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The Health of Children and Consumers Is Threatened by Conservative Push for Corporate Speech Rights

Some pro-business federal judges have shockingly approved a constitutional right for big companies to avoid revealing product dangers on labels.

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 manmade 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.