First Nat'l Bank of Boston v. Bellotti,
435 U.S. 765 (1978)

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U.S. Supreme Court

First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)

First National Bank of Boston v. Bellotti

No. 76-1172

Argued November 9, 1977

Decided April 26, 1978

435 U.S. 765


Appellants, national banking associations and business corporations, wanted to spend money to publicize their views opposing a referendum proposal to amend the Massachusetts Constitution to authorize the legislature to enact a graduated personal income tax. They brought this action challenging the constitutionality of a Massachusetts criminal statute that prohibited them and other specified business corporations from making contributions or expenditures

"for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation."

The statute specified that

"[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation."

On April 26, 1976, the case was submitted to a single Justice of the Supreme Judicial Court of Massachusetts on an expedited basis and upon agreed facts. Judgment was reserved, and the case was referred to the full court. On September 22, 1976, the court directed entry of a judgment for appellee and issued its opinion upholding the constitutionality of the statute after the referendum, at which the proposal was rejected.


1. The case is not rendered moot by the fact that the 1976 referendum has been held and the proposal for a constitutional amendment defeated. The 18-month interval between legislative authorization of placement of the proposal on the ballot and its submission to the voters was too short for appellants to obtain complete judicial review, and likely would be too short in any future challenge to the statute; and in view of the number of times that such a proposal has been submitted to the electorate, there is reasonable expectation that appellants again will be subjected to the threat of prosecution under the statute. Weinstein v. Bradford, 423 U. S. 147, 423 U. S. 149. Pp. 435 U. S. 774-775.

2. The portion of the Massachusetts statute at issue violates the First Amendment as made applicable to the States by the Fourteenth. Pp. 435 U. S. 775-795.

Page 435 U. S. 766

(a) The expression proposed by appellants, namely, the expression of views on an issue of public importance, is at the heart of the First Amendment's concern. There is no support in the First or Fourteenth Amendment, or in this Court's decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation that cannot prove, to a court's satisfaction, a material effect on its business. Although appellee suggests that this Court's decisions generally have extended First Amendment rights only to corporations in the business of communications or which foster the self-expression of individuals, those decisions were not based on the rationale that the challenged communication materially affected the company's business. They were based, at least in part, on the Amendment's protection of public discussion and the dissemination of information and ideas. Similarly, commercial speech is accorded some constitutional protection not so much because it pertains to the seller's business as because it furthers the societal interest in the "free flow of commercial information." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 425 U. S. 764. Pp. 435 U. S. 776-783.

(b) The asserted justifications for the challenged statute cannot survive the exacting scrutiny required when the legislative prohibition is directed at speech itself and speech on a public issue. This statute cannot be justified by the State's asserted interest in sustaining the active role of the individual citizen in the electoral process and preventing diminution of his confidence in government. Even if it were permissible to silence one segment of society upon a sufficient showing of imminent danger, there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government. And the risk of corruption perceived in this Court's decisions involving candidate elections is not present in a popular vote on a public issue. Nor can the statute be justified on the asserted ground that it protects the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. The statute is both underinclusive and overinclusive in serving this purpose, and therefore could not be sustained even if the purpose itself were deemed compelling. Pp. 435 U. S. 788-795.

371 Mass. 773, 359 N.E.2d 1262, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and STEVENS, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 435 U. S. 795. WHITE, J., filed a dissenting opinion, in

Page 435 U. S. 767

which BRENNAN and MARSHALL, JJ., joined, post, p. 435 U. S. 802. REHNQUIST, J., filed a dissenting opinion, post, p. 435 U. S. 822.

Primary Holding

The First Amendment allows all speakers that are either individuals or corporations to publicly discuss all matters of public concern without either a prior restraint or the threat of a subsequent punishment.


Massachusetts law prohibited banking associations and other corporations from making contributions or expenditures in order to influence the actions of voters on any issues other than those that materially affected the corporations. These were specifically defined to exclude any issues concerning taxation of the income, property, or transactions of individuals. An amendment later was proposed to the Massachusetts constitution that would have allowed the legislature to impose a graduated individual income tax. When First National Bank sought to make expenditures to encourage voters to take a certain position with regard to the amendment, state Attorney General Bellotti notified the bank that he intended to enforce the statute against it. The bank and other businesses sought to have the law declared unconstitutional, but they were unsuccessful in state court.



  • Lewis Franklin Powell, Jr. (Author)
  • Warren Earl Burger
  • Potter Stewart
  • Harry Andrew Blackmun
  • John Paul Stevens

A state may not prevent corporations from ever making a statement about a certain issue of public concern, which in this case is individual taxation. This is an unconstitutional prior restraint because of its restrictions on the content and the speaker. While the state argues that its law protects shareholders from footing the bill for a message with which they disagree, this is not persuasive because the corporation still would need to remain silent under the law if the shareholders were in unanimous agreement on the issue. The law fails constitutional analysis because it is overly broad. The legislature could build on it to require other types of businesses to limit their speech to their industries, which would be an unconstitutional way of channeling speech.


  • Byron Raymond White (Author)
  • William Joseph Brennan, Jr.
  • Thurgood Marshall

Valid concerns arise from the possibility that corporate management could use the funds of the business to express views that are unrelated to the business and with which shareholders do not sympathize. Courts should not intervene when the legislature has made a considered judgment about how to balance the free speech of multiple, potentially clashing parties.


  • Warren Earl Burger (Author)


  • William Hubbs Rehnquist (Author)

Case Commentary

This is one of several Supreme Court decisions on the First Amendment that finds that corporations have the same free speech rights as individuals.

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