Can a Company Be Forced to Speak?

Introduction

The First Amendment to the US Constitution states that Congress shall make no law “abridging the freedom of speech.” It is common knowledge that the First Amendment protects citizens from being penalized by the government for their speech. However, it is not as widely known that the First Amendment also protects citizens from being “forced to speak.”

The application of this principle is complicated by the fact that some of the entities most frequently compelled to speak by the government are businesses Firms speak daily, whether they intend to or not, for example, by advertising their products, giving reports to shareholders, labeling their products, disclosing financial information, and announcing new policy statements to employees

Sometimes this speech is voluntary, and sometimes it is required by law. When is such compulsory corporate speech “unlawful compelled speech” prohibited by the First Amendment?

This issue has become of paramount interest because of recent attempts by legislators to compel disclosure by businesses of various kinds of information to shareholders, customers, and the general public. Courts have been forced to determine whether such laws went beyond permissible regulation and into the realm of unconstitutional compelled speech.

The First Amendment and Compelled Speech

The US Supreme Court has recognized that the First Amendment protects not only the right to speak freely but also the freedom to refrain from speaking. In the case of West Virginia State Board of Education v. Barnette , 319 US 624 (1943), the US Supreme Court ruled that public school students could not be compelled to say the Pledge of Allegiance to the American flag. Justice Robert Jackson wrote that “no government official, acting for the United States, may prescribe by law what shall be orthodox in politics, sociology, philosophy, or theology.”

Although this case concerned individuals and not corporations, it provided a helpful precedent for later Supreme Court cases involving businesses that were compelled by the government to speak

The issues in these later cases were whether corporations could refuse to speak when the government told them to.

When Can the Government Require Speech?

The government clearly cannot compel a corporation to engage in speech that violates the First Amendment’s prohibition of compelled speech. In addition, governments may require businesses to provide factual information. For example, food manufacturers are required by law to put nutrition labels on their products so that consumers know what they are buying. Similarly, drug manufacturers must put warnings about side effects on their products, and publicly traded companies must provide financial information to shareholders. Such requirements rarely violate the First Amendment, since it is generally accepted that the government can require businesses to provide factual information. The problem arises if the government attempts to go beyond requiring disclosure of facts and instead requires disclosure of controversial statements, which may run afoul of the First Amendment.

The line between mandatory disclosure of facts and mandatory disclosure of controversial messages is often hard to discern. One of the most important recent Supreme Court cases on the subject was National Institute of Family and Life Advocates v. Becerra , 585 US 755 (2018). This case held that the government could not compel pregnancy “clinics” to notify customers about state-sponsored programs providing information about pregnancy options. Although this case did not directly concern corporations, the court’s holding had implications for other types of cases. In particular, the decision was later cited in a number of different cases concerning compelled speech by businesses, nonprofit organizations, and professionals.

Arguments Supporting the First Amendment Interpretation

Many people believe that the First Amendment right to freedom of speech encompasses the right not to speak, and that the government should not be able to compel businesses to speak. Supporters of this view argue that it would be unacceptable if businesses were unable to avoid giving messages that the government wanted them to give.

If the government can compel corporations to support one political candidate by choosing what to say, it can also compel them to support other candidates, depending on who is in power. Advocates for this interpretation further point out that a corporation is ultimately a collection of individuals. Thus, forcing a corporation to speak ought to be regarded as interfering with the First Amendment rights of its shareholders, employees, and customers.

Response to These Arguments

Proponents of the opposite view respond to these arguments by stating that corporations are fundamentally different from individuals. Corporations exist to sell products and operate businesses while also engaging in heavily regulated industries. Consequently, it is reasonable for the government to require that they provide product disclosure and other information in order to allow consumers to make informed choices. From this point of view, the US Constitution does not prohibit the government from requiring businesses to provide factual information to the public. Such requirements go to the core of why corporations exist. Furthermore, without such disclosure, consumers would not have the information they need to make rational choices.

Why This Issue Is Important

Constitutional scholars and judges have studied the issues raised by compelled speech, but the importance of the subject to everyday Americans is hard to overstate. Warnings on cigarette packages, nutritional information on food packaging, information statements from securities dealers, and public safety announcements from manufacturers all exist because the government has the legal authority to compel disclosure of such information. As society wrestles with new problems, such as climate change, artificial intelligence, social media, hacking, and consumer privacy, it is likely to turn increasingly to the courts to decide whether new forms of disclosure should be mandated by law. These decisions will have important effects on both businesses and society at large

Conclusion

The subject of compelled speech is important because it affects the daily lives of ordinary Americans. At the same time, it raises a number of challenging theoretical issues regarding the First Amendment. Freedom of speech and the right not to speak are both important values, but there are situations in which the government has a responsibility to compel disclosure in order to ensure that citizens are empowered with knowledge. Courts have to balance these interests, and it is not always easy to distinguish permissible disclosure laws from those that violate the First Amendment. As new industries and new technologies arise, the judiciary will face similar questions concerning the boundaries of the First Amendment and compelled disclosure in the future.