Does Free Speech Apply To My Business?
With the very public dispute between Disney and the governor of Florida, our office has received questions as to what type of protections entrepreneurs and businesses have when they take positions on public or legislative issues.
I have a unique perspective having been on all sides of the issue. I have served as an elected official, advised units of government on free speech matters, provided insight on legislative matters to Republicans and Democrats, and been subject to pickets, loss of business, and retaliation for expressing my opinion on public matters.
The law is well established that business have free speech rights under the First Amendment. The Supreme Court in various rulings has protected those rights: First National Bank of Boston v. Belotti, 435 US 765 (1978); NAACP v. Button; 371 US 415 (1963); and the most well-known case: Citizens United v. Federal Elections Commission, 558 US 310 (2010.)
There is an important caveat to this where the government can regulate commercial speech. Commercial speech is communication that promotes or relates to a business or commercial transaction. Board of Trustees v. State University of New York v. Fox, 492 US 469 (1989).
When an entrepreneur exercises his or her right to take a stand on any issue, there can be repercussions. We would hope in a utopian view of the world that everyone, including the government, would respect everyone is right to express their views, but as demonstrated so well in Florida, which is not the case.
As entrepreneurs, before taking a public stand (and assuming you are not the size of Disney) you need to consider the impact on your business.
It is important to remember that government controls things such as permits, licenses, zoning, contracts, grants, and loans. Yes, the government is required to be “fair” and not make decisions that are arbitrary, capricious, or discriminatory, but which is not the case.
Is it a good idea to criticize the agency which may control your livelihood?
As an entrepreneur, you also need to remember that if the government, elected official or agency is your client – is it smart business to criticize your customer?
This challenge for entrepreneurs is further compounded by the current employment landscape. As I have learned from the teachings of Darren Hardy through the Heroes Journey and Business Master Class, there are now five generations in the workforce. For some of these potential employees, they expect that their employer has a social conscience and that the work they do will benefit society, not just generate a paycheck. As entrepreneurs, we must balance that expectation against the reality of business.
In summary, yes, as business owners and entrepreneurs, we have the right to free speech. Exercising that right of free speech can come at a price, however, which you may not w 0ish to pay. Weigh your decisions carefully.
These topics are covered more in-depth in our May 2022 Bulletin.
Phillip James Addis is a licensed attorney who owns and operates Main Street Development and Addis Law, LLC. They work with entrepreneurs to help their businesses grow and succeed. If you would like to see how we can help your business, please contact us at firstname.lastname@example.org.
This article is being provided to you for informational purposes only. It is not intended to provide legal or tax advice. Please check with your tax advisors to be certain what options work best for you.