Months before the 2024 election, University of Chicago law professors Anthony Casey, JD’02, and Tom Ginsburg were racing to finish an opinion piece for The New York Times.
They had written on why corporations should stay quiet on nonbusiness issues, and a new example to affirm that argument seemed to pop up every day.
“Taking a stand on controversial issues is difficult enough in a plural society,” Ginsburg said, “but it’s nearly impossible in a plural society with increasing polarization. For every customer you are satisfying with your corporate statement, you are alienating someone else.”
That calculus hasn’t gone anywhere—if anything, the stakes have only continued to rise. Corporate leaders face a landscape where First Amendment protections are strong but the political and business consequences of speaking out, or choosing silence, are unpredictable. In such a charged landscape, five Law School faculty weighed in on the rights, risks and strategy behind corporate free speech.
About a decade ago, Ginsburg—the Leo Spitz Distinguished Service Professor of International Law and faculty director of UChicago’s Forum for Free Inquiry and Expression—said there was a “virtue cascade,” a movement of consumers who wanted the companies they bought from to express messages in line with their own values.
By 2018, Edelman’s “Earned Brand” study found that 64% of consumers wanted companies to take a stand on social issues.
In an article published in the UChicago Business Law Review earlier in 2024, Casey and Ginsburg had written that corporations should consider a structured process for when to speak on issues, arguing that corporations should insist on institutional neutrality for political and social issues. Rather than responding to a given moment—a war, a controversy, a social movement—executives could point to their policy of commenting only on what impacts business.
In the pair’s later editorial for The New York Times, they found themselves scrambling to fine-tune their own message.
“The world was moving fast,” said Casey, the Donald M. Ephraim Professor of Law and Economics and faculty director of the Center on Law and Finance. “We had to be updating constantly before we got [the opinion piece] out.”
First Amendment rights and the limits of corporate speech
Expression may have the potential to influence consumer behavior, but it’s a protected right for corporations just the same as for any United States citizen.
Consumers may boycott, shareholders may sell, but if a government threatens or punishes a corporation for expression, that raises a serious First Amendment concern, according to Prof. Genevieve Lakier.
This wasn’t always true. Corporations aren’t mentioned in the Constitution, with most corporate free speech wins coming via the courts. In the late 1800s, corporate lawyers often used the 14th Amendment to ensure equal treatment of corporations by states, especially regarding tax law. And expression rights of corporations were often taken away—the Tillman Act of 1907 banned corporate involvement in federal election campaigns.
It wasn’t until the 1970s that corporations began to gain the right of expression. In First National Bank of Boston v. Bellotti, the Supreme Court struck down a statute that restricted corporations from participating in state ballot measures.
Perhaps the best-known corporate speech decision is 2010’s Citizens United v. FEC. In this case, the Supreme Court ruled that laws restricting the spending of corporations and unions are not consistent with the First Amendment. This decision allowed corporate money to enter politics.
The trend in courts for decades has been that the First Amendment protects corporate free speech. Even on controversial issues, such as religious freedom, corporations have rights. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court ruled that privately held, for-profit companies can be exempt from regulations that their owners object to for religious reasons.
Although corporations and people share the same free expression rights, asking whether corporations are people is the wrong question, said M. Todd Henderson, JD’98, the Michael J. Marks Professor of Law.
Instead, he said that it’s a good practice to ask whether recognizing that group expands the expressive or religious freedom of individuals: If The New York Times can have freedom of speech, Henderson said, doesn’t it make sense that Hobby Lobby also has religious rights?
How government pressure is reshaping corporate free speech
Lakier said recent years have brought a change in how we discuss free expression in the context of corporations.
The First Amendment is organized around a sharp divide between the public and private sectors, she said, and in the mid-2010s, many seemed to believe that corporate and commercial speech was too expansive and deregulated. But now, Lakier explained, many believe the system does not protect corporations from being swayed by government intimidation and other forms of informal control, like cutting federal funding.
“The problem is when the government is such a major player in the economic, political, social life of the country, especially the federal government,” she said. “When it finances so many projects, when it does business with so many private actors, and when it has such a forceful bully pulpit, maintaining these formal divisions is not always enough to fully protect the independence of the private sector.”
This has been seen in universities and law firms. While not public corporations, both types of organizations are part of the private sector and have been targeted since the 2024 election. Multiple universities came under investigation, with others losing millions of dollars in grants, largely due to their response to pro-Palestinian campus protests.
The Trump administration has used executive orders to target multiple law firms by blocking their access to federal buildings, removing security clearances and terminating government contracts. A number of these executive orders have been ruled unconstitutional in district courts.
Social media companies were in a similar position under the Biden administration, Lakier said. Many believed the Biden administration was overly aggressive in forcing social media platforms to report on information regarding the pandemic in ways the government deemed fit. Five social media users sued the Biden administration, but their lawsuit was struck down by the Supreme Court.
Should corporations speak out or stay neutral?
Ultimately, Ginsburg and Casey’s published piece in The New York Times advised corporate leaders to “keep their mouths shut.”
Unless the company or executive has a reason to speak up on something that directly affects business, having a norm of “institutional neutrality” would make it easy to stay silent on hot-button issues.
But sometimes, corporations have a good reason to speak out. In a 2008 article on corporate philanthropy and market altruism, Henderson and Anup Malani, the Lee and Brena Freeman Professor of Law, noted that corporations that do altruistic acts or express a point of view allow stakeholders to support businesses that support causes they favor.
“Staying quiet on issues may pay off in the short term,” said Asst. Prof. Hajin Kim, “but taking stands on bigger issues may lead to positive long-term results. For example, if a company wants to point to a bigger societal issue through its products, such as Patagonia’s environmental work, that may lead to a better corporate reputation.”
The main issue corporations face on free expression is navigating the path of disagreements between stakeholders, according to Casey. That, he added, plus the risk of looking disingenuous if walking back a big statement, is why speaking out can be a risk and why having a policy of staying silent on most issues can be freeing.
“But it must be done consistently for it to truly be freeing, otherwise the silence on certain issues stands out,” Casey said.
Staying neutral could come with a cost of its own. The 2025 Edelman Trust Barometer found that 53% believe that if a brand is not mentioning what it’s doing to address societal issues, they assume it’s doing nothing or hiding something, with 51% saying that they would be less likely to buy from that brand.
Kim said there may be an unexpected upside to the heightened risks to corporate expression—it separates genuine commitment from posturing.
“The positive side of the backlash is maybe this gets rid of virtue washing,” Kim said. “If people say that they're doing good, you feel like it's a more credible signal because they're saying that in an environment where they may get targeted or punished."
The future of corporate free speech
Ginsburg predicted companies will speak out less often in the coming years, whether they buy into institutional neutrality or not, given the potential social and political repercussions.
“The threat of unfavorable regulatory treatment from this administration makes it a tough environment to do business right now,” Ginsburg said. “Being a CEO is a harder job than ever before.”
Meanwhile, Lakier believes that the future of free speech for corporations has two potential paths to follow. On one path, greater limits are imposed on a government’s ability to demand political agreement from the private sector. On the other path, government control of expression expands, undermining the independent marketplace of ideas the First Amendment is supposed to protect.
As corporations currently have strong First Amendment protections, Lakier believes they should not be afraid to use them.
“Appeasement is not a good strategy for corporations, universities or individuals in a free society, so I would suggest that corporations commit to higher values,” she said.
Henderson took a different view, saying he believes capitalism will serve as a force of neutrality. Sometimes, a product is just a product—no need to attach a message—and he thinks society would be better if political speech and commerce were more separate.
“The bottom line is that companies are going to make a lot of mistakes, because they are faced with something that’s new,” Henderson said. “There’s no one in the boardroom who is skilled in thinking about these issues, because they’ve never faced issues like this before.”
