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DePaul Business & Commercial Law Journal Volume 22 Number 1 1 Spring 2024 Article 3 Corporate Governance and Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech? Salar Ghahramani Follow this and additional works at: https://via.library.depaul.edu/bclj  Part of the Accounting Law Commons, Administrative Law Commons, Antitrust and Trade Regulation Commons, Banking and Finance Law Commons, Bankruptcy Law Commons, Business Organizations Law Commons, Civil Law Commons, Commercial Law Commons, Comparative and Foreign Law Commons, Computer Law Commons, Conflict of Laws Commons, Constitutional Law Commons, Construction Law Commons, Consumer Protection Law Commons, Contracts Commons, Disability Law Commons, Dispute Resolution and Arbitration Commons, Estates and Trusts Commons, First Amendment Commons, Government Contracts Commons, Housing Law Commons, Human Rights Law Commons, Intellectual Property Law Commons, International Law Commons, International Trade Law Commons, Internet Law Commons, Labor and Employment Law Commons, Law and Economics Commons, Law and Politics Commons, Law and Psychology Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons, Nonprofit Organizations Law Commons, Oil, Gas, and Mineral Law Commons, Organizations Law Commons, Property Law and Real Estate Commons, Retirement Security Law Commons, Second Amendment Commons, Secured Transactions Commons, Securities Law Commons, State and Local Government Law Commons, Supreme Court of the United States Commons, Taxation-Federal Commons, Taxation-Federal Estate and Gift Commons, Taxation-State and Local Commons, Taxation-Transnational Commons, Tax Law Commons, Transportation Law Commons, and the Workers' Compensation Law Commons Recommended Citation Salar Ghahramani, Corporate Governance and Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech?, 22 DePaul Bus. & Com. L.J. (2024) Available at: https://via.library.depaul.edu/bclj/vol22/iss1/3 This Article is brought to you for free and open access by the College of Law at Digital Commons@DePaul. It has been accepted for inclusion in DePaul Business & Commercial Law Journal by an authorized editor of Digital Commons@DePaul. For more information, please contact digitalservices@depaul.edu. 33 * Associate Professor of Business Law and International Law & Policy and Faculty Direc-tor of Brandeis Global Engagement and Leadership Program at Pennsylvania State University - Abington salar@psu.eduCorporate Governance and Compelled Speech:  Do State-Imposed Board Diversity Mandates Violate Free Speech?Salar Ghahramani*ABSTRACTThis paper offers a novel examination of board diversity mandates, assessing their constitutional implications, particularly in relation to the First Amendment’s principles concerning compelled speech. While courts and scholars have previously explored these mandates from the equal protection perspective, this study asserts, for the first time to the author’s knowledge, that there are significant freedom of speech concerns involved. The analysis investigates whether such mandates constitute compelled commercial or ideological speech and evaluates the level of judicial scrutiny required. Employing a legal-analytical ap-proach, the study reviews Supreme Court decisions, relevant statutes, and theories regarding freedom of speech and corporate personhood. The findings indicate that board diversity mandates likely amount to compelled ideological speech, necessitating strict judicial scrutiny. The mandates compel corporations to accept and to adopt state-endorsed ideological stances, thereby affecting the expressive autonomy of cor-porate entities and their board members and shareholders. The analysis concludes that while board diversity mandates aim to enrich corporate governance, their compatibility with the fundamental tenets of a free and democratic society, particularly in relation to the First Amendment, remains highly questionable.Keywords: Compelled Speech, First Amendment, Board Diversity, Corporate Governance, Judicial Scrutiny, Free Speech, Corporate Law, Corporate Personhood, Legal Theory, Constitutional Law.34 DePaul Business & Commercial Law Journal [Vol. 22:33 I. Introduction ................................................................................ 34 II. Corporate Personhood and Constitutional  Rights ........................................................................................... 37A. Historical Context and Legal Developments ...................... 391. Artificial Entity/Concession Theory ............................. 392. The Aggregate/ Nexus of Contract Theory .................. 413. Real/Natural Entity Theory ........................................... 42B. Relevance to Commercial Speech ........................................ 43C. Compelled Speech ................................................................. 47D. Compelled Commercial Speech ........................................... 48 III. Board Diversity Mandates as Compelled Speech ............... 51A. Do Board Diversity Mandates Constitute  Compelled Speech for Corporations? ................................. 51B. Factual or Ideological: What is the Nature of the Speech Compelled by Board Diversity Mandates? ......................... 54C. The Applicable Level of Judicial Scrutiny .......................... 54 IV. Conclusion .................................................................................. 55I. IntroductionCorporate governance encompasses a wide array of interactions among various stakeholders, including governments, global investment funds, multinational corporations, labor unions, and policy think tanks. Civil society groups further influence this complex network, which con-tributes diverse perspectives and plays a vital role in guiding corpora-tions toward ethical and socially responsible behavior.1In this dense and layered context, the discourse surrounding board diversity—related to representation based on sex, race, national origin, gender, and sexual orientation—persistently surfaces in academic and regulatory dialogues.2 Scholarly analyses present a complex picture of  1. See generally, Dionysia Katelouzou  Peer Zumbansen, The New Geographies of Corporate Governance, 42 U. Pa. J. Int’l L. 51, 54-59 (2020). 2. E.g., Dorothy S. Lund  Elizabeth Pollman, The Corporate Governance Machine, 121 Colum. L. Rev. 2563, 2632-34 (2021) (demonstrating the progression of board diversity initiatives in corpo-rate governance, starting with an emphasis on increasing gender diversity and evolving to include a broader range of diversity dimensions, particularly racial and ethnic diversity); Felix von Meyer-inck, Alexandra Niessen-Ruenzi, Markus Schmid,  Steven Davidoff Solomon, As California Goes, So Goes the Nation? Board Gender Quotas and the Legislation of Non-Economic Values 18-19 (Univ. of St. Gallen Sch. of Fin., Working Paper No. 1904, 2020), https://ssrn.com/abstract=3303798 [https://perma.cc/CX4C-AY4Q] (citing legislative actions in six states that have either passed or have contemplated regulations aimed at mandating or promoting increased female representa-tion on corporate boards); Renee B. Adams  Daniel Ferreira, Women in the Boardroom and Their Impact on Governance and Performance, 94 J. Fin. Econ. 291, 291 (2009) (finding a correlation between gender diversity and enhanced board monitoring); Lisa M. Fairfax, Some Reflections on the Diversity of Corporate Boards: Women, People of Color, and the Unique Issues Associated with 2024] Corporate Governance and Compelled Speech 35board diversity, ranging from constitutional challenges of the efforts3 to studies emphasizing the moral rationale for diversity in corporate boards, the influence of female directors on CEO conduct and risk decisions, and analyses regarding the impact of cultural diversity on firm performance.4In the United States, governmental and private initiatives promoting board diversity have been overturned, legally challenged, and academi-cally critiqued based on the grounds that they infringe upon constitu-tional principles, with equal protection considerations as a particular Women of Color, 79 St. John’s L. Rev. 1105, 1110-1120 (providing evidence of the underrepresen-tation of women and people of color on corporate boards); Alexander M. Nourafshan, From the Closet to the Boardroom: Regulating LGBT Diversity on Corporate Boards, 81 Alb. L. Rev. 439 (2017) (arguing for the inclusion of LGBT status as an important aspect of diversity in corporate boards, drawing parallels to the importance of gender and racial diversity). 3. E.g., Joseph A. Grundfest, Mandating Gender Diversity in the Corporate Boardroom: The Inevitable Failure of California’s SB 826 (Rock Ctr. for Corp. Governance at Stan. Univ., Work-ing Paper No. 232, 2018), https://ssrn.com/abstract=3248791 [https://perma.cc/K4MC-NRWT] (questioning the constitutionality of California’s gender diversity legislation); Stephen M. Bain-bridge, California Corporate-Board Quota Law Unlikely to Survive a Constitutional Challenge, Wash. Legal Found. (Oct. 2, 2018), https://www.wlf.org/2018/10/02/wlf-legal-pulse/california-cor-porate-board-quota-law-unlikely-to-survive-a-constitutional-challenge/ [https://perma.cc/MT8J-PWMW] (proposing the unconstitutionality of California’s gender diversity legislation under the internal affairs doctrine); Salar Ghahramani, Corporate Governance and Equal Protection: Le-gal Challenges to State-mandated Diversity in Corporate Boards, 44 BUS. L.REV. 100, 103 (2023) [hereinafter Ghahramani, Corporate Governance and Equal Protection] (stating that “lawmakers confront multifaceted challenges in persuading the courts that diversity in corporate boardrooms is a compelling state interest, especially in the absence of evidence pointing to specific, inten-tional and unlawful discrimination and not merely generalized assertions of discrimination in the broader societal context”); Salar Ghahramani, Corporate Governance and Affirmative Action: A Legal Analysis (2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4372119 [hereinafter Ghahramani, Corporate Governance and Affirmative Action] (questioning the constitutionality of Hawaii’s proposed board diversity legislation on equal protection grounds). 4. Lissa L. Broome, John M. Konley  Kimberley D. Kraviec, Dangerous Categories: Narratives of Corporate Board Diversity, 89 N.C. L. Rev. 759, 763 (2011) (stating that “corporate boards should be more diverse because it is the morally correct outcome”); Liliana Nicoleta Simionescu et al., Does Board Gender Diversity Affect Firm Performance? Empirical Evidence from Standard & Poor’s 500 Information Technology Sector, 7 Fin. Innov. 1, 1-45 (finding a positive influence of female board representation on company performance, with mixed results for return on assets (ROA) and a positive effect on the price-to-earnings ratio); Jie Chen, et al., Why Female Board Representation Matters: The Role of Female Directors in Reducing Male CEO Overconfidence, 53 J. Empirical Fin. 70 (2019) (finding that women generally exhibit more risk-averse behavior than men and suggesting that greater female presence on boards may alleviate the adverse outcomes associated with male overconfidence, especially in regards to risk-taking and legal compliance); but see Peter Gottschalk, Women’s Justification of White-Collar Crime, 4 Int’l J. Contemp. Bus. Stud. 24, 27 (2013) (finding that women on boards tend to be less traditional and more risk-taking compared to their male counterparts, challenging the assumption that increased female participa-tion on boards necessarily leads to more risk-averse decision-making). See also Bart Frijns, Olga Dodd,  Helena Cimerova, The Impact of Cultural Diversity in Corporate Boards on Firm Per-formance, 41 J. Corp. Fin. 521 (2016) (finding, in part, that cultural diversity in corporate boards, although crucial for board dynamics, generally leads to a decrease in firm performance).36 DePaul Business & Commercial Law Journal [Vol. 22:33area of concern.5 At times, the diversity measures have been construed as a potential form of “reverse discrimination.”6 The debates around board diversity ultimately highlight the complicated and sometimes conflicting relationship between corporate governance, state regula-tions, and basic constitutional principles, especially regarding issues of equal representation and inclusivity in corporate governance. Pioneering into relatively uncharted academic territory, this Article seeks to unravel an additional layer of complexity in the dialogue con-cerning state-mandated board diversity. Whereas legal and scholarly discourses have extensively contemplated the tension between these mandates and equal protection principles,7 there remains a scarcity of exploration into another potential area of conflict: the intersection of board diversity mandates and the constitutional right to commercial speech under the First Amendment. The focus of the Article is on in-stances where states obligate corporations to meet specific quotas for board membership based on sex, race, national origin, ethnicity, gender, or sexual orientation, in contrast with the recent Fifth Circuit’s decision in Alliance For Fair Board Recruitment v. SEC,8 where Nasdaq, a regu-lated but private entity, implemented its own board diversity guidelines that were approved, but not compelled, by the SEC, causing the Fifth Circuit to dismiss the petitioners’ constitutional arguments, including their First Amendment claims, and holding that the SEC’s approval of the diversity rules did not render Nasdaq a state actor subject to consti-tutional limitations.9Against this backdrop, Part II aims to contextualize corporate person-hood’s constitutional dimensions and set the stage for a more detailed  5. See., e.g., Crest v. Padilla I, No. 19STCV27561, 2022 WL 1565613 (Cal. Super. Ct. May 13, 2022) (holding that California’s gender-based board diversity mandate violates the state constitution’s equal protection clause); Crest v. Padilla II, No. 20STCV37513, 2022 WL 1073294 (Cal. Super. Ct. Apr. 1, 2022) (holding that California’s legislation requiring boards to increase the board represen-tation of underrepresented communities violated the state constitution’s equal protection clause); Opening Brief for Petitioner Alliance for Fair Board Recruitment, All. for Fair Bd. Recruitment & Nat’l Ctr. for Pub. Pol’y Rsch. v. SEC, No. 21-60626 (5th Cir. Nov. 22, 2021) (petitioners asserting that the SEC’s approval of Nasdaq’s board diversity rules violated the Equal Protection Clause of the Fifth Amendment, the Free-speech Clause of the First Amendment, and the Exchange Act). See also supra note 3.  6. See., e.g., Creighton R. Meland, Jr., Should Courts Uphold Corporate Board Diversity Stat-utes?, 53 Creighton L. Rev. 15, 52-53 (2019); Sung Eun (Summer) Kim, Mandating Board Diver-sity, 97 Ind. L.J. Supp. 31, 38-39 (2022); Cheryl L. Wade, Gender Diversity on Corporate Boards: How Racial Politics Impedes Progress in the United States, 26 Pace Int’l L. Rev. 23, 34-35 (2014). 7. See supra notes 5 & 6 and accompanying text.  8. Alliance For Fair Board Recruitment v. SEC, 85 F.4th 226 (5th Cir. 2023). 9. Id. at 243-247. The court found “no evidence that the SEC as an entity weighed in on the merits of diversity disclosure rules, much less that Nasdaq was compelled or even significant[ly] encourage[d] by the SEC to take this particular action.” Id. at 246 (internal quotation marks omitted).2024] Corporate Governance and Compelled Speech 37explanation of the First Amendment challenges that diversity mandates may face, as discussed in Part III.II. Corporate Personhood and Constitutional RightsCorporate personhood encompasses various distinct concepts and issues, one of which is the notion of legal personality. This notion is fundamental to the entity status of corporations under the law. 10 This concept has historical origins that predate the founding of the United States by over a century and, in certain aspects, may even be traced back to ancient times.11Additionally, corporate personhood is influenced by how statutes in-terpret corporations when referring to terms like “persons” or “people.”12 Both state and federal statutory laws frequently include corporations in their “definitions” sections.13 This is either done by directly mentioning corporations in the statute’s text or by defining the term “person” to encompass corporations, thereby clarifying that the statute applies to them.14 However, statutes that do not explicitly include corporations or define “person” to include them can lead to ambiguities that courts may eventually need to resolve.15 As an example, in Federal Communi-cations Commission v. AT&T Inc.,16 the Court rejected ATT’s argument that the “personal privacy” exemption of the Freedom of Information Act (FOIA) applied to corporations17 despite the Court’s recognition of constitutional privacy rights previously extended to artificial persons.18 The case represents an exploration into the application of rights typi-cally associated with individuals to the corporate context by reinforcing that corporations are persons under the law but that statutory construc-tion requires that legislatures define whether the term “person” encom-passes artificial persons, implying that courts should not presume the broader application of “person” to include corporate entities.19 10. See generally, Elizabeth Pollman, Corporate Personhood and Limited Sovereignty, 74 Vand. L. Rev. 1727, 1731-1736 (2021) [hereinafter Pollman, Corporate Personhood]. 11. Henry Hansmann, Reinier Kraakman & Richard Squire, Law and the Rise of the Firm, 119 Harv. L.Rev. 1335, 1354- 1374 (2006). 12. Pollman, supra note 10, at 1728-1729. 13. Id.  14. Id. 15. Id. 16. Federal Communications Commission v. AT&T Inc., 562 U.S. 397 (2011). 17. Id. at 409-10. 18. Id. at 398 (noting that “While ATT argues that this Court has recognized privacy interests of corporations in the Fourth Amendment and double jeopardy contexts, this case does not call for the Court to pass on the scope of a corporation’s privacy interests as a matter of constitutional or common law”) (internal quotation marks omitted).  19. Id. at 407 (noting that the “discrete question before us is…whether Congress used the term ‘personal privacy’ to refer to the privacy of artificial persons in FOIA Exemption 7(C) …).”38 DePaul Business & Commercial Law Journal [Vol. 22:33Moreover, the treatment of corporations under the U.S. Constitution presents its own set of challenges and discussions. The Constitution it-self does not explicitly mention corporations, leaving unanswered the textual question of whether a corporation qualifies as a “person”20 or is counted among “the people”21 or fits either definition at all.22 Despite this absence of direct reference, the Supreme Court has long acknowledged that corporations can be recipients of constitu-tional protection or holders of constitutional rights, but not neces-sarily in every context. In the early 20th century, for instance, Hale v. Henkel23 extended Fourth Amendment protections against unreason-able searches and seizures to corporations but excluded corporations from Fifth Amendment protections against self-incrimination.24 Later, in the mid-20th century, United States v. Martin Linen Supply Co.25 fur-ther extended the scope of corporate rights, safeguarding corporations against double jeopardy under the Fifth Amendment.26 Yet, just a few years later, the Court in Braswell v. United States27 once again ruled that corporations may not assert the self-incrimination privilege under the Fifth Amendment,28 even though both the Double Jeopardy Clause and the Self-Incrimination Clause of the amendment purportedly apply to “any person.”29Similarly, in Burwell v. Hobby Lobby Stores, Inc.,30 the Supreme Court continued to grapple with the concept of a corporation as a “person” capable of “exercising religion” under the Religious Freedom Resto-ration Act of 1993.31 This ruling was pivotal in further broadening the interpretation of corporate personhood in constitutional law. 20. E.g., U.S. Const. amends. V, XIV (utilizing the term “person”). 21. E.g., U.S. Const. amends. I, II, IV, IX, X. (utilizing the term “the people”). 22. See Saru M. Matambanadzo, Embodying Vulnerability: A Feminist Theory of the Person, 20 Duke J. Gender L. & Pol’y 45, 53-56 (2012) (highlighting “the controversy of corporate per-sonhood” and providing examples of individual, activist, and legislative efforts to dispense with the doctrine, ranging from public campaigns and legal challenges to proposed legislative reforms aimed at redefining the extent of rights and privileges afforded to corporations under the law). 23. Hale v. Henkel, 201 U.S. 43 (1906). 24. Id. at 75-76 (applying the artificial entity theory to exclude corporations from Fifth Amend-ment protections against self-incrimination but granting them Fourth Amendment rights based on the real entity theory).  25. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). 26. Id. at 575. (The Court disallowed the government’s appeal against an acquittal for two cor-porations and an individual defendant, citing double jeopardy reasons.)  27. Braswell v. United States, 487 U.S. 99 (1988). 28. Id. at 102-04, 110. 29. U.S. CONST. amend. V. See also Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 41 Hastings L.J. 577, 662 (1990) (stating that “The lack of a consistent basis for according corporations constitutional guarantees is all the more puzzling as the demand for corporate protection increases.”). 30. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). 31. Id. at 703-04.2024] Corporate Governance and Compelled Speech 39These cases, among others, have charted the trajectory of corporate personhood in U.S. legal history, showcasing the Supreme Court’s pivotal role in defining and expanding the constitutional rights of corporations. From early recognitions of basic protections to more recent considera-tions of complex rights, the doctrine has evolved to significantly shape the interplay between corporate entities and constitutional law.Against this backdrop, this Part delves into the historical evolution and diverse theoretical frameworks shaping corporate legal identity. While not aiming for an exhaustive review of the extensive jurispru-dence and literature on corporate personhood, as covered by various scholars,32 the Part aims to examine the development of corporate per-sonhood and its intersection with constitutional rights in order to pro-vide the necessary context.The focus is on key legal developments and debates that have shaped the legal concept of a corporation. This includes examining the artificial entity or concession theory, the aggregate/nexus of contract theory, and the transition toward viewing corporations as real/natural entities. The exploration illuminates how these perspectives have defined corporate personhood and influenced discussions on the constitutional rights of corporations, providing context to the legal challenges and societal ex-pectations they face.A. Historical Context and Legal Developments1. Artificial Entity/Concession TheoryThe conceptual framing of corporations in U.S. legal history largely finds its roots in Chief Justice Marshall’s exposition in Trustees of Dart-mouth College v. Woodward.33 The defining principles from this case shape the core understanding of corporations as legal entities distinct from the persons comprising them. As Justice Marshall noted in Dart-mouth College, a “corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence… .  32. E.g., Reuven S. Avi-Yonah, The Cyclical Transformations of the Corporate Form: A His-torical Perspective on Corporate Social Responsibility, 30 Del. J. Corp. L. 767 (2005); Carliss N. Chatman, The Corporate Personhood Two-Step, 18 Nev. L.J. 811 (2018); Morton Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev. 173 (1985); David Millon, Theories of the Corporation, 1990 Duke L.J. 201 (1990); Michael J. Phillips, How Much Does Cor-porate Theory Matter? A Response to Professor Boatright, 34 Am. Bus. L.J. 239 (1996); Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 Utah L. Rev. 1629 (2011); Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights (2018). 33. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). 40 DePaul Business & Commercial Law Journal [Vol. 22:33The objects for which a corporation is created are universally such as the government wishes to promote.”34 The case fundamentally established that corporations fall under the protection of the Contract Clause of the U.S. Constitution, prevent-ing the states from intervening in and altering established contractual agreements.35 Central to the Court’s ruling was that a corporate charter represents a binding contract between those who establish the corpora-tion and the state.36 Consequently, the state was deemed without au-thority to single-handedly alter Dartmouth College’s charter, granted in 1769, in a way that would change its status from a private to a public institution.37Chief Justice Marshall described the Dartmouth College charter as “a contract for the security and disposition of property. . .a contract, on the faith of which, real and personal estate has been conveyed to the cor-poration. It is, then, a contract within the letter of the constitution… .”38 This legal interpretation affirmed the status of the corporation as an independent entity formed via a contract and oriented toward specific business or organizational objectives.This conceptualization is frequently linked with concession theory, alternatively termed the artificial entity theory.39 The artificial entity or concession theory affords the state, as the architect of the corpo-rate construct, substantial authority to regulate its formation in pur-suit of the public interest40 and “views the corporation as a creature of the state that is presumed to be subject to much greater regulation than citizens.”41 The artificial entity theory posits corporations as enti-ties sanctioned by the state, enjoying existence by governmental grace, embodying a non-physical form, and potentially being subject to more intensive regulation than a natural person due to this favored status.42  34. Id. at 636-37. 35. Id. at 665. 36. Id. at 668-69. 37. Id. at 689-90. 38. Id. at 644. 39. Reuven S. Avi-Yonah, Citizens United and the Corporate Form, 2010 Wis. L. Rev. 999, 1005 (2010) (describing Chief Justice John Marhsall’s evolution of views on the corporate form). 40. See Roberta Romano, Metapolitics and Corporate Law Reform, 36 Stan. L. Rev. 923, 933 (1984) (stating that “[t]he concession view treats the corporation as an entity sui generis, some-thing quite different from its individual parts, with an independent social and political life. Accord-ing to this perspective, all corporate rights are privileges granted by the state. As a consequence, the concession approach is perceived to support more extensive regulation of corporations than the contract position.”)  41. Stefan J. Padfield, Does Corporate Personhood Matter? A Review of, and Response to, Adam Winkler’s We the Corporations, 20 Transactions: Tenn. J. Bus. L. 1009, 1015 (2019). 42. See generally William W. Bratton, The New Economic Theory of the Firm: Critical Perspec-tives from History, 41 Stan. L. Rev. 1471, 1482-85 (1989).2024] Corporate Governance and Compelled Speech 41Thus, under this conceptual framework, the rights of a corporation are only those incidental to its charter.While Marshall furnished the theoretical skeleton,43 the 19th-century legal landscape, swayed by the artificial person theory, further sculpted the corporal identity of these entities. The concession theory places the corporation under the purview of state control via charters, bestowing them with legality and specified liberties.44 2. The Aggregate/ Nexus of Contract TheoryThe shift towards the aggregate theory or the nexus of contract the-ory can be traced back to Chief Justice Marshall’s 1809 opinion in Bank of the United States v. Deveaux.45 Here, the Court recognized the pos-sibility of considering the natural persons composing a corporation to establish jurisdiction when complete diversity of citizenship existed be-tween corporate shareholders and the opposing party.46 This stance was a foundational step in viewing corporations in terms of the collective identity of their members.Later, the Railroad Tax Cases confirmed this view, 47 recognizing that corporations consist of “aggregations of individuals united for some legitimate business”48 and that constitutional protections for individu-als should persist when they join a corporation.49 This interpretation suggested that the court should look beyond the corporate entity to the individuals it represents, thereby extending constitutional protections to the corporate form.50 43. See supra note 39.  44. See Phillip I. Blumberg, The Corporate Entity In An Era Of Multinational Corporations, 15 Del. J. Corp. L. 283, 293 (1990) (stating that under the artificial entity view “the corporation is a separate juridical unit created by state action, an artificial creature of the state possessing in ad-dition to its essential ‘core’ attributes only such limited powers as are granted by the state. While a separate legal entity, its legal capacity beyond its ‘core rights’ depends on its charter and thereby differs decisively from the fuller panoply of legal rights possessed by natural persons”). 45. Bank of the United States v. Deveaux, 9 U.S. 61 (1809).  46. Elizabeth Pollman, Reconceiving Corporate Personhood, 2011 Utah L. Rev. 1629, 1637 (2011). 47. See County of San Mateo v. Southern Pacific R. Co., 13 F. 722 (C.C.D. Cal. 1882). 48. Id. at 743. 49. See id. at 744 (stating that “[i]t would be a most singular result if a constitutional provision intended for the protection of every person against partial and discriminating legislation by the states, should cease to exert such protection the moment the person becomes a member of a cor-poration. We cannot accept such a conclusion”). See also Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396 (1886) (stating that “[t]he Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to those corpora-tions. We are all of the opinion that it does”). 50. For a detailed analytical background, see generally Margaret M. Blair &  Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rights, 56 Wm. & Mary L. Rev. 1673, 1696 42 DePaul Business & Commercial Law Journal [Vol. 22:33This theoretical shift was partly a reaction to the limitations of the ar-tificial entity theory and better aligned with evolving business practices and legal philosophies of the time.51 It recognized the rights and duties of corporations as an indirect reflection of those of the shareholders.52In sum, the aggregate theory reconceptualized corporate person-hood, viewing corporations not just as state-sanctioned entities but as dynamic collections of individuals whose constitutional rights did not diminish due to their corporate affiliation. This shift was instrumental in shaping the understanding of corporate constitutional rights, laying the groundwork for future legal discourse and developments in corporate law. 3. Real/Natural Entity TheoryReal/Natural Entity Theory offers a distinctive perspective on corpo-rate personhood, standing in contrast to both the artificial entity/con-cession and aggregate theories. Detractors of the artificial entity/concession theory posit that it ex-aggerates the government’s part in forming corporations, erroneously allocates the corporation too deeply into the public sphere of the pub-lic-private dichotomy, and subjects the corporation to unwarranted and inefficient regulation.53Conversely, critics of aggregate theory oppose these points and sug-gest that the aggregate theory’s logical end is the abolition of limited li-ability for shareholders since the corporation, as an independent entity, intervenes between the shareholders’ assets and the corporation’s cred-itors.54 Thus, characterizing the corporation merely as an association of (2015); Gregory A. Mark, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441, 1443 (1987); Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1640-41 (1988); Margaret M. Blair, Corporate Personhood and the Corporate Persona, 2013 U. Ill. L. Rev. 785, 796-97; Kent Greenfield, In Defense of Corporate Persons, 30 Const. Comment. 309, 310-12 (2015). See also Pollman, supra note 46, at 1662 (“The aggregate view offers the advantage of explaining why corporations should have constitutional protections because it recognizes that human actors exist behind the corporation. But like the concession view, the aggregate view can be incongruent with modern times, at least in the large company context where it is not clear whose rights are being protected and what the scope of those rights should be.”) 51. For a historical and comparative perspective, see generally Nicholas H.D. Foster, Company Law Theory in Comparative Perspective: England and France, 48 Am. J. Compar. L. 573, 573 (2000); Jess M. Krannich, The Corporate “Person”: A New Analytical Approach to a Flawed Method of Constitutional Interpretation, 37 Loy. U. Chi. L.J. 61, 80 (2005); John C. Coates IV, Note, State Take-over Statutes and Corporate Theory: The Revival of an Old Debate, 64 N.Y.U. L. Rev. 806, 815-18 (1989). 52. See Bratton, supra note 42, at 1482-95. 53. See Padfield, supra note 41, at 1020-23. 54. Id.2024] Corporate Governance and Compelled Speech 43individuals essentially reverts it to a partnership in which partners are collectively and individually responsible for the business’s debts.55Real entity theory endeavors to reconcile these issues by considering the corporation as an entity distinct from both the state and the share-holders.56 The theory manifests in various forms, but  the most straight-forward contemporary perspective is to correlate the corporation with the board of directors.57 Nonetheless, this viewpoint invariably leans towards those desiring to constrain the regulation of corporations, as it continues to place the corporation on the private facet of the public-private divide, “merely replacing the private-citizen shareholders with the private-citizen directors.”58 B. Relevance to Commercial SpeechThe legal landscape surrounding corporate personhood and its im-plications for commercial speech rights has undergone substantial evolution, particularly through a number of landmark Supreme Court rulings. This section will delve deeper into the nuances of this evolution, offering an analytical perspective on how corporate personhood inter-sects with First Amendment protections. As safeguarded under the First Amendment, commercial speech encompasses expression undertaken by a company or individual fun-damentally aimed at generating profit.59 The initial stance of the U.S. Supreme Court regarding commercial speech was restrictive, as seen in Valentine v. Chrestensen,60 where the Court maintained that the Constitution did not extend its protection to “purely commercial advertising,”61 essentially placing commercial speech outside the ambit of First Amendment safeguards.62 However, a transformative shift in perspective emerged in the 1970s, beginning with Bigelow v. Virginia.63 In Bigelow, the Court overturned a conviction related to abortion services advertising, marking a significant  55. Id.  56. Id. See also Michael J. Phillips, Reappraising the Real Entity Theory of the Corporation, 21 Fla. St. U. L. Rev. 1061, 1067-70 (1994) (providing additional background on the real entity theory). 57. Elizabeth Pollman, Constitutionalizing Corporate Law, 69 Vand. L. Rev. 639, 676 (2016). 58. Padfield, supra note 41, at 1022.  59. Amanda Shanor & Sarah E. Light, Greenwashing and the First Amendment, 122 Colum. L. Rev. 2033, 2037 (2022). 60. Valentine v. Chrestensen, 316 U.S. 52 (1942). 61. Id. at 54. 62. Id. (stating “[W]e are…clear that the Constitution imposes no [First Amendment] restraint on government as [related to] purely commercial advertising” and the Court deferring to legisla-tures to regulate commercial speech). 63. Bigelow v. Virginia, 421 U.S. 809 (1975). 44 DePaul Business & Commercial Law Journal [Vol. 22:33departure from its prior viewpoint.64 This case set a nuanced precedent that commercial aspects of advertisements do not automatically negate First Amendment protections.65 Further cementing the shift from Valentine (in fact, effectively over-turning it) and the expansion of First Amendment rights to businesses and business-related activities was Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.66 This ruling explicitly recognized commercial speech, specifically speech proposing a commercial trans-action, as deserving of First Amendment protection. The case revolved around a pharmacist’s right to advertise prescription drug prices, with the Court asserting that the Virginia statute prohibiting pharmacists from doing so infringed upon the pharmacists’ First Amendment rights.67 (In a later case, the Supreme Court clarified that the Constitution provides a lower level of protection for commercial speech compared to other forms of expression that are constitutionally protected.)68The conceptualization of commercial speech continued to evolve through subsequent rulings. In 1980, Central Hudson Gas & Electric Corp. v. Public Service Commission69 introduced the Central Hudson test. The test is applied in the following sequential steps:Lawfulness and Truthfulness Check: The first step is to determine whether the commercial speech is protected by the First Amendment.  64. Id. at 821 (limiting the ruling in Valentine and holding that “commercial advertising enjoys a degree of First Amendment protection.”). 65. See Tamara R. Piety, Merchants of Discontent: An Exploration of the Psychology of Ad-vertising, Addiction, and the Implications for Commercial Speech, 25 Seattle U. L. Rev. 377, 389 (2001) (noting the nuanced timing of the Bigelow decision and stating “because of the intersection between the [abortion-related] issues presented and the recently decided Roe v. Wade, it was pos-sible to distinguish Bigelow from other advertising cases, as it implicated another constitutional right and/or involved a matter of public concern. Thus, it was unclear whether or not the Court’s holding was meant to establish a new realm of protected speech.”). 66. Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). See also R. Michael Hoefges, Regulating Professional Services Advertising: Current Constitutional Parameters and Is-sues under the First Amendment Commercial Speech Doctrine, 24 Cardozo Arts & Ent. L.J. 953, 954-55 (2007) (noting that the “case marked a dramatic shift in the Court’s constitutional view of commercial speech and overruled…Valentine v. Chrestensen, which had excluded commercial speech from First Amendment protection.”). 67. Va. State Bd. of Pharmacy, 425 U.S. at 770. It is important to note that the Court’s expansion of First Amendment rights to business activities in this has not been without its detractors. See, e.g.,  Edwin C. Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa L. Rev. 1, 3 (1976) (asserting that because of “the existing form of social and economic relationships in the United States, a complete denial of first amendment protection for commercial speech is not only consistent with, but is required by, first amendment theory”); Thomas H. Jackson  John Calvin Jeffries, Jr., Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 25-27 (1979) (arguing the case was incorrectly decided given the “irrelevance of traditional first amendment concerns to commercial advertising.”). 68. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456-57 (1978). 69. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).2024] Corporate Governance and Compelled Speech 45For it to be protected, the speech must concern lawful activity and not be misleading.70Government Interest Assessment: If the speech is protected, the next step is to evaluate whether the government has a substantial interest in regulating the speech. This requires the government to articulate a significant and legitimate reason for the regulation.71Regulation’s Efficacy: After establishing a substantial government interest, the test requires examining whether the regulation directly advances this governmental interest. This step ensures that there is a clear connection between the regulation and the interest it purports to protect.72Least Restrictive Means: The final step is to ascertain if the regulation is no more extensive than necessary to serve the government’s interest. This step checks for the regulation’s intrusiveness, ensuring that it does not excessively impinge on First Amendment rights.73 The Central Hud-son test, it is worth noting, has not been without its critics.74Expanding the scope of what constitutes commercial speech, the Court in Rubin v. Coors Brewing Co.75 and 44 Liquormart, Inc. v. Rhode Island76 embraced a broader interpretation of commercial speech, ac-knowledging various marketing forms as worthy of constitutional protection. In Rubin, for instance, the Court determined that a federal regulation banning the display of the alcohol content as a numerical percentage on beer labels and prohibiting the use of descriptive terms that imply a higher alcohol content through the usage of phrases like “full strength,”  70. Id. at 566 (articulating “In commercial speech cases, then, a four-part analysis has devel-oped. At the outset, we must determine whether the expression is protected by the First Amend-ment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”). 71. Id. 72. Id. 73. Id. 74. E.g. Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. Rev. 1, 5 (2000) (“The fundamental flaw in contemporary commercial speech doctrine, however, is that its primary doctrinal standard, the so-called Central Hudson test, is so vague and abstract as to fail entirely to express any specific constitutional values.” See also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 528 (1996) (Thomas, J., concurring in part and concurring in the judgment) (asserting “In my view, the Central Hudson test asks the courts to weigh incommensurables - the value of knowledge versus the value of ignorance - and to apply contradictory premises - that informed adults are the best judges of their own interests, and that they are not.”). 75. Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). 76. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).46 DePaul Business & Commercial Law Journal [Vol. 22:33“high test,” and “high proof,” conflicted with the First Amendment.77 The Court’s decision that the government did not meet the require-ments of Central Hudson’s four-part test for justifying restrictions on commercial speech was based on an analysis that seemingly raised the bar for the government to successfully justify such restrictions.78Similarly, in 44 Liquormart, the Court invalidated a Rhode Island statute that prohibited the advertisement of liquor prices at retail out-lets.79 Rhode Island defended the prohibition, asserting it supported temperance by preventing liquor price ads that could trigger price wars among retailers, reduce the cost of liquor, and consequently boost alco-hol consumption.80 Although the Court acknowledged Rhode Island’s goal of promoting temperance as a substantial regulatory objective, it concluded that the state did not provide concrete evidence demonstrat-ing that the advertising ban effectively reduced liquor consumption overall.81Another significant expansion of businesses’ speech rights came in Citizens United v. Federal Election Commission, extending First Amend-ment protections to encompass corporate political speech and high-lighting the Court’s view that corporate identity does not diminish the right to protected speech.82 Citizens United underscored the principle that the protections of the First Amendment are not confined to indi-vidual citizens but extend to corporate entities as well. This broadened perspective on corporate speech rights reflects an acknowledgment of corporations as key players in public discourse, capable of engaging in constitutionally protected communications.83The evolution from Valentine to Citizens United represents a signifi-cant shift in the legal understanding of corporate personhood and its relation to commercial speech. The Supreme Court’s journey through these landmark cases highlights a dynamic and complex relationship  77. See Rubin, 514 U.S. at 478, 480, 483, 491. 78. Id. at 482-91. 79. See 44 Liquormart, 517 U.S. at 489-90. 80. Id. at 504-508. 81. Id. 82. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 346-7 (2010).  83. Id. at 343 (“The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”). See also Larry E. Ribstein, The First Amendment and Corporate Governance, 27 Ga. St. U. L. Rev. 1019, 1021 (2011) (“Citizens United shifted the debate over corporate speech from corporations’ power to distort political debate to the corpo-rate governance processes that authorize this speech.”). For additional scholarship discussing the interplay between corporate personhood under the Citizens United regime, see generally Brandon L. Garrett, The Constitutional Standing of Corporations, 163 U. Pa. L. Rev. 95 (2014); Joseph F. Morrissey, A Contractarian Critique of Citizens United, 15 U. Pa. J. Const. L. 765 (2013); Vincent S.J. Buccola, Corporate Rights and Organizational Neutrality, 101 Iowa L. Rev. 499 (2016); Tamara R. Piety, Why Personhood Matters, 30 Const. Comment. 361 (2015). 2024] Corporate Governance and Compelled Speech 47between corporate identity and constitutional speech rights. These le-gal developments illustrate an increasingly expansive view of corporate personhood by recognizing corporations not merely as economic enti-ties but as participants in the marketplace of ideas with a capacity for protected speech under the First Amendment, including limitations on compelled speech, as discussed in the next section.C. Compelled SpeechThe doctrine of compelled speech in the context of the First Amend-ment originated with West Virginia State Board of Education v. Bar-nette.84 This case is recognized for establishing the First Amendment’s role in protecting against compelled speech.85 The controversy in Bar-nette arose when a Jehovah’s Witnesses family objected to the West Vir-ginia State Board of Education’s mandate requiring students to recite the pledge of allegiance and salute the American flag at the start of the school day.86 Non-compliance led to student expulsions and potential criminal charges against parents.87 The Supreme Court invalidated this requirement by asserting that it violated the First Amendment’s intent to protect intellectual and spiritual autonomy from governmental inter-ference.88 The Court highlighted that the First Amendment’s safeguard against speech restrictions also extends to prevent coerced speech.89 The ruling emphasized that the First Amendment does not permit any government official to dictate acceptable beliefs or opinions, or to com-pel citizens to express beliefs they do not hold.90 This case essentially laid the groundwork for prohibiting the imposition of public affirma-tions of ideological positions.The Supreme Court expanded on the principles in Barnette by ad-dressing a similar issue in Wooley v. Maynard.91 Here, a Jehovah’s Wit-ness challenged New Hampshire’s law requiring vehicles to display the state motto “Live Free or Die” on license plates.92 The plaintiff ar-gued that this law forced him to promote an objectionable message.93  84. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).  85. Nat Stern, The Subordinate Status of Negative Speech Rights, 59 Buff. L. Rev. 847, 851 (2011). For more recent applications of Barnette by the Supreme Court and further discussion of the case’s implications in modern jurisprudence, see also Abner S. Greene, Barnette and Masterpiece Cake-shop: Some Unanswered Questions, 13 FIU L. Rev. 667 (2019). 86. West Virginia State Bd. of Educ., 319 U.S. at 642. 87. Id. at 628-29. 88. Id. at 641-43. 89. Id. 90. Id. 91. Wooley v. Maynard, 430 U.S. 705 (1977). 92. Id. at 705. 93. Id. at 707-08.48 DePaul Business & Commercial Law Journal [Vol. 22:33The Court, referencing Barnette, stated that the First Amendment pro-tects not only the freedom to speak but also the freedom not to speak.94 It underscored that the right to express one’s thoughts is accompanied by the right to abstain from endorsing specific ideologies, constituting an essential aspect of “individual freedom of mind.”95 Despite acknowl-edging that the circumstances in Barnette represented a more severe in-fringement on personal liberties compared to carrying a state motto on a license plate,96 the Court nevertheless overturned New Hampshire’s law.97 The ruling was based on the principle that in both instances, in-dividuals were compelled to endorse an ideological viewpoint they disagreed with, an act the Court deemed impermissible under the First Amendment.98D. Compelled Commercial SpeechThis transition from the general doctrine of compelled speech to its application in the commercial sphere underscores the diverse chal-lenges and nuances the Court faces in balancing First Amendment rights with regulatory objectives. Government-mandated or compelled communication in business is widespread. Health warnings must be shown on tobacco and alcohol products, companies must submit finan-cial disclosures, new automobiles must have showroom labels detailing safety ratings, and food products must include ingredient lists and nu-tritional information.99The doctrine of compelled commercial speech, developed through Supreme Court rulings, presents a nuanced aspect of First Amendment jurisprudence. The seminal case of Zauderer v. Office of Disciplinary Council is pivotal. 100 Here, the Supreme Court examined state-imposed clarifying language and disclosure requirements concerning attorney advertising.101 The Court held that the state may compel commercial speech that contains “purely factual and uncontroversial information” so long as the state’s “disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”102  94. Id. at 714 (stating “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”). 95. Id.  96. Id. at 715. 97. Id. at 717. 98. Id. 99. See generally, Jennifer M. Keighley, Can You Handle the Truth? Compelled Commercial Speech and the First Amendment, 15 U. Pa. J. Const. L. 539, 541-43 (2012). 100. Zauderer v. Off. of Disciplinary Council, 471 U.S. 626 (1985). 101. Id. at 629-632. 102. Id. at 651.2024] Corporate Governance and Compelled Speech 49Since the Zauderer decision, courts have upheld requirements for businesses to disclose information about added sugars in beverages103 and conflict minerals with origins in or around the Democratic Re-public of the Congo.104 They have also mandated disclosures regarding country-of-origin for meats105 and caloric content in restaurant menus.106 Furthermore, courts have navigated the complex task of defining what constitutes “purely factual” and “non-controversial” informa-tion in compelled disclosures, reflecting the intricate balancing act the courts must undertake in determining the scope of permissible com-pelled speech.107The trend in these rulings indicates a judicial willingness to support governmental efforts to compel commercial entities to disclose infor-mation that can aid consumers in making informed decisions. This ap-proach is grounded in the belief that such disclosures serve broader societal interests, whether in public health, environmental protection, or ethical consumerism. Through these decisions, the courts have played a pivotal role in shaping the landscape of compelled commercial speech, balancing the need for consumer information with the rights of com-mercial entities. But what if the government mandated communication implicates ideological or other beliefs? In Riley v. National Federation of the Blind of North Carolina, Inc.,108 the Supreme Court examined a North Caro-lina law that required professional fundraisers to disclose the portion of charitable donations they kept as fees.109 This case highlights the com-plex interplay between factual disclosures, ideological speech, and First Amendment rights.110 The central issue in Riley was whether the com-mercial aspects of the fundraisers’ work could be distinctly separated from their ideological advocacy.111 The Court determined these ele-ments are deeply intertwined, making it challenging to treat the speech as purely commercial.112The Court was particularly attentive to how the compelled disclo-sure of fee percentages could impinge upon the fundraisers’ ability to  103. E.g., Am. Beverage Ass’n v. City  Cnty. of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc). 104. E.g., Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518 (D.C. Cir. 2015). 105. E.g., Am. Meat Inst. v. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (en banc). 106. E.g., N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114 (2d Cir. 2009). 107. See generally, R. George Wright, The Compelled Commercial Speech Cases: Why Not Just Flip a Coin?, 71 Mercer L. Rev. 585, 590-604 (2020). 108. Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781 (1988). 109. Id. at 798. 110. See Keighley, supra note 100, at 548-551. 111. Id. 112. Id.50 DePaul Business & Commercial Law Journal [Vol. 22:33engage in ideological speech. The concern was that such disclosures, though factual, might discourage potential donors, particularly impact-ing smaller or less popular charities, and thereby hamper the charities’ ability to advocate for their causes. This effect on ideological expression was a key consideration in the Court’s ruling.113Ultimately, the Supreme Court did not uphold the North Carolina mandate. The decision was based on the understanding that the man-dated disclosures, while factual, could significantly inhibit ideological speech. This outcome suggests that when factual disclosures are closely tied to ideological expression, they may warrant full First Amendment protection, extending the scope of constitutional safeguards beyond what is typically associated with commercial speech. The Riley decision thus illustrates the nuanced balance courts must maintain between the need for factual transparency and the protection of ideological free-dom under the First Amendment, suggesting, perhaps, that ideological speech, even in the sphere of commerce, should be subject to the high-est level of judicial scrutiny to ensure that the fundamental principles of freedom of expression are not compromised, even in commercial contexts.114In another case, Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston,115 the Supreme Court addressed a crucial aspect of compelled speech concerning public accommodation laws. This case involved a dispute between the South Boston Allied War Veterans Council (the “Council”) and the Irish-American Gay, Lesbian, and Bi-sexual Group of Boston (“GLIB”). GLIB challenged their exclusion from participating under their banner in the Council’s St. Patrick’s Day Parade, citing a violation of the Massachusetts Public Accommodations Statute.116The Court held that forcing the Council to include GLIB in its parade would effectively compel the Council to alter its intended expressive content, thereby infringing on the Council’s First Amendment rights. 117 The Court noted that outside the commercial context, the State “may not compel affirmance of a belief with which the speaker disagrees.”118The ruling in Hurley emphasized the importance of protecting the autonomy of speech in contexts where public accommodation laws in-tersect with expressive activities. By establishing that the inclusion of a specific group under these circumstances could change the expressive  113. Id. at 611-12. 114. Riley, supra note 109, at 795-96.  115. Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995). 116. Id. at 561-64. 117. Id. at 576-80. 118. Id. at 573.2024] Corporate Governance and Compelled Speech 51content of the organizer’s message, the Court reinforced the principle that entities, including those organizing public events, have the right to preserve the integrity of their chosen message.The implications of Hurley for the broader discussion of compelled commercial speech are significant. The case illustrates the challenges in balancing the need for inclusivity, as addressed in public accommoda-tion laws, with the constitutional protection of free speech. The context is particularly relevant in considering the implications of board diver-sity mandates on corporate speech and the autonomy of corporations and their representatives in crafting their expressive identity.III. Board Diversity Mandates as Compelled SpeechAgainst this backdrop, this Part explores whether board diversity mandates can be considered as compelled speech in conflict with a cor-poration’s First Amendment rights. The focus here is on the intersection of corporate personhood and mandated diversity in corporate govern-ance, examining how these mandates interact with the constitutional freedoms of corporations. To begin the analysis, the first question that comes to mind is whether board diversity mandates effectively force corporations to “speak” in a certain manner. This primary question leads to the father inquiry of whether the nature of the “speech” compelled by these mandates is a form of expression protected under the First Amendment. Additionally, if the mandates are indeed compelling speech, the next critical question is whether they constitute a violation of that protected speech. Thus, the matter of categorization arises: Are the mandates compelling com-mercial speech, subject to lesser scrutiny, or do they fall into the realm of ideological or political speech, which typically warrants the highest level of judicial scrutiny? Each of these questions is pivotal in framing the debate around board diversity mandates and their alignment with, or opposition to, First Amendment principles in the context of corpo-rate personhood.A. Do Board Diversity Mandates Constitute Compelled Speech for Corporations?This inquiry begins by examining whether board diversity mandates obligate corporations to engage in a form of compelled speech. This analysis seeks to understand if the mandates require corporations to ex-press certain messages or values, thereby potentially constituting an act of speech. Accordingly, attention turns to specific instances of statutory board diversity mandates, with California serving as the key example 52 DePaul Business & Commercial Law Journal [Vol. 22:33for this Article. By delving into the nuances of the state’s legislations, the discussion aims to understand how such mandates might be inter-preted as imposing speech requirements on corporations. In 2018 and 2020, California enacted, respectively, two statutes aimed at increasing diversity on corporate boards. The first, Senate Bill 826, mandated female representation on the boards of California-based publicly-listed corporations.119  This law required corporations head-quartered in California, regardless of their place of incorporation, to have at least one female director by the end of 2019.120 Furthermore, by the end of 2021, it stipulated increasing female representation based on board size: at least one female director for boards with four or fewer members, two for boards with five members, and three for boards with six or more members.121 Non-compliance could result in substantial fines: $100,000 for the first violation and $300,000 for each subsequent breach.122 The bill was framed as a proactive step to ensure more women directors in corporate California, reinforcing the state’s position as a global leader in responsible business practices and emphasizing the in-clusion of women in corporate decision-making and profitability.123Two years later, in 2020, California passed Assembly Bill 979,124 fo-cusing on diversifying corporate boards with members from “under-represented communities.”125 This law defined such individuals as those who self-identify as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, Alaska Native, or as gay, lesbian, bisexual, or transgender.126 AB 979 set a compliance deadline of the end of 2022, requiring corporations with boards of nine or more seats to have at least three directors from underrepresented communities.127 Those with boards larger than four but fewer than nine members were mandated to include at least two such directors.128 Simi-lar to SB 826, penalties for non-compliance included a fine of $100,000 for the first violation and $300,000 for each subsequent breach.129Both statutes were challenged based on the Equal Protection Clause of the California Constitution, ultimately leading to their invalidation  119. S.B. 826, 2017-18 Leg., Reg. Sess. (Cal. 2018).  120. Id. 121. Id. 122. Id. 123. Id. 124. Assemb. B. 979, 2019-20 Leg., Reg. Sess. (Cal. 2020).  125. Id. 126. Id. 127. Id. 128. Id. 129. Id.2024] Corporate Governance and Compelled Speech 53by the Los Angeles Superior Court in 2022. In Crest v. Padilla I (2022),130 the court determined that SB 826 established a gender quota and thus had to undergo strict scrutiny.131 Despite California’s assertion of com-pelling interests, including the elimination of discrimination and eco-nomic benefits derived from gender diversity,132 the court found these arguments unconvincing.133 The ruling emphasized that broad claims of discrimination and inconclusive links between gender diversity and cor-porate performance did not justify the statute, and that the measure was not narrowly tailored to address specific, intentional discrimination.134Similarly, in Crest v. Padilla II (2022) the court applied strict scrutiny to AB 979135; due to the law’s reliance on suspect classifications, like race, the court rejected the state’s defense.136 California’s arguments that the law was meant to counteract discrimination and enhance cor-porate performance through diversity were deemed insufficient.137 The court concluded that AB 979 lacked a specific focus on discrimination in corporate board selection and failed to establish the economic bene-fits as a compelling state interest.138 Additionally, the absence of consid-eration for race-neutral measures led to the conclusion that the law was not narrowly tailored, rendering it unconstitutional under California’s Equal Protection Clause.139But what if such statutes were to be challenged based on the First Amendment grounds, in addition to, or in lieu of, equal protection con-cerns? These statutes, by mandating specific compositions of corporate boards based on gender and membership in underrepresented com-munities, potentially require corporations and the board of directors’ individual members to convey implicit messages or endorse certain so-cietal values. This requirement goes beyond mere regulation of corpo-rate governance; it potentially steers corporations, and the individuals within those corporations, particularly the board members, into partici-pating in a broader societal dialogue about diversity and inclusion.Considering these points, it becomes plausible to argue that board diversity mandates like SB 826 and AB 979, if challenged on  130. Crest v. Padilla, No. 19STCV27561, 2022 WL 1565613,1 (Cal. Super. Ct. May 13, 2022). 131. Id. at 4. 132. Id. at 5. 133. Id. at 7. 134. Id at 12. For further analysis of the case, see also Salar Ghahramani, Corporate Governance and Equal Protection: Legal Challenges to State-mandated Diversity in Corporate Boards, 44 Bus. L.Rev. 100, 100-103 (2023). 135. Crest v. Padilla, No. 20STCV37513, 2022 WL 1073294,1 (Cal. Sup. Ct., Apr. 1, 2022). 136. Id. at 8. 137. Id. at 11. 138. Id. at 12. 139. Id. at 17.54 DePaul Business & Commercial Law Journal [Vol. 22:33First Amendment grounds, could be seen as compelling corporations to engage in speech, raising significant constitutional questions, particu-larly regarding the extent to which the government can use its regula-tory powers to compel speech from corporate entities, and setting the stage for a deeper exploration into the nature of the speech being com-pelled, which will be discussed in the following subsection.B. Factual or Ideological: What is the Nature of the Speech Compelled by Board Diversity Mandates?The examination of board diversity mandates, such as California’s SB 826 and AB 979, requires a multifaceted analysis of the compelled speech’s nature and its impact on First Amendment rights. This con-sideration extends to corporations as distinct legal entities, individual board members, and individual owners/shareholders. Central to this analysis is determining whether the compelled speech is predominantly commercial, typically subject to rational basis review under Zauderer,140 or whether it ventures into ideological and political expression.141These mandates transcend conventional commercial speech, which encompasses advertisements, standard disclosures, and purely factual information. Instead, they mandate corporate boards to reflect specific gender and diversity compositions, thus compelling corporations to implicitly endorse societal and political stances related to these issues. This shift from neutral information to ideological expression affects not only the corporation as an entity under various theories of corporate personhood but also impinges on the First Amendment rights of indi-vidual board members and shareholders, who may hold differing per-sonal beliefs.C. The Applicable Level of Judicial ScrutinyThe appropriate level of judicial scrutiny for board diversity man-dates is a critical aspect of this analysis. While commercial speech is often reviewed under the Zauderer standard’s rational basis test142 and sometimes under the Central Hudson test’s intermediate scrutiny,143 the ideological nature of the speech compelled by these mandates suggests the need for a more stringent standard. 140. See supra, Part II. D., “Compelled Speech”. 141. See also Henry N. Butler & Larry E. Ribstein, Corporate Governance Speech and the First Amendment, 43 U. Kan. L. Rev. 163, 170 (1994) (noting that “it is more appropriate to recognize the hybrid nature of corporate governance speech than to attempt to force it into either of the artificial categories the Court has created.”). 142. See Keighley, supra note 100, at 542-43. 143. Id. at 557-58.2024] Corporate Governance and Compelled Speech 55In light of the Supreme Court’s ruling in Riley v. National Federa-tion of the Blind of North Carolina, Inc., which subjects ideological or political compelled speech to strict scrutiny,144 these mandates warrant a similarly rigorous examination. This heightened scrutiny is essential, given that the mandates extend beyond the corporation to affect the First Amendment rights of individual board members and shareholders. Each of these parties may have unique viewpoints, making the imposi-tion of a unified ideological stance through board composition a matter of significant constitutional concern.Thus, irrespective of the applied theory of corporate personhood, board diversity mandates like SB 826 and AB 979 likely constitute a form of ideological or political speech. Consequently, strict scrutiny emerges as the appropriate standard for assessing their constitutional-ity. This approach ensures a comprehensive consideration of the man-dates’ impact, safeguarding the autonomous expression rights of the corporate entity while equally respecting the individual First Amend-ment rights of board members and shareholders. Such an analysis ac-knowledges the broader implications of these mandates, recognizing their potential to influence not just corporate governance but also the diverse viewpoints within the corporate structure.IV. ConclusionThe concept of compelled speech, as explored throughout this paper, challenges the essence of freedom in expressing one’s views and beliefs. As established in the Supreme Court’s jurisprudence, the First Amend-ment unequivocally opposes mandates that compel private individuals, or entities, to publicly declare ideological positions. The Court consist-ently emphasizes the principle that freedom of belief and thought is central to a free society, insisting that these should be shaped by indi-vidual conscience, not coerced by the state. The cases reinforce the prin-ciple that autonomy, the right to self-govern one’s voice and message, is fundamental to the freedoms safeguarded by the First Amendment.Central to this discussion is the precedents primarily established in Barnette, Maynard, Riley, Hurley, Citizens United, and Hobby Lobby, discussed in detail earlier in this Article. These cases collectively affirm the fundamental right of individuals and entities to autonomy in their expression, opposing state efforts that compel ideological or political speech. In these cases, the Supreme Court’s stance provides a founda-tional understanding of compelled speech, emphasizing the sanctity of freedom of belief and thought as shaped by individual conscience  144. Riley, 487 U.S. at 796.56 DePaul Business & Commercial Law Journal [Vol. 22:33rather than state coercion. As the unanimous Court noted in Hurley, “When dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.”145The exploration of corporate personhood theories in this paper adds a critical dimension to our understanding of compelled speech in cor-porate governance. The Supreme Court’s recognition of corporate per-sonhood elucidates the evolving jurisprudence that grants corporations certain rights and freedoms akin to those of individuals. This develop-ment is vital in contextualizing the First Amendment implications of board diversity mandates and highlighting that corporations, as legal entities with personhood status, possess rights that extend beyond mere commercial interests. This intricate interplay between corporate per-sonhood and compelled speech deepens the constitutional quandary presented by board diversity mandates, suggesting that such mandates engage with the fundamental rights and ideological expressions of cor-porations, the individual members of their boards of directors, and their individual owners and shareholders.Simply put, mandating demographic compositions ventures into the territory of expressive conduct by shaping the leadership identity of corporations. This not only affects the corporate entity but also impacts the expressive freedoms of individual board members and sharehold-ers, aligning them with state-endorsed ideological stances. The argu-ment advocating for these mandates, when subjected to strict scrutiny, can be perceived as an effort to diversify the perspectives within corpo-rate boards, ostensibly offering economic and societal benefits. Yet, the question remains whether such mandates indeed fulfill a compelling state interest and if they represent the most narrowly focused, least re-strictive means to achieve that interest. Crucially, these mandates po-tentially convert private corporate boardrooms into entities resembling places of public accommodations, altering their fundamentally private nature. In short, while the aims of board diversity mandates might be well-intentioned, their alignment with First Amendment principles is dubi-ous. The mandates, as currently constructed, pose significant challenges to the autonomy of corporations and the expressive freedoms of indi-viduals within these entities, calling into question their compatibility with the fundamental tenets of a free and democratic society. 145. Hurley, 515 U.S. at 576.

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