Corporate Speech Rights and the Health of America

15 Dec, 2011

By Steven Rosenfeld, via,

In recent years, corporate lawyers representing industries whose products touch millions of American lives have stopped numerous government efforts to better inform the public about possible health risks with an eyebrow-raising legal strategy. They have asserted a constitutional right not to speak, or say more than they want on labels and advertising, and pro-business federal judges have agreed, rejecting the public’s right to know.

In cases involving man-made hormones fed to dairy cows, heart and lung disease caused by tobacco, the nutritional value of foods contributing to childhood and teenage obesity, and even radiation emitted by cell phones, the industries keep returning to court until a business-friendly judge or majority on an appeals court rules that the First Amendment includes the corporate right not to ‘speak’ if it could harm profits.

“They invoke the Amendment’s protection to accomplish exactly what the Amendment opposes,” wrote U.S. Court of Appeals Judge Pierre Leval, in a lengthy dissent in an early case in which his peers sided with industry and cited the First Amendment to overturn a state law labeling hormone-containing milk products. “The majority’s invocation of the First Amendment to invalidate a state law requiring disclosure of information consumers reasonably desire stands the Amendment on its ear.”

The labeling cases are not the only way corporations have been seeking to enlarge First Amendment speech rights outside the political arena.

This past June the Supreme Court ruled that drug makers’ constitutional speech rights included ‘selling’ patient records, overturning a Vermont law that sought to keep the files private. Justice Stephen Breyer’s dissent said the Court was setting a dangerous precedent by allowing the First Amendment to be used to avoid reasonable government regulation.

“At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message,” he warned. “At worst, it reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision making where ordinary economic regulation is at issue.”

Breyer’s reference to the Lochner Era was shorthand for what many right-wingers would like to see the judiciary do today—roll back government regulation. Lochner refers to the early 20th century when the Supreme Court reversed many workplace rights. It ended when the Court relented to allow the new deal to allow the New Deal’s progressive reforms to take place.

Indeed, today’s corporate champions, such as Washington Post columnist George Will, are pining for an activist judiciary that prioritizes corporate rights above those of citizens. They see nothing wrong with extending the Constitution’s political freedoms given to individuals to modern profit-making corporations. As Will wrote this September in a piece attacking liberals, “So much for the idea that one of the Constitution’s primary purposes is the protection of individual rights against majority tyranny.”

Don’t Call It A Food Fight

The mainstream media calls it a Washington food fight. But that belittles the stakes.

One-third of American children and teens age 17 and younger are overweight or obese. The Federal Trade Commission, created a century ago is to protect consumers, has been studying the issue for years. It has found little consistency in the marketing and labeling of foods that are a mainstay of children and young adult diets. So the FTC, working with other federal agencies that studied the science behind what has been called an epidemic – The Department of Agriculture, Food and Drug Administration, and Centers for Disease Control and Prevention – last April announced voluntary product marketing guidelines for foods targeting youths, including limits on ingredients such as sugar, fat and salt. The FTC will soon issue a final report to Congress, including the voluntary guidelines.

This federal effort has prompted a lobbying stampede that continues to this day.

In July, some of the America’s largest food corporations, including Burger King and McDonald’s, announced their own marketing standards to defang, if not to derail, the FTC guidelines. Preemption is an old tactic in Washington. Their perspective reached prominent newspapers, such as at USAToday, which editorialized that the “industry standards aren’t bad.” In response, Josh Golin of Campaign for a Commercial-Free Childhood, wrote, “The brouhaha over the government proposal is the latest proof that asking corporations to work against their economic interests is futile.”

But then corporate lawyers added another twist.

The Washington Legal Foundation, a non-profit law firm that seeks to affirm and expand corporate rights, filed comments with the FTC claiming that the guidelines, even though voluntary, would be “a clear violation of First Amendment Rights.” Their accompanying press release said:

“Under Supreme Court case law, First Amendment protections kick in whenever government regulation “burdens” speech, not simply when the government adopts an outright prohibition on speech. WLF argued that the “burden” imposed by the Guidance’s “voluntary” advertising restrictions would be considerable, because many companies will be frightened by the unknown consequences of not complying.”

In other words, even a nudge to reveal more nutritional information was unacceptable.

“Are you really surprised?” replied Betsy Lordan, FTC spokeswoman, when asked to comment on the Foundation’s claim. “There is nothing new with companies trying to come up with reasons for not being regulated.”

But, strictly speaking, the federal agencies are not trying to regulate the food industry.

The FTC is issuing a year-end report to Congress, including voluntary ingredients and marketing guidelines. Congress will then decide what action, if any, to take. The FTC regularly issues guidelines for all kinds of industries, such as what is permissible with celebrity endorsements. Its goal is to deter commercial misrepresentation and fraud.

Nonetheless, the Washington Legal Foundation said this FTC-led food marketing effort exceeded its instructions from Congress because “instead of making recommendations to Congress, the Guidance makes recommendations directly to the food industry.” That criticism is to be expected from an anti-regulation think tank. But its lawyers also said that how a corporation labels its food products is constitutionally protected speech—as long as what is printed on the labels is true.

This is legally correct but a sly argument because companies do not have a legal duty to say everything they know about their products on their packaging and advertising. They can—and do—omit key details that could erode profits. And, as Judge Leval said in his dissent in the milk labeling case, government has the power to require companies to tell the public more about products if a public interest is served, such as protecting health.

“Freedom of speech is not an absolute right, particularly in the commercial context,” Leval wrote. It is “subject to regulation if the government has a substantial interest in regulating the speech, the regulation directly advances that interest, and is no more intrusive than necessary to accomplish its goal.”

The Washington Legal Foundation told the FTC that food corporations would be harmed if they could not freely label or advertise, or if they felt government pressure to include more nutritional information, such as how fatty, sugary or salty their products covered with cartoon wrappers truly were. Their FTC brief omits any mention of the millions of overweight American kids and teenagers, or the government’s legitimate interest in improving public health trends.

“Government action can constitute a ‘burden’ on speech even when it takes the form of ‘voluntary’ government speech standards,” WLF said. “The government seeks to change the dietary habits of children. There is no reason to believe that the only means of doing so is to suppress truthful speech.”

Tobacco and The Right Not To Speak

WLF’s arguments about corporate speech rights are not unique or limited to food labels.

Under its project entitled, “Criminalization of Free Enterprise – Business Civil Liberties Program,” it has filed briefs with the FDA opposing future nutritional labeling of food served in restaurants, required under the new federal health care reform law. It also filed briefs in federal appeals court arguing that shopkeepers in New York City should not be forced “to display signs conveying the city’s anti-smoking message, with which they disagree.” Their brief said signs, such as “Smoking Causes Lung Cancer,” accompanied by “one of three graphic, color images depicting the potential effects of tobacco use: a brain damaged by a stroke, decaying teeth and gums, or a diseased lung,” and a New York City seal, are “controversial, non-factual disclosures.”

This characterization—controversial and non-factual—is how the large tobacco firms described the accusations made by its critics in 1967, nearly four decades before the U.S. Department of Justice convicted them of racketeering by concealing science and other evidence that cigarettes severely harmed human health.

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