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More Fallout From Citizens United: Corporations Granted More Power to Propagandize to Americans

The controversial 2010 Supreme Court ruling did not just affect corporate "speech" in elections.

Tamara Piety is a constitutional law professor and dean at University of Tulsa’s College of Law. Her latest book, Brandishing The First Amendment: Commercial Expression in America, describes how federal courts have aggressively and inappropriately expanded the First Amendment rights of for-profit corporations in recent decades.

The book starts with a striking assertion, that if the government cannot regulate corporate speech then it cannot regulate commerce, especially in our media-driven world. Piety writes that the Supreme Court’s 2010 Citizens United ruling, which deregulated corporate political speech, also will make it harder for the government to protect public interests because corporate rights to say anything is ascendant in the federal judiciary. 

Steven Rosenfeld interviewed Piety about  Citizens United's reach beyond the electoral arena. Below is a slightly edited transcript.

Steven Rosenfeld: Are we talking about advertising or does it go deeper than that?

Tamara Piety: I think it goes much deeper than advertising, and I probably should qualify that categorical statement. I don’t think it’s totally impossible, certainly not theoretically to regulate commerce in some other kinds of regulatory ways, but it makes it incredibly more difficult. The whole Federal Trade Commission is premised on the ability to regulate a good deal of speech that is, at least, at present, of questionable constitutional foundation given the recent decisions.

When you are talking about regulating commerce, a good deal of what you are speaking of is the ways in which marketing takes place and that involves advertising. But it also involves things like point of sale, labels, disclosure, interaction with trademark and copyright law, public relations. The commercial speech doctrines never really covered public relations. But the Nike case in 2003 brought to the fore the degree that the public relations speech can also be something that were are troubled about if false assertions are made in that context—aimed at selling something, in that case, athletic gear.

SR: The Court in Citizens United said that corporations should be free to spend unlimited sums in independent political campaigns. That’s in the political sphere. But your concern is that it actually goes far beyond the political sphere and has other impacts in the world of commerce. Can you explain that?

TP: What happened in Citizens United is that you have this strong declaration that you can’t discriminate against corporations. And my contention was that personification, that idea that discriminating against corporations is invidious discrimination, was going to make its way into the [Supreme Court’s] commercial speech doctrine. And, in fact, I think it has.

What the commercial speech doctrine was announced in 1976, it was explicitly oriented to listeners’ interests. It carved out this very special narrow area of speech that would be protected, that had not been protected before, and that was truthful commercial speech. And it premised it on the idea that the government ought not to be paternalistically protecting people from the truth. And it was all about the listeners.

And over time, that doctrine has morphed into a much more strict scrutiny doctrine to the point that in last term’s Sorrell case where the Court basically said that a statute was unconstitutional because it singled out [pharmaceutical] marketing for special treatment, and that was unconstitutional content discrimination. And that’s just breathtaking.

SR: Is there a line that prevents lying in advertising and commercials and marketing? Don’t companies have some legal obligations? Or can they just make false statements and the public is left to say, "Oh, it’s only marketing?"

TP: It’s really complicated and subtle. Theoretically, there’s tons of laws at the state and federal level that prohibit fraud generally and specifically. The law on the books is that companies cannot say false things. But all you have to do is open the magazines and look at the back about some fat-melting pill, or any number of claims that are made, and you can see that a lot of false claims, obvious and demonstrably false claims are made in advertising, and they are just not the will to police them. But if the [Supreme Court] doctrine is moving the way it has been moving, the rejoinder is going to be "it’s not the appropriate role of government to police some of this."