Miller - Blog Post 7

 In Chapter 3 of Speech Matters, Shiffrin examines business corporate and commercial speech. She contends that such speech differs from individual and noncommercial speech because it “does not involve in any direct or straightforward fashion the revelation or development of individuals’ mental contents” (98). This relates to her thinker-based approach, which emphasizes the “interests and needs of the underlying thinker” (85). Since corporate speech does not relate to the development and revelation of thinkers, nor does it enhance relations between thinkers, Shiffrin argues it does not merit the same protections as individual speech. 

Shiffrin also differentiates corporate speech from individual speech when she asserts that commercial speech discourages “authentic expressions of individuals’ judgement” because external pressures in the marketplace powerfully influence the content of corporate speech. She describes Baker’s argument, which asserts that the structure of the market and aims of corporations “place substantial pressures on the content of corporate and commercial speech that are not directly responsive to the convictions of its members” (99). Shiffrin, on the other hand, advances a more qualified argument wherein external pressure makes the presupposition of sincere speech by corporations “tenuous” (rather than impossible).

Shiffrin proceeds to bring up an interesting comparison between the authenticity of corporate speech and speech by members of a religious group. Some people may argue that just as there is reason to question the authenticity of corporate speech, there could be reason to inspect “speech by members of a religious group whose dissent may earn them expulsion” (100). Shiffrin counters this argument when she explains that the pressures placed on a corporation to say certain things are far greater than the pressure “for a religious thinker not to change her mind in light of her sincere doubts” (100). She concludes that for-profit, nonpress commercial speech differs from other types of speech because of the competitive and inflexible marketplace, the narrowly defined interests of corporations which do not necessarily include sincerity and accuracy, and the role of corporations in distributing resources and opportunities.

This comparison between corporations and members of religious groups is fascinating, and merits further exploration. As Shiffrin admits, full treatment of the topic and its complex cases require further inquiry. One such area of inquiry is the intersection of for-profit corporations and members of religious groups. The case Burwell v. Hobby Lobby Stores may provide interesting insight. Hobby Lobby Stores, Inc, a for-profit company, is owned by the Green family. The Green’s claim their business is built around the principles of Christianity. When the Patient Protection and Affordable Care Act was passed, it mandated that employer health care plans must cover contraceptives. Exemptions exist for religious employers and non-profit religious organizations, but are not applicable to for-profit institutions such as Hobby Lobby. As a result, Hobby Lobby challenged the contraception requirement in Court, claiming that it violated the Free Exercise Clause of the First Amendment. 

Though this case does not specifically address the Free Speech Clause of the First Amendment, I am interested to see how Shiffrin would apply her thinker-based approach to either this case or one that is similarly situated. Though she does consider that the treatment of speech by nonprofits and religious institutions should be distinct from for-profit corporations, she does not address how religiously-informed for-profits should be treated. How should the protections on freedom of speech be addressed when a for-profit corporation claims that it has deeply religious underpinnings and a “morally-fused” agenda?