In the run-up to the Hobby Lobby oral arguments at the Supreme Court, where the chain store is challenging the Obama administration’s abortion-pill mandate, some on the left have been aghast at the very idea that a corporation would assert a right to religious freedom.
Sure, they argue, individuals have rights, but how can a corporation?
Mitt Romney was roundly mocked in August, 2011, when he declared “Corporations are people, my friend” to an angry heckler. "The Daily Show’s" Jon Stewart had a field day, Mitt Romney abandoned the argument, and the culture moved on.
But comedy shows and mockery are poor substitutes for thoughtful constitutional jurisprudence. In fact, corporations must be able to assert First Amendment rights. Indeed, if they’re not able, we’ll lose both our religious freedom and our free-market concepts of private enterprise.
Here are three reasons why:
First – and most obviously – corporations may have an independent legal existence but they are formed, staffed by, and act through individuals.
A corporation’s expression is the expression of the people who work for it and lead it. The law recognizes this reality when it holds corporations liable for the acts of the individuals who work for it, so long as those individuals act within the scope of their employment.
When you allow an organization to speak, people speak. When you censor an organization, you censor people.
Second, when you restrict corporations First Amendment rights, you are restricting a vast amount of the speech and other forms of expression that we take for granted as being free from government mandates and control.
What’s a movie? Corporate expression. A television show? Corporate expression. What about hospital policies regarding end of life care or abortion? Corporate expression.
Again and again, corporations make decisions that express their values. Whether you agree or disagree, the best response to corporate values isn’t to censor that expression or restrict the rights of the people who run that corporation – the very people who’ve invested blood, sweat, and tears to make it grow – but instead to shop at a place you prefer or to speak out against that corporation’s public stand.
You have a wallet. You can vote with that even more easily than you can vote at the ballot box.
Third – and finally – if the Supreme Court rules against Hobby Lobby, in what sense will “private enterprise” ever again be truly “private?”
If the United States government can force the people running a corporation to use corporate resources to provide free abortion-pills to employees (especially when contraceptives are cheap and widely available on the open market), it is difficult to imagine the meaningful limits on government power in the marketplace.
In the Hobby Lobby case, religious freedom – our first and oldest liberty – is being “balanced” against a “right” created, historically speaking, mere moments ago, a “right” to free contraceptives. Can people not go to the drug store and purchase those drugs or products themselves?
There is a reason why entrepreneurs use terms like “my business” when they start a new company. At immense personal risk and at immense cost, they take a chance – a chance at creating something that can provide value to them and to dozens or hundreds or even millions of others. And it’s theirs, the work of their hands.
Or is it? If government can regulate when it pleases, however it pleases, regardless of the strength of the owner’s convictions or the weakness of the government’s interests, then does anyone truly own a business any longer?
It is fashionable in many circles to mock and despise corporations, but without the ability to form corporations – to pool resources, to create self-sustaining legal entities, to sell shares to the public, it’s difficult to imagine the prosperity and advances of the modern world.
Look around your home at your favorite, most important products. They are products of corporations, all of them. All of your most indispensible items are products of private corporate entities, staffed by private citizens, working through the profit motive in ways that enhance all our lives.
But if we remove the “private” from private enterprise, how long will the enterprise last? The economic track record of repression is not promising.
You can agree with Hobby Lobby’s stance on abortion, or you can disagree, but the response is to speak how you’d like to speak and shop where you’d like to shop, not to bring down the heavy hand of the Obama administration on a company the administration did not build, selling products the administration did not create.
Do we truly have private enterprise in the United States of America? The Supreme Court will soon provide the answer.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. He also serves as a member of President Trump’s legal team. Follow him on Twitter @JaySekulow.