Today, the CEOs of nine corporations sent a letter to Indian Governor Mike Pence, urging him to modify or clarify RFRA. Yesterday, Apple CEO Tim Cook published an Op-Ed in the Washington Post, expressing his dismay with RFRA. (He stopped short of closing all Apple Stores in Indiana and all other states with RFRAs –he would be removed by his shareholders for doing so–and said nothing about Apple’s continued business with China, a horrific violator of every human right imaginable).
These letters and editorials were all signed by the CEOs in their corporate capacity. They were no doubt written using computers paid for by corporate funds, on company time, were likely edited by other employees of the corporation, and were likely marketed by other employees of the corporation. Every word of these letters were products of corporate speech. Yes, imagine that. Cook could have written the Op-Ed in his individual capacity–but doing so would be harder than you think. He would have to use a computer he purchased from his personal funds, could not involve any Apple employees in proof-reading, editing, and publicizing the letter. Separating these two pots of money is harder than you think–compliance costs are expensive and time-consuming. And I doubt the Washington Post would publish an editorial if he refused to be identified as the executive of Apple.
I have absolutely no problem with these socially-conscience corporations expressing their views on laws, and seeking legislative change. I think these activities are, and should be protected by the First Amendment. But, not everyone agrees. If we take seriously the meme that “corporations are not people,” Indiana, or any other state, could pass a law that prohibits corporations from spending any corporate funds to criticize the government. If you wish to petition for a redress of grievances, the law would state, do so in your individual capacity. You cannot do so with any corporate funds. Corporations are not people!
Think of Citizens United–the government sough to block a group from releasing a movie during the election season if it was paid for by corporate funds! You are welcome to direct, produce, edit, and market the movie by yourself–just like Tim Cook could have written the op-ed with his personal resources.
Corporations are a group of people who assemble to achieve a common goal. Some of these goals may implicate criticizing government or candidates. Apple, and Citizens United alike, should be afforded First Amendment rights.
This is not to say there are no limits on spending and the like, but the threshold question of whether corporations should be allowed to speak is easy.