The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. Adam Scales writes, in response to my argument about why the First Amendment bars governments from discriminating against Nike based on Nike's having Colin Kaepernick as a spokesman:
I have some doubt that Nike's hiring of Kapernick should be taken seriously as essentially expressive activity. While Nike is clearly taking sides in the aspect of the culture war, can we discern with any confidence Nike's corporate position on, say, Section 1983 liability? Nike isn't taking out ads calling for investigation of police brutality; they are hiring a pitchman who inspires deep feelings. Feelings that Nike has calculated will be reflected among its target customers.
You write that it would ok for governments to refuse to deal with companies that (lawfully) discriminated against gays. Let's push this a bit. May the government refuse to deal with a company that hires prominent anti-gay activist for its commercial advertising? I honestly can't tell that your answer would be, based on this analysis, and I don't think both of your observations can be correct. Sure, the anti-gay discrimination is action, but I'll bet that a lot of the time it would have a genuine expressive component. I could be wrong, however. Maybe the company is just like Nike, and only does this to placate its expected customers. Shouldn't we try to find out before settling the constitutional question?
[1.] Hiring a spokesman is hiring someone to speak for you, to appear in your print and video ads. That is the exercise of Nike's First Amendment rights, much as any film director's decision to hire a particular actor is the exercise of his First Amendment rights. You could, if you want to, label it the exercise of expressive association rights as well as free speech rights; but since expressive association rights are an aspect of your free speech rights, the analysis is the same. (Nike's videos are commercial speech, but that doesn't matter here.) I do think that hiring Colin Kaepernick as a spokesman sends a particular ideological message; but in any event, it is indubitably First-Amendment-protected activity.
[2.] But my argument goes beyond that, because I think the government generally can't discriminate against companies based on the politics of their employees (or, more broadly, their employees' exercise of any constitutional rights), whatever role the employee has.
Say, for instance, that California said, "we refuse to do business with companies whose CEOs are Republicans," or "whose CEOs own guns," or "whose CEOs have had abortions." Even if that doesn't violate the business's First Amendment rights (because the business isn't speaking through its CEO), it violates the CEOs' rights—it targets them for governmental retaliation, though pressuring their employers to fire (or not hire) them. Board of Comm'rs v. Umbehr (1996) made clear that the government generally can't terminate a contract with a sole proprietor (there, a trash hauler) based on the person's speech; the government can't be able to terminate a contract with a corporation based on its CEO's speech or any other employee's speech. (While the Umbehr court focused only on termination of existing contracts, its reasoning rested on the analogy between government contracting and government employment—and when it comes to government emloyment, the Court has expressly held that politically based refusals to hire are generally as unconstitutional as politically based dismissals, see Rutan v. Republican Party (1990).)
Certainly if the government refused to deal with a company because some of its employees were black or women or Catholics, it would be clear that the government is violating the Equal Protection Clause; the same applies to the other rights—just imagine the power the government would have to suppress speech, or other constitutional rights, if it could threaten to retaliate against people's employers this way. Indirectly suppressing the speech by threatening the employers is just as unconstitutional as doing it by threatening the employees; constitutional protections apply whenever "government officials, through exercise of their regulatory authority over an employer, demand the discharge of an employee," and Umbehr tells us that constitutional principles apply when the government acts through exercise of its contracting authority and not just its regulatory authority.
[3.] Of course the same is true whether the government is discriminating against employees who hire people who are seen as anti-police, anti-gay, anti-Muslim, anti-American, or pro-police, pro-gay, pro-Muslim, or pro-American. The government can refuse to do business with companies that discriminate based on race, sex, sexual orientation, and the like. (Title VI of the Civil Rights Act is a classic example of such a law.) It could even refuse to do business with companies that refuse to serve police officers, or with companies whose employees discriminate in various constitutionally unprotected ways even off the job. But that's precisely because a private company's act or its employees' acts of discriminating is not protected by the First Amendment in most circumstances. A company's and its employees' speech are protected by the First Amendment.
[4.] Finally, as I noted in the update to the original post, the First Amendment doesn't provide this protection whenever someone's actions "have a genuine expressive component." Most conduct has some expressive component, if only to express the actor's support for such conduct. Most discrimination has some expressive component. But the government may refuse to do business with people or companies based on their or their employees' conduct, when it does so for reasons unrelated to that expression—for instance, because it doesn't want government funds to indirectly flow to constitutionally unprotected discrimination.
Here, though, it's clear that a government actor is contemplating discriminating against Nike because of either Nike's or Kaepernick's expression (or both). That's why the First Amendment protection kicks in.