Corporate Politics: ESG and the First Amendment
A 2022 article entitled “Corporate Politics: ESG and the First Amendment” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4169280) is the
most analytically relevant to the Disney/DeSantis dispute. In the article, Benjamin
Seymour argues that the Citizens United case not only dramatically expanded corporate
free speech protections, but also enshrined a distinctive theory of corporate politics into
the United States’ constitutional law and popular imagination. The Roberts Court’s
emphasis on companies’ deliberative function in transforming debates among
stakeholders into enterprise-wide values rejected a competing realist view—analytically
rooted in individual executives’ incentives and power to dominate political debate
within the firm—that had defined First Amendment jurisprudence a generation prior.
His essay explains how both sides of the contemporary debate over ESG policies
accepted Citizen United’s invitation to view corporations as political actors and
internalized the Court’s deliberative theory of the firm.