Let's talk about that flag.

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Confederate Flags and the Citizens United Effect

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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After the Charleston massacre, heads of companies from Apple to Salesforce.com to Airbnb have called for the retiring of the Confederate battle flag that now flies over a memorial near the South Carolina state capitol. I think that’s grand. The flag is doomed, and I’ll be as delighted as anyone when it’s lowered for the final time. Yet this flurry of activity sparks a subversive thought: Suppose a South Carolina law prohibited corporations doing business in the state from challenging the flag. Would the law be unconstitutional?

The answer matters. Since the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, activists, academics and politicians have derided the majority’s conclusion that corporations possess a significant right to free speech under the First Amendment. Yet free speech would be the obvious ground that a company would cite in challenging the hypothetical South Carolina statute. After all, it is corporate speech that the law would be restricting.

The same irony arose in the recent contretemps over the Indiana religious freedom law, since amended, that many saw as a vehicle for discrimination. Here’s Tim Cook, CEO of Apple, expressing corporate dismay: “On behalf of Apple, I’m standing up to oppose this new wave of legislation -- wherever it emerges.” Cook was plainly trying to influence the public policy of the state, but according to his own words, he wasn’t speaking for himself. He was speaking for his company. And he and other corporate chieftains had an impact, as Indiana Governor Mike Pence and his allies raced for cover.

Of course, one might object that Cook and others who criticized Indiana, like those criticizing South Carolina, are engaged only in lobbying, not in trying to affect the outcome of an election. Such an objection, however, would be ironic indeed. We have essentially no data to support the claim that corporate money has any significant effect on electoral outcomes, but we have decades of theory, data and experience to tell us that corporate money affects legislative and regulatory outcomes.

Lobbying is widely considered First Amendment activity. On the other hand, it has also long been subject to regulation. To match the form in which many of the rules come, we could reimagine our hypothetical South Carolina law, so that it now provides that no corporate funds of any entity doing business in the state may be used to argue against the flying of a Confederate flag. Such a statute would be racially wicked, as well as politically unwise. But I take it, on the corporations-aren’t-First-Amendment-persons argument, that it would be entirely constitutional.

And that would be a problem. I think it’s perfectly appropriate for companies doing business in South Carolina to weigh in on the Confederate flag. In so doing, they are engaging in political speech -- activity at the heart of the First Amendment. I tremble to think that the government has the power to make them shut up.

Here I’m with the American Civil Liberties Union, which says of proposals to overturn Citizens United: “Any rule that requires the government to determine what political speech is legitimate and how much political speech is appropriate is difficult to reconcile with the First Amendment. Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them.”

I could be wrong, of course. The constitutional question is not uncomplicated. You might think Citizens United is a travesty. You might think for-profit corporations shouldn’t have the right to engage in political speech. But if that’s the case, then I take it that South Carolina would indeed have the power to forbid corporations from calling for the Confederate flag to come down. And that seems to me a terrible result.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net