II. ORGANIZATIONAL SPEECH
Can Organizations Speak?
Before we discuss the protections due to organizational speech, we must address a threshold question: is organizational speech distinct from the communications of particular individuals? In other words, can organizations speak? Indeed, one line of opposition to extending First Amendment protection to corporate speech denies the existence of such speech, maintaining instead that only individuals can communicate. Talk of corporate speech in particular, and organizational speech more generally, is seen as a misleading way of referring to the views of those in control combined with their expending corporate or other organizations’ resources to disseminate these views.4 If the messages transmitted by an organization are always attributable to specific individuals, withholding First Amendment protection from such putatively organizational speech would result in no loss in communicative content. The same ideas and information would remain in circulation, with the additional advantage that their individual sources would be exposed rather than hidden behind an organizational veil.
To those, like myself, averse to extending to organizations full- fledged First Amendment protections, this line of reasoning is tempting, since it offers an easy way out from a normative conundrum. But the temptation must be resisted. Ascribing speech to organizations makes sense, and does not require resorting to anthropomorphism or spooky metaphysics. In considering the constitutional status of organizational and specifically corporate speech, we must accordingly grapple with the normative issues that arise once we recognize that such speech exists. The grounds for ascribing speech to the organization rather than to any particular individuals have been laid in previous chapters, specifically in our discussion of two pivotal notions: organizational decision-making and organizational roles.5 As we have seen, one of the main, and indeed defining, features of formal organizations is a decision-making process geared toward the attainment of the organizational goals. Implicit in the notion of decision making are two other notions: information and preferences. And for reasons we have already mentioned, neither the information nor the preferences involved are reducible to the information and the preferences that are associated with particular individuals. An organizational communication, like other products and performances we ascribe to organizations, is the result of decision-making processes that combine preferences with information in ways that create an ineliminable gap between the individual inputs and the global, organizational output. Consequently, speech, no less than widgets, may be a global, nondistributive phenomenon, emanating from the organization without being traceable or reducible to individual utterances.
The foregoing description of organizational speech as the joint and undifferentiated product of complex decision-making processes does not, however, always apply. Sometimes, the speech we ascribe to the organization is uttered by a specific, identifiable individual. But even in this simpler case, the organizational perspective cannot be avoided and a constitutional analysis in terms of the individual speaker’s own selfexpression would not do. Statements made by organizational position- holders carry with them the understanding that they are made “from the organizational point of view” and in one’s “official capacity.” Such speech cannot be extracted from the organizational context and viewed instead as uttered by the speaker in her individual capacity and on her own behalf: the speaker may be neither inclined nor able to perform the same speech acts outside of her office hours, so to speak. Failure to recognize that such speech is made in the speaker’s official capacity and is thus ir- reducibly organizational in nature, and the consequent failure to protect it as such, may result in this particular message being lost.