1st Amendment for Businesses?

[Jinx]

I hear it spread by word of mouth, but what’s the SD? While the founding fathers of the US give rights to citizens, since when did these rights apply to businesses (other than freedom of the press)? What landmark decision gave US constitutional rights to businesses?

Look at this story on a case involving NYC’s fast food restaurants as one example and explain how the fast food industry can cite the 1st Amendment?

• Jinx

[DSYoungEsq]

The Constitution talks about “persons” in the Bill of Rights. Corporations are rightly viewed in one of two ways: as a “person,” or as a collection of “persons.” If you were to tell McDonalds, for example, that it had no “freedom of speech,” you would, in essence, be saying to the persons that own the company that their right to speak freely ended somehow when they banded together in a corporation.

That’s a very brief and un-legal-like answer (meaning not all formal and full of citations) and I apologize for that, but until my morning mid-term is over, I don’t have time to make it right. Still, it is a good paradigm for thinking about it.

[Gfactor]

1. It’s the First Amendment, as applied to the states through the Fourteenth Amendment. The First Amendment on its face only applies to Congress, and doesn’t really say who has the rights in question:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2. The Fourteenth Amendment talks about persons and citizens:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There is some dispute about whether it was intended to incorporate the First Amendment. http://www.straightdope.com/mailbag/mfreereligion.htm (not to mention a dispute about whether the Constitution should be applied as it was originally understood, or even whether that is a meaningful concept).

3. The Supreme Court has long held that Corporations are persons under the Fourteenth Amendment.

That freedom of speech and of the press are rights of the same fundamental character, safeguarded by the due process of law clause of the Fourteenth Amendment against abridgement by state legislation, has likewise been settled by a series of decisions of this court beginning with Gitlow v. People of State of New York, 268 U.S. 652, 666 , 45 S.Ct. 625, and ending with Near v. State of Minnesota, 283 U.S. 697, 707 , 51 S.Ct. 625. The word ‘liberty’ contained in that amendment embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties as well. Allgeyer v. State of Louisiana, 165 U.S. 578, 589 , 17 S. Ct. 427.

Appellant contends that the Fourteenth Amendment does not apply to corporations; but this is only partly true. A corporation, we have held, is not a ‘citizen’ within the meaning of the privileges and immunities clause. Paul v. Virginia, 8 Wall, 168. But a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses, which are the clauses involved here. Covington & L. Turnpike Road Co. v. Sandford, 164 U.S. 578, 592 , 17 S.Ct. 198; Smyth v. Ames, 169 U.S. 466, 522 , 18 S.Ct. 418.

Grosjean v. American Press Co., 297 U.S. 233, 244 (1936)

[Richard_Parker]

Trustees of Dartmouth College v. Woodward (1819) and Santa Clara County v. Southern Pacific Railroad (1886) are the cases that together give corporations constitutional rights generally.

[Rhythmdvl]

By the way, note that the actual decision rested on conflict with Federal law, not Constitutional law.

[Gfactor]

@Rhythmdvl

By the way, note that the actual decision rested on conflict with Federal law, not Constitutional law.

Yes. It was more like Lorrillard, I think, which involved federal preemption. Federal Preemption Now a Barrier to Local Tobacco Ordinances, Health Law Perspectives, Health Law & Policy Institute
This is from a discussion of federal preemption of state anti-GM food laws:

In recent years, numerous courts have struck state laws regarding food labeling on either express or implied preemption grounds.

---

See Grocery Manufacturers of America, Inc. v. Gerace, 755 F.2d 993 (1st Cir. 1985) (imitation cheese); Vermont Pure Holding, Ltd. v. Nestle Waters North America Inc., No. Civ.A.03-11465, 2004 WL 2030254 (D. Mass. Sept. 9, 2004)(spring water); Goya de Puerto Rico Inc. v. Santiago, 49 F. Supp. 2d 274 (D.P.R. 1999) (pigeon peas); Lever Bros Co. v. Maurer, 712 F. Supp. 645 (S.D. Ohio 1989) (dairy spread); Committee for Accurate Labeling and Marketing v. Brownback, 665 F. Supp. 880 (D. Kan. 1987) (artificial dairy products); Cohen v. McDonald’s Corp., 808 N.E.2d 1 (Ill. App. 2004) (McDonalds’ Happy Meal®); see also Hillside Dairy Inc. v. Lyons, 539 U.S. 59 (2003) (noting possibility of preemption of state law labeling requirement on reduced fat milk prior to enactment of specific federal savings clause).

http://www.wlf.org/upload/120205LBLasker.pdf

[Gfactor]

The same article says:

@footnote 5

While beyond the scope of this LEGAL BACKGROUNDER, the proposed state laws may also be legally vulnerable under the commerce clause or, to the extent they would mandate warning labels without evidence of health risks, the First Amendment. See International Dairy Foods Ass’n v. Amestoy, 92 F.3d 67 (2d Cir. 1996) (state law requiring labeling of products from cows treated with growth hormone violated First Amendment); Kraft Foods North America, Inc. v. Rockland County Dept. of Weights and Measures, No. 01 Civ. 6980, 2003 WL 554796, at * 8-*10 (S.D.N.Y. 2003) (state food labeling law unduly burdened interstate commerce); Lever Bros. Co. v. Maurer, 712 F. Supp. 645, 651-54 (S.D. Ohio 1989) (state food labeling law violated First Amendment and Commerce Clause).

[Billdo]

@Gfactor

3. The Supreme Court has long held that Corporations are persons under the Fourteenth Amendment.Grosjean v. American Press Co., 297 U.S. 233, 244 (1936)

Thanks, Gfactor, I was about to look for a general cite that the Due Process Clause applies to corporations for a brief I’m working on, and goofing off on the SDMB actually saved me some real work time for once.

[Gfactor]

@Billdo

Thanks, Gfactor, I was about to look for a general cite that the Due Process Clause applies to corporations for a brief I’m working on, and goofing off on the SDMB actually saved me some real work time for once.

It’s worked for me more than once. Glad to help.