Introduction
Although Citizens
United[1] has been roundly criticized for its potential effect on elections and its
display of judicial immodesty (or “activism”), the effect of the case which may
be both most profound and perhaps most pernicious is its effect on the
commercial speech doctrine. This is an aspect of the case which has been
largely overlooked. Most people seem to be unaware of any connection between
election law and the commercial speech doctrine-except, that is, those who have
been working long and hard to accomplish the change it foreshadows. They are
keenly aware of its implications.
The opinion in Citizens
United is replete with rhetoric identifying corporations as “citizens,” as
if they were real persons. This characterization bolsters arguments for
treating commercial speech like fully protected speech because it trains the
analysis on the speaker instead of the listener. The majority of the Court is
sympathetic to the argument for more protection for commercial speech and Citizens United reflects that sympathy.
It suggests that with the proper case, there is an increased likelihood the Supreme
Court will either do away with the commercial speech doctrine altogether and declare
that commercial speech should be treated as fully protected speech, or it will
nominally retain the doctrine but apply strict scrutiny review. Either
development (and they are really the same) would likely strangle in their
infancy recent and proposed regulatory reforms such as the new tobacco
regulation,[2] the financial reform act which includes changes intended to protect consumers
from abusive or misleading credit marketing
practices[3] and the Interagency Agency Working Group on Foods
Marketed to Children[4] proposing minimal nutritional standards for foods
marketed to children, to name just a few. If that claim seems somewhat
alarmist, it isn’t. If you cannot regulate commercial speech, you cannot
regulate commerce. Period.
I. The Connection Between Commercial and Corporate Speech
To the uninitiated, commercial speech law and campaign
finance reform law seem unrelated. Yet the two are closely linked. The
commercial speech doctrine was established in 1976 by Virginia Pharmacy.[5] It provided for limited protection of truthful commercial speech (a category
previously not protected at all) on the grounds that truthful commercial speech
was important to consumers and thus critical to market function. Only two years
later the Supreme Court decided First
National Bank of Boston v. Bellotti.[6] Bellotti involved a law prohibiting
certain types of corporate political advertising. The Court struck down the
Massachusetts law at issue and in so doing announced, “The
inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its
source, whether corporation, association, union, or individual.”[7] It was not long before this language (and similar
formulations) in Bellotti began
appearing in arguments in favor of full First Amendment protection for
commercial speech, including the 2003 Nike
v. Kasky case.[8]
Use of the Bellotti rhetoric, with its focus on the speaker and antidiscrimination principles,
turns the commercial speech doctrine on its head. The doctrine started as a
modest extension of First Amendment protection for some commercial speech due to
its value to consumers and listeners. It was accompanied by deferential
judicial review. But over the years the doctrine has been subtly refashioned, with allusions to Bellotti, as protection for commercial
speech based on its intrinsic value as “speech.” As this framing gained ground
it was accompanied by increased judicial skepticism toward regulation. In just
a few decades, governmental regulation of commercial speech has gone from an
unremarkable aspect of Congress’s power to regulate commerce to an almost
presumptively illegitimate abridgment of freedom of expression, with regulators
on the defensive against aggressive First Amendment attacks. This shift is of a
piece with the embrace of deregulation generally in the latter part of the
twentieth century. In the wake of spectacular corporate failures and
malfeasance, deregulation is less appealing today. There is renewed interest in
greater governmental oversight with respect to areas like food and product
safety, securities and banking, the environment, and others where the
unfettered market appears to be inadequate
to protect the public interest. Yet the intellectual and legal apparatus that
created the commercial speech doctrine and led to Citizens United may prop up the laissez-faire approach to
regulation even as its shortcomings become manifest.
II. Origins
Virginia Pharmacy,
the decision which created the commercial speech doctrine, was issued after
Justice Powell joined the Court. Powell
had served as legal counsel to some of America’s largest businesses. He felt
strongly that the free enterprise system in America was under assault. In his
view this assault required a coordinated defense. To this end, in 1971 he wrote
a memo to the chairman of the educational committee of the U.S. Chamber of
Commerce entitled “Confidential Memorandum: Attack on American Free Enterprise
System.”[9] In the memo Powell outlined a multipronged
plan by which American business could improve its standing with society. He advised
industry to fund research, lobby, sponsor discussions in university settings,
shape the representations of business in the media through public relations,
fund strategic litigation, and offer proposed drafts of legislation which would
be more hospitable to business.
Now, almost forty years later, it seems that industry
followed all of Powell’s recommendations. Certainly cases like Nike v. Kasky illustrate this strategy
in full flower. In Nike, numerous
amicus briefs were submitted by industry lobbying organizations like the
Association of National Advertising and the National Association of
Manufacturers, as well as by some of the world’s largest corporations like
Exxon-Mobil and Microsoft. They all cited Bellotti.
Similarly, many of the scholarly articles arguing for more protection for
commercial speech were written by practicing lawyers, suggesting that in some
cases, firms have underwritten the cost in attorney billable hours needed to
write these articles to advance clients’ strategic interests. Alas, there are
fewer clients paying for advocacy on behalf of the public. And those which
exist (except the government itself) have far fewer resources.
These efforts have “moved the ball,” making freedom of
commercial expression seem both inevitable and necessary when it is neither.
Perhaps because Virginia Pharmacy was
a case brought by a consumer group, its holding seemed “proconsumer” and the doctrine’s
enormous benefits to business were not so apparent. They are today. The
commercial speech doctrine gave constitutional cover to a wealth of commercial
propaganda that cannot sensibly be described as “informational,” even as it purported
to protect the government’s power to regulate commercial speech for its truth.
Consumers have much to fear from misleading or false commercial speech. Yet
under the onslaught of the antidiscrimination rhetoric, government power to
protect them from it has been slowly eroded.
III. The Corporation as Speaker
Some of commercial speech’s defenders argue that
intermediate scrutiny of commercial speech represents viewpoint discrimination.
But this claim turns the rationale for extending protection on its head. Virginia Pharmacy focused on listeners’
interest in the information, not the speaker’s desire to communicate it. In
contrast, the viewpoint discrimination argument foregrounds the speaker; it
presumes, albeit indirectly, a human subject who as a moral actor should be
protected from discriminatory suppression of his or her self-expression. It treats
the speech rights as “belonging” to the speaker-not
as protected on behalf of the listener.
Viewpoints don’t matter in a vacuum. There are only two
reasons to be concerned about regulation of content or viewpoint. One is that
the content is valuable to listeners. The other is that suppression offends the
dignity of the speaker. If content is harmful to the listener, protection
cannot be justified by reference to the listener’s interests. And if the
speaker is not a moral subject, protection cannot be justified on the grounds
of his (its) expressive interests. Yet this is a consequence of the
sleight-of-hand involved in focusing on content-it treats the corporate speaker
as if it were a moral subject which possesses rights as an attribute of
personhood, and it frames restrictions on communication based on the speaker’s identity
as invidious discrimination.
While the Court has not yet explicitly grounded protection
for commercial speech in the speaker’s rights, it has gotten perilously close
in Bellotti and again in Citizens United, with the suggestion
that distinctions between corporations and persons (or between different types
of corporations) are discriminatory. But if a for-profit corporation is
entitled to full First Amendment protection when it engages in political speech-speech
which is in some sense peripheral to its existence-then it would seem full
protection for its core expressive
activity should follow. The core expressive activity of a for-profit
corporation is commercial speech. If the Court wants to avoid distinguishing
between high- and low-value speech, and is inclined to treat for-profit
corporations as speakers with full First Amendment rights, then full protection
for commercial speech seems virtually inevitable.
IV. Tobacco Litigation and Regulation
Predictably, Citizens
United has already cropped up in some commercial speech cases. In United States v. Philip Morris USA, Inc.,[10] the government sued several tobacco companies, alleging a pattern of
racketeering based on activities taken in concert to conceal information about
the health consequences of smoking, secondhand smoke, and the addictive
properties of nicotine; deceptive marketing practices; marketing to children;
and several other deceptive, fraudulent or harmful practices. After a long
bench trial the judge issued a lengthy opinion, containing exhaustively
documented findings of fact and conclusions of law, largely in favor of the
government. The decision was affirmed in 2009.[11]
The defendants unsuccessfully petitioned the Supreme Court
for review claiming, among other things, that the prosecution violated the
companies’ First Amendment rights. The gist of their argument, as echoed in an amicus
brief filed by the Washington Legal Foundation,[12] was that much of the misleading speech at issue was released in the form of
editorials, op-eds, and press releases. These are forms of expression which are traditionally protected by the First
Amendment, and, because they involved issues of “public concern,” the tobacco
companies argued that the statements should be treated as fully protected
speech. Citizens United was cited as
support for the proposition that the government could not “discriminate”
against corporate speakers.
Consider what this means. The government alleged and the
trial court found that much of this “information” was knowingly false and
misleading. The press releases and other so-called informational pamphlets (some
of which were sent to schoolchildren), purported to educate the public about
the “debate” on the health consequences of smoking. In fact they did no such
thing. They were disseminated to manufacture a controversy. There is scientific consensus about the premise that
smoking causes serious health problems. The defendants’ strategy in attacking
this premise, succinctly captured in one internal memo, was to sow doubt and
confusion, rather than to educate and inform: “Doubt is our product since it is the best means of competing with
the ‘body of fact’ that exists in the mind of the general public.”[13] In short, the tobacco companies asserted a constitutional right to obfuscate public information about a
product for which there is no safe level of use. It is difficult to conceive of
a construction by which the right to sow confusion about such a product is
founded on the interests of the listeners.
Although the Supreme Court denied review of this case, the
issue will arise again in litigation over the new law giving the Food and Drug
Administration (“FDA”) jurisdiction over tobacco.[14] For example, in Commonwealth Brands v. FDA,[15] several tobacco companies (and related businesses) challenged the law, claiming
its restrictions on tobacco advertising and packaging violated the First
Amendment. The district court held that the law’s ban on color and graphics in
packaging and advertisements, and on references to the FDA (which might imply
governmental assurances of safety), did violate the First Amendment because they were overbroad. Citizens United and the judicial philosophy toward corporate
interests which it reflects will undoubtedly be invoked in subsequent appeals
of this ruling and in future cases involving other products which may present a
hazard to the public, such as soft drinks, junk food, pharmaceuticals, and
alcohol. Tobacco is a product which wreaks havoc on public health, particularly
when advertising is either aimed at or peripherally affects children, but that
does not mean that prohibition is the right response. Nevertheless, it does not
follow from a rejection of prohibition that we are compelled to permit completely
unrestrained promotion of dangerous products.
V. The Consequences of Strict Scrutiny
As the Commonwealth case demonstrates, even under the current intermediate scrutiny test for
commercial speech, a great deal of advertising which is arguably of little, or
even negative, informational value will be protected. And some claim that
increasing First Amendment protection for commercial speech will not affect the
government’s ability to regulate false speech. But this is not true for two reasons. First, many advertisements do not
offer factual claims that may be tested for their truth, but they may still be
misleading-for example, when cigarette
ads portray smokers as uniformly young, attractive, and healthy. The government
has a legitimate interest in regulating misleading as well as false commercial
speech. Second, high procedural and evidentiary barriers, like those imposed in
New York Times v. Sullivan,[16] will likely leave the government with a theoretical power to regulate, backed up by little in the way of practical ability to litigate. As prominent First Amendment scholar
Fred Schauer recently observed, facts matter in the First Amendment. But where
judges are hostile to the general proposition of regulation, facts are also
susceptible to being dismissed or minimized. This happened in Citizens United when the Court rejected
the argument about the appearance of corruption of the electoral process, where
multinational corporations are permitted to participate on the same terms as
individual citizens.[17]
Conclusion
The Citizens United opinion, with its rhetorical framing of corporations as “citizens,” provides
ammunition for those arguing that commercial speech ought to receive full First
Amendment protection. The antidiscrimination rhetoric is troubling because it provides cover
for the Court’s use of its countermajoritarian power on behalf of the
powerful rather than against them. Full protection for commercial speech would threaten
many of the regulatory initiatives of the last couple of years.
Given the disastrous corporate collapses of the last few
years, it is evident the market cannot always be relied upon to protect the
public. False and misleading commercial speech poisons the informational
environment. Like an out-of-control oil well, large corporate interests inject
vast amounts of “noise” (false and misleading speech) into the public sphere,
every day, virtually unchecked. As we have seen with tobacco, this
informational pollution can have significant negative consequences for public
health, safety, and economic stability. Full First Amendment protection of this
speech seems likely to make things worse. Can it really be the case that respect
for freedom of expression makes the government powerless to combat informational
pollution? In another First Amendment case, Justice Jackson famously warned the
Court not to turn the Bill of Rights into “a suicide pact.” But constitutional
protection for commercial speech might do just that.
Tamara R. Piety is Associate Dean of Faculty Development and Professor of Law at the University of Tulsa College of Law. This work was supported by a University of Tulsa College of Law Summer Research Grant.
Suggested citation: Tamara R. Piety, Commentary, Citizens United and the Threat to the Regulatory State, 109 Mich. L. Rev. First Impressions 16 (2010), http://www.michiganlawreview.org/assets/fi/109/piety.pdf.
[1]. Citizens United v. Federal
Election Comm’n, 130 S. Ct. 876 (2010).
[2]. Family Smoking Prevention and
Tobacco Control Act, Pub. L. 111-31, 123 Stat. 1776 (2009).
[3]. See H.R. Rep. No. 111-517, Title X, § 1031.
[4]. The interagency group is made up
of the Federal Trade Commission (“FTC”), Centers for Disease Control and
Prevention (“CDCP”), Food and Drug Administration (“FDA”), and U.S. Department
of Agriculture (“USDA”). Interagency
Working Group on Food Marketed to Children, Tentative Proposed Nutrition Standards (2009), http://ftc.gov/bcp/workshops/
sizingup/SNAC_PAC.pdf.
[5]. Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, 425 U.S.
748 (1976).
[6]. First Nat’l Bank of Boston v.
Bellotti, 435 U.S. 765 (1978).
[7]. Id. at 777 (emphasis added).
[8]. Brief of Amicus Curiae Center for
Individual Freedom in Support of Petitioners at 23, 539 U.S. 654 (2003) (No.
02-575 ) (per curiam), 2003 WL 835292.
[9]. Robert A.G. Monks, Corpocracy: How
CEOs and The Business Roundtable Hijacked the World’s Greatest Wealth
Machine-and How to Get it Back 43-54 (2008); see also The Powell Memo:
Text and Analysis, ReclaimDemocracy.org,
Apr. 23, 2004, http://reclaimdemocracy.org/
corporate_accountability/powell_memo_lewis.html.
[10]. 449 F. Supp. 2d 1 (D.D.C. 2006).
[11]. United States v. Philip Morris
USA, Inc., 566 F.3d 1095 (D.C. Cir.
2009), cert. denied, 78 U.S.L.W.
3501, 78 U.S.L.W. 3759 & 78 U.S.L.W. 3762 (U.S. 2010).
[12]. Brief of Washington Legal Foundation and
National Association of Manufacturers as Amici Curiae in Support of
Petitioners, Philip Morris USA, Inc. v. United States, 78 U.S.L.W. 3501, 78
U.S.L.W. 3759 & 78 U.S.L.W. 3762 (U.S. 2010) (Nos. 09-976, 09-977, 09-1012),
2010 WL 1130087.
[13]. Phillip Morris, 449 F. Supp. 2d at 191-92, ¶ 726 (D.D.C. 2006) (emphasis
added) (quoting internal Brown & Williamson document).
[14]. Family Smoking Prevention and
Tobacco Control Act, Pub. L. 111-31, 123 Stat. 1776 (2009).
[15]. Commonwealth Brands, Inc. v. FDA,
678 F. Supp. 2d 512 (W.D. Ky. 2010).
[16]. 376 U.S. 254 (1964).
[17]. This decision is in some tension
with the Court’s holding in Caperton v.
A.T. Massey Coal Co., that millions of dollars in campaign contributions
from a litigant required a judge to recuse himself because “the probability of
actual bias” rose to an unconstitutional level. 129 S. Ct. 2252 (2010).