Sleeper & Greenwood on Why Corporate Speech Isn’t Free

Jim Sleeper and Daniel J.H. Greenwood posted “To Stop Gun Violence, We Need to Remember We Can Regulate Corporate Speech and Advertising” over at the Atlantic 8 days ago.  Here is an excerpt:

The problem isn't that the profit-driven, legally constrained corporations driving violent entertainment are malevolent; it's that they're civically mindless. They're inherently incapable of free speech because the positions they take are just the result of fiduciaries -- directors, managers and public relations officers -- attempting to maximize stock value without regard to their own values, or anyone else's. Advances in manipulative advertising and a narrow focus on profit have made them runaway engines that can't be persuaded by rational or moral appeals to stop inciting exaggerated fears of armed home invasion, government takeovers, or fantasies of victory by gunplay. So long as the law and stock market demand they pursue profit, and selling guns and vengeance remains profitable, they'll keep doing it….

These spectacles aren't calls for a Hobbesian war of all against all by some insurgent movement that, however dangerous, would have First Amendment protection. They're driven primarily by institutions that we as sovereign citizens created to serve our purposes. Our legislatures create the authority of corporate officials; we can stop them from using funds we placed under their control to destroy society's underpinnings.

[W]e need to re-energize the distinction between Constitutionally-protected free political speech and the legally permissible regulation of economic activity. The Supreme Court still recognizes a pale shadow of this difference, but in the Citizens United ruling and elsewhere it has come dangerously close to returning to the Gilded Age Lochner doctrine, which protected illegitimate economic power against the will of the people. The laissez-faire ideology of recent First Amendment jurisprudence mistakes economic regulation for censorship.