Prior to
Bellotti in 1978, such a statement from a corporation was not constitutionally protected. Prior to 1978, "materially affecting" was the commonly applied standard for profitmaking corporations, meaning corporate speech was protected if it “materially affect[ed] any of the property, business or assets of the corporation.”
As noted in the
Bellotti dissent:
There is now little doubt that corporate communications come within the scope of the First Amendment. This, however, is merely the starting point of analysis, because an examination of the First Amendment values that corporate expression furthers and the threat to the functioning of a free society it is capable of posing reveals that it is not fungible with communications emanating from individuals and is subject to restrictions which individual expression is not. Indeed, what some have considered to be the principal function of the First Amendment, the use of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all furthered by corporate speech. It is clear that the communications of profitmaking corporations are not "an integral part of the development of ideas, of mental exploration and of the affirmation of self." They do not represent a manifestation of individual freedom or choice.
Again, as written in the liberal justices' dissent of
Citizens United:
Postratification practice bolsters the conclusion that the First Amendment, “as originally understood,” … did not give corporations political speech rights on a par with the rights of individuals. Well into the modern era of general incorporation statutes, “[t]he common law was generally interpreted as prohibiting corporate political participation,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 819 (1978) (White, J., dissenting), and this Court did not recognize any First Amendment protections for corporations until the middle part of the 20th century.
Prior to
Bellotti, corporations had limited First Amendment rights. And "Well into the modern era of general incorporation statutes, [t]he common law was generally interpreted as prohibiting corporate political participation.”
To appreciate the challenge Disney faces in bringing a First Amendment case against the State of Florida, some Supreme Court history is needed.
The Burger Court ran from 1969 to 1986, Warren Burger’s term as Chief Justice. The Burger Court was a transitional court, fitting between the liberal Warren Court and the conservative Rehnquist Court. Today, the Burger Court is best known for its
Roe v. Wade ruling. This generally is considered to be the last liberal court.
Even though Chief Justice Roberts has attempted to steer his Court (2005 to present) towards compromise, he’s been less effective at doing so in recent years. Recent appointments have changed the Court’s makeup from one of moderation to one of active conservatism. The current Robert Court is the most conservative court in decades.
The Robert Court has become highly critical of several Burger Court decisions. Most infamously,
Roe v Wade (1973) was overturned by
Dobbs v. Jackson Women’s Health Organization (2022). However, this is by no means the only example.
In recent years, there’s a long list of Burger Court decisions overruled by the Roberts Court.
Obergefell v. Hodges (2015) overruled
Baker v. Nelson (1972).
Hurst v. Florida (2016) overruled
Spaziano v. Florida (1984).
Janus v. AFSCME (2018) overruled
Abood v. Detroit Board of Education (1977).
Franchise Tax Board of California v. Hyatt (2019) overruled
Nevada v. Hall (1979).
Ramos v. Louisiana (2020) overruled
Apodaca v. Oregon (1972).
In
Students for Fair Admissions v. President and Fellows of Harvard College (2023), the Supreme Court appears poised to overturn
yet another decision from the Burger Court,
Regents of the University of California v. Bakke (1978).
Bakke is the foundation of affirmative action.
Taken together, it's clear that the conservative justices of the Roberts Court do not like the decisions from the Burger Court.
Bellotti, which gave corporations increased First Amendment rights, came from the Burger Court.
Associate Justices Thomas and Alito were in the
Citizens United 5-4 majority. If Disney’s case made it to the Supreme Court, the origins of this complaint would have to be considered when contemplating how these two might rule. Chief Justice Roberts’ protests to the contrary, these two justices do not rule as if they are impartial umpires calling balls and strikes.
A decision in Disney’s favor would encourage corporate activism on topics these justices vehemently oppose. It’s difficult to imagine the court’s two most conservative justices ruling for Disney. They are going to find a way to pretzel themselves into a ruling against Disney. For example,
Citizens United includes “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Since the law changing RCID neither fines nor jails, Thomas and Alito might convince themselves (if no one else) that
Citizens United does not apply. Alternatively, they could find that the state’s actions were the result of a “compelling governmental interest”. Legal scholars would fervently disagree but, bluntly, there would be nothing they could do.
The Court’s three newest conservative justices, Gorsuch, Kavanaugh, and Coney Barrett, hold no allegiance to
Citizens United. (In fact, during his confirmation process, there was hope that
Gorsuch would overrule Citizens United.) They undoubtedly have observed corporate America’s recent lurch to the left on social issues. These justices almost certainly would find a law to ban “Classroom instruction … on sexual orientation or gender identity … in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate” to be constitutional. A ruling in Disney’s favor would encourage corporate political activism in a direction they would find abhorrent. Even if the three don’t reach their decisions using the same reasoning, it seems likely that at least two and possibly all three would find a way to rule in favor of the State of Florida. They might, for example, rule that the Supreme Court has no authority to interfere with how the State of Florida manages the makeup of special district board members, under the conservative mantra of “state’s rights”. Alternatively, they might return to their Originalism philosophy that “the First Amendment, ‘as originally understood,’ … did not give corporations political speech rights on a par with the rights of individuals.”
Remember, five justices don’t have to agree on a reason to reach their ruling; they just have to agree on the outcome.
Seriously, is a conservative Court that repeatedly has overruled liberal precedent really going to be Disney’s knight in shining armor? Or are they more likely to be the four horsemen of the apocalypse?
This does not mean that the conservative justices definitely would rule against Disney, but there's enough history to make Disney's legal counsel nervous.
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