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Battle Over SOPA Shows Why Corporations Need First Amendment Protection

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BY PETER SCHEER

Successful technology firms pride themselves on their capacity to disrupt the established order. The reference is usually to a technological advance that poses an existential threat to an entrenched industry or way of doing business. Think of Apple Computer's impact on the cellphone and music industries, Google on the sale and delivery of advertising, or Amazon on book publishing-to name just a few.

But in their recent protests against anti-piracy legislation pending in Congress -- the Stop Online Piracy Act, "SOPA," and companion legislation in the Senate -- high-tech firms demonstrated, for the first time, their awesome capacity for "creative destruction" of a political establishment that they see as hostile to their interests.

Literally within hours of Wikipedia going dark and Google covering its logo with the black band of censorship, members of Congress were running for the exits, disavowing their previously pledged support for SOPA. Legislators barely hesitated before reneging on literally decades of accumulated political debts to Hollywood interests, the principal backers of the anti-piracy bill.

These politicians cowered before the emergence of a new political institution -- more powerful even than the traditional media, the so-called "Fourth Estate," in its heyday. Call this new institution, the corporate power brokers of Silicon Valley and other digital meccas across the country, the Fifth Estate. Pulling the plug on SOPA was the occasion for their political coming out.

Shrewdly, the Fifth Estate selected a political strategy that relied entirely on symbolic expression. The online anti-SOPA protests involved no threats of violence, no coercion, no overnight camping in public parks or blocking of street traffic during rush hour. Municipalities were not required to pay overtime to police. Taser guns and pepper spray remained holstered. And there were no injuries.

The Fifth Estate's tactic of symbolic protest was the essence of constitutionally protected expression.

In this context it is worth noting that the First Amendment rights on display in this debate were secured by the US Supreme Court's controversial decision in Citizens United v. Federal Election Commission. That misunderstood case is reviled in some quarters for its affirmation of the First Amendment rights of corporations. Indeed, in the aftermath of the Citizens United decision, a cottage industry has emerged to advocate legislation (or, God forbid, a constitutional amendment) to curb the influence of corporations in the political sphere.

Their good intentions notwithstanding, those who believe corporations have no free speech rights (or that they should have, at most, a second-rate version of the free speech protections for individuals), should realize that only the First Amendment stands in the way of governmental punishment-legislative, regulatory or otherwise-against Google and other Fifth Estate corporations for their inciting of public opinion against SOPA-style legislation.

Think of how many members of Congress, humiliated (or at least humbled) by the anti-SOPA blow-back on the internet, would love to not only punish the Fifth Estate for its political impudence, but to neuter it permanently-for example, by blocking corporate acquisitions, unleashing antitrust and SEC investigations, or instigating IRS scrutiny.

One does not have to be a Ron Paul supporter to appreciate that for corporations (like Google, Twitter, Facebook and Microsoft), there is nothing more intimidating than being in the cross-hairs of government law enforcement agencies, egged on by pissed-off members of Congress with power over the agencies' budget appropriations.

Corporations, no less than individuals, need First Amendment protection for their criticism of government and advocacy of policies opposed by government. They need this protection for themselves, for their employees, and for their shareholders and customers.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). The views expressed here are his alone, not necessarily those of the FAC Board of Directors.

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