Organizations’ Derivative Speech Rights
This negative conclusion does not, however, exhaust the possibilities of applying the First Amendment to organizations. Though organizations do not have active original speech rights, they may be the bearers of various derivative speech rights. But as we have seen, derivative rights provide their bearers a weaker protection than original rights, and so ascribing to organizations derivative speech rights qualifies the protection due to organizational communications compared to that extended to individual expression. In examining organizations’ derivative speech right, I start with a right shared by all of them. This is the passive right, derived from the prospective audience’s original First Amendment right to listen. Insofar as organizations are irreducible sources of communication to which the public is entitled to listen, it makes perfectly good sense to ascribe this kind of right to them.
What are the implications of ascribing to an organization this type of right? In order to assess the level of protection to which a derivative speech right entitles its bearer we need distinguish between “internal” and “external” concerns that stand in opposition to the right. By external concerns I refer to interests and values different from those protected by the derivative right itself. Take, for example, the argument mentioned earlier, that an economic reason exists for subjecting corporate political speech to a requirement of unanimous shareholder consent. Otherwise, the argument goes, the practice of “[a]llowing capital to be raised on the condition that its contributors permit management to use it for political purposes ... may increase the cost of capital.”9 The argument fails, since a derivative autonomy speech right is intended to protect the listener’s autonomy interests precisely against such economic non-autonomy-based reasons. The opposite holds when a derivative right encounters an internal concern, by which I mean a concern for the same autonomy interests that the derivative right is itself intended to protect. Such, for example, is the argument that due to the wealth and the size of corporations, “their views may drown out other points of view.”10 In this case, both the derivative speech right and its proposed curtailment advance the same interest and so draw their normative strength from the same source: individual listeners’ ability to form independent and informed judgments based on free access to information and ideas. Curtailing corporate speech for this reason is accordingly consistent with allotting them the passive derivative right by which their speech is protected.
As we have seen, ascribing to organizations passive derivative speech rights does not exhaust the range of speech rights that may apply to them, since they may also possess active derivative speech rights—that is, rights derived from the original rights of some speaker and based on the function the organization performs with regard to that speaker’s communications. Here the picture is more complicated since greater variety among organizations exists in this regard. In canvassing this variety it will be useful to follow the tripartite division of organizations into commercial, protective, and expressive I’ve mentioned at the outset. I consider them in reverse order, starting with expressive organizations. This is a large and heterogeneous category that includes political organizations of various kinds, media organizations, trade unions, and many other nongovernmental organizations. By joining such organizations, the individual members delegate their self-expression regarding a range of issues to the organization and acquiesce in having their views represented by it. In doing so, each member must recognize that the organization’s communications may distort the message that members themselves would like to convey. By delegating speech to the organization, individuals thus trade accuracy for volume. Given this implicit and often advantageous tradeoff, it makes good sense to ascribe to the organization’s speech derivative value, and protect it by a right that is derived from the individual members’ original right to self-expression.11 Still, as in the case of an organization’s passive derivative speech rights, a derivative active speech right does not endow an organization with unqualified First Amendment protection. Since the constitutional protection of expressive organizations’ speech depends on the delegation, such protection is justified only as long as the organization fulfills the terms and purposes of the delegation. The internal structure and the decision-making processes of expressive organizations thus become matters of public, indeed constitutional, concern.
Communications produced by a bureaucratic structure that has become sufficiently entrenched and fossilized so as to lose connection with the members on whose behalf it purports to speak will have lost their claim to expressive value. The specter of the membership organization without any members is the limiting case.12
Similar considerations apply to protective organizations, which are designed to protect some individuals’ self-expression, and so possess active derivative rights under the First Amendment. Consider the university. Characterizing the university as a protective organization draws on the view that academic freedom is an instance of self-expression,13 and that protecting academic freedom is one of the university’s central goals.14 For example, universities allocate to their faculty members the resources needed for their research without at the same time imposing on them restrictions that would interfere with their academic pursuits. A certain degree of independence of the university’s decision-making processes may be necessary in order for it to fulfill this function, thus endowing the university with an autonomy right that derives from the faculty members’ original right to academic freedom. Adequately protecting this right requires that a similar protection be extended to those liberties and immunities of the university that are deemed necessary for securing researchers their original speech rights. Consequently, if utilitarian considerations are generally deemed insufficient to override a professor’s right to academic freedom, the university’s derivative rights necessary for protecting professors’ academic freedom must also be immune to adverse utilitarian considerations.
However, determining the scope of a protective organization’s derivative right is not a simple matter. No great difficulties would arise if the university were meticulously serving the single goal of protecting the faculty’s freedom of speech. If this were the case, the university’s derivative right would be coextensive with its entire activity. Any successful claim to “injury” made by such an organization (i.e., any successful claim that an event constitutes an impediment to the achievement of its goal) would ipso facto pose a threat to the organization’s derivative right. In this case, the university’s claim to autonomy would be fully supported by the faculty’s underlying original right. But such alignment between an organization’s derivative rights and the underlying original rights is in fact unlikely, for at least two reasons. One is the multiplicity of organizational goals. As is typical of large organizations, the university pursues a variety of goals, some of which are unrelated to anyone’s academic freedom. In that case, the university may try to rely on its derivative rights to institutional autonomy in the service of any of those other goals, thereby trying to extend the derivative right beyond its legitimate scope as defined by the underlying original speech rights it is designed to secure.
The other source of discrepancy between the organization’s derivative rights and the original speech rights is organizational goal displacement.15 For example, subunits within the organization may engage in activities geared toward the accomplishment of their own subgoals in a way and to an extent that do not necessarily comport with the achievement of any of the organization’s goals. These subunits may invoke the organization’s rights in protection of the units’ particular goals, even though the activities concerned do not in fact contribute to, and may even hinder, the original rights from which the organizational right is derived. The campus police, for example, and other disciplinary authorities may pursue their departmental subgoal of preserving “law and order” zealously and single-mindedly, and so in ways that are detrimental to academic freedom. And yet here too the university may invoke its institutional autonomy, expressed in the idiom of academic freedom, as an argument against judicial interference with a university’s disciplinary proceeding that results, say, in the expulsion of a student who had participated in a demonstration on campus.16
Finally, these comments about the ways various organizations may acquire active derivative speech rights imply a negative conclusion in this respect for the first category of organizations we’ve distinguished. The goals or mission of commercial organizations, of which business corporations are by far the most prevalent specimen, concern the promotion of society’s economic welfare through the production and distribution of goods and services. Since the goals that ground a business corporation’s social legitimacy are of utilitarian value, so also is their speech. Like other corporate activities, their communications are not protected by the kind of strong, autonomy-based rights that are capable of overriding conflicting considerations of social utility. The mandate of a business corporation does not ordinarily include the protection of anyone’s speech, nor does the corporation engage in representative speech. None of its stakeholders’ affiliation with the corporation, in particular that of its shareholders and employees, includes a delegation of any speech activity to it with an understanding that the corporation may speak on their behalf.