What’s First Amendment law got to do with it?

Will Corporate Speech Undermine Productivity_(HLB Spring 2015)

Credit: Mitch Blunt

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.



John Coates responds:


Credit: Frank Monkiewicz Professor John Coates.

I appreciate Mr. Robins’ comments and agree that corporate managers may be misspending corporate funds when they focus on lobbying and legal tactics. I also agree that no legal conclusion follows directly from speech being economically unproductive. We will have to disagree about other points. Nothing in Supreme Court precedents or the text of the First Amendment supported the result in Citizens United. On the contrary, Citizens United expressly conflicts with two prior Supreme Court decisions, and more generally conflicts with 150-plus years of judicial deference to prudential decisions of Congress and the states in the regulation of corporate behavior, including speech and participation in elections. On text, even a literalist would have to confront the fact that Congress cannot help but affect someone’s ability to use corporate funds to express their views whenever it regulates corporate governance—and it would be absurd to suggest that no changes in corporate governance are ever constitutionally permissible because of the First Amendment. Nothing in the First Amendment’s text allocates power among shareholders, directors and managers over the use of corporate funds for any particular purpose. Economic productivity is relevant, then, as a basis for policy, and as a valid way to fill gaps in constitutional meaning. Good policy—and good law—would deny corporate managers the right to seek profit at both shareholder and taxpayer expense through socially unproductive lawsuits and lobbying.


Criminal defense clinic also benefits prosecutors

Criminal Justice Institute (HLB Spring 2015)

Credit: Mark Ostow

I took CJI: Criminal Defense in my 3L year (and the Trial Advocacy Workshop). I had the great privilege of being taught by Professors Charles Ogletree [’78] and Mary Prosser, who were and remain mentors and friends. In those classes, I learned from the best defense lawyers in the world how to be a defense lawyer, and how defense lawyers think and why they do what they do. I also conducted a jury trial, obtaining an acquittal on behalf of my client charged in Roxbury court with a mandatory minimum drug offense—in what remains one of the best and most rewarding moments of my career. In CJI, I learned how to be a lawyer—a real lawyer.

And then I became a prosecutor. I worked as a prosecutor for 12 years, at Main Justice in the Honors Program, the United States Attorney’s Office for the District of Columbia and the United States Attorney’s Office for the Southern District of New York. Then I established and ran a nonprofit organization at NYU School of Law devoted to studying and improving the exercise of prosecutorial discretion, before departing for my current position at the law firm Jenner & Block, as a partner in its white-collar practice.

Because of what I learned and from whom I learned it in CJI, I was a better prosecutor. I’m sure that, as a result of those classes, I was more effective in bringing and prevailing in cases on behalf of the government. But more importantly, I better understood the defense function and appreciated it, and exercised my discretion as a prosecutor more sensitively and appropriately.

Your wonderful [Spring 2015] article [“First Line of Defense”] described accurately the incredible experience gained by HLS students in CJI. It also properly noted that about half of CJI students go on to be public defenders, which is wonderful. I think it is worth noting that the experience and education received in CJI are equally valuable and important for students who go on to careers as prosecutors.



It’s time for liberals to deal with the here and now

The Spring 2015 edition of the Bulletin is brilliant in its organization, presentation and interesting content. However, I am tired of reading of academicians’ and community activists’ revisits to poverty, civil rights abuses, and “justice denied.” We need to move forward from regurgitating the horrors of lynchings, segregated schools and victimization. That’s so 1950s. Instead, how about some creative attention to the real present-day problems of our society, and of people of color especially—fatherless families; out-of-wedlock births; the unending cycle of dependence on social welfare; a culture sanctioning petty criminal offenses; excuses couched as prejudice, discrimination. Where is the applause for local law enforcement? Isn’t it a crime to shoplift or sell untaxed cigarettes? We need to be unaccepting of “woe-is-me” attitudes and the standard script of “My son’s a good boy. He’d never do what he’s accused of.” It’s time for well-intentioned but behind-the-times liberals to deal with the here and now.



What about the social injustice of our tax system?

There were many interesting articles and notes in the Spring 2015 Bulletin and I enjoyed reading it. But overall its content and tone are overtly left-wing, full of (self-declared) “social justice” issues and animus toward business and corporations. I would like to see more balance in your coverage choice of topics. Perhaps an article on the social injustice of a tax system that confiscates over half the wealth I create to spend it on causes and programs I don’t support?



Kudos from a direct descendant

Spotlight-Magna,-Cum-Laude-672As a member of the Baronial Order of Magna Charta founded in 1898 and a direct descendant of several of the Barons and King John (it is nice to hedge one’s bet!), I read with interest “Magna, Cum Laude” (Spring 2015). The collection of related items housed in the HLS Library is most impressive as only four copies of the original 1215 charter remain in existence, held by the British Library and the cathedrals of Lincoln and Salisbury. As a Dartmouth history major prior to attending [Harvard] Law School, I commend the Bulletin for featuring this iconic piece of English legal and cultural heritage on this its 800th anniversary.