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 Grady College.
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 notes, but in recent years corporations have challenged government mandates as a violation of owners’ beliefs. As an example, Lee examines 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 explains.
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 continues. “In a case like NIFLA, you don’t need 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 concludes. “As long a government seeks to control private expression, speakers will be able to challenge coerced expression as harmful to their autonomy.”
To have three or four editions of a textbook published is quite an accomplishment. To have ten editions of the same textbook published is very rare.
For Bill Lee, professor of journalism, and Kent Middleton, the founding author and professor emeritus of journalism, publishing the 10th edition of “The Law of Public Communication,” represents nearly 30 years of writing. The third author of the textbook, Daxton Stewart, is an associate dean and associate professor at the Bob Schieffer College of Communication, Texas Christian University.
“I think part of the success of the book has been the fact that it’s always been very timely and has included the latest legal and political developments,” Lee said, explaining the reason the book has been popular over the years.
The first edition, like the tenth, teaches future media practitioners the principles of free speech, the legal limits of free expression and how to understand legal reasoning, Middleton said. “The authors have been gratified over the years,” Middleton said, “that students find the dynamic law of public communication as fascinating as the authors do, and students often say they appreciate the clear and interesting text.
Each edition incorporates new legal concepts while deleting more dated material. For example, the latest edition added material on topics including the Hulk Hogan privacy case, dark money in elections and drones. Although topics like the history of communication law and First Amendment law have stayed the same over the years, a bulk of the book has been re-written over the years.
Lee explained further: “There’s a lot of ebb and flow with communication law. For example, right now we’re in in a state of flux on topics relating to journalist privilege. There aren’t currently any big cases but that could explode very quickly because Attorney General Jeff Sessions just announced that they’re rethinking the Department of Justice guidelines. As another example, when American copyright policy changes, we update the copyright chapter.”
Perhaps the biggest change in the 30 years of writing the book has been legal implications of computers and social media.
“Thirty years ago nobody anticipated the way that social media would explode,” Lee continued. “Nobody anticipated the internet becoming as important as it is and the internet cuts across so many different areas from copyright to invasion of privacy to this right to be forgotten, or dispute content on the internet, which is big in Europe right now.”
Middleton has been involved with every edition of the textbook. The first edition of “The Law of Public Communication” was published in 1988 by Middleton and Bill Chamberlin who has since retired from the University of Florida. Lee replaced Chamberlin as an author in the 2001. Stewart, who is an expert in social media law, joined as an author in the ninth edition in 2017.
In the past 30 years, most Grady College students who have taken Communication Law, a required course, have used “The Law of Public Communication,” as have many students around the country. It is not unusual, says Lee, for a student to email him from another state asking a question in as they prepare for a paper or a test.
“So students all over the country have fallen asleep or have woken up in a puddle of drool face down in the book,” Lee said, partly in jest.
“The Law of Public Communication” has a reputation for not only its knowledgeable content, but for the many unique settings in which the book has been “studied.” Lee likes to challenge his students each semester to submit a picture of where they read the book. The competition that began with providing extra credit to students who took the book on spring or fall break, has grown into a competitive sport of who can present the most unique setting each semester. Pictures of the textbook have been submitted by a gymnast reading it in mid-flip, a swim team member reading it in mid-dive, a student dangling over the edge of a cruise ship. One recurring theme is photos combining the book and Cheez-Its, Lee’s favorite snack.
“The point of the contest is to encourage the students to take the book along on break, naively thinking that perhaps on a long airplane flight or while chilling on the beach, they are going to read their book.”
While the jury is still out on how many students study the book on spring break, the fact that the book is well respected remains intact.
“The challenge is that that we have to write for people for whom this is their first encounter with the law. So, we have to take very complex material and we have to make it accessible to a lay person,” Lee concluded. “Kent is really a master of that and he has a very keen sense of what the students can comprehend. We get good reviews from our readers about clarity of the writing and the comprehensiveness of the book, but that is a difficult thing to take a rather confusing Supreme Court opinion and try and make it understandable to a 20-year-old.
Analysis of the papers of U.S. Supreme Court Justice Lewis F. Powell Jr. sheds new light on a nearly 45-year-old ruling involving journalist’s privilege, according to William E. Lee at the University of Georgia Grady College of Journalism and Mass Communication.
Lee’s research examined Powell’s notes, memoranda and correspondence with other justices for the case of Branzburg v. Hayes, the only journalist’s privilege case ever heard by the Supreme Court. In Branzburg, a journalist claimed a First Amendment right to refuse to reveal his sources to a grand jury investigating illegal drug use. The court ruled 5-4 that there was no First Amendment-based privilege; journalists, like other citizens were obligated to testify before grand juries.
Powell cast the deciding vote and wrote a concurring opinion. Lower courts addressing subsequent journalist privilege cases have struggled to decipher Powell’s separate opinion. Some courts believe Powell supported a journalist’s privilege, other courts conclude that Powell rejected the privilege. Because of these conflicting interpretations, a judge on the 4th Circuit Court of Appeals wrote in 2013 that the lessons of Branzburg are “as clear as mud.”
The goal of Lee’s research was to clarify what has long been regarded as one of the most confusing concurring opinions in the court’s First Amendment cases. The research included review of Powell’s papers, which are archived at Washington & Lee University; studies of available papers from other justices, housed at the Library of Congress; and interviews with law clerks, including Larry Hammond who as a law clerk to Powell in 1972 assisted in the preparation of the concurring opinion.
Lee believes, based on extensive research, that Powell was opposed to a First Amendment-based privilege. Powell believed any journalist’s privilege should be created by legislatures, not the judiciary. While courts should be sensitive to the burden of unreasonable subpoenas, Powell did not believe that journalists were entitled to special constitutional protection.
“Those courts that have read his opinion in a very expansive way, who have treated it as promoting a journalist’s privilege, I think are wrong,” said Lee, a professor of journalism and communication law. “I believe Powell was more narrowly focused and only in extreme cases of what he called harassment would courts protect journalists. In most circumstances he thought that journalists had to testify and reveal information they had received in confidence.”
Other key justices for Branzburg v. Hayes included Justice Bryon White, who wrote for the majority saying that the Supreme Court was not going to grant journalists a special testimonial privilege that other citizens do not enjoy, and Justice Potter Stewart, who wrote the dissenting opinion in favor of protecting journalists.
Powell sided with the majority but wrote the following, which some courts have interpreted broadly over the years: “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”
Lee traces the development of Powell’s concurring opinion and shows that Powell’s attention to the case was limited due to the intense discussion within the court as to whether to rehear the abortion case Roe v. Wade. At the same time as Branzburg, Powell was also preoccupied with Furman v. Georgia, in which the court struck down the death penalty in several states.
This research is important, according to Lee, because the law of journalist’s privilege is a mess. Since there is no federal shield law, a patchwork of legal protections may be applicable depending on the jurisdiction. In some areas of the country, journalists may rely on a First Amendment-based privilege in federal proceedings. Other jurisdictions do not recognize this privilege. Some states have strong statutory shield laws, but most states offer only qualified protection to journalists. “Right now, the protections for journalists vary wildly from state to state,” Lee said. “It’s messy and you can’t predict all the variables that would be at play when you make a promise to a source that you will protect their identity.”
Lee continues: “These are ongoing issues that affect communicators on a regular basis. As long as courts treat Powell as protecting journalists and being more like Stewart, then there is no incentive for Congress to craft a federal shield law. Congress has backed away because it thinks the lower courts are doing a good job of protecting journalists.”
Lee’s research, “A revisionist view of journalist’s privilege: Justice Powell, Branzburg and the ‘Proper Balance,’” was published in the 2016 issue of the “Cardozo Arts & Entertainment Law Journal.”