Author Archives: Prof. K

From Salon magazine

Say what you will about American politics, right or left, conservative or liberal; if there is one bedrock value in American life, it is the absolute devotion to freedom of religion, speech, press, petition and assembly — that is, the First Amendment, and with it, the ability to openly follow one’s own moral compass and to discuss important issues of the day from one’s own perspective.

No candidate for office can threaten this bedrock value without incurring the wrath of an aroused electorate.  Yet Donald Trump and followers insist that the “evil” media must be muzzled for their convenience, and that the Constitution is no impediment.

In recent months, Trump has repeatedly demonized the media, to the pointwhere reporters covering his rallies have been beaten and abused; he has

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Mrs Winslow’s syrup contained alcohol and morphine and was sold from the 1840s to the 1930s. Today, advertising it as safe for children would be considered fraud.

Do corporations have a First Amendment right to deceive the public? Is it legal to knowingly lie about products or their public health or environmental impacts?

These days the question comes up in the context of the climate change debate, but the fight over corporate and commercial speech has a long and storied history.

Until about a century ago, advertising was unregulated, and advertisers were perfectly free to lie without taking responsibility for their products. “Soothing syrups” of opium and morphine were good for children, they said; radioactive drinks like “Radithor” healed like having the sun on the inside, they said;  and Grape-Nuts cereal would cure appendicitis without medical help, they said.

This sort of fraud is an abuse of the marketplace of ideas, and it was ended with a Progressive-era campaign to regulate advertising.

And yet, by the 21st century, international corporations were insisting on a First Amendment right to champion  junk food, to market tobacco, to fabricate information about sweat shop working conditions in developing nations, and to use outright nonsense to challenge legitimate science on fossil-fuel induced climate change.

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Ben Eaton, Mary Schaeffer, Esther Calhoun, and Ellis Long (from left to right) successfully asked courts to dismiss the defamation lawsuit brought against them for speaking out about pollution in their town. (ACLU)

In June 2016, four Alabama citizens asked their state courts to dismiss a defamation lawsuit brought against them for criticizing the operations of a waste disposal company.

The courts agreed with the motion to dismiss in February, 2017.

The initial lawsuit was filed April 2016 by the owners of a Uniontown, Alabama waste dump, who alleged that the four citizens had hurt their reputation when they criticized the dump in statements to the media and on their Black Belt Citizens Facebook page.

Among the things that Eaton, Schaeffer, Calhoun and Long  said about the landfill that allegedly harmed Green Group Holdings (according to their court filings):

1. I feel like I’m in prison, we’re suffocated by toxic pollution and extreme poverty. Where are my freedoms? This is an environmental injustice & it’s happening in Uniontown and  everywhere. Its a landfill, its a tall mountain of coal ash and it has affected us. It affected our everyday life. It really has done a lot to our freedom. Its another impact of slavery.
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Political corruption illustrated; 1896 mural at the Library of Congress, Washington D.C.

It’s a cliche that  politicians are corrupt, taking money in exchange for bending the law to favor their donors. But is the act of donating money to a politician a form of free speech? Can it — should it — be regulated?

The influx of cash into political races has always been controversial, and attempts to regulate it have always been difficult.  The 2oo2 Bipartisan Campaign Reform Act (McCain – Feingold bill) was an attempt to limit the influx of cash in federal elections.

But that bill was overturned in the 2010  Citizens United v Federal Election Commission case which, in a very narrow 5-4 decision, said that money equals free speech. According to Brendan Fischer:  Continue reading →

J.K. Rowling, author of the Harry Potter series, defends freedom of speech — even offensive speech — May 16, 2016 at the PEN America Literary Gala, where she received the 2016 PEN/Allen Foundation Literary Service Award. (Photo/Video: PEN America).

The idea that even offensive speech must be protected is an important theme in the history and philosophy of communications law worldwide.  John Stuart Mill said in On Liberty:

… the peculiar evil of silencing the expression of an opinion isthat it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

We also find this very frequently in opinions of the Supreme Court on First Continue reading →