When the Supreme Court first began to breathe life into the First Amendment in the early twentieth century, the speakers who inspired the newfound protections were politically persecuted minorities: socialists, anarchists, radicals, and labor agitators. Today, however, in the aftermath of the 2010 Supreme Court ruling in Citizens United v. Federal Election Commission, which held that corporations have the same right as individuals to influence elections, the First Amendment is used by wealthy and powerful business interests seeking to overturn food-labeling laws, securities disclosure laws, and campaign finance regulations. Yet the seeds of this transformation were planted decades ago in a different Supreme Court case—though one eerily evocative of the Trump era—involving a blustery, dough-faced politician who railed against “fake news.”
Huey Long was Trump before Trump. The fiery populist governor elected on the eve of the Great Depression had an aggressive agenda to make Louisiana great again—and little tolerance for dissent. Long set up a state board to censor newsreels and another to decide which newspapers would be allowed to print profitable government notices. When the student paper at Louisiana State University published an unflattering editorial about him, an outraged Long—referring to himself, as autocrats often do, in the third person—sent in the state police to seize copies, saying he wasn’t “going to stand for any students criticizing Huey Long.”
After Louisiana’s larger daily newspapers came out against him, “the Kingfish” declared war. “The daily newspapers have been against every progressive step in the state,” Long said, “and the only way for the people of Louisiana to get ahead is to stomp them flat.” To do so, in 1934 Long’s allies enacted a 2 percent tax on the advertising revenue of the state’s largest-circulation newspapers. Long said the tax “should be called a tax on lying, two cents per lie.”
Led by the Capital City Press, the publisher of the Baton Rouge Morning Advocate, the newspaper companies challenged the advertising tax in court. They claimed the tax was an effort to silence those who questioned Long’s policies. Long had said as much, promising he was “going to help these newspapers by hitting them in their pocketbooks. Maybe then they’ll try to clean up.” As an editorial in the Morning Advocate warned, if the government can impose special taxes on newspapers that oppose the party in power then “the guarantee of a free press, written in the Constitution of the United States, is at an end.”
One problem for the newspaper companies, however, was that they were newspaper companies. They were corporations, and it was not at all clear that for-profit business corporations had free speech rights. Indeed, the prevailing law was on Long’s side.
In our time, the Citizens United decision has made the notion of constitutional rights for corporations an issue of vital public interest. Nineteen states have called for a constitutional amendment to overturn Citizens United, and groups like Common Cause, Public Citizen, and Move to Amend have proposed a “personhood” amendment that would declare that corporations are not people and have no constitutional rights. The issue returns to the Supreme Court this term in a high-profile case involving the First Amendment rights of a baker—and his for-profit corporation, Masterpiece Cakeshop—to refuse to sell a wedding cake to a same-sex couple.
Although the contention that, as Mitt Romney said, “corporations are people, my friend,” seems a very recent and contemporary controversy, corporations have in fact been seeking constitutional protections since the early nineteenth century. Businesses, of course, don’t march in the streets like women and minorities, but they did aggressively pursue expansive rulings of the Supreme Court to strike down laws regulating business. In 1809, the Supreme Court decided the first case on the constitutional rights of corporations in Bank of the United States v. Deveaux. By comparison, the Supreme Court’s first cases on the constitutional rights of African Americans and women were not decided until, respectively, 1857 and 1873.
In the early 1900s, the Supreme Court drew a line. The justices held that corporations were entitled to “property” rights but not “liberty” rights. If the government, for instance, used its eminent domain power to take a company’s land to build a road, the company had the same right as an individual to just compensation. Corporations, however, were not entitled to those rights associated with personal liberty, conscience, or democratic participation.
Applying this principle, the Supreme Court in 1907 ruled against a corporation that, like the Colorado bakery in this year’s wedding cake case, claimed a constitutional right to refuse to do business with certain customers. The company behind Tanforan racetrack, the home at one time of the legendary Seabiscuit, said its freedom of association was infringed by a California law requiring places of public amusement to serve any customer with a valid ticket—in this instance the publisher of a racing form. Even though the Supreme Court was amid a famously business-friendly phase in its history, the justices held that corporations did not have this liberty right.
Just a few years before the Louisiana newspapers’ case came to the Supreme Court, the justices had held that the freedom of the speech was a liberty right too. Would that same rule apply to the freedom of the press? When the Framers wrote the First Amendment, they were thinking of individual pamphleteers and printers, not media corporations. Given the Supreme Court’s view that corporations had no liberty rights, the newspaper companies might find themselves without any constitutional basis to challenge Long’s tax.
When the Louisiana newspapers filed their lawsuit to overturn the advertising tax in 1934, judicial doctrine on the First Amendment also seemed to favor Long. The First Amendment had been added to the Constitution in the Founding era, but the Supreme Court had only just begun to strengthen judicial protection of speech rights after World War I, when a widespread Red Scare led to extensive censorship of political dissenters. Under the Espionage Act of 1917 and the Sedition Act of 1918, “disloyal” speech became a crime.
President Woodrow Wilson aggressively enforced the law, rounding up socialists, radicals, and pacifists, especially in immigrant communities. More than 1,500 people were prosecuted, including the labor leader and five-time presidential candidate Eugene V. Debs; he ran his final campaign in 1920 from a prison cell after receiving a ten-year sentence for speaking out against the draft. One movie producer was convicted for making a film about the American Revolution that portrayed Britain, now an ally, in a negative light. The World War I crackdown on dissent was, according to Adam Hochschild in the Review, a “three-year period of unparalleled censorship.”
The Supreme Court did not interfere much with the persecution of dissenters, but the justices, led by Oliver Wendell Holmes Jr., began to see the dangers of restricting speech and to articulate stronger First Amendment principles. In a 1925 case involving an anarchist named Benjamin Gitlow, the Supreme Court held that state and local governments had to respect freedom of speech even though the First Amendment’s language refers only to federal laws (“Congress shall pass no law…”). In 1931, the justices struck down a Minnesota law that aimed to check the tawdry sensationalism of so-called yellow journalists by threatening to shutter papers that published “malicious, scandalous, and defamatory” material.
Still, the Supreme Court held to the old view that the First Amendment prohibited only “prior restraints.” Government was not allowed to prevent speech in advance, but could punish it after the fact—as Eugene Debs discovered. Long’s advertising tax was not a prior restraint and did not stop the newspapers from publishing anything. Both First Amendment law and the newspapers’ status as corporations created significant hurdles for Capital City and the other companies’ lawsuit.
The Louisiana newspapers, however, had something in common with radicals like Benjamin Gitlow: they, too, were political dissenters facing persecution by powerful government officials eager to quiet them. The advertising tax, like the Sedition Act and the Minnesota law, was being used to punish and silence those who challenged government orthodoxy—exactly the problem that had originally inspired the justices to make judicial protection of speech more robust.
The newspaper companies had another thing going for them: Long, like Trump, filled top government posts with friends and cronies who sometimes lacked the necessary qualifications. In 1932, Long appointed Alice Grosjean, his twenty-four-year-old mistress, as secretary of state in Louisiana. Long’s attorney general, Gaston Porterie, had recently been stripped of his law license for ethics violations. Loyal if nothing else, Long kept Porterie on and had the legislature create a new Bar Association, of which Porterie was promptly named president.
Porterie, who led the state’s defense of the advertising tax, proved to be in over his head. His argument concentrated on the wrong provisions of the Constitution, and as he was not conversant with the Supreme Court’s most recent free-speech decisions, he repeatedly misstated the law. In 1936, the Supreme Court ruled in favor of the newspaper corporations and struck down Long’s advertising tax.
To this day, that landmark decision is often cited for the principle that the freedom of the press protects against any form of censorship, even if not a prior restraint. What has been largely overlooked, however, is that the decision also provided for an important expansion of the rights of corporations.
Eager to establish new First Amendment protections, the Supreme Court rejected its own longstanding rule that corporations had only property rights under the Constitution. Although the freedom of the press was a “liberty” right designed to promote political deliberation and check the government, corporations enjoyed this right, too. In a modern society, the Court decided, media corporations had to have the freedom of the press for that right to be meaningful.
In the years to follow, newspaper companies would be at the center of many of the most important freedom of the press cases. In 1964, in New York Times Company v. Sullivan, the Supreme Court established the right of the press to criticize public figures. In the 1971 Pentagon Papers case, the Supreme Court sided with the New York Times Company and the Washington Post Company to allow publication of the sensitive documents about the Vietnam War. Although some critics of Citizens United might not appreciate it, The Post is a movie about a for-profit business corporation claiming constitutional rights.
Huey Long’s defeat in Louisiana newspapers’ case would provide cover for those seeking to expand the rights of other types of corporations. In the late 1970s, more than thirty years before Citizens United, First National Bank of Boston challenged a Massachusetts law restricting corporate spending on ballot measures. The state lawmakers defending the law argued that political speech was a liberty right inappropriate for a commercial corporate entity. In an opinion by Justice Lewis Powell Jr., the author of the influential “Powell Memorandum” that called for the political mobilization of business, the Supreme Court disagreed. Citing the Louisiana newspapers’ case as a leading precedent, Powell noted that corporations were no longer limited to property rights; they had liberty rights, too.
The Supreme Court would also rely on the Louisiana newspapers’ case to justify its decision in Citizens United: “Under the rationale of these precedents, political speech does not lose First Amendment protection simply because its source is a corporation.” Indeed, the Court envisioned campaign finance laws restricting corporations as a form of political persecution. Like the Louisiana newspapers, corporations were “disfavored speakers” being silenced by campaign finance laws for their unpopular views.
According to a recent study, corporations and their trade groups are behind nearly half of all free-speech cases these days. Businesses have used the freedom of speech to overturn laws requiring tobacco companies to put graphic warnings on cigarette packages, publicly held companies to disclosure of the use of conflict minerals, and food companies to notify consumers of genetically modified organisms. None of these cases would have been possible without the Louisiana newspapers’ case. Instead of a shield for persecuted dissenters from government orthodoxy, the First Amendment was transformed into a sword used by business to strike down unwanted regulation.
Months before the Supreme Court issued its groundbreaking decision in the Louisiana newspapers’ case, Long was assassinated. But the legacy of Long’s attempt at censorship remains. Although he was a populist who championed the little guy over big business, his authoritarian effort to mandate conformity to his views ultimately empowered the very corporate interests against which he so often inveighed.