From Public Square to Market Square : Theoretical Foundations of First and Fourteenth Amendment Protection of Corporate Religious Speech

Should corporate religious expression receive protection under the Fourteenth Amendment's Due Process Clause and under the First Amendment's Speech Clause? Case law or legal literature has never examined this issue, despite government's increasing burdens on corporate religious speech. Constitutional free speech doctrines therefore present an innovative and potent tool for civil rights attorneys and corporate counsel. Moreover, increasing corporate social responsibility through religion depends upon the right to free religious expression. This Note examines the theoretical foundations of corporate religious speech rights through the lens of traditional corporate and associational theory. It rejects two corporate law theories denying corporate religious speech rights (artificial entity and contractarian) as outmoded conceptions no longer applicable to modern corporations. This Note finds that the natural entity theory is the only theory supporting corporate religious speech rights. This Note also discusses how the First and Fourteenth Amendments may protect corporate religious speech. It illustrates how corporate theories have affected Supreme Court corporate speech cases, draws analogies from precedents protecting corporate political speech, and shows how a variety of free speech theories justify corporate religious speech protection. As a result, statutes like Title VII or New Jersey's Worker Freedom from Employer Intimidation Act must avoid infringing upon corporate religious speech rights. These conclusions receive support from our nation's historical commitment to religious pluralism