The narrative gained momentum after Citizens United and again after Hobby Lobby. Now, in the oral arguments for Masterpiece Cakeshop, the assertion that commercial activity fundamentally alters the nature of civil liberties rises again.
Justice Sotomayor contended that exercises of certain liberties do not extend into commerce. She explained that once someone enters commerce, the right to refuse services is subject to oversight by the government. Or in other words, once you enter into commerce your rights to association, speech, and exercise of religion among others take a back seat to the interests of the state.
What Is It about Commerce?
Those who are often considered civil libertarians appear unduly hesitant to extend traditionally cherished liberties to those engaged in commerce. The concern — applied often asymmetrically, as it largely targets one side of the commercial activity — is likely animated by a belief that commercial activity alters the exercise of those rights. Consumers are hardly required to abandon free speech, matters of conscience, or association in order to purchase, barter, or trade — and in these discrimination actions hold all the cards — and use those rights in the commercial arena.
Codifying exceptions becomes the only method to sort what is permissible, a practice guaranteed to create a special privileged class. Alas, antagonism to commercial activity, even as it pertains to civil liberties, has been common among some commentators and jurists. This skepticism has long played a part in jurisprudence. Free speech is quite well-protected unless it is characterized as commercial speech. Protections against unwarranted home intrusions are thwarted by the Fourth Amendment unless it is a “rental inspection program,” which requires no evidence to enter the private domain of a renter by a government official. Constitutional values of privacy, conscience, or individualism are subsumed by the presumed interest the state has in matters of economy.
Some of the animosity stems from what some view as special legal privileges granted to some in the commercial realm — primarily limited liability and specialized tax treatment. This rationale runs against two major problems, however. First, the variety of business structures makes it difficult to parse out when special legal privileges prevent civil liberties from extending and when they do not.
Outside of the largely accepted differences between closely-held and publicly-held corporations, there is little distinction between business organizations that justifies hindering civil liberties. As these legal entities are so ubiquitous, it is difficult to determine when an entity such as the New York Times or Ben & Jerry’s, both corporations, are protected in their rights versus a small cakeshop in Colorado. Unfortunately, codifying exceptions by speaker and in content becomes the only method to sort what is permissible from the taboo, a practice guaranteed to create a special privileged class of corporations, businesses, and people.
Second, the idea that granting special legal privileges to businesses and corporations requires the surrender of certain rights runs afoul of the unconstitutional conditions doctrine. This doctrine, which prevents a trade-off between government privileges for constitutional rights, has been applied to a variety of circumstances, be it speech rights or eminent domain.
Engaging in Commerce Does Not Magically Erase Rights
Normally, determining the exercise of civil liberties by speaker, content, or requiring a barter of rights for privileges would fail to pass muster. Hence the need, and perhaps desire, to create a carve-out when commerce arises, offering less protection based on very little.
Nothing inherent to commerce requires that rights end where commerce begins. This is entirely separate from the difficult legal question of what constitutes speech. Instead, implied here is that commerce alters the nature of the rights, and the protection of civil liberties should subsequently be lessened. Yet there is no indication that commerce alters speech in a way that politics, religion, or other difficult-to-weigh intangibles do not. The associated nature of businesses and corporations may make certain determinations difficult. But no more so than in other protected actions where actors exercise their rights jointly, such as advocacy groups.
This is exactly the purpose of these many organizations, to exercise rights jointly, such as the right to earn a living. At times, commercial organizations may exercise other rights which may reasonably be done as a group. After all, it is not the entity itself we are constraining but those who constitute the organization.
Certainly, there are moments when it becomes untenable to exercise certain rights in the corporate form, such as pleading the fifth. However, that does not explain the animus against commerce, particularly those who go into business to provide services but still desire to exercise their civil liberties.
Nothing inherent to commerce requires that rights end where commerce begins. And those endeared to civil liberties — the right to protest, speech, conscience, association, and myriad others — would do well to reject this misleading distinction.