This weekend past, a First Amendment Symposium was held at Loyola Law School in honor of esteemed alumnus Steven Shiffrin. It was attended by eminent constitutional law scholars, including Erwin Chemerinsky, Kurt Lash, and Eugene Volokh. The topic was commercial speech, particularly in the context of Kasky v. Nike, Inc., 27 Ca. 4th 939 (2002). I’ve broken down just a hint of the arguments that each of the distinguished speakers made.
First Amendment Theory
The arguments for reduced protection for commercial speech tend to fall into three categories:
- Rationalist: This group claims to be neutralist, and rationalist policies tend to be suspiciously underinclusive, and tend to exempt media corporations because their very product is speech, but restrict other corporations because they advocate non-speech products.
- Intuitionist: Dan Farber was the main advocate of this group; it is both anti-intellectual and intellectually arrogant. It cannot be responded to, and there is no way to decide whose intuition is correct.
- Ideological: This side tends to want to suppress speech because of a paternalistic notion that commercial speech makes people buy things they don’t need. There is no trust of individual choice.
We cannot begin under the premise that all speech is protected, and that any derogation is a violation. What is actually covered is much less than the universe of all speech. For example, contractual terms and confidentiality agreements and relationships are not covered. If all speech were covered/protected, then daily life becomes an unceasing constitutional question. In fact, viewpoint discrimination happens all the time, such as when grants are distributed, when public school students are corrected, and so on.
We protect only that speech which lays a part in democratic self-governance–that speech which contributes to political diversity. Political statements are not compelled, but commercial statements may be compelled, such as disclosures and disclaimers. As to, for example, Consumer Reports criticisms of commercial products, it is not whether we should differentiate between political and commercial speech, but rather, where the boundaries lie.
What’s wrong with intuitionism? That’s how the common law is developed, after all. Some regulation is okay, such as the FTC and the SEC–it’s all for the protection of the consumer.
By the way, self-government is a fiction, an illusion of participation. Also, commercial speech, by making materialists of us, undermines the development of participation and of an active citizenry.
It is incorrect to call all who disagree “ideologically hostile to the premises of capitalism.” E.g., Rehnquist, O’Connor, Posner, and others, are unarguably capitalists, and yet they would disagree with Prof. Redish.
First Amendment Principles in Practice
Early commercial speech cases involved anti-competitive regulations (about 50%) or anti-vice regulation (about 50%). Nike v. Kasky was the first one to address expressive commercial speech. Contra Prof. Shiffrin, the FTC/SEC/FDA are not the pit bulls he thinks they are. In fact, under strict scrutiny, the regulatory agencies have retreated. E.g., dietary supplements have been permitted to make unverifiable claims (so long as they are not verifiably false). Interestingly, pharmaceutical manufacturers have begun lobbying Congress to expand the department which pre-screens their commercials.
Nike v. Kasky has not been revisited in any other case in the U.S. Supreme Court. They key issue in Nike v. Kasky turned on whether or not Nike’s claims about the manufacturing, in response to Consumer Reports, constituted commercial speech. One reason for the lack of a follow-up to Nike was because of Proposition 64, which limited the free rein that California had once given to anyone with a bar license to sue any corporation, even without a showing of damages.
Judge Robert Lasnick
There is a ring of truth to claims of judges’ power to decide what is educational, what is obscene, etc. Much is context-specific. Bill Gates speaking as Chairman of Microsoft is heard with some skepticism, but is given a wider berth as Director of the Bill and Melinda Gates Foundation. In essence, it’s a lot more pragmatic than some of the loftier principles discussed by the law professors.
Note: Reckless disregard is a lower standard than intent, and in the era of easily saved e-mails, much more evidence can be swept into scope.
Philosophical Underpinnings of the First Amendment
Defense of autonomy: voluntary associations should be able to exclude for any reason–including invidious ones–or for no reason at all. This forms the basis for private regulation, as individuals govern their speech differently for different fora. We already regulate corporations in economic contexts.
Glickman and United Foods both involve compelled advertising. Such advertising was ruled constitutional in Glickman because the advertising was germane to the purpose for which the association was formed. In United Foods, the advertising was struck down because it was not germane to the associational purpose.
We should not encourage markets to see themselves as amoral. In the commercial context, there is reason to differentiate between that speech which is purely self-interested, and that which carries a moral and/or political message. Restrictions on commercial speech should be much lighter for non-self-interested speech.
C. Edwin Baker
Three reasons commercial speech should be completely denied First Amendment protection (despite first having approached this from a libertarian perspective):
- The capitalist economy really leaves economic actors no choice but to act in the most efficient behavior possible, and thus to engage only in speech that leads to profit.
- A business enterprise is only a person in the legal, fictitious sense, not a flesh-and-blood person, so corporate behavior which is harmful to society should be proscribable.
- There may be paternalism, but it doesn’t stop a message, except where the only persons, natural or not, that are willing to get the message are the sellers–in which case, is it really so bad? Besides, the very notion of a democracy is paternalistic, and empowers further paternalism.
Exercises of power may be appropriate in some contexts. Government exercises of power are legitimate anyway; market exercises of power are not subject to democratic processes, so are illegitimate. [Martin Redish characterizes this view as Jacksonian in its distrust of money.--LLS]
I couldn’t disagree more with Ed Baker. The most important liberty is liberty of the mind. Since we are embodied minds, it’s an easy step to liberty of the body, as recognized in Lawrence v. Texas. An embodied mind necessarily leads to expression of the mind through emobided words–speech. Baker proposes to treat all cooperatvie work as radically different than individual exertions. Is, then, a performance by the L.A. Philharmonic, then, to be treated radically different from a solo performance? What if I pay other musicians to play with me as a string quartet? Baker’s proposal that any cooperation which is compensated is somehow unfree, diametrically opposed to pure, individual existence, simply does not stand up to reality.
Cooperation, like a symphony orchestra, or a string quartet, or a couple making love, is a group of people organized for a common effort. We should not reify such organizations. We should not treat speech differently because a corporation does it rather than an individual.
There is no problem with assigning different meanings to words per se; the problem arises when the speaker’s definition is not disclosed–and even more so when the listener has a different definition. We often solve this problem by designating an entity to decide in conflicts of definition; those proposing more protection for commercial speech propose a different decider–the jury. But choosing a different deciding agent does not resolve the underlying problem–people have different definitions for the same words.
The field of regulating commercial speech based on truth or falsity has become, like the debate about obscenity and fighting words, an empty set.
Some broader trends in First Amendment jurisprudence have arisen over the years. The basic theory is that there may be some speech that is less or not protected.
Steven Shiffrin’s reaction against materialism runs some risks. First, materialism is not necessarily bad; after all, sometimes we show our love for our families through giving materialist goods. Second, societies that have retreated away from consumerism have often come to bad ends, including utopians who run totalitarian states. In fact, the equal rights movement may have been well-driven by the desire to have equal access to riches–and a religious focus may not have given rise to such a movement, because in religion, only the afterlife mattered, and all were equal before god. [But what about the British abolitionist movement?--LLS]
Be skeptical about theories, and how we apply them, e.g., in deciding which speech should be protected. Also, most people underestimate the amount of speech that is incontrovertibly protected or incontrovertibly unprotected.
C. Edwin Baker
Most speech that is recognized as valuable is speech that nobody thinks to regulate. [This seems to place the cart before the horse.--LLS]
We should not personalize the corporate speaker.
We need an image of the First Amendment. The “marketplace of ideas” does not work. The dissenter, which Shiffrin proposed, may be more apt.
We allow all kinds of viewpoint discrimination anyway, but no one has made an argument against restricting commercial speech other than alleging paternalism. [But what about the corporate right of reply?--LLS]
What about corporate political speech? If we can limit press political speech through equal time requirements because of their power and reach, shouldn’t we also limit corporate commercial speech for the same reason?
[Cross-posted at Law Law Stud]