Imagine further that pursuant to the new law, the state attorney general brings civil lawsuits or even criminal prosecutions against businesses threatening to boycott based on such disagreements. Following the example of New York’s Eric Schneiderman, we might even see a racketeering investigation to make the companies open their books so that we can find out to which groups they’ve been making donations – um, I mean, with which groups they’ve been conspiring.
Before we get too far into this, let me be clear: I am not advocating such a law. I think it would be a terrible idea. I am simply wondering whether it might be constitutional. Consider this a thought experiment, to test our ideas about corporate free speech and corporate power.
My own view is that such an enactment would amount to a flatly unconstitutional assault on speech the state dislikes — just as Schneiderman’s investigation is a flatly unconstitutional assault on speech the state dislikes. I find something terrifying in the notion that the government can go after a private entity, even a for-profit one, because it doesn’t like the entity’s views. And you needn’t agree with me on the proper reading of the First Amendment to see the danger of crafting a rule that says corporations are allowed to take some political positions and not others.