I would hold that apart from corporate activities, such as those discussed in Part I, supra, and exempted from regulation in CIO, which are integrally related to corporate business operations, a State may prohibit corporate expenditures for political or ideological purposes. There can be no doubt that corporate expenditures in connection with referenda immaterial to corporate business affairs fall clearly into the category of corporate activities which may be barred. The electoral process, of course, is the essence of our democracy. It is an arena in which the public interest in preventing corporate domination and the coerced support by shareholders of causes with which they disagree is at its strongest and any claim that corporate expenditures are integral to the economic functioning of the corporation is at its weakest.
Library of Congress, Analysis of Federal and State Campaign Finance Laws — Summaries, prepared for Federal Election Commission (1977). Some 18 of these States prohibit or limit corporate contributions in respect to ballot questions. Reply Brief for Appellants 9-11, n. 6.
See generally Leventhal, Courts and Political Thickets, 77 Colum. L. Rev. 345 (1977).
See T. Emerson, Toward a General Theory of the First Amendment 4-7 (1966); Board of Education v. Barnette, 319 U. S. 624 (1943).
Emerson, supra, at 5.
See United States v. CIO, 335 U. S. 106,122-123 (1948).
This distinguishes the regulation of corporate speech from the limitations upon individual political campaign expenditures invalidated in Buckley v. Valeo, 424 U. S. 1 (1976). The Court there struck down the limitations upon individual expenditures because they impermissibly restricted the right of individuals to' speak their minds and malee their views known. Id., at 48, 52. At the same time, however, the Court sustained limitations upon political contributions on the ground that such provisions entail a much lesser restriction upon the individual’s ability to engage in free communication than expenditure restrictions. Id., at 20-23. In the case of corporate political activities, we are not at all concerned with the self-expression of the communicator.
This is in contrast to the limitations upon individual campaign expenditures in Buckley v. Valeo, supra, which the Court viewed as heavily burdening the exchange of ideas between individuals and the forming of associations for that purpose. 424 U. S., at 19-20,47-48.
In addition, newspapers and other forms of literature obviously do not lose their First Amendment protection simply because they are produced or distributed by corporations. It is, of course, impermissible to' restrict any communication, corporate or otherwise, because of displeasure with its content. I need not decide whether newspapers have a First Amendment right to operate in a corporate form. It may be that for a State which generally permits businesses to operate as corporations to prohibit those engaged in the dissemination of information and opinion from taking advantage of the corporate form would constitute a departure from neutrality prohibited by the free press guarantee of the First Amendment. See Stewart, “Or of the Press,” 26 Hastings L. J. 631 (1975); Bezanson, The New Free Press Guarantee, 63 Va. L. Rev. 731 (1977). There can be no doubt, however, that the First Amendment does not immunize media corporations any more than other types of corporations from restrictions upon electoral contributions and expenditures.
Buckley v. Valeo, 424 U. S., at 48-49, 54, 56-57.
Congress long ago recognized that the ability to communicate ideas without cost could create an unfair political advantage. See 54 Cong. Rec. 2039-2041 (1917); Association of the Bar of the City of New York, Special Committee on the Federal Conflict of Interest Laws, Conflicts of Interest and Federal Service 54r-55 (1960) (franking privilege denied by Congress to part-time employees (“dollar-a-year men”) of the Bureau of Education).
California had the same experience in connection with a 1976 referendum measure which would have required legislative approval of nuclear generating plant sites. Two hundred and three corporations contributed approximately $2,530,000 in opposition to the amendment, which was defeated. Supporters of the measure collected altogether only approximately $1,600,000. California Fair Political Practices Comm’n, Campaign Contribution and Spending Report — June 8, 1976, Primary Election 289-298. Later in the same year a similar initiative measure was placed on the ballot in Montana. Corporations contributed approximately $144,000 in opposition to the measure, while its supporters were able to collect only $451. This measure was also defeated. Brief for State of Montana as Amicus Curiae 10.
This, of course, is an interest that was not present in Buckley v. Valeo, supra, and would not justify limitations upon the activities of associations, corporate or otherwise, formed for the express purpose of advancing a political or social cause.
The Court’s additional suggestion that the aggrieved shareholder pursue judicial remedies to challenge corporate referenda disbursements, ante, at 795, is untenable in light of its holding precluding Massachusetts from defining the powers of corporations active within its borders so as to prohibit the expenditure of funds in connection with referenda campaigns not material to their business functions.
The Court also asserts that Massachusetts’ interest in protecting dissenting shareholders is “belied” by its failure to prohibit corporate activity with respect to the passage or defeat of legislation or to include business trusts, real estate investment trusts, and labor unions in its prohibition upon electoral expenditures. Ante, at 792-793. It strongly implies that what it views as “underinclusiveness” weakens the consideration to which the interest asserted by Massachusetts is entitled by this Court. Such a
The Court’s further claim that “[t]he fact that a particular kind of ballot question has been singled out for special treatment undermines the likelihood of a genuine state interest in protecting shareholders [and] suggests instead that the legislature may have been concerned with silencing corporations on a particular subject,” ante, at 793, ignores the fact that, as earlier acknowledged by the majority, ante, at 769-770, n. 3, the statutory provision stating that the personal income tax does not materially affect the business of corporations was enacted in response to prior judicial decisions construing the “materially affecting” requirement as not prohibiting corporate expenditures in connection with income tax referenda. To find evidence of hostility toward corporations on the basis of a decision of a legislature to clarify its intent following judicial rulings interpreting the scope of a statute is to elevate corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.
See Note, Corporate Political Affairs Programs, 70 Yale L. J. 821, 852-853 (1961), and cases therein cited.
See Rule 14a-8 (c) of the Securities and Exchange Commission, 17 CFR § 240.14a-8 (c) (1977); SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972).
See Pipefitters v. United States, 407 U. S. 385, 413-414 (1972); United States v. Automobile Workers, 352 U. S. 567, 572-573 (1957); United States v. CIO, 335 U. S., at 113, 115.
The exemption provided by the Massachusetts statute for contributions and expenditures in connection with any referendum question “mate
Dissenting Opinion
dissenting.
This Court decided at an early date, with neither argument nor discussion, that a business corporation is a “person” entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394, 396 (1886). Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Smyth v. Ames, 169 U. S. 466, 522 (1898). Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment “is the liberty of natural, not artificial persons.” Northwestern Nat. Life Ins. Co. v. Riggs, 203 U. S. 243, 255 (1906). Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, Gosjean v. American Press Co., 297 U. S. 233, 244 (1936), and that a nonprofit membership corporation organized for the purpose of “achieving . . . equality of treatment by all government, federal, state and local, for the members of the Negro community” enjoys certain liberties of political expression. NAACP v. Button, 371 U. S. 415, 429 (1963).
The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court.
Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law:
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created.” Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819).
The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their charters and regulated by
There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business.
It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.
One need not adopt such a restrictive view of the political liberties of ‘busiñ'ékk'corporations to affirm the..judgment of the Supreme Judicial Court in this case. That court reasoned that this Court’s decisions entitling the property óf a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expres
I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court’s factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid.
It is true, as the Court points out, ante, at 781-783, that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth’s decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity. Cf. Maher v. Roe, 432 U. S. 464,474 (1977).
I would affirm the judgment of the Supreme Judicial Court.
Our prior cases, mostly of recent vintage, have discussed the boundaries of protected speech without distinguishing between artificial and natural persons. See, e. g., Linmark Associates, Inc. v. Willingboro, 431
Appellants Wyman-Gordon Co. and Digital Equipment Corp. are incorporated in Massachusetts. The Gillette Go. is incorporated in Delaware, but does business in Massachusetts. It is absolutely clear that a State may impose the same restrictions upon foreign corporations doing business within its borders as it imposes upon its own corporations. Northwestern Nat. Life Ins. Co., 203 U. S. 243, 254-255 (1906).
Appellants First National Bank of Boston and New England Merchants National Bank are organized under the laws of the United States. In providing for the chartering of national banks, Congress has not purported to empower them to take part in the political activities of the States in which they do business. Indeed, it has explicitly forbidden them to make any “contribution or expenditure in connection with any election to any political office.” 2 U. S. C. § 441b (a) (1976 ed.). Thus, there is no occasion to consider whether Congress would have the power to require the States to permit national banks to participate in political affairs. Cf. McCulloch v. Maryland, 4 Wheat. 316 (1819).
The Court concedes, ante, at 781, that, for this reason, this statute poses no threat to the ordinary operations of corporations in the communications business.
It does not necessarily follow that such a corporation would be entitled to all the rights of free expression enjoyed by natural persons. Although a newspaper corporation must necessarily have the liberty to endorse a political candidate in its editorial, columns, it need have no greater right than any other corporation to contribute money to that candidate’s campaign. Such a right is no more “incidental to its very existence” than it is to any other business corporation.
However, where a State permits the organization of a corporation for explicitly political purposes, this Court has held that its rights of political expression, which are necessarily incidental to its purposes, are entitled to constitutional protection. NAACP v. Button, 371 U. S. 415, 428-429 (1963). The fact that the author of that opinion, my Brother Brennan, has joined my Brother White’s dissent in this case strengthens my conclusion that nothing in Button requires that similar protection be extended to ordinary business corporations.
It should not escape notice that the rule established in Button was only an alternative holding, since the Court also ruled that the National Association for the Advancement of Colored People had standing to assert the personal rights of its members. Ibid., citing NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 458-460 (1958). The holding, which has never been repeated, was directly contrary to an earlier decision of this Court holding that another political corporation, the American Civil Liberties Union, did not enjoy freedom of speech and assembly. Hague v. CIO, 307 U. S. 496, 514 (1939) (opinion of Roberts, J.); id., at 527 (opinion of Stone, J.).
My Brother White raises, substantially these same arguments in his dissent, ante, at 809-810. However, his heavy emphasis on the need to protect minority shareholders at least suggests that “[t]he governmental interest in regulating corporate political communications,” ante, at 809, might not prove sufficiently weighty in the absence of such concerns. Because of my conclusion that the Fourteenth Amendment does not require a State to endow a business corporation with the power of political speech, I do not find it necessary to join his assessment of the interests of the Commonwealth supporting this legislation.
The question of whether such restrictions are politically desirable is exclusively for decision by the political branches of the Federal Government and by the States, and may not be reviewed here. My Brother White, in his dissenting opinion, puts the legislative determination in its most appealing hght when he says, ibid.:
“[T]he interest of Massachusetts and the many other States which have restricted corporate political activity ... is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process . . . .”
As I indicate in the text, supra, I agree that this is a rational basis for sustaining the legislation here in question. But I cannot agree with my Brother White’s intimation that this is in fact the reason that the Massachusetts General Court enacted this legislation. If inquiry into legislative
If one believes, as my Brother White apparently does, see ante, at 806, that a function of the First Amendment is to protect the interchange of ideas, he cannot readily subscribe to-the idea that, if the desire to muzzle corporations played a part in the enactment of this legislation, the General Court was simply engaged in deciding which First Amendment values to promote. Thomas Jefferson in his First Inaugural Address made the now familiar observation:
“If there be any among us who would wish to dissolve this Union or to change, its. republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” J. Richardson, A Compilation of the Messages and Papers of thé Presidents 310 (1897).
One may entertain a healthy skepticism as to whether the General Court left reason free to combat error by their legislation; and it most assuredly did not leave undisturbed corporations which opposed its proposed personal income tax as “monuments of the safety with which error of opinion may be tolerated.” But I think the Supreme Judicial Court was correct in concluding that, whatever may have been the motive of the General Court, the law thus challenged did not violate the United States Constitution.
Concurring Opinion
concurring.
I join the opinion and judgment of the Court but write separately to raise some questions likely to arise in this area in the future.
Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related — and some not — to their publishing and broadcasting activities. See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 248-254 (1974). Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries tó a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its “special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets . . . .” Post, at 809 (White, J., dissenting).
In terms of “unfair advantage in the political process” and “corporate domination of the electoral process,” post, at 809-810, it could be argued that such media conglomerates as I de
In terms of Massachusetts’ other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally.
Despite these factual similarities between media and non-media corporations, those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the “institutional press” — which are not extended to those
I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a “special” or “institutional” privilege. See Lange, The Speech and Press Clauses, 23 UCLA L. Rev. 77, 88-99 (1975). The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group:
“But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of*799 Religion and Government; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. . . .
“This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy . . . .” A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford’s The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734).
Indeed most pre-First Amendment commentators “who employed the term 'freedom of speech’ with great frequency, used it synonomously with freedom of the press.” L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960).
Those interpreting the Press Clause as extending protection only to, or creating a special role for, the “institutional press” must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. Lange, supra, at 89-91; (b) argue that events after 1791 somehow operated to “constitutionalize” this interpretation, see Bezanson, supra n. 3, at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See Nimmer, supra n. 3, at 640-641.
To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs,
The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange, supra, at 100-107. The very task of including some entities within the “institutional press” while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England — a system the First Amendment was intended to ban from this country. Lovell v. Griffin, supra, at 451-452. Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as ¡content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court’s opinions supports such a confining approach to the scope of Press Clause protection.
“Freedom of the press is a 'fundamental personal right’ which 'is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ . . . The informative function asserted by representatives of the organized press ... is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow*802 of information to the public . . . .” Branzburg v. Hayes, 408 U. S. 665, 704-705 (1972), quoting Lovell v. Griffin, supra, at 450, 452.
The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts’ position poses serious questions. The evolution of traditional newspapers into modem corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court’s refusal to sustain § 8’s serious and potentially dangerous restriction on the freedom of political speech.
Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. “[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. ‘. . . the liberty of the press is no greater and no less . . .’ than the liberty of every citizen of the Republic.” Pennekamp v. Florida, 328 U. S. 331, 364 (1946) (Frankfurter, J., concurring).
In short, the First Amendment does not “belong” to any definable category of persons or entities: It belongs to all who exercise its freedoms.
It may be that a nonmedia corporation, because of its nature, is subject to more limitations on political expression than a media corporation whose very existence is aimed at political expression. For example, the charter of a nonmedia corporation may be so framed as to render such activity or expression ultra vires; or its shareholders may be much less inclined to permit expenditure for corporate speech: Moreover, a nonmedia corporation may find it more difficult to characterize its expenditures as ordinary and necessary business expenses for tax purposes.
It is open to question whether limitations can be placed on the free expression rights of some without undermining the guarantees of all. Experience with statutory limitations on campaign expenditures on behalf of candidates or parties may shed some light on this issue. Cf. Buckley v. Valeo, 424 U. S. 1 (1976)
Language in some cases perhaps may be read as assuming or suggesting no independent scope to the Press Clause, see Pell v. Procunier, 417 U. S. 817, 834 (1974), or the contrary, see Bigelow v. Virginia, 421 U. S. 809, 828 (1975). The Court, however, has not yet focused on the issue. See Lange, The Speech and Press Clauses, 23 UCLA L. Rev. 77 (1975); Nimmer, Introduction — Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?, 26 Hastings L. J. 639 (1975); cf. Bezanson, The New Free Press Guarantee, 63 Va. L. Rev. 731 (1977).
The simplest explanation of the Speech and Press Clauses might be that the former protects oral communications; the latter, written. But the historical evidence does not strongly support this explanation. The
“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 Annals of Cong. 434 (1789).
The language was changed to its current form, “freedom of speech, or of the press,” by the Committee of Eleven to which Madison’s amendments were referred. (There is no explanation for the change and the language was not altered thereafter.) It seems likely that the Committee shortened Madison’s language preceding the semicolon in his draft to “freedom of speech” without intending to diminish the scope of protection contemplated by Madison’s phrase; in short, it was a stylistic change.
Cf. Kilbourn v. Thompson, 103 U. S. 168 (1881); Doe v. McMillan, 412 U. S. 306 (1973) (Speech or Debate Clause extends to both- spoken and written expressions within the legislative function).
It is not strange that “press,” the word for what was then the sole means of broad dissemination of ideas and news, would be used to describe the freedom to communicate with a large, unseen audience.
Changes wrought by 20th century technology, of course, have rendered the printing press as it existed in 1791 as obsolete as Watt’s copying or letter press. It is the core meaning of “press” as used in the constitutional text which must govern.
Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931),which examined the meaning of freedom of the press, did not involve a traditional institutionalized newspaper but rather an occasional publication (nine issues) more nearly approximating the product of a pamphleteer than the traditional newspaper.
Reference
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- FIRST NATIONAL BANK OF BOSTON Et Al. v. BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS
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