The Conscience of Corporations and the Right Not to Speak

43 Harvard Journal of Law and Public Policy (in press 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 NIFLA petitioners, 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 and their members, finding the law violated the consciences of individuals. Kennedy’s concurring opinion raises significant questions about the corporate law doctrine of veil piercing and its application in First Amendment cases.

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 in its content-based framework to protect speaker autonomy with deriving rights for a corporation from the humans associated with the corporation or addressing the complexities of veil piercing. To explain why corporate compelled speech cases should be decided without reference to conscience, this 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, along with those of Justices Blackmun, Brennan, Marshall, and White, this Article reveals why Powell’s 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. The Article concludes that assessment of content discriminatory effects should be the methodology used in compelled corporate speech cases.

William E. Lee