Professor Mark Kubisch, The Constitutional Boundaries of Foreign Corporate Speech -- Florida Law Review (forthcoming)

Professor Mark Kubisch's article, The Constitutional Boundaries of Foreign Corporate Speech, will be published in the Florida Law Review (forthcoming 2026). The article considers whether a corporation chartered in the United States, but owned by foreign nationals outside of the United States should receive First Amendment protections.

Abstract of The Constitutional Boundaries of Foreign Corporate Speech

Should a corporation chartered in the United States, but owned by foreign nationals outside of the United States receive the protections of the First Amendment?  One possible approach to that question is to extend Citizens United’s rationale that the First Amendment protects speech, not speakers, to the question.  This would mean that First Amendment protections apply to every corporation—regardless of who owns it.  

But that may not be the right approach as an original matter.  This Article posits that, at the Founding, corporations did not have any freestanding constitutional rights.  Instead, at times, they had the ability to exercise the derivative rights of their shareholders.  The question whether a corporation had constitutional rights was therefore really a question about whether the corporation’s shareholders had constitutional rights.

As a consequence of the derivative nature of corporate rights, foreign-owned corporations can be treated differently from domestically-owned ones.  Foreign nationals located outside the United States did not have the same constitutional rights as persons located in the United States because, in the eighteenth century, the protection of law was not understood to extend beyond the reach of the sovereign’s power.  Accordingly, foreign shareholders had no constitutional rights that corporations could exercise on their behalf. Historical evidence supports this view as foreign shareholders were often limited in their corporate rights at the Founding.

To be sure, there could be significant economic costs to denying rights to foreign investors.  And the political branches should weigh those costs in deciding when to treat them differently.  But the Constitution does not tie their hands in making these decisions.