Political & Election Law: POLITICS IN POP CULTURE: Much ado about Hamilton

Monday, November 28, 2016

This is the fifth blog post in our Politics in Pop Culture series, where we’ll critique Hollywood’s take on politics and campaign finance. Have a tip, question, or suggestion for a future post? Let us know @GoberGroup

There has been much discussion about Vice President-elect Mike’s Pence’s recent attendance at a performance of the musical Hamilton and, specifically, the actions of the cast immediately thereafter. Following the curtain call, the cast of Hamilton spoke directly to Mr. Pence from the stage to express their feelings about the incoming administration. President-elect Donald Trump and his supporters say this was the wrong time and place and that Mr. Pence and his family deserve an apology. Opponents of Mr. Trump say that the cast was merely exercising their right of free speech.

What the media has missed, however, is that the free speech rights exercised on that stage weren’t the performers’ own personal rights, but the First Amendment rights of the corporate entity, Hamilton Broadway. This has little to do with the controversial U.S. Supreme Court decision in Citizens United, although the law on whether someone is speaking in their individual capacity or in their corporate capacity has evolved primarily in the context of nonprofit organizations and electioneering.

If a minister includes a candidate endorsement as one small part of an entire sermon and church service, the IRS has determined that he is speaking on behalf of the church, not himself. If a nonprofit organization’s regular newsletter has space for the Executive Director to include a personal note and one month she uses that space to advocate for legislation that would benefit the homeless population in their city, that’s considered grassroots lobbying activity by the organization, not an exercise of her free speech. If the CEO of a family-owned small business sends an email to their customers about their products and promotions and encourages their customers to vote for a candidate, the law says that he is speaking on behalf of the company, not himself.

These examples suggest that the cast spoke not as individuals, but on behalf of the corporate entity, Hamilton Broadway. Furthermore, Brandon Dixon, who plays Aaron Burr, spoke of “we” in his speech. He did not say “I” or “in my personal capacity I’d like to say . . .”. Following the speech, the production’s Twitter account attributed the speech to the company itself, saying “This is the statement made by @HamiltonMusical after the performance on November 18, 2016.” Although there is much gray area between personal speech and corporate speech, the corporation here claimed the speech as its own.

And there was a cost to this speech: the lights had to stay on a few minutes longer, stage hands had to stay and be paid a few minutes more. Certainly, there was at least as much cost as would be involved with an extra few minutes of a Sunday sermon.

I do not suggest that there was anything illegal with what happened at this performance of Hamilton. Even if it occurred a week before the election and they had gone so far as to encourage the audience to vote for or against a candidate, it would have been permissible, thanks to the vilified Citizens United decision, although a report of the costs associated would have been required.

Before debating whether or not corporations have free speech rights, take a step back and consider where the line between corporate speech and personal speech is.

This blog post was written by Karen Blackistone Oaks, a partner with The Gober Group. She specializes in advising clients that are engaged in multi-faceted, multi-million dollar policy campaigns that incorporate a wide range of advocacy strategies.