Corporate Speech Rights and the Health of America

“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.

Click here to read the rest of this arti­cle at AlterNet.org.