The Invisible Gag
by Lawrence Soley
Dollars and Sense magazine,
During the 1990-1991 Persian Gulf War,
Margaret Gilleo of Ladue, Missouri, put up signs in her front
yard reading, "Say 'No' to War in the Persian Gulf, Call
Congress." When the signs were stolen and vandalized, she
complained to the police, who informed her that she-not the thief-was
violating the law. The police told Gilleo that Ladue had an ordinance
against posting yard signs, and she had broken it. "I was
very angry at this," says Gilleo. "I said 'this is the
United States of America and we have free speech."'
Gilleo petitioned the Ladue City Council
for a variance permitted under the ordinance. It refused. So she
put a small sign inside her window reading, "For Peace in
The council responded by adopting another,
stiffer ordinance prohibiting all but ten kinds of signs. "For
sale," "residential identification," and commercial
signs would be permitted under the new ordinance; most others
(including window signs) were prohibited because they "create
ugliness, visual blight and clutter, and tarnish the natural beauty
of the landscape," according to the City Council.
In response, Gilleo filed suit against
the city in the U.S. District Court, which quickly struck down
the ordinance as an unconstitutional restriction on political
speech. The city appealed this decision, but in 1994 the Supreme
Court upheld the lower court, concluding that "a special
respect for individual liberty in the home has long been part
of our culture and our law; that principle has special resonance
when the government seeks to constrain a person's ability to speak
Although courts have consistently struck
down government bans that restrict speech such as the Ladue ordinance,
they have consistently upheld similar bans imposed by private
entities. For example, homeowners' associations-private corporations
that govern planned developments and condominiums-are free to
adopt restrictions on the speech and behavior of residents that,
if adopted by government, would be unconstitutional.
Homeowners are not the only ones facing
censorship in the private sector. Because the Supreme Court has
taken the position that the First Amendment protects citizens
against speech restrictions imposed by governments, not the private
sector, corporations can impose an almost endless array of restrictions
on speech. Corporations can restrict the release and distribution
of internal documents, claiming that they are copyrighted or private
property; restrict speech on corporate-owned property; terminate
employees who speak out about corporate practices; pressure the
mass media to kill or alter stories with threats of lawsuits or
by withdrawing advertising dollars; or file lawsuits against critics
and activists, claiming injury to their businesses as a result
Corporations' power to censor has increased
at the very time that courts have struck down government-imposed
limitations on speech, such as flag desecration laws. The increased
power of corporations to censor arises from three closely-related
factors: an increasingly conservative Supreme Court's deference
to private sector property rights; the gigantism and power of
modern corporations, brought about by the merger frenzy of the
1980s and 1990s; and the shrinking of the public sector, the arena
where citizens can exercise constitutionally-protected speech
rights. In fact, when government has withdrawn from a particular
sector, private interests have entered the vacuum and exercised
private property rights, reducing the public's freedom of speech.
For example, the city of Milwaukee, like most cities, closed a
public street to allow the construction of a shopping mall, the
Grand Avenue Mall. The mall is considered private property, even
though located on former government property, and even though
government offices, including those of the University of Wisconsin,
are located there. Free speech is not permitted in the mall.
Ironically, about the only limits on corporate
censorship are those imposed by government, such as the National
Labor Relations Act, which prohibits companies from restricting
employees' speech about unions, and affirmative disclosure laws,
such as those adopted by the Securities and Exchange Commission
and the Environmental Protection Agency, which require corporations
to disclose specific types of information such as executive stock
sales. Because corporations have so many methods available to
them for restricting speech, corporations represent a greater
threat to free speech today than government.
FREE SPEECH BEGINS AT HOME
In Murphy v Timber Trace Association (1989)
and Linn Valley Lakes Property Owners u Brockway (1992), bans
on signs imposed by homeowners associations were declared legal
by courts. In Linn Valley Lakes, the court observed that "there
is nothing constitutionally impermissible per se in a private
agreement restricting signs in a residential neighborhood, and
enforcement thereof does not constitute improper state action."
The rationale for allowing these bans
is that the contracts and covenants governing planned developments
and condominiums are considered by courts to be private agreements,
rather than government or "state action." These contracts
and covenants have been upheld by courts even though most residents
are unaware of the content and binding nature of the restrictions
when they move in, and even though many housing associations function
like governments, collecting garbage, plowing streets, operating
"community" pools, and assessing taxes in the form of
As of 1999, 42 million Americans-about
one in seven- were living in planned developments governed by
associations. In Maryland, nearly one-third of residences are
in planned developments. In some areas, including the Washington,
D.C. area, Florida, Arizona and California, the majority of housing
units built in the past five years have been in planned developments.
Because the rules and restrictions on
behavior in planned communities are viewed by courts as voluntary,
contractual agreements, corporations such as Disney, Mobil Oil
and the American Nevada Corp. that build these communities can
write covenants imposing a multitude of restrictions on residents'
behavior. These restrictions often limit the colors of exterior
paint residents can use on their dwellings, the types of grass
they can plant, and the colors of drapes they can hang. In some
cases clotheslines, birdbaths, and basketball hoops are prohibited;
some covenants prohibit parking pickups and campers within the
developments. Most regulate the posting of yard signs.
The Estrella housing development in Phoenix,
built by convicted savings and loan embezzler Charles Keating,
Jr., banned pornographic videos and magazines from the community-even
from residents' bedrooms. The massive, city-like Columbia development
in Maryland, built by the Rouse Co. with financing from Connecticut
General Life Insurance Co., prohibited Green Party members from
collecting signatures to place Ralph Nader on the presidential
ballot at a waterfront arts festival held on Columbia property.
So many housing associations in Maryland
banned the display of yard and window signs-including yard signs
for candidates running for public office-that the state legislature
finally passed a law allowing residents to post them. The law
prohibited associations from banning signs supporting candidates
and ballot measures for thirty days before, and seven days after,
Although a self-serving act on the part
of politicians because they were the primary beneficiaries of
the law, the Maryland law nevertheless represents an example of
how legislation can protect speech-and democracy-from being undermined
by the private sector.
CORPORATE POWER, PUBLIC SILENCE
The power of corporations to censor speech
has grown enormously during the past quarter century. Prior to
the 1970s, it was the government that gagged speakers-albeit often
at the urging of the private sector. For example, nearly all of
the criminal anarchy laws passed by states during the World War
I era, which prohibited the advocacy of political syndicalism,
were adopted at the urging of those businesses and industries
being organized by the Industrial Workers of the World (I.W.W.).
Similarly, the speech bans adopted by cities targeting I.W.W.
speakers during the 1920s were adopted at the urging of retailers,
who feared that street corner orating interfered with their sales.
And many book bans imposed by school and library boards, such
as those targeting John Steinbeck's The Grapes of Wrath, were
implemented at the urging of the affected industries.
During the 1960s and 1970s, when courts
started overturning government-imposed restrictions on speech,
the private sector sought ways to regulate speech without state
action. To achieve this goal, corporations asserted that free
speech interfered with their property rights, an argument that
the Supreme Court had rejected in 1945 when it declared: "when
we balance the Constitutional rights of property against those
of the people to enjoy freedom of press and religion ... the latter
occupy a preferred position." In that decision, Marsh u Alabama,
the Supreme Court declared company-owned towns to be the functional
equivalent of public places, observing that the "more an
owner, for his own advantage, opens up his property for use by
the public in general, the more do his rights become circumscribed
by the statutory and constitutional rights of those who use it."
The Marsh decision was applied to shopping
centers by the Supreme Court in 1967, when it ruled that union
organizers have a right to picket on shopping center property
during a labor dispute, noting that the "similarities between
the business block in Marsh and the shopping center ... are striking."
The Court found no reason why access to a business district in
a company-owned town was constitutionally protected, but access
to mall property functioning as a business district was not.
In 1972, the Supreme Court, now dominated
by conservative justices appointed by President Nixon who were
more inclined to protect property than speech rights, began reversing
these earlier decisions. In Lloyd Corp. u Tanner (1972) and Hudgen
v National Labor Relations Board (1976), the Court majority concluded
that mall and shopping center owners had a right to ban speech
on their property because "the First and Fourteenth Amendments
safeguard the rights of free speech and assembly by limitations
on state action, not on action by the owner of private property...".
As a result of these decisions, shopping centers, malls and most
other corporate-owned properties in all but three states are now
closed to free speech. In California, Colorado and New Jersey,
the state supreme courts ruled that their state constitutions
protect speech in malls. Consequently, shoppers in the remaining
47 states, probably without even realizing it, leave their free
speech rights at the curb when they enter a shopping center or
mall parking lot.
The restrictions on speech in malls are
often arbitrary, as recent events at Crossgates Mall near Albany,
New York demonstrate. On March 3, 2003, 61-year-old Stephen Downs
was arrested and taken away in handcuffs because he refused to
obey mall security guards, who ordered him to dangers associated
with drugs such as Fen-phen, Duract, Rezulin, and Propulsid, all
of which have since been withdrawn.
The tobacco companies offer the perfect
illustration of the ways that corporations can effectively curb
discussions about their products. The tobacco companies have used
a whole host of tactics to curtail discussion about their practices,
including secrecy clauses in employment contracts, speech-restrictive
lawsuits, gag orders, and pressures on the mass media. Most of
these tactics are now widely employed by corporations in other
industries to curb public debate about issues affecting their
Tobacco companies Philip Morris (now renamed
Altria, Inc.) and Brown & Williamson used secrecy clauses
embedded in employment contracts to silence in-house scientists,
including Victor DeNoble and Jeffrey Wigand. When hired, DeNoble
and Wigand signed secrecy agreements prohibiting them from talking
about their employers, even after their employment ended. Both
men were aware of company research showing nicotine to be highly
addictive. DeNoble conducted research showing that nicotine altered
brain chemistry and tried to publish his results in the journal
Psychopharmacology, but Philip Morris withdrew the article. Both
DeNoble and Wigand were eventually discharged and warned that
if they disclosed what they knew about tobacco research, they
would be sued.
Many other corporations require new employees
to sign secrecy agreements as a condition of hire or threaten
to fire employees to limit the disclosure of damning evidence
about industry practices. To curtail the use of these tactics
in the nuclear power and financial securities industries that
are regulated by the federal government, Congress passed "whistleblower
protection" laws to keep corporations in these industries
from gagging their employees. But in most industries, in the absence
of whistleblower laws, companies can easily silence employees.
Even with whistleblower laws in place,
companies still attempt to gag employees. For example, Commonwealth
Edison punished employees who complained about safety problems
at its Zion nuclear power plant in Illinois. The company demoted
six employees who complained and transferred them to menial jobs.
The company lowered its evaluation of another employee, and discharged
yet another who reported 60 problems with the plant. The latter
employee could not find another job after being dismissed.
SUITS AND TIES
Beyond silencing employees, corporations
have lots of tricks up their sleeves to prevent the public from
finding out about corporate practices. One of the most common
is to file a lawsuit, or to threaten to file a lawsuit, against
critics, charging that some imaginary harm has been done to the
company by their speech. The most common harms asserted in lawsuits
are defamation, business interference, copyright violation, patent
infringement, and civil rights violations.
For example, toy manufacturer Mattel,
Inc., maker of the Barbie doll, filed a trademark infringement
suit in 1999 against Seal Press, publisher of Adios, Barbie, a
book of essays criticizing Barbie's "tall, thin and white"
body image. Mattel asserted that the book's use of the Barbie
image on the front cover caused trademark confusion. Lacking the
financial resources to defend itself in court, the Seal Press
settled the suit, agreeing to retitle the book and redesign the
cover of subsequent editions.
Similarly, when former Brown & Williamson
executive Jeffrey Wigand revealed what he knew to CBS' "60
Minutes," the tobacco company threatened to sue the CBS television
network for "tortious liability" if it aired the interview.
Fearing that a lawsuit would impede the sale of the network, CBS
executives ordered "60 Minutes" to cancel the broadcast.
In an apparent effort to undermine its
competitor, ABC network owner Disney Corp. released a feature
film, The Insider, in 1999 about CBS' decision to kill the Wigand
interview. Brown & Williamson then threatened to sue Disney
for distributing the film. Lawsuits such as this one, filed against
those who participate in debates about public issues, are known
as strategic lawsuits against public participation or SLAPPs.
The term "SLAPP" was coined
by University of Denver professors George W. Pring and Penelope
Canan to describe lawsuits brought against private citizens and
groups because they petitioned some branch of government, but
the term is now widely used to describe lawsuits filed to punish
or inhibit speech. SLAPPs or threats of SLAPPs have been used
to curb debates about pollution and global warming by oil and
coal firms, about land use by developers and builders, and by
a host of other industries.
Some of the most widely publicized SLAPPs
include suits filed against North Kingstown, Rhode Island resident
Nancy Hsu Fleming by Hometown Properties, Inc., the operator of
a nearby landfill that Hsu contended was producing groundwater
contamination; a suit filed by the head of the Florida Petroleum
Marketers Association against an environmental magazine for declaring
the association and its leader to be "Public Enemy Number
One"; and a suit filed against the National Catholic Reporter
by Briggs & Stratton Corp. alleging that an article critical
of the company's decision to move jobs to the South and Mexico
was libelous. Although there are few statistics available on SLAPPs,
a study by Florida's Attorney General concluded that at least
21 SLAPPs had been filed in that state between 1985 and 1993.
Realizing that SLAPPs are designed to
punish speakers rather than rectify wrongdoing, a number of states,
including Rhode Island, California, Minnesota and Nebraska, have
passed laws making it easy to dismiss SLAPPs. The Rhode Island
legislation was motivated by the publicity surrounding the Hometown
Properties, Inc. suit against Fleming, one that dragged on for
SEALING EVIDENCE, SEALING LIPS
Although Disney disclosed how CBS buckled
under to tobacco company pressures in The Insider, it did not
disclose that the ABC network had done so as well. A segment of
the ABC program "Day One," broadcast in 199S, alleged
that the tobacco companies "spiked" the nicotine in
cigarettes. Philip Morris and R.J. Reynolds SLAPPed ABC, alleging
the program was libelous.
On the eve of the sale of the ABC network
to Disney, the tobacco company lawsuits were quickly settled.
ABC agreed to publicly apologize for airing the segment and agreed
to pay the tobacco companies' legal expenses. The settlement included
a non-disclosure agreement prohibiting ABC and tobacco company
executives from publicly commenting on the case.
Despite the non-disclosure agreement,
USA Today obtained a copy of the settlement and other documents,
which showed the evidence to be "at odds with both the tobacco
company's public statements and the network's apology." The
newspaper concluded that ABC actually had documents showing that
the tobacco companies "spiked" cigarettes.
Non-disclosure agreements such as these
are commonly used today by corporations and other institutions
to limit the release of publicly-damning information. They were
used by Ford and Firestone to hide the dangers posed by the ATX
tire on Ford Explorers, and by the Catholic Church to hide the
sexual abuse of children by priests.
In addition to secrecy agreements, SLAPP
suits and gag orders, the tobacco companies also successfully
pressured the mass media into killing articles about the hazards
of smoking with threats to withdraw, or by actually withdrawing,
advertising. That pressure was applied for decades. In the early
1950s, the tobacco companies prohibited the showing of "no
smoking" signs and all references to cancer on the television
shows they sponsored. During the 1960s and 1970s, they withdrew
advertising from such magazines as Reader's Digest and Mother
Jones that carried stories about the hazards of smoking. By the
1980s and 1990s, most magazines carrying tobacco advertisements
stopped carrying stories about the dangers of smoking. Statistical
studies published in such journals as the New England Journal
of Medicine, Women's Health, and Journalism Quarterly showed that
the more tobacco advertising found in a magazine, the less likely
it was to provide coverage about the hazards of smoking.
The effectiveness of this advertiser pressure
was not lost on other corporations, which have similarly pressured
the news media to stop carrying negative stories about their industries.
Studies published in American Journalism Review and Journal of
Advertising found that the real estate, automotive, airline, and
retailing industries routinely influence news coverage.
Although there is little that ordinary
citizens can do to stop advertising censorship, except perhaps
to boycott advertising- and corporate-dominated media, there are
many things that can be done to limit other types of corporate
censorship. Legislation can be passed making it difficult to file
SLAPPs. In several states, including California, a coalition of
media, unions and activist groups effectively lobbied for anti-SLAPP
statutes. California and Minnesota have very broad anti-SLAPP
statutes that make it difficult for frivolous suits to pass judicial
scrutiny. In states such as Pennsylvania, however, where corporations
rather than coalitions of free speech advocates were the primary
lobbyists, anti-SLAPP legislation was eviscerated.
Victims of SLAPPs can also file counter
lawsuits, called SLAPPback suits. In cases where this has been
done, SLAPP victims have sometimes been awarded large verdicts
by juries. Shell Oil was hit with a $5.1 million jury verdict
for suing a consumer advocate who complained to a state health
agency about a Shell home plumbing product. In July 1998, a New
Jersey jury awarded Jo Ann Baglini and her husband $1.5 million
for being maliciously prosecuted by a developer whose zoning changes
the Baglinis had opposed.
Citizens can also push for laws opening
malls up to free speech. In New York, where Stephen Downs was
arrested for trespassing because he refused to remove his anti-war
T-shirt, representative Steve Englebright (D-Suffolk) introduced
an assembly bill (A.B.4163) amending the state civil rights law
to require malls of at least twenty stores to permit some form
of public expression in common areas. Similar bills can be introduced
in other states.
Activists and legislators can also demand
that any corporation receiving indirect or direct public subsidies
open its property to free speech. Currently, many malls, manufacturers
and even professional sports teams are heavily subsidized by taxes,
but nevertheless claim that the property on which they operate
is private. For example, the Milwaukee Brewers baseball corporation
plays in a stadium built by taxpayers, yet claims that the stadium
is private property-and has had activists arrested for protesting
the team's sales of merchandise made in Central American sweatshops
on stadium property. Activists can challenge these private property
claims by passing out leaflets, unfurling banners, holding up
placards, and engaging in other forms of speech.
Residents of planned developments and
condominiums can organize for change within their developments,
demanding that residents be allowed to post signs and distribute
leaflets door-to-door. In addition, residents can demand that
legislators adopt laws such as the Illinois Condominium Property
Act, which prohibits housing associations from adopting rules
that "impair any rights guaranteed by the First Amendment
to the Constitution. "
Lawrence Soley is the author of Censorship,
Inc. (Monthly Review Press) and a professor at Marquette University