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Malveaux, Miller, and Evans
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Roth, Pfeffer-Gillett, Parella, and Student
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Corporate Governance Speech
Get PDFThe State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including information forcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is accomplished. As a functional category, corporate governance speech serves vital private and public interests. Importantly, it is not commercial speech—notwithstanding the U.S. Securities and Exchange Commission (SEC)’s recent efforts to recharacterize its disclosure rules as commercial speech.
Recognizing corporate governance speech as a cohesive category leads to another conclusion: the corporation’s expressive interests cannot be burdened by laws regulating the internal communicative processes through which the corporation itself is constituted. This insight originates with Justice Lewis F. Powell Jr., one of the U.S. Supreme Court’s best regarded experts on corporate law, who once defended the constitutionality of the SEC’s Shareholder Proposal Rule as regulation of “speech by a corporation to itself.” It follows from Justice Powell’s insight that parties challenging corporate disclosure mandates cannot establish any burden on the expressive rights of the corporation or its managers. Building on this insight, this Article shows how a streamlined form of First Amendment scrutiny could be applied to the regulation of corporate governance speech, including the disclosure mandates that are ubiquitous in securities regulation. The Article argues for a First Amendment approach to corporate governance speech that is sensitive to the democratic processes governing corporate organization, and to the democratic nature of informationally efficient markets
Free Speech and Anti-Democratic Violence
Get PDFThe resurgence of far-right extremist groups—like “sovereign” militias, white supremacists, and avowedly fascist gangs—has exposed the First Amendment’s vulnerabilities to the “leaderless resistance” model of extremist organizing. This model, first popularized by white supremacist Louis Beam, specifically aims to insulate extremist leaders from liability when their followers engage in violence. It does so through fragmented structures and coded messages: Leaders use indirect references in speaking to disparate followers, without specificity (of targets) or immediacy (of corresponding violence), as required, e.g., for “incitement” under Brandenburg v. Ohio.
This Article makes three contributions. First, it articulates this “gap” with precision, drawing upon recent, mostly overlooked cases as clear referents for explaining the limits of extant free speech exceptions. Second, it reformulates Professor Clay Calvert’s recent proposal for opening extremist group leaders to vicarious liability, including a discussion of how to avoid overly broad adjustments that may impinge on other kinds of speech. Third, it presents an overarching critique of theoretical foundations in America’s free speech tradition which deserve more-sustained consideration from scholars and practitioners alike, including several fundamental—and potentially irreconcilable—tensions between justificatory theories which have been treated as complementary
Enforced Colorblindness
Get PDFThe time for race consciousness is over, and the era of enforced colorblindness is upon us. The dawn of this new age is troubling because it closes the door on effective strategies to achieve racial justice, including efforts to grant federal reparations. This Article analyzes the areas in which courts have invalidated race-conscious measures, with a particular focus on recent racial equity efforts by the Biden Administration. Rather than treating the loss of race consciousness exclusively as a loss to the movement for equality, this Article argues for a silver-lining approach. While court-led efforts to remedy the effects of slavery and Jim Crow have produced significant results, the weaknesses of this strategy also became apparent over time. Given that all principles of justice are subject to debate and reinterpretation, the oft-maligned bedrock principle of equality of opportunity (“EOO”) deserves a reassessment by progressives. Its moral weight and general acceptance by the public still provide a clarion call for substantive policies that will benefit minorities and disadvantaged people of all races