{"id":1741,"date":"2016-06-28T14:10:07","date_gmt":"2016-06-28T14:10:07","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?p=1741"},"modified":"2016-07-13T21:04:42","modified_gmt":"2016-07-13T21:04:42","slug":"freedom-to-lie","status":"publish","type":"post","link":"https:\/\/revolutionsincommunication.com\/law\/2016\/06\/28\/freedom-to-lie\/","title":{"rendered":"Freedom to deceive"},"content":{"rendered":"
\"400.SoothingSyrup\"

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.<\/p><\/div>\n

Do corporations have a First Amendment right to\u00a0deceive\u00a0the public? Is it legal\u00a0to knowingly lie about products or their public health or environmental impacts?<\/p>\n

These days the question comes up in the context of the climate change debate, but\u00a0the fight over corporate and commercial speech has a long and storied history.<\/p>\n

Until about a\u00a0century ago, advertising was unregulated, and advertisers were perfectly free to lie without taking responsibility for their products.\u00a0“Soothing syrups”\u00a0of opium and morphine were good for children, they said; radioactive drinks like “Radithor” healed like having the\u00a0sun on the inside, they said; \u00a0and Grape-Nuts cereal would\u00a0cure appendicitis without medical help, they said.<\/p>\n

This sort of fraud\u00a0is an abuse of the marketplace of ideas, and it was\u00a0ended with a Progressive-era campaign to regulate\u00a0advertising.<\/p>\n

And yet, by the\u00a021st century, international corporations were\u00a0insisting\u00a0on a First Amendment right to champion\u00a0\u00a0junk food, to market tobacco, to fabricate information about\u00a0sweat shop working conditions in developing nations, and to use outright nonsense to\u00a0challenge legitimate science on\u00a0fossil-fuel induced\u00a0climate change.<\/p>\n

Advocacy in these areas has become part of a corporate legal trend\u00a0that deceptively casts businesses as victims, using\u00a0the language and style of \u00a0civil rights, but with the intention\u00a0\u00a0to undermine\u00a0consumer rights\u00a0and influence the marketplace of ideas.<\/p>\n

For example, investigations into Exxon-Mobil’s climate change denial by state attorneys general in Massachusetts and New York during the spring and summer of 2015 have been an attempt to\u00a0lift the lid on this presumed right to lie.<\/p>\n

The Exxon-Mobil axis responded with typically feigned outrage. \u00a0“F*** off, fascists” is the eloquent response oil industry front man Alex Epstein <\/a>gave to the Massachusetts Attorney General’s office\u00a0in\u00a0June\u00a0of 2016.<\/p>\n

The Exxon-Mobil axis\u00a0also objected to\u00a0a proposed California\u00a0state law that would have \u00a0allowed civil claims against businesses and organizations that\u00a0spread misinformation about climate change. \u00a0The bill was tabled in June, but not until right wing bloggers claimed that they were being persecuted for climate skepticism. \u00a0 Radio personality Glen Beck claimed that the California bill would throw anyone in jail<\/a> who disagreed with climate scientists. \u00a0The\u00a0Washington Times and others repeated the charge, claiming: “The First Amendment is now dead<\/a>.” \u00a0Columnist George Will said that\u00a0the bill was an attempt to\u00a0stifle dissent. <\/a>(Of course its not true: See this Snopes site<\/a>).<\/p>\n

The claims all had similar themes, noted Sen. Sheldon Whitehouse, D-RI in a Columbia Journalism Review article July 12, 2016<\/a>.\u00a0 “Fraud is not protected speech” under the First Amendment. \u00a0He\u00a0believes that investigations of corporate climate science denial could turn up the same kind of deliberately false information spread about tobacco in the late 20th century.<\/p>\n

Historically, reining in false or fraudulent \u00a0advertising has not\u00a0been considered controversial. \u00a0 Advertising did not really have any First Amendment protection after Congress created the Food and Drug Administration\u00a0in 1906\u00a0and\u00a0the Federal Trade Commission in 1914. \u00a0And in a 1942 challenge, the US Supreme Court said that \u00a0that advertising could\u00a0be regulated in the\u00a0\u00a0Valentine v. Chrestensen<\/a>\u00a0case (316 U.S. 52).<\/p>\n

Legal scholars trace the change in the judicial philosophy of advertising regulation to three major developments: \u00a01) Recognition of the political content inherent in some advertising, such as the 1964 New York Times v Sullivan \u00a0civil rights advertising case; 2) \u00a0Placing advertising regulation into an “intermediate scrutiny” framework with a four-part test, giving advertising some limited protection, as in the Central Hudson v PUC case of 1980; 3) And placing corporate speech regulation into a “strict scrutiny” category in the 1978 First National Bank of Boston v Bellotti case (435 U.S. 765\u00a0).<\/p>\n

The Bellotti case, although initially narrow,\u00a0\u00a0is behind the modern\u00a0claims of First Amendment rights for corporations, including campaign contributions that emerged with the Citizens United case of 2010.<\/p>\n

The decision in the Bellotti case did not really affirm First Amendment rights for corporations. Instead, in the final opinion, the Court\u00a0said:\u00a0<\/a><\/p>\n\n\n\n
\n

The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question is not whether corporations “have” First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the law] abridges expression that the First Amendment was meant to protect. We hold that it does.\u00a0<\/i><\/span><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

As Tamara R. Piety put it in a 2016 University of Maryland Business and Technology Law Journal,\u00a0\u00a0the Court here was\u00a0engaged in a bit of sophistry:<\/p>\n

Reformulating the question this way does not answer whether the First Amendment was meant to protect the political speech of corporations. The question was whether …\u00a0corporate political speech was indeed part of the core speech the First Amendment was meant to protect. But framing it this way certainly made it seem as if the answer to the question posed was easy and self-evident.<\/p>\n

The second thing that is interesting about this reframing is the way in which [the Court]\u00a0proposes that freedom for corporate speech is predicated on a public<\/i> interest…\u00a0\u00a0It is easy to see how truthful<\/i> commercial speech could conceivably represent a public benefit. Obviously, false commercial speech is not in the public interest. [Previously. in the Virginia Pharmacy case<\/a>.] the\u00a0Court conspicuously and scrupulously reaffirmed the power of the government to make sure that commercial speech was in fact truthful.<\/p>\n

But truthfulness is precisely what the government may not regulate in the political sphere. While false political speech may be just as deleterious, perhaps more so, to the public than false commercial speech, it is quite a different matter for the government to propose to regulate false political speech.<\/strong> <\/em>But it is one thing to say that the government ought not to be the arbiter of truth and falsity in the sphere of political speech; it is another thing to characterize all<\/i> political speech as a public benefit, regardless of whether it is true.<\/p>\n<\/blockquote>\n

So the\u00a0impact of the Bellotti case was a slowly mounting claim for First Amendment rights for corporations in an area that could not be directly regulated because it was political. \u00a0As Piety says:<\/p>\n

The First Amendment has become a powerful weapon against regulation of all kinds. Regulations that have been on the books for decades are being challenged. And many regulations that have been a thorn in the side of business, and the source of much litigation, are now under a constitutional cloud… \u00a0Whatever the motivations, the fact remains that what started out as a limited right to hear truthful information (but not false information and without any rationale for a speaker’s right to speak commercial information) has morphed into a right which resides primarily in the speaker, one that can be used to rebuff the consumer’s interest in blocking unwanted advertising and hearing truthful information.<\/p>\n

But it is a denatured sort of right. It is not one expressed in terms of \u00a0the speaker’s right to speak, but rather in a rejection of discrimination, thus leaving the corporation as rights holder in the background and its bona fides, in terms of its claim, separate from its owners, shareholders, directors or managers, to First Amendment rights of all kinds, unclear.\u00a0\u00a0\u00a0<\/span>I remain concerned that this expansive First Amendment will prove to be an unworkable burden on beneficial regulation intended to protect public health, safety, and welfare.<\/p>\n<\/blockquote>\n

Similarly, in a\u00a0Washington Monthly (Jan-Feb, 2014)<\/a>\u00a0article, \u00a0the authors argue that\u00a0freedom of speech\u00a0has become the\u00a0freedom to destroy government regulations of all kinds.<\/p>\n

And in a Washington Post op-ed, Yale law school dean Robert Post argued <\/a>that the point is a simple one:<\/p>\n

If large corporations were free to mislead deliberately the consuming public, we would live in a jungle rather than in an orderly and stable market.<\/p>\n

ExxonMobil and its supporters are now eliding the essential difference between fraud and public debate. Raising the revered flag of the First Amendment, they loudly object<\/a> to investigations recently announced by attorneys general of several states into whether ExxonMobil has publicly misrepresented what it knew about global warming… (And) \u00a0Hans A. von Spakovsky<\/a>, speaking for the Heritage Foundation, compared the attorneys general to the Spanish Inquisition.<\/p>\n

Despite their vitriol, these denunciations are wide of the mark. If your pharmacist sells you patent medicine on the basis of his \u201cscientific theory\u201d that it will cure your cancer, the government does not act like the Spanish Inquisition when it holds the pharmacist accountable for fraud.<\/p><\/blockquote>\n

 <\/p>\n

LINKS<\/p>\n

Killie, L., “Corporate speech and the First Amendment: History, data and implications<\/a>” Shorenstein Center, 2015<\/p>\n

Edwards, H. “The Corporate Free Speech Racket<\/a>,” Washington Monthly, 2014<\/p>\n

Piety, T., \u00a0Selected Works\u00a0<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Do corporations have a First Amendment right to\u00a0deceive\u00a0the public? Is it legal\u00a0to 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\u00a0the fight over … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1741","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/1741","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/comments?post=1741"}],"version-history":[{"count":34,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/1741\/revisions"}],"predecessor-version":[{"id":1786,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/1741\/revisions\/1786"}],"wp:attachment":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/media?parent=1741"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/categories?post=1741"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/tags?post=1741"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}