That’s one question that John Coates, a professor at Harvard Law School and a former corporate lawyer, explores in a recent survey of what he calls “the corporate takeover of the First Amendment.” According to Coates, companies are now the beneficiaries of cases involving the First Amendment just as often as individuals, and the frequency of those cases has been rising since the mid-70s. This represents a troubling appropriation of the law: “Power is taken from ordinary individuals with identities and interests as voters, owners, and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money,” Coates writes.

To determine the most-frequent beneficiaries of First Amendment, Coates analyzed the 423 Supreme Court cases between 1946 and 2014 that dealt with questions of speech. He noticed a turning point in the data in 1975, the year that the Court decided Virginia Pharmacy, a case that overruled the precedent that commercial speech deserved no First Amendment protection. (The case involved a drug store that wanted to advertise its prices, and was challenging a ban that would have prevented it from doing so.) Before Virginia Pharmacy, businesses were involved in an average of 1.5 free-speech cases per year, and they had a 20 percent win rate. After, they were involved in 2.2 cases per year, with a 55 percent win rate.

The Percentage of First Amendment Cases Involving Businesses, 1946-2001

Coates

The large jump in the 1970s came shortly after Justice Lewis Powell joined the Supreme Court. Powell was well known as a proponent of corporate interests at a time when anticorporate sentiments began agglomerating—a confidential memo he wrote that went public the year before began serving indicates as much. “The time has come,” he wrote to the director of the Chamber of Commerce, “for the wisdom, ingenuity and resources of American business to be marshaled against those who would destroy it.” Suffice it to say Powell sided with the drug store in 1975, and many other businesses during his 15-year tenure.

(In order to make sure that the data wasn’t being warped by the fact that the Supreme Court is highly selective in the cases it takes on, Coates also examined data from appeals courts. He found that the number of cases citing Central Hudson, a 1979 case that formed an important basis for corporate speech, has increased each year since then. Coates's methodology is convincing, but the possibility does remain that what has increased in recent decades is not corporations' desire to appropriate the First Amendment, but regulators' likeliness to try to regulate, for instance, advertising language—in which case an escalated reliance on free-speech precedents could be read as a creative defense rather than a shrewd arrogation of power.)