Organizational Speech and Individual Speech
Recognizing that organizations can speak seems to lead to the conclusion, unpalatable to many, that such speech deserves the same protection as individual speech. In an attempt to avoid this conclusion, especially in regard to business corporations, courts and commentators have appealed to “compelling state interests” that can supposedly override the legal protection due to such speech. These alleged interests vary, and they include such concerns as protecting the marketplace of ideas from domination by wealthy corporations, and making sure that investment opportunities not be affected by a corporation’s controversial political views.6 But as defenders of corporate free speech have been quick to point out, the same interests would justify what are generally believed to be impermissible restrictions on individual speech as well.7 Recognizing that corporations and other organizations can speak seems to present a dilemma between restricting individual as well as corporate speech to promote the kinds of interests just mentioned, or else giving full protection to corporate as to individual speech, thus compromising these interests across the board. A way out of this dilemma is to deny the assumption that once an organization’s activity qualifies as speech, it assumes the same constitutional status and is entitled to the same protection as a corresponding activity carried out by an individual. It is at this more fundamental level that the distinction between the legal treatment of individual and organizational speech must be drawn. Doing so, however, should not be too difficult, since the very same traits of organizations that warrant ascribing speech to them also mark their speech as distinctly impersonal, and so as lacking the expressive value of individual speech.
Seen as the products of the organization’s decision-making processes, the organization’s communications, no less than its operations in manufacturing widgets, are instrumentally oriented to some preconceived goals that provide the organization with its legitimacy and raison d’etre. Such communications are at odds with the discursive universe projected by the First Amendment. At the heart of the First Amendment lies an ideal of uninhibited human communication driven by the belief that the meanings constitutive of human life are always in flux, amenable to indefinite modification, elaboration, and reinterpretation. Specifically, the goals we pursue are forever contestable and revisable. An instrument, designed to effectively pursue and realize a given set of goals, does not fit in this discursive universe. It is part of the instrumental conception of an organization that its goals are externally provided, and that its performance is geared toward the attainment of these goals. To be sure, organizations too can revise their immediate goals from time to time, but they can do so (ex hypothesi) only within the limits set by the broader and more abstract goals set for them, and as a way of improving the accomplishment of those goals. They are not meant to participate in the open-ended “conversation of humanity” that is oriented, at whatever level of generality or abstraction, toward the ends of human life.
A similar conclusion applies to speech that is ascribed to an organization when uttered by specific individuals in their organizational capacity. To speak “on behalf” of an organization is to speak in one’s capacity as the holder of a distant role and so engage in detached speech. As we have seen before (in Chapter 1), one marker of such speech is an exemption from the norm of sincerity that ordinarily links speakers to utterances and gives speech its expressive significance. I have illustrated this point by the example of the telephone operator who thanks callers for their patronage of the corporation. It would be odd for such an operator to affirm his sincerity by adding “and I (or, we) really mean it.” The oddity results from the fact that this communication of gratitude is not designed to express the speaker’s state of mind. Indeed, the explicit affirmation of gratitude would be just as inappropriate even if while speaking to the customer the operator did in fact experience a surge of gratitude. The operator is not in violation of the condition of sincerity, but rather this condition does not at all apply to him.
It might be objected, in response, that the condition of sincerity is not really suspended in this case at all, but merely displaced, since the operator does not speak on his own behalf but on behalf of someone else. He engages in representative speech. Given his representative capacity he is simply the wrong person in whom to search for the intentions that animate the speech in question. Now, as a general proposition, this suggestion is quite plausible. Take a simple example: Rhonda reads to Susan a thank-you note she received from Sam. If Rhonda were to interrupt the reading and add the words, “and I’m really grateful,” referring to herself, we would think her deeply confused. But it would be altogether appropriate for her to interject the phrase, “and he is really grateful,” referring to Sam, on the evidence, let us suppose, of the large bouquet that accompanied the note. Some speech situations, in other words, may present a question as to who is the real speaker whose intentions ought to control the interpretation of a given utterance. These situations need not be exempt from the condition of sincerity that ordinarily applies to speech acts. Once the real speaker is identified, the condition of sincerity would apply to her. However plausible as the suggestion is in this case, it does not apply to the operator. If we try to track down the origin of the operator’s speech, we are most likely to be led to an AT&T public relations office or to an advertising firm. Someone in some such outfit must have come up with the idea that a standardized display of politeness on the operator’s part would enhance AT&T’s public image. The idea quite likely needed and received the approval of someone in the corporation’s management, whereupon the appropriate instruction was inserted into the operators’ manual. The most important aspect of this hypothetical scenario is that at no point does it involve anyone’s actual gratitude that the operator’s utterance might purport to express.8
In short, whether we view organizational communications as the undifferentiated product of a system of instrumentally oriented structures and processes, or as the detached production of the holders of some distant roles, such communications do not implicate the values of selfexpression and self-realization that underlie an individual speaker’s original First Amendment rights.
-  This is not, of course, meant to imply that only speech that engages directly with ultimatequestions regarding the meaning of life should be protected, nor do I enter the dicey issue ofwhat type of behavior should count as speech. For example, the decision how to dress up forwork, formally or casually, likely meets the criteria for First Amendment protection alongboth dimensions.