The Rights of Corporate Speech: Mobil Oil and the Legal Development of the Voice of Big Business

Vol. 16 No. 3 (March, 2006) pp.238-241

THE RIGHTS OF CORPORATE SPEECH: MOBIL OIL AND THE LEGAL DEVELOPMENT OF THE VOICE OF BIG BUSINESS, by Robert L. Kerr. New York: LFB Scholarly Publishing LLC, 2005. 212 pp. Cloth. $60.00. ISBN: 1593320701.

Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia [at] loyno.edu

Like Hobbes and fear, American corporations and public relations campaigns were born twins—or very nearly so. In the last three decades of the nineteenth century the rise of the American corporation altered dramatically the nation’s legal, political, and cultural institutions. The early decades of the twentieth century saw concerted efforts by corporations to affect public opinion in the form of “greatly expanded and ever more sophisticated public-relations efforts” (p.4). In THE RIGHTS OF CORPORATE SPEECH, Robert L. Kerr distinguishes between “corporate speech”—media efforts by corporations that seek to affect political outcomes or social climate—and “commercial speech” which promotes products or services. Kerr’s study focuses on the former, and one particularly famous, ground-breaking example of the genre.

In the period 1897 to 1904, corporate mergers reduced the number of American companies from 4,227 to 257 corporations and provoked what Kerr describes as “a crisis of legitimacy” (p.6) among Americans alarmed that so much power should be concentrated in so few hands. The result was the development of “both public relations as a profession and corporate efforts to influence public opinion, two phenomena that have paralleled each other closely and often merged since the late nineteenth century” (p.6).

As early as the 1880s, Westinghouse had utilized publicists, but the public relations profession can be dated to 1904 and the formation of an agency by George Parker and Ivy Lee. Their early efforts proved unsuccessful—partly because “the messages too often represented simply an effort to manufacture whatever might pass publicly as truth,” and “too often their corporate clients refused to actually change any of the behaviors that were responsible for creating public concern” (p.10). The great exception in this era was AT&T, whose CEO, Theodore Vail, understood that efforts to influence public opinion must be conceptualized at the highest levels of management and must be seen as a long-term policy rather than a short-term effort. In 1908, AT&T launched a “landmark campaign” to convince America that AT&T was “working endlessly to make that service something that Americans could count on anywhere and anytime” (p.10). Many observers credit the campaign with “muting public support for government antitrust efforts against AT&T during that period” (p.10).

Since that time, corporate efforts to affect public opinion have seen periods in which business influence was strong, and others where public support for [*239] regulation trumped public relations campaigns. The late 1960s and early 1970s produced a number of major regulatory programs aimed at protecting the environment, consumers, and workers. Congressional innovations were backed by vigorous executive and judicial enforcement. The regulations of this era “represented a break from the past in that a great number of the new laws were not industry-specific . . . but applied to business in general.” The response of big business as equally dramatic: “Between 1968 and 1978 the number of corporations with public-affairs offices in Washington increased from some 100 to more than 500. By 1980, more than 80 percent of the Fortune 500 companies had their own Washington offices, with more than half of them created after 1970” (p.16).

On the legal front, corporations in the 1970s were able to claim several major victories, starting with FIRST NATIONAL BANK OF BOSTON v. BELLOTTI (1978), in which the Supreme Court held, in Kerr’s words, that “speech otherwise protected by the First Amendment did not lose its protection because the source is a corporation” (p.20). Two years later, the Court, in CENTRAL HUDSON GAS & ELECTRIC CORP. v. PUBLIC SERVICE COMMISSION, established a balancing test for the protection of commercial speech. That same term, in CONSOLIDATED EDISON CO. OF NEW YORK v. PUBLIC SERVICE COMMISSION OF NEW YORK, the Court relied on BELOTTI to find a New York regulation of corporate speech more extensive than necessary to further the state’s interest in conserving energy, commenting that “the inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual” (Kerr’s summary, p.20).

Slightly more than one-fourth of Kerr’s book is devoted to an analysis of these cases. He has little to say about the Supreme Court’s corporate speech jurisprudence in the period from 1980 to 2005, except to say that in all of the cases the Court “maintained a strong aversion to any content regulation of corporate speech . . . and has never reversed any of the earlier corporate rulings” (p.21). In fairness, it must be noted, as will be elaborated below, that Kerr’s primary concern is the decade of the 1970s and the connections between the cases of that era and the Mobil ad campaign.

Beginning in 1970, Mobil Oil began a series of paid messages that ran in the lower right-hand corner of THE NEW YORK TIMES op-ed page. The thrust of that editorial-advocacy campaign was an attempt to “legitimize corporate speech as an activity fully embraced by the First Amendment, utilizing discourse that consistently framed the corporate role in democratic processes as no less than identical to that of the individual citizen” (p.1).

Kerr’s reading (painstaking) of these editorial advertisement and his analysis of them (painful) establishes that over a decade there emerged from all of the specific themes of individual editorials a “‘supertheme’ or dominant frame that sought to represent the corporate voice [*240] as a natural and vital component of the robust political and social debate that the First Amendment exists to foster.” Kerr found that seven fundamental, recurring themes constitute this dominant frame, portraying seven aspects of the modern corporation: (1) responsible citizen, (2) voice of reason, (3) societal concern, (4) civic engagement, (5) civilizing force, (6) expert, and (7) vital democratic participant.

Kerr has done superb work going through all of the editorials and gleaning from them the deeper themes. Moreover, his discussion of the political concerns of corporations in the 1970s and the politics of the period, especially with regard to regulatory policy, are lucid and informed. His summaries of the arguments of many of the Mobil ads and the connection of those arguments to the world of facts are delightfully understated but always on the mark regarding discrepancies between the two realms. However, the painstaking begins to become painful when Kerr discusses a theoretical approach (“framing theory”) to deriving these meta-themes. This reviewer will confess to a respectable understanding of both public law and politics, and far less knowledge of the communications theory that Kerr invokes. Moreover, it would not be surprising if Kerr were asked to read several issues of the APSR and reached the same conclusion that this reviewer does about his efforts—jargon. In fact, too much jargon. Arguably, Kerr’s readers will rarely encounter more alternative explanations of framing theory, each slightly more opaque than the last. Diligent resort to copious footnotes only further muddies the waters—with the refreshing exception of a citation to Michael Parenti’s INVENTING REALITY: THE POLITICS OF NEWS MEDIA in which Parenti says that “the most effective propaganda is that which relies on framing rather than on falsehood . . . telling us what to think about a story before we have had a chance to think about it for ourselves.” That is really all Kerr needed to say about framing.

In Chapter Four, Kerr turns to the relationship between the Mobil campaign and Supreme Court decisions. The discussion of the cases is as capable as would be found in many constitutional law textbooks, but not more so. And Kerr’s conclusion, stated at several times in the book, is somewhat underwhelming:

The framing of corporate-advocacy messages and what related framing may have taken place in the minds of the Supreme Court justices in the corporate-speech decisions cannot be interpreted as causally linked. What is clear, however, is that the narratives represented by Mobil’s corporate-advocacy discourse of the seventies and the legal discourse of the early corporate-speech cases are not incompatible with each other.

Had the Bard reviewed this book, he might have put it quite succinctly: Much ado about nothing.

Again, in fairness, one suspects that Kerr’s expertise lies in communications/journalism, not public law or political science. He gives an excellent narrative of the politics and economics of the times, as well as the development of corporate public [*241] relations in general and the innovative Mobil campaign in particular. One suspects a dissertation advisor suggested looking at the connection between that particular example of corporate speech and the development of the law. Kerr should have changed advisors.

In the Acknowledgments section, Kerr thanks a colleague who advanced his “understanding of the difference between journalism and scholarship” (p.ix). Kerr is a very fine journalist, as much of this book’s narrative bears out. He is also a painstaking scholar—the research he has done is exemplary. But scholarship does not necessarily mean having to shoehorn interesting facts and interpretive insights into ever more esoteric, inappropriate or incomprehensible theoretical constructions. (The reviewer mistyped the last word and it came out “constrictions.” Besides the Bard, perhaps Freud should be brought into the frame.)

REFERENCE:

Parenti, Michael. 1992. INVENTING REALITY: THE POLITICS OF NEWS MEDIA. New York: Wadsworth.

CASE REFERENCES:

CENTRAL HUDSON GAS & ELECTRIC CORP. v. PUBLIC SERVICE COMMISSION, 447 US 557 (1980).

CONSOLIDATED EDISON CO. OF NEW YORK v. PUBLIC SERVICE COMMISSION OF NEW YORK, 447 US 530 (1980).

FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 435 US 765 (1978).

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