First Amendment follies

[Robert Weissman <rob@essential.org>]

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 tortious
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.

Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime
Reporter. Robert Weissman is editor of the Washington, D.C.-based
Multinational Monitor.

(c) Russell Mokhiber and Robert Weissman

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