In 2010, the Supreme Court handed down its decision in Citizens United v. Federal Election Commission. The Court held that for-profit corporations could receive First Amendment protection for political speech. Then, in 2014, the Court held in Burwell v. Hobby Lobby that closely held for-profit corporations could be considered persons under the Religious Freedom Restoration Act. These cases have spurred much scholarship focusing on the treatment of corporations as people and citizens. While supporters argue that these cases are consistent with corporate and First Amendment law, critics argue that the implications of these decisions could be perverse.
This article contributes to the critical scholarship by arguing that these two cases might lead to unexplored perverse outcomes. In particular, it argues that corporations may be designated as expressive associations under these newly minted First Amendment protections. If they are expressive associations, then for-profit corporations could discriminate against certain employees who disagree with the corporations' speech. The freedom of association jurisprudence allows expressive organizations to exclude people from membership if those people frustrate the organizations' protected First Amendment activities. Drawing upon this doctrine and using Hooters and Abercrombie & Fitch as case studies, I argue that designating for-profit companies as expressive associations could give these companies a right to exclude certain people from employment because such employees would frustrate corporate speech.
Fully and Barely Clothed: Case Studies in Gender and Religious Employment Discrimination in the Wake of Citizens United and Hobby Lobby,
12 Hastings Bus. L.J. 133
Available at: https://repository.uchastings.edu/hastings_business_law_journal/vol12/iss2/2