The hard question at the core of First National’s suit—why should companies have the same rights as humans?—was never answered, much less addressed. Instead, Powell handled that challenge by sidestepping it. He determined that, in First Amendment cases, the identity of the speaker shouldn’t matter. As he put it: “The proper question … is not whether corporations ‘have’ First Amendment rights. … Instead, the question must be whether [the law] abridges expression that the First Amendment was meant to protect.”

The idea that “speech is speech” is persuasive, but also wrong. Contrary to Powell’s assertion, the First Amendment does actually care who is speaking. Children get fewer free speech rights than adults, for example (and a talking chimp would get none). Moreover, most scholars who have studied the issue believe that the constitutional Framers had a limited view of what the First Amendment was originally intended to cover, consistent with an era when “blasphemy” remained a prosecutable crime. While the “press” is named in the amendment, an intention to extend speech rights to all companies seems deeply implausible, given that corporations did not exist in anything like their contemporary form in the eighteenth century.

Tim Wu, “The Right to Evade Regulation”