A Test of Free Speech: Applying the Ethics of Care to Coverage of Snyder V. Phelps

Leslie Klein (Grady PhD. student) and Johnson, B. G. (2022). “A Test of Free Speech: Applying the Ethics of Care to Coverage of Snyder V. Phelps. “ Journal of Media Ethics, 1-15.  https://doi.org/10.1080/23736992.2022.2057995

Abstract: U.S. journalists must walk a fine line when reporting on hate speech. Journalists have a vested interest in standing up for the First Amendment, which gives them the freedom to do their work. However, the legal protection that people who spew hateful rhetoric enjoy vastly outweighs any protections upon which the victims can rely. As such, dealing with hate speech in the United States is an inherently ethical issue. Applying the ethics of care to their reporting would allow journalists a clear framework with which to counter hate speech. This study examines if and how journalists used the ethics of care framework when covering the Snyder v. Phelps Supreme Court case through analysis of articles published in U.S. newspapers. Using these articles as a representative sample for the national coverage of the case, the study finds that journalists failed to consider the human impact of their reporting.

The First Amendment is an Absolute

Abstract: Students new to the study of First Amendment law often grapple with the complexity and ambiguity of its parameters, a sensation familiar to all who encounter legal analysis and scholarship for the first time. Legal scholars thrive upon nuance, parsing the meaning of a single word and arguing passionately about the historiography of legislative intent. Perhaps that is why Alexander Meiklejohn’s epic The First Amendment Is An Absolute 1 sticks with so many of us, year after year. For in a world mired in hyper-analysis, Meiklejohn’s clear-eyed, resolute statement of absolutist principles served as an antidote to so much of my own muddled thinking at the time, and continues to serve as an intellectual anchor when all the defense of free speech gets a bit tiresome. A return to the text, with its lucid prose and classic Meiklejohn terseness, is to travel back to a time when First Amendment principles were fresh and new, its contours only then coming into clear view. Absolutism today enjoys little to no scholarly or judicial support, relegated to the footnotes of yesterday.

Inside the Bellotti Court

Abstract: No publishing company has ever been denied First Amendment protection because it was incorporated. In First National Bank of Boston v. Bellotti, however, the Supreme Court confronted for the first time questions about the impact of corporate identity on the First Amendment protections available to non-media businesses. This Article explains why Justice Powell’s opinion for the Bellotti Court avoided confronting the assertion that non-media corporations lacked the First Amendment protection afforded natural persons or media corporations. Instead of focusing on the speaker, Powell focused on the speech. In doing so, Powell laid the theoretical foundation of Citizens United v. FEC.

Using the papers of Justice Powell, as well as those of Justices Brennan, White, Marshall and Blackmun, this Article explicates the crafting of the Bellotti opinion. Powell was constrained because none of his colleagues would support an opinion aligning corporate First Amendment rights with those of individuals or the press. By shifting the emphasis from the speaker to the speech and stressing the harm to the audience’s right to receive expression caused by government distortion of the marketplace of ideas, Powell found an easier path to five votes. In effect, though, Powell was able to place Bellotti in the same constitutional space as press cases where corporate identity is immaterial to First Amendment analysis.

The Conscience of Corporations and the Right Not to Speak

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.