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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Wednesday, May 14, 2003

Eugene Volokh on the display of flags at work, in the face of a company desire to prohibit same.

It will undoubtedly surprise a lot of persons, but there is no constitutional right to engage in business. If there were, most of the Federal and State apparatus for regulating businesses -- including many of government's most profitable extortions -- would go down in flames, having failed a means-and-ends test. As the Supreme Court has pointed out, the power to tax is the power to destroy, so, where there is an undoubted power to tax, as there is on business, the government's stopping itself at a point -- any point -- short of outright destruction is a matter of legislative grace only. Yeah, it sucks. Whaddya expect? It's the law nonetheless.

Volokh's arguments about how the premises belong to the company ignores the fact that the premises are used to conduct business. The government is not required to permit that use, and may impose whatever conditions it desires upon the granting its permission, including the condition that employees be permitted to display flags. If the law may hold it, for example, that the company must broadcast the government's own advocacy -- Volokh-speak for "the most stringent possible scrutiny" -- upon its walls (the "Federal 5-in-1 Labor Law Poster" comes to mind), in entire disregard of the company's possibly contrary views, or that a company cannot prohibit union advocacy on its premises -- that it must open the use of its own property to expression, not merely offensive (but otherwise cost-free) to some notional "company right of conscience," but actually inimical to its interests, in furtherance of a government desire to maximize the effectiveness of that inimical advocacy -- then obviously there is a big hole in the protections of the First Amendment as extended to businesses, and Volokh's argument falls apart. There might be a more nuanced argument that arrives in the same place; just waving "First Amendment" in the air, though, won't do the trick.

UPDATE: I've given Volokh's post a more thorough reading, now. He was more careful about it than I credited him, above, and he anticipated the "5-in-1 Poster" bit. I'm curious to see if he has anything to say on the union-advocacy score, which has been tested before the Supreme Court. That's twice, though, that I've blogged a critique based on only glossing one of his posts, and as a consequence stuck my foot in it. There's a lesson there, somewhere.

I wish I didn't have the impression, though, from this and a number of other posts, that a significant part of Volokh's judgment in this instance is informed by a simple reflex: "Government + Flag = No way."

-- posted by Clayton 5/14/2003 11:16:00 PM

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