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Wednesday, February 26, 2014

The other side of corporate speech

There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.

But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?

This gets at what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.

Update: Gov. Jan Brewer vetoed the bill.

Posted by Howard Wasserman on February 26, 2014 at 02:22 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

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The attacks on SB 1062 in this article and elsewhere have no justification. All SB 1062 does is make it clear that businesses have religious freedom rights and that the RFRA already on Arizona's books applies to lawsuits. It does not do any of the things that its opponents claim it does. It just makes the intent and scope of RFRA clear. It is time for those who are opposed to it to stop lying about it.

Posted by: John Lambert | Feb 26, 2014 9:26:25 PM

I don't understand your critique.

It seems perfectly consistent to me to both:

1) Applaud the NFL for expressing its values with its dollars and also perhaps its speech, especially if one happens to agree with those values;

and

2) Believe that corporate rights to do the latter (speak) and often the former (vote politics with dollars) are not in many (or any) cases protected by the First Amendment.

In other words, as the right/power exists, one might applaud a benign use of it, while nonetheless believing either (a) that it ought not to exist, or (b) as a matter of Constitutional law Congress could regulate it and/or courts courts ought not to protect it under the First Amendment, whether or not one believes as a policy matter that such corporate speech might be a good thing.

Posted by: Michael Froomkin | Feb 28, 2014 11:12:23 AM

"The attacks on SB 1062 in this article and elsewhere have no justification. All SB 1062 does is make it clear that businesses have religious freedom rights and that the RFRA already on Arizona's books applies to lawsuits. It does not do any of the things that its opponents claim it does. It just makes the intent and scope of RFRA clear. It is time for those who are opposed to it to stop lying about it."

Isn't it amazing how people back a bill which doesn't really do much, trust us, and are made that people would oppose a bill which which doesn't really do much, trust us?

Posted by: Barry | Mar 2, 2014 11:45:59 AM

It would seem like the more apt analogy is to one or both of the following:

1. Our (seemingly)* inconsistent attitudes to corporate expressions of conscience -- (i) laudable for matters we like (e.g., LGBT rights) and (ii) reproachable for matters we don't (e.g., refusals to subsidize contraceptive coverage).

And

2. Our (seemingly)* inconsistent attitudes to having (i) unequal distributions of wealth determine the extent of one's political influence and (ii) unequal distributions of other resources -- e.g., prominence, in the NFL's case, or oratorical power, or time to spend stumping, etc. -- determine one's political influence, with the former garnering much consternation and the latter barely a shrug.

*I say "seemingly" because I'm not convinced that there isn't a principled distinction between the two cases in each of (1) and (2).

To my mind, (2) is where the action is, which is to say that it isn't the corporation's status qua corporation that is the true cause for concern but instead the power the corporation can wield, in virtue of the contingent fact that many corporations have much more money than many individuals.

Of course, if there were a principled ground of distinction between money and prominence, then one could reconcile our differing attitudes to CU and the NFL. So let me venture one: prominence is earned in virtue of one's having performed well in areas we care about. Those who have more prominence than others *deserve* that extra prominence -- and so they deserve to use it, to whatever ends they choose. Of course, if they misuse it -- applying it to, say, causes we disfavor -- we can withdraw the attention and adulation on which the prominence rests.

On the other hand, it would be naive to think that the distribution of wealth has proceeded on anything like these meritocratic grounds -- so many (most?) people who who have more money do not deserve the money they have; to have them enjoy greater political influence to boot would seem to add insult to injury. And, unlike in the case of prominence, we cannot withdraw the wealth of the wealthy when they use it to support causes we disfavor.

To the extent there is a real distinction between prominence and wealth, there seems to be no inconsistency in supporting the NFL's stance and opposing the use of corporate money to fund political speech. But all of that very much off the cuff....

Posted by: Amy Sepinwall | Mar 4, 2014 10:21:24 PM

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