More Fallout From Citizens United: Corporations Granted More Power to Propagandize to Americans
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."
We saw a really interesting, little-noted movement in this direction in the Stolen Valor case [where the Supreme Court in June upheld a person’s right to lie about his military service]. Because in the Stolen Valor case Justice Kennedy, in the plurality decision, talked about how there’s all these exceptional areas where content regulation is acceptable. And he runs through the traditional list in opinion after opinion: fighting words, shouting "fire" in a theater. And then he gets to what ordinarily would be an invocation to commercial speech, but instead of saying "commercial speech" and citing Virginia Pharmacy [the Court’s long-standing precedent], he says "fraud." And that’s a much narrower [view]…
Commercial speech always included governmental power to regulate misleading speech; that is, speech that was technically true but was capable of being misunderstood, or be misleading in some way. And to say fraud is to really narrow it down to its most strict and narrow area of protection.
SR: Let’s pause on that notion for a second. Because what this Court has done in a lot of areas is dumb down, or narrow, the definition of what can fall under the law. And it creates giant loopholes. What I want to explore is how that First Amendment can be used as a fig leaf or an excuse to evade regulation, or evade accountability.
TP: Probably not everything can be reconstituted or reframed as a First Amendment violation—but almost. Let me take one example. San Francisco passed an ordinance trying to limit the giving away of toys in fast-food meals for a lot of cogent, really sound reasons. And all of the opposing forces replied, "Nanny state, you’re trying to tell us what to do" -- that kind of stuff came out. But it was opposed partly on First Amendment grounds. But if you think of what’s going on there, how is there speech happening? They’re giving away a promotional tie-in; it’s a giveaway of a thing in exchange of money for the meal, and then they get the toy. It’s not a speech act at all. And yet the First Amendment has been offered as a way to oppose those kind of regulations.
There’s also been arguments made against various securities regulations. And so the very elaborate strictures on what you can say or not say with the sale or offering of securities is violative of the First Amendment. So far the Court hasn’t taken up the challenge to those. That hasn’t been before the Supreme Court. But that’s the kind of very fundamental basic law that we have been operating under for decades, but are susceptible to challenge now.
SR: What does it mean for us to be in a world where corporations can make all kinds of claims or lie with impunity in order to make money, and the courts have increased the legal protections for them to do so?
TP: It means a lot of things. Ironically, some of what it means is what you see in Justice Alito’s dissent in the Stolen Valor case, that we value the prestige of designer handbags more than medals of honor. That’s because we’re living in a world where corporations, not necessarily the individuals who are running them, but structure—the legal structure, the imperatives that they operate under—mean that the economic value of designer handbags is always going to be more valuable than the intangible of something like a medal of honor, unless there is some way to monetize it.
It’s ironic because the conservative position now is very mush pro-commercial speech. But that takes us to the world that Justice Alito was complaining about, and what we see in the electoral politics, or the money in politics, post-Citizens United. The point in the book is that there is no venerable tradition or compelling theoretical argument for protecting corporate and commercial speech if we consider the values that the First Amendment has been meant to protect.
So if you look at democratic participation arguments about what the First Amendment is for, we can see post-Citizens United that it doesn’t advance that interest in democratic participation. It concentrates the electoral politics around the interests of a very few participants. And then the truth-seeking function: that’s empirically been disproven. If we look around, I think we can see that the "marketplace of ideas" doesn’t necessarily generate much truth.
And even if you can say that there’s some marginal value from being bombarded with advertising, it seems like you have to measure that against the harms that are generated—in addition to which, in many cases, consumers actually actively don’t want to receive advertising and now the First Amendment is used as a reason why they must.
SR: How do you think we got here? The Court wasn’t always this way, right?
TP: One of the things that happened in 1976 and helped bring us to where we are today is that the rhetoric of equality, and the argument that the First Amendment includes some notion of non-discrimination against speakers and entities has been hijacked by corporations to align themselves with the Civil Rights movement. And I really think that does a disservice to the sacrifices of those in the Civil Rights movement and trivializes civil rights if Exxon-Mobile and Rosa Parks are supposedly in the same position.
And I also want to emphasize that there is nothing invidious about discriminating between for-profit and not-for-profit corporations. Attacking for-profit corporate speech doesn’t have any bearing on not-for-profit organizations being able to continue to enjoy full First Amendment protection. And that’s consistent with our ordinary understanding of what having a financial interest might do to your reliability. Like if a judge has a financial interest in a case before him, he or she can’t hear it, and so forth.