As a longtime corporate law practitioner who has also taught law and written law review articles on corporate governance, I cannot help but express mixed feelings on Professor John Coates’ thoughts [“Will Corporate ‘Speech’ Undermine Productivity?,” Spring 2015].
On the one hand, I share his view that in too many cases, corporate executives do a disservice to their organizations and customers with an inordinate focus on legal issues. Whether this involves lobbying efforts regarding public policy matters which may impact the organization or more mundane corporate or contractual issues, it is usually antithetical to the needs of customers, employees, communities and ultimately firms themselves. Time devoted to such topics could and should be spent more productively on development of better products/services or provision of better service to the marketplace. Professor Coates is entirely correct that as a matter of policy, corporate “speech” is likely to be a waste of time and resources—at best. Hopefully, large institutional and other shareholders will heed this message and so advise corporate managements, and vote accordingly for directors.
However, I am not sure what any of this has to do with First Amendment law. It is universally understood that the amendment exists to allow all political speech—not merely that which is or is deemed to be economically desirable or productive. Plausible arguments may be made for and against Citizens United based upon the text of the First Amendment and related jurisprudence and scholarship. I am not aware of any authority allowing or requiring that speech be scrutinized for its impact on productivity.
Indeed, much individual speech can be said to be economically unproductive such that the speaker or writer should be admonished to use their time for other things. I am sure that Professor Coates would agree that no court should or would incorporate such analysis into the consideration of whether the speech is protected by the amendment. As the Founding Fathers understood, today’s frivolous or “unproductive” speech often becomes tomorrow’s brilliant, groundbreaking idea.
I feel that it is essential that your readers put in context the difference between Professor Coates’ laudable advice to corporate management and the constitutional considerations expressed in your article.