Academic journal article Harvard Journal of Law & Public Policy

The Conscience of Corporations and the Right Not to Speak

Academic journal article Harvard Journal of Law & Public Policy

The Conscience of Corporations and the Right Not to Speak

Article excerpt

INTRODUCTION

The right to refrain from speaking is part of a broader concept the Supreme Court describes as "individual freedom of mind." (1) But do corporations have protection from compelled speech under the freedom of mind concept? It is bizarre to ascribe human characteristics to corporations, yet the Court has held that newspaper publishing corporations are protected by the freedom of mind concept from state-imposed requirements that interfere with their ability "to decide what to print or omit." (2) In reaching this conclusion, the Court ignored the corporate identity of the publishing company and instead emphasized the burden on editors. (3) Later cases rejecting a First Amendment distinction between press and non-press corporations, such as Citizens United v. FEC, (4) raise the question whether the Court should also ignore the corporate form of non-press entities and instead assess a law's burden on management, employees, and shareholders. Stated differently, do non-press corporations have standing to assert that compelled speech violates the "freedom of mind" of the humans affiliated with the corporation?

Although the first principle of corporate law is that for-profit corporations have a legal identity separate from their shareholders, management and employees, (5) in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (6) the bakery downplayed its corporate identity when challenging the commission's decision that refusing to design a custom wedding cake for a same-sex couple violated the state's antidiscrimination law. (7) Masterpiece emphasized the law's burden on the First Amendment rights of Jack Phillips, a co-owner and cake designer who was described as "a cake artist." (8) Compelling Phillips to create a cake for a same-sex wedding forces him to "speak" in violation of his sincerely held religious beliefs. (9) Conversely, Colorado downplayed Phillips's artistry by asserting the commercial conduct of the bakery Phillips owned with his wife was at issue; "a business's decision of whom not to serve is not 'speech.'" (10)

During the oral argument of Masterpiece Cakeshop, only Justice Sotomayor probed the link between Phillips's beliefs and the corporation's actions. Noting that "the seller of the cakes is not Mr. Phillips, it's Masterpiece Corporation," and that corporations are separate entities from their shareholders, Justice Sotomayor asked "who controls the expression here, the corporation or its shareholders?" (11) Masterpiece's attorney Kristen Waggoner emphasized that in the context of a closely held corporation, Phillips and Masterpiece Cakeshop were in effect the same as both are "speaking when they're creating" cakes. (12) Justice Sotomayor interrupted, again asking "But who makes a decision for the corporation?" (13) Waggoner responded that the shareholders in a small, family-held corporation would decide. (14) "And that's exactly what's at stake in this case. Mr. Phillips owns Masterpiece Cakeshops [sic]. He designs most of the wedding cakes himself ...." (15) In other words, forcing Masterpiece Cakeshop to create and sell a wedding cake that expresses a message in support of a same-sex marriage "violates Mr. Phillips's religious convictions." (16)

The case presented novel and difficult questions about the definition of speech (17) and whether a closely held corporation's decisions, animated by a co-owner's personal beliefs, may be exempt from generally applicable laws. (18) The Court side stepped these questions and instead found that the commission showed clear hostility to Phillips's sincere religious beliefs in violation of the Free Exercise Clause. (19) The Court's acknowledgement of the beliefs of a shareholder in Masterpiece Cakeshop mimics Burwell v. Hobby Lobby Stores, Inc. (20) where the Court held the religious beliefs of the shareholders of three closely held corporations justified exempting those corporations from a mandate to provide contraceptives to employees. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.