Introduction
In the aftermath of Donald J. Trump’s defeat by Joe Biden in the last presidential
election, several of Trump’s vocal supporters faced significant repercussions due to
their public statements. Mike Lindell, CEO of MyPillow and one of Trump’s most
ardent supporters, propagated the unfounded conspiracy theory of a rigged election
(Siders). Following Lindell’s controversial White House appearance after the January
6 insurrection, major retailers including Walmart, Kohl’s, and J.C. Penney removed
MyPillow products from their shelves. Currently, Lindell is embroiled in legal battles
that threaten to bankrupt his company (Winter, Coolican). Lindell laments, “This is
unprecedented in history. Over 20 retailers have severed ties with MyPillow”
(Palmer). This corporate response to Lindell’s public stance exemplifies the complex
interplay between freedom of contract in business and freedom of speech.
The question of whether public statements constitute a justifiable basis for
terminating business relationships remains contentious. While many assert that
companies have the legal right to decline transactions based on an individual’s public
statements (Turobinor), this stance potentially conflicts with First Amendment
protections and anti-discrimination laws, particularly when public statements are
inextricably linked to personal identity and expression. This paper presents an
alternative framework for evaluating when public statements can justifiably serve as
dealbreakers, grounded in a nuanced understanding of a company’s multifaceted roles
and societal obligations. The discourse will unfold in three parts: first, examining
exceptions where companies are obligated to serve all customers; second, exploring
the varying degrees of contractual freedom based on a company’s role and product
type; and finally, analyzing the impact of corporate social responsibility on business
decisions.
I. Exceptions to the Right of Refusal
Companies generally enjoy the freedom of contract, provided that their practices
do not constitute discrimination. However, those providing products or services
fundamental to basic human rights bear an incontrovertible obligation to serve all
citizens with equitable access. This principle stems from the government’s core
responsibility to safeguard the right to life, ensuring citizens’ survival and well-being
through accessible, essential utilities and infrastructure. This tenet is particularly
crucial in healthcare, where medical treatment must be provided regardless of a
patient’s public statements. Similarly, industries supplying vital services such as water,
electricity, and emergency response must maintain uniform service levels, protecting
every individual’s right to life without bias or discrimination. These services, along
with other aspects of public welfare, are deemed so essential that they transcend the
typical freedoms associated with ordinary commercial transactions.
II. Freedom of Contract and Company Expression
In contemporary society, it’s noteworthy that many corporations have evolved
beyond their original purposes, becoming entities with far-reaching influence and
cultural significance. These organizations often embody specific ideological stances
or cultural values.
For instance, Fox News is frequently associated with the Republican Party due to
its perceived political leanings in public advocacy and news coverage. This
phenomenon makes it challenging to dissociate a company from its aligned values;
consequently, patronizing a business is often interpreted as tacit support for its
cultural stance. Companies producing goods or services imbued with ideological or
subjective claims should, therefore, be afforded greater discretion in selecting their
business partners compared to those offering more neutral products.
To illustrate, while a bank serving Republican clients doesn’t necessarily imply
political endorsement, an advertising agency working with a particular company is
often perceived as supporting that company’s ethos. Thus, when an “expressive”
company engages in business, it implicitly endorses or tolerates the public statements
of its partners, potentially influencing public perception. In essence, both the customer
and the company are making public statements through their association. This
dynamic suggests that companies should enjoy the same freedom of expression as
their customers, with their freedom of contract protected under the First Amendment.
Consequently, when a company’s public image is intertwined with its customers’
statements, the company should retain the right to determine its business associations.
This decision-making process falls under the protection of the First Amendment,
which safeguards both freedom of religion and freedom of speech for individuals
(Congress).
The Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)
case serves as a pertinent example. In this instance, a bakery owner declined to create
a wedding cake for a same-sex couple, citing religious beliefs. The couple filed a
complaint under the Colorado Anti-Discrimination Act. The Supreme Court ruled in
favor of the bakery owner, asserting that while Colorado law protects gay couples
from discrimination, it must be applied in a manner that respects religious neutrality
(Ham and Wong).
Applying the criteria outlined in this paper, one could argue that the bakery
owner lacks justifiable grounds to refuse service to the couple, as the product itself
doesn’t convey an explicit message. While the owner may view selling the cake as
tacit approval of same-sex marriage, it can be contended that the cake is merely a
confection, devoid of inherent symbolic meaning. Justice Kennedy drew a crucial
distinction between designing a cake with explicit supportive imagery or text and
simply selling a standard cake (Justia).
In the former scenario, the baker would be compelled to convey a message,
potentially infringing on his First Amendment rights. The latter situation, however,
involves the owner rejecting customers based on their public identity as a gay couple.
Both parties’ freedom of expression should be equally protected. Thus, while the
owner may have the right to refuse designing a custom cake with a specific message
for the couple, there’s no justifiable basis for denying them the purchase of a standard
cake.
III. Corporate Social Responsibility and Societal Impact
Dissenting opinions in the Masterpiece Cakeshop case argue that while the
bakery owner has the right to his religious beliefs, he should adhere to state
anti-discrimination laws if he wishes to conduct business in that jurisdiction. To do
otherwise might create a precedent that inadvertently sanctions discrimination
(National Constitution Center). Some also contend that prioritizing a company’s
freedom of speech could pave the way for broader discriminatory practices. I
advocate for a position that no religious belief should justify prejudice against
LGBTQ+ individuals or any other marginalized group. Oftentimes, religion is
misinterpreted, and some individuals invoke religious convictions to rationalize
discriminatory attitudes toward LGBTQ+ people (ACLU). However, regardless of
personal beliefs, a business owner should not deny services to a gay couple or
withhold approval of their union. This introduces a critical point: companies have an
obligation to meet societal expectations in their business practices. In today’s
landscape, brands often embody and propagate specific societal values that consumers
internalize.
Companies are expected to uphold and integrate positive values within their
operations as part of their Corporate Social Responsibility (CSR). An increasing
number of corporations must recognize that profit maximization cannot be their sole
driving force; adhering to CSR principles is both a moral imperative and an integral
aspect of ethical business practices and societal well-being (Stobierski). In this
context, companies’ CSR obligations can be articulated as follows: They must be
cognizant of the message they convey to society through their business decisions,
prioritizing social impact over short-term profit. This principle manifests in two key
ways:
Firstly, when an individual’s public statements exert a detrimental influence on
society, companies have an ethical obligation to cease serving that person. Social
media platforms’ content moderation policies provide a relevant example. X’s
regulations on hateful conduct explicitly prohibit targeting individuals based on
protected characteristics such as race, ethnicity, or national origin. X acknowledges
that experiencing abuse on their platform can impede free expression and therefore
does not tolerate attacks on individuals or groups due to their perceived membership
in protected categories (X Help Center). This zero-tolerance approach to
discrimination safeguards marginalized communities and aligns with positive social
values, setting a standard that other companies should emulate in their respective
spheres of influence.
Secondly, the act of refusing service to certain clients can potentially foster
misconceptions in society and exacerbate discrimination. The recent 303 Creative
LLC v. Elenis case, where a web design company refused to create a website for a
same-sex wedding citing religious beliefs, illustrates this point (CSR). While this
decision is ostensibly protected by the First Amendment, its broader implications are
concerning.
For instance, Christine Geiger, a hair salon owner in Traverse City, Michigan,
publicly declared on social media her refusal to serve clients who don’t identify with
their assigned gender at birth, suggesting they seek services from pet groomers
instead. Katherine Franke, Professor of Law and Director of the Center for Gender &
Sexuality Law at Columbia University, warns that “303 Creative LLC provides a
green light for people to engage in what was previously understood as discrimination.
People now feel immunized from consequences for engaging in such violent, bigoted
speech.” While it’s unreasonable to assume that 303 Creative LLC directly sanctions
the salon’s discrimination, the troubling ripple effects of this precedent are becoming
evident. The potential for 303 Creative LLC to inadvertently encourage discriminatory
behavior and negative public statements about LGBTQ+ individuals is a valid
concern. This case study underscores how a company’s prioritization of its rights and
freedoms over societal obligations can have far-reaching consequences. It emphasizes
the critical need to incorporate comprehensive social impact assessments into
decision-making processes regarding customer refusal based on public statements.
Companies that neglect their societal responsibilities risk facing severe backlash and
criticism for prioritizing narrow self-interest over broader social implications in their
business decisions.
Conclusion
While companies possess the right and freedom to choose their business partners,
they must also carefully consider the social ramifications of each transaction,
particularly in an era where business dealings often signify more than mere commerce
but also represent a tacit endorsement of particular stances. Companies should be
acutely aware of the positions they’re perceived to represent and whether they’re
promoting the positive values society expects of them.
In cases like 303 Creative LLC and Masterpiece Cakeshop, the First Amendment
has been prioritized over anti-discrimination laws. Both entities declined to endorse
same-sex marriages due to religious convictions, presenting a complex challenge in
determining whether such actions constitute discrimination.
However, two crucial questions persist regarding the rectification of harmful
public statements: First, the First Amendment should be interpreted through the lens
of anti-discrimination principles. Freedom of speech may need to be curtailed when it
veers into discriminatory territory, necessitating more refined criteria for establishing
boundaries on public statements while considering their potential consequences.
Second, merely appealing to companies’ sense of social responsibility is
insufficient; concrete measures must be implemented to foster their active
participation in promoting societal well-being. By addressing these challenges, we can
work towards resolving the tension between individual rights and freedoms and their
potential to cause harm to others, creating a more equitable and inclusive business
environment.
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