First Amendment Follies
excerpted from the book
Corporate Predators
by Russel Mokhiber and Robert Weissman
Common Courage Press, 1999
It is time for the people to take back the First Amendment.
In recent years, corporations rather than people are increasingly
invoking the First Amendment to defend controversial speech. In
extending Bill of Rights protections to corporations and stiffening
commercial speech protections, the courts are increasingly shielding
antisocial corporate behavior.
Consider ongoing efforts in the U.S. Congress to regulate
Big Tobacco. Among the regulations being considered are strong
advertising and marketing restrictions that would prohibit tobacco
billboard advertisements, restrict tobacco print ads to black-and-white,
text-only format in publications with high youth readership and
ban the use of human images and cartoons in tobacco promotions.
The tobacco industry and its defenders in Congress, as well
as its allies in academia, have rushed to declare all of these
proposed restrictions unconstitutional.
The problem is, they may well be right, at least under recent
Supreme Court rulings. Commercial speech now receives almost the
same safeguards as political speech, with the government required
to overcome a series of hurdles before it can limit non-fraudulent
commercial speech (the speech restriction must further a government
interest; it must directly advance the interest; and there must
not be available less-restrictive alternatives to accomplish the
same ends). And speech by corporations is treated as no different
than speech by people.
Under prevailing doctrine, the government would have a very
hard time regulating cigarette advertising as a public health
policy to deter use of a deadly product. Instead, it must justify
its restrictions on the grounds that certain kinds of advertisements
appeal to children. And then it must justify advertising limitations
against alternative regulatory approaches (even approaches that
should be complimentary), such as efforts to limit cigarette sales
to minors.
Northwestern University constitutional law scholar Martin
Redish takes the argument even further. Since the speech of anti-tobacco
advocates is plainly protected by the First Amendment, he says,
tobacco company advertisements- designed to encourage people to
smoke-deserve equal protection. And Redish's argument, not now
the law, may well signal where it is heading.
This is absurd. There is no reason major public health initiatives
should be held hostage to the purported "rights" of
private, for-profit corporations selling and marketing a product
that every year kills hundreds of thousands of people in the United
States alone.
The law has gone awry in treating corporations as entitled
to many of the same constitutional protections, including First
Amendment guarantees, as real people.
The consequences are not limited only to preserving the advertising
rights of the legal "vice" industries (tobacco, alcohol,
gambling).
Corporations have invoked their speech rights to defeat desirable
initiatives ranging from a Vermont program requiring labeling
of milk from cows treated with BGH (bovine growth hormone, also
known as BST) to a California law that would have required utilities,
at no cost to the utilities, to include in their billing envelopes
an invitation to join an independent consumer group. In both of
these examples, courts ruled that the laws would violate corporations'
right not to speak.
At the same time as they've become such strident defenders
of First Amendment freedoms, corporations-with increasing frequency-are
intimidating citizens from exercising their free speech rights.
These corporations are charging citizen activists who speak out
about alleged corporate wrongdoing with defamation, libel, slander
and tortuous interference with contract, and suing them for large
sums of money. Most of the corporate suits fail, but they have
the desired effect of tying up activists' time, and intimidating
them and others from speaking out.
It is time to redirect First Amendment law. The simple solution
to the problem is to deny corporations First Amendment protections.
Extending constitutional protections to corporations hurts democracy
by putting artificial entities with enormous resource and legal
advantages (limited liability, perpetual life, inability to be
jailed) on the same footing as people.
Moving the law-which turns with the speed of an ocean liner-in
this direction will be a major challenge. Steady advocacy from
legal scholars can nudge the law in a more democratic direction,
but it will require a tidal wave of outrage from a citizenry fed
up with uncontrolled corporate power to reverse the course of
First Amendment jurisprudence.
Corporate Predators