Barnette at 75: Compelled Speech and Corporate Corruption of the First Amendment

This blog post for the 75th anniversary of West Virginia State Board of Education v. Barnette was drafted by Kourosh Azin, a student at Boston College Law School and a spring 2018 intern at Free Speech For People.

To some, athletes refusing to stand during the national anthem seemed like a novel means of expressing political opinion. But abstaining from participation in patriotic symbolism has been an active part of America’s political discourse throughout history. Seventy-five years ago, on March 11, 1943, the Supreme Court heard argument in the seminal case of West Virginia State Board of Education v. Barnette, which first recognized this constitutional right against “compelled speech.” But in a recent twist, corporations have corrupted this right into a tool to circumvent consumer and environmental protections. With the 75th anniversary of Barnette upon us, it is important to look back on how this landmark decision has led to an extension of the First Amendment in a way the Founding Fathers never imagined.

The 1940s and the West Virginia State Board of Education

In the 1940s, anti-Nazi sentiment and fear of entering a second World War led to the creation of laws requiring citizens to prove their patriotism. This fear led to the 1940 Supreme Court holding of Minersville School District v. Gobitis: Schools were allowed to expel students who refused to recite the Pledge of Allegiance. This led to a sweep of laws requiring that students participate in the Pledge of Allegiance.

These laws were especially problematic for Jehovah’s Witnesses, whose religion prevents the worship, serving, or saluting of images. Because they wouldn’t participate in the Pledge of Allegiance, the Jehovah’s Witnesses were seen as traitors. They were harassed, beaten, run out of town, and their houses of worship were burned down. One officer claimed that the discrimination against Jehovah’s Witnesses was because, “They’re traitors, the Supreme Court says so.”

In 1943, a number of Jehovah’s Witnesses challenged a mandatory Pledge of Allegiance statute. They claimed that the law was unconstitutional because it violated their right to freedom of religion under the First Amendment and their right to Equal Protection under the Fourteenth Amendment. This time the Supreme Court agreed with the Jehovah’s Witnesses, overruled Minersville (its previous decision), and ruled that statutes punishing those who didn’t recite the Pledge of Allegiance were unconstitutional.

Justice Jackson wrote in his powerful opinion in West Virginia State Board of Education v. Barnette, “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.” As a result, freedom of speech was extended to cover the right not to speak.

Blood Gold and Cigarettes: Corporate Abuse of the Right Not to Speak

Surprisingly, Barnette has been twisted into a tool for corporations to challenge disclosure laws. In the last decade, corporations have used the “right not to speak” to avoid disclosures that consumers need to make informed decisions. The subject matter of these cases varies from minerals extracted from war torn countries to warning labels on packs of cigarettes.

After the 2008 financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. One portion of this act required companies to disclose whether minerals were derived from the war-torn Democratic Republic of Congo. Buyers could use the information to make informed decisions about which products to purchase; investors could use it to decide which companies to invest in; and manufacturers could decide to avoid suppliers who profit from humanitarian crises.

The companies that sued to challenge this law in National Association of Manufacturers v. Securities and Exchange Commission saw such disclosure as a violation of corporations’ First Amendment rights. In a ruling that would have shocked the original framers of the Constitution, the U.S. Court of Appeals for the D.C. Circuit applied the First Amendment’s right against compelled speech to these corporations. The court stated that the First Amendment not only protected ideological messages, like those of Jehovah’s Witnesses, but also statements that a corporation “would rather avoid.” By relying on the same “right not to speak” from Barnette, the corporations could avoid informing their own customers and stockholders that they were indirectly financing armed groups.

The same logic was applied in R.J. Reynolds Tobacco Company v. Food & Drug Administration. The cigarette company, R.J. Reynolds, claimed that mandatory warnings containing graphic images depicting the real dangers of cigarettes were a violation of the company’s First Amendment rights. Once again, the Court of Appeals rationalized that the benefits of forcing a corporation to disclose essential information to the customer were outweighed by the corporation’s First Amendment rights.

Who Does the Constitution Protect?

Corporations were not always considered “people.” In 1854, in Marshall v. Baltimore and Ohio Railroad, the Supreme Court first treated corporations as “citizens.” But this was a convenient legal fiction to ensure that federal courts could exercise jurisdiction over corporations, not to give them constitutional rights. Compare this with the 2014 ruling in Burwell v. Hobby Lobby Stores, Inc., which held that corporations can refuse to comply with an employee benefit law by citing the corporation’s right to freedom of religion, or Citizens United v. FEC, where the Supreme Court held that the right to spend unlimited amounts of money on independent political expenditures was as much a right for corporations as for individuals.

In a vicious cycle, corporations and wealthy executives increasingly spend money on elections and lobbying to influence the elected officials who appoint judges (or, in states with judicial elections, to elect the judges themselves) who are more likely to issue rulings that expand corporate constitutional rights claims. With greater sums of money coming from super PACS, lobbying groups, and corporations, this growing trend of treating corporations with a sense of personhood is becoming normalized in our political and judicial landscape. The ability to fund super PACS that funnel millions of dollars into our political system is giving a greater voice to corporations and taking away the credibility of our elected leaders.

This is not a Democratic, Republican, or any single party issue. This is a “people issue.” The fundamental rights of people guaranteed by the Constitution are being diluted by these corporate constitutional claims, which is why we need to push for a constitutional amendment that will overturn the doctrine of corporate constitutional personhood and get big money out of politics.

To get involved in passing the 28th Amendment, click here.

To learn more about Free Speech For People’s legal advocacy fighting back against corporate constitutional personhood claims in the courts, click here.

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