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Constitutional Amendments and Business Law

1st Amendment and Business Application

The 1st Amendment to the Constitution relates to freedom of speech, of the press, and of religion. Businesses are entitled to certain constitutional protections of speech, but businesses have less protection in this area than individuals do.
The 1st Amendment is part of the Bill of Rights, which is the first 10 amendments to the U.S. Constitution. People often think of the 1st Amendment as relating only to individual rights, but it affects the rights of businesses as well. It is helpful for business leaders to be aware of the 1st Amendment rights of their employees and customers.
The 1st Amendment of the U.S. Constitution guarantees freedom of religion, freedom of the press, and freedom of expression to American citizens. It also allows Americans to assemble (gather in groups) and to petition the government (ask it to solve problems).
The 1st Amendment primarily relates to freedom of speech, of the press, and of religion. It also allows citizens to assemble peaceably and "petition the government"—in other words, to ask the government to change laws or solve problems. One of the primary components of the 1st Amendment is the establishment clause, which forbids the government or Congress from imposing a national religion in the United States. It allows its citizens to choose a religion or to choose not to practice a religion. The free exercise clause is also part of the 1st Amendment and bars Congress from making any law that would forbid the free exercise of religion. Although these two parts of the 1st Amendment work together, a lawsuit brought by a person or business might focus mostly on one or the other.

Freedom of the press is another important part of the 1st Amendment. The amendment provides safeguards and forbids the government from passing laws that prevent access to information, including newspapers, books, television, and the Internet. These restrictions have developed over time through decisions that courts have made. The Supreme Court defines commercial speech as communication in which the speaker is selling a product or service and addressing an intended commercial audience with a business-related message. This type of speech includes radio and television ads, Internet ads, and flyers that are handed out on the street. Commercial speech is important when analyzing freedom of speech and freedom of the press in the business setting because courts can decide whether an advertisement, corporate website content, or other commercial message is misleading. The 1st Amendment also protects freedom of expression, which means the right to communicate ideas and opinions in spoken words or by other means, such as wearing an armband to protest an issue or remember someone who has died.

Freedom of speech states that the government may not interfere with citizens' rights to say what they want, but courts have imposed certain restrictions on this right. Symbolic speech can be conduct or an action, and it expresses an idea or a verbal stance of protest or support. Many challenges to the 1st Amendment involve obscenity, which is most commonly defined as a strongly offensive act, utterance, or other expression that would offend an average person who is using the modern standards of their community.

It is important for businesses to understand employees' 1st Amendment rights. For example, with the exception of some employees in highly regulated government positions, employees may attend political protests in their free time, even if their employers or managers disagree with their opinions. Businesses that misunderstand the law may be sued. Employees' freedom of speech and freedom of expression are also important for business owners and executives to understand. For instance, disciplining an employee for posting remarks on social media might result in a lawsuit. The National Labor Relations Act (NLRA) prohibits employers from taking adverse actions against employees who "engage in ... concerted activities for the purpose of ... mutual aid or protection." The National Labor Relations Board has found that employers who take disciplinary action against employees who criticize their working conditions, pay, or supervisors on social media could be in violation of the NLRA. If the employer does take action against the employee, that employer may face litigation. However, there are various factors that ultimately determine this, such as whether the employment is at-will, meaning an employee or employer can end the work relationship at any time.

Significant cases have upheld 1st Amendment rights for corporations as well. Burwell v. Hobby Lobby Stores Inc. (2014) was a landmark Supreme Court decision allowing closely held for-profit corporations to be exempt from regulations to which its owners object on religious grounds if there is another "less restrictive" means of pursuing the aim of that regulation. The owners of Hobby Lobby, an arts and crafts store, objected to the use of contraception on religious grounds. The court ruled that Hobby Lobby was not required to cover the costs of contraception for its employees, though this was a requirement of the U.S. Department of Health and Human Services. The decision marks the first time the court has extended the rights of religious belief to for-profit corporations.