Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79
Cal. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1798
Corporations' first amendment rights have received considerable judicial and scholarly attention in recent years. However, corporate speech cannot be studied adequately in isolation; rather, it is more fruitfully investigated within the broader context of collective speech. The author accordingly presents a theoretical framework for dealing with communications by different types of collectivities. The main distinction is between two paradigm collective entities: organizations and communities. Although it makes sense to ascribe speech to both, the grounds for extending constitutional protection are fundamentally different. Whereas communal speech has in and of itself expressive value that raises the first amendment's primary concerns, organizational speech does not. Instead, the latter has only derivative constitutional value, and its protection is parasitic upon other protected interests that the organizations' communications may promote. Moreover, organizational communications themselves are not unitary in nature, The author develops a typology of organizations that distinguishes the reasons for and the desirable extent of protecting their respective communications. Finally the author considers "government speech," demonstrating how the classification of collectivities and their speech rights applies to communications by various state institutions and helps to differentiate the constitutional status of these communications.