June 18, 2012
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Corporate America is hijacking the First Amendment.
In the political world, the Supreme Court continues to expand corporate speech rights, opening one more avenue for big money to flow into elections. And in the business world, federal courts have also cited commercial speech rights to block all kinds of government efforts to add health warnings on products or change the way unhealthy products are advertised.
The list is startling. America has an obesity crisis, but food producers and broadcasters beat back voluntary advertising guidelines. Tobacco beat back adding images to cigarette boxes. Milk companies beat back milk hormone labels, as did cell phone makers with radiation labels and video game makers with violence and sexual content labels. These defeats were based on asserting corporate speech rights—arguments with which the courts have all too often agreed.
But behind this depressing trend—which could change if there were more fair-minded federal judges—is an eyebrow-raising corporate ally: esteemed law professors who have been paid by business to expand on their scholarship as private consultants.
They develop pro-corporate strategies in papers and are far better paid than their liberal counterparts. Their work is cited by lobbyists and judges. Whether conservative scholars see the social costs of using the First Amendment as a deregulatory tool is debatable, but what is indisputable is that they are a key pillar in America’s ongoing "war of ideas."
“The work of many of these legal scholars has indeed undercut common-sense standards of free speech rights,” said Craig Holman
, Public Citizens’ government affairs lobbyist.
Scholarship And Commerce
The best-paid corporate lawyers are like master chess players. They are always thinking about their next series of moves to win—to protect profits. They look for accomplished scholars to help them frame new issues and arguments in many areas of law, including law professors who specialize in the First Amendment.
Does Google’s search engine have the brain of a newspaper editor, making decisions that entitle it to First Amendment protections, such as being able to decide what and how to publish what it wants free of any regulation? Google thinks so and has paid a respected conservative First Amendment law scholar, Eugene Volokh
, to write about it.
Similarly, when drug and medical device makers wanted to make a case that the federal government should let them tell medical professionals about ways their products can be used that haven’t been approved by federal regulators, they turned to Martin Redish
, one of the foremost commercial speech scholars, to write a paper arguing exactly that—by citing the First Amendment privilege to disseminate information.
And when communications giant Viacom wanted to attack the federal government’s proposed food marketing guidelines for teenagers and youths—guidelines that would be entirely voluntary—it turned to ex-Stanford Law School Dean Kathleen Sullivan
, who said the federal effort, though well-intended, did not meet the legal threshold in First Amendment law. Her brief was part of a campaign that defeated the guidelines effort.
Are Volokh, Redish and Sullivan legal scholars or corporate shills, or are there shades of grey where academics—including faculty in other fields—have long-developed expertise that they have been asked to take outside the academy with big economic and political consequences?
The answer appears to be yes to all of the above. It’s clear these accomplished scholars—especially Sullivan, who has since left academia—have used their scholarly credentials and smarts to advance and expand corporate speech rights, in some cases at public-interest expense. While that more than bothers progressives who seek to reverse
constitutional rights granted to corporations, it raises questions about why so much constitutional scholarship seems to be on one side of the fence.
Both Volokh and Redish defended their outside advocacy as consistent with intellectual views they have had for years, saying there was no conflict of interest posed with their scholarly work—where the pre-eminent value is impartial inquiry—because their views are known and fully disclosed, as is their consulting. (Sullivan did not respond to AlterNet’s request to comment.)
“I don’t plan to answer your questions (which, by the way I consider insulting and offensive). Instead, I will direct you to my first three articles (all written before I became an academic),” Redish said in an email. “Hopefully, those articles will demonstrate to you that the views I now hold are not all that different from the positions I developed as far back as my law school days.”
“The question you raise is important,” said Volokh, “but it’s hardly limited to corporate clients, or to paid consulting: a criminal law professor who takes on some criminal defendants’ cases faces the same problems, as does a constitutional law professor who litigates in favor of (say) abortion rights or a military detainee. One’s desire to win cases, to appear consistent with one’s past positions, and to help the clients to whom one owes a duty of loyalty can affect a scholar’s judgment as much as fees.”
Volokh said the way to avoid conflicts of interest was to disclose one’s advocacy, adding that his students appreciated hearing about it because it was an activity in the real world. But beyond the issue of finding the “right balance between commerce and learning,” as Ken Auletta put it in a recent New Yorker profile
of Stanford University titled, “Get Rich U.,” the outside consulting by leading First Amendment scholars underscores a troubling trend—that in recent decades corporate commercial speech rights have grown and triumphed over public interest concerns more often than not in federal court.
“Commercial speech rulings in the federal courts have increasingly been upheld or expanded in recent years—with public interest efforts stymied or blunted,” Public Citizen’s Holman said. “The federal courts have generally enlarged commercial speech protections afforded under the First Amendment while limiting or rejecting government attempts to share information, via labeling, messaging or simple disclosure that is in the public interest.”
Corporations, of course, would not hire liberals who would argue that their speech rights should be restricted—as anti-corporate personhood activists do. Volokh, Redish and Sullivan have plenty of company in the academic legal world who privately consult, where the focus can be evidence, anti-trust, regulatory policy or political speech. Their scholarship and arguments reveal how corporations obtain and maintain powerful positions, particularly by expanding First Amendment corporate speech rights.
Editorial Brain or Smart Machine?
In April, Volokh, a well-known and prolific blogger
and UCLA law professor, co-wrote a much-discussed
paper for Google with Donald Falk, a lawyer at Mayer Brown LLP, a major Silicon Valley law firm, titled
, “First Amendment Protection for Search Engine Search Results.” Google has been attacked by competitors for favoring other Google operations in its searches, which European regulators said
might be anti-competitive. Like many large companies, it wants some scholarship on its side to protect its core business should it end up in court. It found that expertise in Volokh.
“Search engines are speakers,” Volokh boldly declared, saying the search process is akin to any writer making an editorial decision, and that publishing the results of that intellectual process is the same as offering “useful information” in “newspapers, guidebooks and encyclopedias.” Thus, “these exercises of editorial judgment are fully protected by the First Amendment,” Volokh concluded, which handily for Google, also protects it from antitrust laws. Legal precedents—in federal court rulings—shield corporations in precisely this way.
While Google wants its search engine to have the same speech rights as an editor under the First Amendment, it is notable that it also did not want to be held liable should anything bad result from the information it provides. Volokh’s paper also contained a liability argument, positing that a Google search wasn’t mechanical like a computer virus, but instead was a brainy editorial process deserving constitutional protection.
This line of thinking is not very different from gun makers, who have spent decades in court drawing legal lines that separate their products from users’ actions. “Thus, if a Web page contains a virus, courts and legislatures may be able to impose liability on the producer of the page,” Volokh said, whereas, in contrast, “the information output by a search engine ‘is pure expression’ and … implicate[s] the First Amendment.”
It is not unusual for big corporations to pay scholars for innovative legal interpretations. Conservative think tanks have been doing this for years—funded by big business, while liberal think tanks for the most part have ignored commercial speech issues, instead focusing more on campaign finance and political speech. (The last big commercial speech case captivating the political left arguably was about Nike, which was sued for making incorrect and misleading claims about conditions in its overseas athletic shoe plants. It went to the Supreme Court, which returned it to a lower court in 2003. A settlement was quickly reached.)
Volokh was proud of his Google work as cutting-edge legal thinking. He said that he was careful to disclose his outside consulting, both current and past, to his students, and that he tried to avoid writing “as an impartial academic” on a subject where he has been consulting, such as on freedom of speech and search engine law. Volokh said he only accepts consulting for views he has long espoused.
“The main barriers to impartiality for an academic are generally not concerns about consulting or clients,” he said, “they are (a) the human tendency to let one’s ideological and emotional predispositions affect one’s frank evaluation of the arguments, and (b) the tendency to not want to find evidence that one has erred in the past. All of us academics have to constantly struggle against these tendencies (as I imagine journalists must as well).”
Desperate Patients, Desperate Profits
The pharmaceutical industry has some of the deepest pockets
of any industry when it comes to lobbying and pushing federal officials to license its products, as such approval can yield billions over many years. But obtaining federal approval is often slow, costly and very frustrating, both to drug makers and to sick people who are desperate for cures when legally approved prescriptions fail.
Enter Martin Redish, who for decades has been widely respected as a First Amendment scholar at the Northwestern University School of Law and in August 2008 joined
Sidney Austin LLP, a globally known corporate law firm, as a senior counsel. In March 2011, Redish co-authored a paper
with Coleen Klasmeier, a partner in the firm's Washington office. The first footnote emphasized the paper’s importance, saying, “both authors are involved in the representation of one or more drug manufacturing company clients… in which the arguments in this article have been or could be presented to a court or prosecutorial authority, including the Department of Justice and the Food and Drug Administration.”
The paper, “Off-Label Prescription Advertising, The FDA and The First Amendment: A Study in the Values of Commercial Speech Protection,” argues that drug and medical device makers should be able to sell their products for uses not licensed by the FDA (hence the "off-label" moniker). They argue that the FDA is “unambiguously inconsistent” with approving alternative uses for drugs and devices, which ultimately harms the public. Moreover, not sharing information about other uses with medical professionals violates the company’s First Amendment commercial speech rights, Redish said, because the information they want to share is factual and true.
First Amendment law is complex. There are different legal standards for political speech and commercial speech. Redish’s argument that the FDA’s failure to allow discussion of these alternative uses is unconstitutional censorship is shrewd and parses some fine legal lines. Researchers and physicians are free to share information about off-label uses and do all the time—that’s how science works. The FDA’s prohibition is about how companies market those off-label indications, which involves profit motives.
Redish’s paper acknowledges that the FDA’s approval process is designed to weed out “quackery—fraudulent therapeutic claims,” but he says that in many treatment areas, starting with pediatrics and oncology, there is an “indisputable value of off-label uses” and “the obvious reality that manufacturers are in a unique position to provide valuable information [about] off-label uses to the medical profession.”
After citing a history of the FDA changing its mind about approved uses since the 1960s, Redish becomes indignant, noting that between 1993 and 2001, the FDA took strong steps against “materials of a lasting nature like books, audio, video tapes and software” that curbed the “free flow of information.” But “starting in 2001, the FDA at least gestured in the direction of First Amendment values, but that period of greater circumspection proved short-lived.” In other words, under the Clinton administration, the FDA cracked down. Under the Bush administration, its political appointees initially eased up. And now, under the Obama administration, the FDA is again saying no.
Like Volokh’s Google paper, Redish argues that his client’s core business should have full First Amendment protection but be free from liability if something bad happens to consumers who use it. He cites a lawsuit where the conservative Washington Legal Foundation filed a brief against the FDA arguing, “that a manufacturer should be permitted to provide information about off-label uses as long as the information is accompanied by an adequate disclaimer.” He cites the FDA response, which said, “WLF’s suggestion that the manufacturer of … a dangerous product has a First Amendment right to promote it for unapproved uses, and to do so without providing adequate directions (or, in this case, any directions) for use, is breathtaking.” However, Redish calmly returns to his argument, repeating that drug companies have a First Amendment right “to give physicians information they need.”
Redish took great offense when asked if there were conflicts of interest between being a constitutional law professor specializing in commercial speech—where one teaches all views of issues—and his consulting. He said he has espoused the same views since his Harvard Law School thesis in 1970, and in early law review articles in 1971 and 1972. Beyond that, he declined to answer any questions.
Obesity Crisis? Don’t Blame Us!
The federal government’s effort to push junk food makers to voluntarily change
the way they advertise to children and teens is one of the highest-stakes legal battles over product labeling. After a multi-year, multi-agency effort based on extensive science, the food and broadcast lobbies prompted Congress to withhold funding for this Federal Trade Commission-led effort earlier this year—despite the startling fact that many tens of millions of American youths are either overweight or obese.
One of the most aggressive advocates for media giants, which did not want to see any loss of advertising revenue, was Kathleen Sullivan, the former dean of Stanford Law School who left academia and is now a partner at Quinn, Emanuel, Urquhart and Sullivan, where she chairs its national appellate practice. “Since joining Quinn Emanuel in 2005, Sullivan has represented a wide range of clients,” her firm bio says
, “including Shell Oil, Entergy, Morgan Stanley, General Electric, Samsung, Pfizer, Motorola, Coca-Cola, Google, Siebel Systems, Oracle, Intuit, Hearst News, the Alliance of Automobile Manufacturers, Allegheny Energy, PG&E, AIG and CNA.”
on behalf of Viacom, the media conglomerate, against the federal Interagency Working Group on Food Marketed to Children (IWG) was dismissive of the federal effort to adopt voluntary marketing guidelines. From the start, she attacked it as one “that would limit the advertising of food and drinks directed at children and adolescents… in violation of the basic First Amendment principle that regulation of speech, including commercial speech, should be a last, not a first resort, for government action.”
The public health effort to stem childhood and teenage obesity by adopting voluntary marketing guidelines—which, as the FTC repeatedly stressed, were not requirements—was “government paternalism,” Sullivan wrote, saying it was a fiction that these were called voluntary. “The food marketing ‘guidelines’ cannot escape full First Amendment analysis merely because [they are] styled ‘voluntary.’”
Even though Sullivan taught at Harvard and then Stanford, there is not a drop of public-interest blood in her brief. She noted the target of the FTC labeling effort—“breakfast cereals, snack foods, candy, dairy products, baked goods, carbonated beverages, prepared foods and meals, frozen and chilled desserts, and restaurant foods”—and said these are “definitions that sweep in many adult audience members as well.”
Indeed, there is a national obesity crisis, among all ages, and yet Sullivan said, “The proposal would… have the effect of reducing the quality of original children’s programming (as well as adult programming attracting a high share of children) by diminishing or diverting the advertising revenues upon which such fully protected forms of programming depend.” Moreover, she said that, “any causal connection between advertising and childhood obesity is far too attenuated to satisfy the strong empirical showing required for restrictions on commercial speech.”
In other words, Sullivan is saying "don’t blame us" and "leave our ad revenues alone."
Sullivan’s brief describes in great detail how the federal courts and particularly the Supreme Court in recent years has “repeatedly invalidated commercial speech regulations for failing to directly advance the goal of discouraging consumption of some product or service (electricity, beer, vodka, gambling, underage tobacco use), even where it has accepted that such goals are substantial.” In the cases she cited, just as in the voluntary food marketing guidelines, Sullivan said the government had not shown that its need to act was sufficiently compelling to interfere with commercial advertising rights.
Sullivan did not respond to an email requesting comment.
To be fair, there were plenty of briefs submitted
to the FTC by progressives during its comment period on the voluntary food marketing guidelines. However, advocacy groups submitting comments to a government agency is not the same as having the nation’s top conservative legal scholars write position and strategy papers, and then also filing briefs. One is a longer-term strategy, while the other a shorter-term response.
Do Google searches deserve the same constitutional protections as New York Times editorials? Should drug and medical device makers tell physicians about alternative, unapproved uses for their products? Should broadcasters take a role in assisting the government to reverse the largest health crisis facing America’s young people?
These are interesting and timely questions for law students, scholars and public officials on both sides of the issues to study and debate. But that becomes harder when most of the First Amendment commercial speech scholarship is coming from the pro-corporate side of the fence, and the federal courts are packed with judges who reject public interest arguments.
Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).