Free at Whose Expense?

The Supreme Court Turns the First Amendment Into a Weapon for Corporations

You still think the First Amendment exists to protect individual speech? Quaint. In the Roberts era, it exists to expand corporate power.

The Daily Beast

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

— The First Amendment

In recent years, the Supreme Court under Chief Justice John Roberts has deliberately and dramatically expanded the power of corporations. But even more alarming is how the Roberts Court has advanced this agenda—by contorting and perverting the First Amendment. Under this Court, free speech has been equated with spending, advertising, and even data grabs for marketing purposes, expansive liberties that apply not only to human beings but to corporations, because the Court says they’re people, too.

Originally—and up until fairly recently—the First Amendment was understood to be a shield protecting individual liberty. But the Roberts Court seems increasingly intent on turning the First Amendment into a weapon against the American people, not to mention basic fairness and common sense.

Upon the convening of the 1787 Federal Convention, James Madison, author of the Bill of Rights, wrote that there was no greater challenge facing the new nation than “the aggressions of interested majorities on the rights of minorities and individuals.” The Bill of Rights, and especially the First Amendment, were intended to protect the powerless from the tyranny of the powerful.

Historically, we tend to think of the First Amendment as safeguarding individual liberty from any constraint or imposition by government. But notably, corporations aren’t ascribed a specific side in that equation. Yet it’s no mystery what the architects of the Constitution thought of big business and where they would have placed it had they had the foresight. Madison himself once wrote:

“Besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations.”

Scholars interpret Madison as warning about the risk of the Anglican Church amassing significant wealth (which was held in corporate entities) and then influencing politics through that wealth instead of its ideas.

Thomas Jefferson was less circumspect: “I hope we shall crush… in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

The Founding Fathers were very clearly not only concerned with the potential tyranny of government but also the dangers of tyrannical corporations and religions. After all, consider the context in which they were operating—as a new nation that had broken free from a regime simultaneously defined by an all-powerful government (the King of England), an all-powerful religion (the Anglican Church of England), and an all-powerful corporation (the East India Company). All three loomed large, and all were entangled as the United States was being created. The answer was to ensure that individual liberty was not trumped by religion or government or corporations.

All of which means that were they alive today, our Founding Fathers would likely be foraging for whatever craft supplies they could find at a Hobby Lobby store to fashion a giant, flashing “S.O.S.” In its Hobby Lobby ruling, the Supreme Court has extended the fiction of “corporate personhood” to include “corporate religion” so that corporations can use their alleged “religious beliefs” to circumvent laws and constrain the rights and freedoms of their employees. In this case, it’s to deny female employees’ access to contraceptive drugs that some Christians argue are “abortifacients,” even though the FDA and every major medical study factually concludes otherwise.

But as Justice Ruth Bader Ginsburg notes in her scathing dissent, the ruling could extend to employers who religiously object to: “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).”

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For that matter, Ginsburg continues, the logic behind the ruling could ultimately allow corporations of any kind to “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” In fact, days after the Hobby Lobby ruling, faith groups tried to argue for special exemptions from an executive order the White House has announced will ban sexual-orientation and gender-identity discrimination for federal contractors.

Suddenly, the First Amendment is transformed into a weapon, a cudgel if you will, for corporations to collude (genuinely or otherwise) with religion not only to circumvent government but to infringe on individual liberty. Today, it’s just women’s liberty being curtailed. Tomorrow, who knows?

The weaponization of the First Amendment in the Hobby Lobby ruling extends a dangerous trend under the Roberts Court. Consider Citizens United and McCutcheon, both of which took the notion of “corporate personhood” to extremes that not only stretched the boundaries of common sense but also the clear intent of our Founding Fathers. Those rulings literally contorted a piece of our Constitution meant to preserve individual liberty in our democracy and used it to instead utterly undermine, if not destroy, the role of individuals in our political process.

In an essay for the journal Democracy about the encroaching dangers of the Roberts Court’s pro-corporate constitutional interpretation, Duke Professor of Law Jedediah Purdy writes, “The Court has made the First Amendment a new anti-regulatory hammer.” Purdy points to an obscure but no less worrisome ruling in Sorrell v. IMS. Pharmacies and medical data companies service drug marketers by selling them the records of doctors’ prescriptions, which marketers can then use to target their sales strategies. Vermont barred the practice of selling or giving away that prescription information without the doctors’ permission. But in 2011, the Roberts Court ruled that the Vermont law was unconstitutional because advertising is speech and the law burdened that “speech.” Privacy and individual liberty be damned.

Even the recent ruling in Harris v. Quinn, about the home health-care workers in Illinois who didn’t want to pay union dues, starts to chip away at an interpretation of the First Amendment that protects freedom of association of workers in the face of corporate tyranny and instead turns the First Amendment on the workers, using it to slowly but surely dismantle the right to form a union. Moreover, embedded in the Harris decision is the insidious notion that money doesn’t just equal speech but that being compelled to pay money (here in the form of union dues) is the same as compelled speech.

Where’s the limit on that logic? If paying your taxes is compelled speech in support of the government, can the First Amendment be used to eviscerate taxes? And why just money? Arguably under that logic, any action could be construed as “speech.” And once you go there, pretty much any government requirement to do anything could be construed as unconstitutional under this twisted but very plausible weaponized First Amendment. Make no mistake about it, this entirely plausible scenario is a libertarian paradise, exactly the sort of unconstrained freedom that big business craves. Which is precisely what our Founders were trying to protect against.