The Conscience of Corporations and the Right Not to Speak

43 Harvard Journal of Law and Public Policy 1-58 (2019).

Abstract: Despite the fact that corporations do not have consciences, in recent years the Supreme Court has been presented with the question of whether restrictions on the actions of a corporation abridge the First Amendment conscience rights of shareholders.  Although the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission sidestepped that question, in another October 2017 Term case, National Institute of Family and Life Advocates v. Becerra (NIFLA), the Court was presented with conscience claims by a group of pro-life pregnancy care clinics challenging a California law requiring the dissemination of information about the availability elsewhere of state-funded abortions. The petitioners in NIFLA, organized as nonprofit corporations, raised an interesting conscience claim; the California law violated their consciences The NIFLA Court ignored this conscience claim, instead finding the law to be unconstitutional content discrimination. Justice Kennedy’s concurring opinion, though, conflated the nonprofit corporations with their members, finding the law violated the consciences of individuals. Kennedy’s concurring opinion raises significant questions about veil piercing and for-profit corporations.

This Article argues that the Court should avoid derivative rights analysis and veil piercing in First Amendment cases involving for-profit corporations. The Court has sufficient analytical techniques embedded its content-based framework to protect speaker autonomy without deriving rights for a corporation from the humans associated with the corporation or addressing the complexities of insider reverse veil piercing. To understand why corporate compelled speech issues should be decided without reference to conscience, the Article explores two foundational corporate speech cases, First National Bank of Boston v. Bellotti and Pacific Gas & Electric v. Public Service Commission, both authored by Justice Powell. Using Powell’s papers, the Article reveals why his Bellotti opinion avoided examining the nature of corporations and why his

PG&E opinion created a compelled speech doctrine that is free of concern for conscience. Bellotti and PG&E have shortcomings and this Article argues that assessment of content discriminatory effects should be the methodology for corporate speech cases.

William E. Lee