The Post-Truth First Amendment

Post-truthism is widely understood as a political problem. In this Article, I argue that post-truthism also presents a constitutional law problem—not a hypothetical concern, but a current influence on First Amendment law. Post-truthism, which teaches that evidence-based reasoning lacks value, offers a normative framework for regulating information. Although post-truthism has become a popular culture trope, I argue that we should take it seriously as a theory of decision making and information use, and as a basis for law. This Article uses the example of compelled speech to explore how post-truth rhetoric and values are being integrated into law. When the State compels speech, it pits the interests of speakers, mostly organizational actors with informational advantages, against those of listeners—mainly information end-users such as consumers, investors, and citizens. Because, increasingly, compelled speech law sets the ground rules for this political conflict between information-haves and information have-nots, it is fertile ground for post-truth ideas. It is therefore unsurprising to find compelled speech doctrines easing and restricting the flow of disclosures in ways that conform to post-truth ideas about what sorts of information people should use to make decisions. An example is the Zauderer doctrine, which calls for lax scrutiny of laws mandating disclosure of “uncontroversial” commercial information, and higher scrutiny of laws mandating disclosure of “controversial” information. Another is the government-filtering preference—a claim that, in compelled-speech cases, the State, not a private actor, must communicate particularly sensitive private-actor disclosures to the public. The Supreme Court endorsed both of these in its most recent compelled speech case, NIFLA v. Becerra. I show that controversiality tests and government-filtering preferences subvert core First Amendment principles and, by cutting off access to information or reducing its credibility, contribute to a post-truth information economy, in which the public’s ability to engage in truth-seeking, self-fulfillment, and self-government is constrained by its inability to obtain useful, trustworthy information at all

The CEO and the Hydraulics of Campaign Finance Deregulation

Voters increasingly view their consumer activities, not their campaign contributions, as the most meaningful way to participate in politics. In 2014, after it became public that Mozilla’s CEO, Brendan Eich, had made a controversial political donation in a state ballot proposition, consumer pressure led to his resignation. Eich’s downfall and the politicization of retail markets means that business leaders are unlikely to respond to McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Supreme Court has failed to anticipate. This Essay explores what “economic reprisal” means for business leaders—a significant segment of the so-called “donor class”—when consumers vote at the cash register

Facebook and Politicians’ Speech

In his Article Facebook’s Speech Code and Policies: How They Suppress Speech and Distort Democratic Deliberation, Professor Joseph Thai argues that Facebook skewed public debate with a policy that exempted politicians from its content-based rules. This Response updates the reader on Facebook’s retreat from this policy and identifies some preliminary lessons from it. Between May 2020 and January 2021, Facebook moved away from its “light touch” regulation of politicians’ speech by employing strategies like labeling and down-ranking—and, eventually, removal of content. After the January 6, 2021 insurrection at the U.S. Capitol, Facebook de-platformed President Trump altogether, putting a final end to the “hands off” policy and ushering in a new era in which, apparently, Facebook will more openly regulate politicians’ speech using curation strategies. The Response concludes that down-ranking is the next major front in the regulation of politicians’ speech

Delegated Corporate Voting and the Deliberative Franchise

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card without error); proxy-holders merely transmit the shareholder’s instruction as a formality. This shift is more significant than generally recognized because, as this Essay explains, it restores the potential for deliberative shareholder governance to the large, publicly held corporation. Furthermore, the shift has occurred at a moment in history when technologies exist to facilitate new processes of deliberative shareholder governance. Market actors now are leveraging technology to create such innovations as pass-through voting and advance voting instructions, and academic support is building for new rules that would require intermediaries to provide their beneficial holders with choice infrastructure. This is the realization of the New Deal project to make shareholder preference-satisfaction the crux of the share-holder franchise, and it holds real promise to move corporate governance beyond shareholder wealth maximization

Shareholder Proposal Settlements and the Private Ordering of Public Elections

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections—and particularly what is known about corporate “dark money”—comes from disclosures that conform to privately negotiated contracts. The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8—and potentially the rights of other shareholders—for a privately negotiated social policy commitment by corporate management. Settlements of campaign finance disclosure proposals are memorialized in detailed private agreements that set the frequency, format, and substance of disclosure reports; are enforced by private actors; and typically are not available to other shareholders, corporate stakeholders, or the public. Proposal settlements are producing a body of private disclosure law that increases corporate transparency to advance First Amendment values and is exempt from First Amendment scrutiny. The disclosure standards themselves are a mixed bag: effective at filling some gaps in public campaign finance disclosure law, but inadequate to make corporate electoral spending transparent in advance of elections. As a form of private electoral regulation, the proposal settlement mechanism raises issues of democratic transparency, participation, accountability, and enforcement. This Article challenges the characterization of proposal settlements as “voluntary” corporate self-regulation, provides a framework for understanding settlement-related agency costs, and shows how settlement subverts the traditional justifications for the shareholder proposal itself. Solutions that address the democratic and corporate governance problems of settlement largely overlap, suggesting a path forward

Bad Actors: Authenticity, Inauthenticity, Speech, and Capitalism

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more. This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance capitalism.” It also explores how companies’ self-regulatory focus on authenticity shapes users’ views about objectionable speech, upends traditional commitments to pseudonymous political expression, and encourages collaboration between the State and private companies. The Article concludes that “authenticity,” as conceptualized by the industry, is not an important value for users on par with privacy or dignity, but that it offers business value to companies. Authenticity regulation also provides many of the same opportunities for viewpoint discrimination as does garden-variety content moderation

Women in Shareholder Activism

Even a cursory review of the history of American environmental, social, and corporate governance (ESG) shareholder activism reveals the presence of women leaders. This Article sketches some of this history and interrogates the role of women in the shareholder activism movement. That movement typically has involved claims by minority shareholders to corporate power; activists are nearly always on the margins of power, though minority shareholders may, collectively, represent a majority interest. This Article ascribes women’s leadership in shareholder activism to their longstanding position as outsiders to corporate organization. Women’s participation in shaping corporate policy—even from the margins—has provided women with unique opportunities for leadership and challenged stereotypes about the role of women in public life, while also challenging and reforming business practices and policies. Much of this Article sketches the history of American women in shareholder activism, beginning in the 1890s with Ellen M. Henrotin, perhaps the first person to recognize the potential for collective action among women shareholders. This Article describes the ESG activism of Louise de Koven Bown, another Chicago socialite, and explores the rise of women activists after World War II, led by Wilma Soss, who pursued a mix of social and governance reforms and even achieved some fame in popular culture. Unlike their male counterparts, such as Lewis Gilbert, women activists were savaged by the press. This Article describes the role of women shareholder activists after the emergence of institutional investing, from the Sisters of the Precious Blood, a group of nuns who waged a shareholder activism campaign against the manufacturers of infant formula, to the Corporate Social Responsibility movement of the 1960s and 1970s and the leadership of such women as Alice Tepper Marlin, Joan Bavaria, Amy Domini, and Nell Minow. Finally, this Article describes the experience of a twenty-first century asset manager who ran into sexism in the shareholder-manager dynamic and exposed it in the Financial Times in 2018. This Article concludes by summing up some key insights from this history

Facebook\u27s Alternative Facts

In this short essay, I argue that Facebook’s adoption of the alternative-facts frame potentially contributes to the divisiveness that has made social media misinformation a powerful digital tool. Facebook’s choice to present information as “facts” and “alternative facts” endorses a binary system in which all information can be divided between moral or tribal categories—“bad” versus “good” speech, as Sandberg put it in her testimony to Congress. As we will see, Facebook’s related-articles strategy adopts this binary construction, offering a both-sides News Feed that encourages users to view information as cleaving along natural moral or political divisions

Shareholder Proposal Settlements and the Private Ordering of Public Elections

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections—and particularly what is known about corporate “dark money”—comes from disclosures that conform to privately negotiated contracts. The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8—and potentially the rights of other shareholders—for a privately negotiated social policy commitment by corporate management. Settlements of campaign finance disclosure proposals are memorialized in detailed private agreements that set the frequency, format, and substance of disclosure reports; are enforced by private actors; and typically are not available to other shareholders, corporate stakeholders, or the public. Proposal settlements are producing a body of private disclosure law that increases corporate transparency to advance First Amendment values and is exempt from First Amendment scrutiny. The disclosure standards themselves are a mixed bag: effective at filling some gaps in public campaign finance disclosure law, but inadequate to make corporate electoral spending transparent in advance of elections. As a form of private electoral regulation, the proposal settlement mechanism raises issues of democratic transparency, participation, accountability, and enforcement. This Article challenges the characterization of proposal settlements as “voluntary” corporate self-regulation, provides a framework for understanding settlement-related agency costs, and shows how settlement subverts the traditional justifications for the shareholder proposal itself. Solutions that address the democratic and corporate governance problems of settlement largely overlap, suggesting a path forward