Why Corporate 'Negative Speech Rights' Is as Dangerous as Corporate Free Speech

We all know about political free speech. With a few exceptions, you can say what you want, whether people listen or not. But corporations have twisted the First Amendment to claim that their free speech rights as “people” also means that they cannot be forced by government to put warning labels on their packaging. An established and growing body of law elevates private marketing above public health warnings.

It's called corporate negative free speech rights, and it falls under one particular area of First Amendment law—commercial speech. It's been wielded in a variety of for-profit settings. Cigarette companies have used this rationale to avoid photos on warning labels. The dairy industry has evoked it to hide the use of manmade bovine growth hormones in milk production. Cell phone companies have cited it to block radiation warnings on their packaging. 

In all these cases, the government’s effort to protect the public health and inform consumers has been trumped by this relatively new form of protected speech. Government is told again and again that it cannot infringe on corporate speech rights. And the cases continue. Today, there are a few to keep an eye on. 

The US Court of Appeals struck down on April 14 a Securities and Exchange Commission rule forcing manufacturers to disclose, on their websites, if their electronics contain minerals mined from the war-torn torn Democratic Republic of the Congo (DRC). The court ruled that "[b]y compelling an issuer to confess blood on its hands, the [SEC] statute interferes with that exercise of the freedom of speech under the First Amendment.” The government can’t force a company to talk about something so controversial, even if the public is consuming it.

But the SEC has asked the Court to reconsider its decision. The SEC, with support from Amnesty International, is pointing to a case that could turn the table. The case currently moving its way through the courts is about meat labeling. The American Meat Institute (AMI) has argued that a U.S. Department of Agriculture rule that requires labeling that discloses where cows are born, raised and slaughtered, violates its First Amendment rights. But unlike most of these cases, AMI’s argument lost in court, on March 28.

The court ruled that because where cows come from is “purely factual and non-controversial,” government can require such labeling. Not surprisingly, AMI is appealing. It argues the Court was correct in the SEC case, where it ruled that “Not Conflict Free” mineral labels were “controversial” and therefore in violation of the First Amendment. In the minerals case, the SEC and Amnesty International argue the Court was correct in the meat labeling case. Where minerals come from, like where meat comes from, is a fact, period.

As the commercial speech debate continues, there are real impacts. Striking down the SEC rule, the agency argued, means that the government cannot “further the humanitarian goal of ending the extremely violent conflict in the DRC” by making companies reveal on their labels that they are financing a war. The conflict in the DRC has lasted for decades, claimed over 5 million lives and traumatized thousands more through the use of “strategic” rape.

The technical language of these cases raises larger and more basic questions. Should companies contributing to a foreign civil war be forced to say so? Should their commercial speech rights absolve them from that responsibility? Is there a similar public interest in revealing where pork, chicken and beef come from?  

Despite what seems like clear answers to these questions, corporations have been gaining negative speech rights in recent years. In 1996, in a landmark U.S. Court of Appeals case International Dairy Foods Association v. Jeffrey Amestoy, the state of Vermont was stopped from requiring dairy food producers to label if their products contained manmade bovine growth hormones. The court sided with industry, which cited a U.S. Food and Drug Association determination that these manmade hormones are safe. One would think that the industry wouldn’t object to consumers knowing that fact—if it were not controversial.

Vermont is back at it, but this time with GMOs—genetically modified organisms. Its legislature just passed a GMO labeling requirement. On Thursday, June 12, the Grocery Manufacturers Association and other industry groups sued Vermont for violating its First Amendment commercial speech rights. 

Against this legal backdrop, businesses that want to stand out for not using pesticides, GMOs or conflict minerals are forced to do the labeling themselves. But labeling the absence, rather than the presence, of these ingredients comes at a price. Consider organic farming, because getting certified costs money—more than just using the pesticides embraced by agribusiness.

“In terms of effort and cost, it’s much easier to buy and spray chemicals than it is to grow organic,” said Clayton Burrows, the co-2012 Washington Tilth Farmer of the Year. He said he has to complete paperwork for dozens of organic crop permits, costing thousands of dollars. “How many permits do you need to buy and spray chemicals?” he asked, “The answer is zero….It’s much easier to spray chemicals than it is not to. It’s ironic that the person that takes care of the land is punished.” 

In states with ballot initiatives, such as California and Washington, there have been recent measures to require GMO labeling. Those initially drew big public support but then lost on Election Day after Big Ag, the food industry and farm groups spent millions to create a climate of fear and threaten higher prices.

But there are other strategies that seek to limit corporations from asserting their rights to keep the public in the dark. In Colorado for example, statewide Initiative 75 is now gathering signatures to get on the fall ballot. Drafted by the Community Environmental Legal Defense Fund, it would shield local governments against corporate lawsuits. If passed, local laws—such as community bills of rights—could not be stuck down for violating a corporation’s legal “rights.” 

In Oregon, starting a few years ago, organic farmers began organizing county ballot measure campaigns to ban GMO seeds. That was a deliberate non-First Amendment strategy. In response, the governor convened a special session of the legislature last fall and banned those kinds of local initiatives, saying this had to be addressed by statewide laws. But they did that after Jackson County’s ballot measure was in motion, so they could not stop a vote on it. This May, it banned GMO seeds. And other Oregon counties are moving forward with GMO bans that take on corporate “rights,” in defiance to the state’s preemption. There's no doubt the biotech industry, Big Ag and others will challenge the efforts in court. 

It may be that outside-the-box efforts like these, focused on changing more than commercial speech law, are what is needed to protect an array of public interests—from labeling what’s in our food and consumer products to what a corporation cannot do when a community decides otherwise.


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