The subject of how the Supreme Court of the United States rules on First Amendment claims of corporate conscience is the focus of the latest article by William E. Lee, a professor of journalism specializing in communication law at the University of Georgia’s Grady College of Journalism and Mass Communication.
Lee’s article, “The Conscience of Corporations and the Right Not to Speak,” was published in the 43rd volume of the Harvard Journal of Law and Public Policy.
Corporations do not have human traits, such as a conscience, Lee noted, but in recent years corporations have challenged government mandates as a violation of owners’ beliefs. As an example, Lee examined Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where a bakery refused to make a wedding cake for a same-sex couple because of the religious beliefs of the bakery’s owner.
Another case, National Institute of Family and Life Advocates v. Becerra (NIFLA), focused on a California law that required pregnancy clinics to post notices of the availability of state-funded abortions. Pro-life clinics, operated by nonprofit corporations, challenged the law because the notices violated their beliefs.
In both cases, the Supreme Court avoided confronting the complexities of allowing corporations to assert the beliefs of their owners or members. “The issue of conscience is really fascinating yet the court doesn’t want to address it,” Lee explained.
Using the papers of former Supreme Court justices, housed at the Library of Congress and Washington & Lee University, Lee reveals that the court in the 1980s developed the concept of speaker autonomy in coerced expression cases. This doctrine treats all speakers—whether corporate or individual—alike and rests upon the idea that speakers should not be compelled to convey government-mandated messages. Under the speaker autonomy doctrine, questions about conscience are avoided.
“I argue that conscience really shouldn’t be part of these cases, and instead we should look at whether the state is promoting orthodoxy,” Lee wrote. “In a case like NIFLA, you don’t need to think about conscience, but instead ask if the state is promoting orthodoxy. The government harms speaker autonomy when it dictates the messages speakers convey.”
“Cases like Masterpiece Cakeshop and NIFLA are not going to go away,” Lee concluded. “As long as a government seeks to control private expression, speakers will be able to challenge coerced expression as harmful to their autonomy.”
Lee’s paper can be read at https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2020/01/Lee-FINAL.pdf