Can free speech wreck the American experiment? The question at first seems crazy: Free speech is almost universally regarded as the heartbeat of democracy. (...)
However sacred the idea of free speech remains for us today, we should recognize that its most fervent champions are not standing up for mistrusted outliers, such as Holmes had in mind, or for the dispossessed and powerless. Today’s advocates do the bidding of insiders—the super-rich and the ultra-powerful, the airline, drug, petroleum, and tobacco industries, all the winners in America’s winner-take-all society. In a country where the gap between the haves and have-nots has grown so extreme that both political parties now pay lip service to populism, the haves have seized free speech as their cause—and their shield.
The landmark Citizens United v. Federal Election Commission case in 2010, in which the Supreme Court ruled that the government may not ban so-called independent spending by corporations in elections, is often described as being about campaign finance law, since it dealt with a statute intended to boost confidence in the political system by reducing the role of big money in elections. But to the justices in the majority (Roberts, Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr.), the case was about free speech. The principle, Kennedy wrote, is that “the Government lacks the power to restrict political speech based on the speaker’s corporate identity.” To mark the fifth anniversary of the Citizens United ruling, public-interest organizations issued reports that, as a result of it, corporations, unions, and individuals have spent more than a billion dollars on political campaigns, with the Center for Responsive Politics estimating that contributions from business dwarf those from labor by about 15-to-one.
Citizens United was about political speech, but it was built on principles established for commercial speech—the kind of solicitation that a business makes to potential customers. The Supreme Court initially treated commercial speech as having less importance than political speech. But the protection of commercial speech is now a formidable tool for American enterprise—and Citizens United shows how far the Court has taken the concept.
In 1976, in a case about whether pharmacists had the right to advertise prices for prescription drugs, the Supreme Court ruled for the first time that the First Amendment covers commercial speech. Unless an ad for a drug is false or misleading or promotes something illegal, the Court held, government must let a business make its pitch and trust that consumers will make good use of the information.
The new ruling gave commercial speech enough importance to come under the First Amendment’s coverage, but Justice Harry Blackmun noted “common sense differences” between commercial and political speech and said that it was “less necessary to tolerate inaccurate statements” in commercial speech because of its lower political and social value. The ruling seemed to strike a balance between the interest of a business in touting its lower prices and the interest of the government in ensuring that commercial information flows, as Blackmun put it, “cleanly as well as freely.”
For the past decade, however, corporations have used the idea of commercial speech as a basis for sweeping claims about what the First Amendment entitles them to. With it, they have persuaded courts to strike down a broad range of well-founded regulations, from health warnings on cigarette packs to bans against pharmacies selling data about prescriptions for marketing. Spirit Airlines, joined by other carriers, argued that the government violated its First Amendment rights by requiring it to prominently list the total price of a ticket, to avoid confusing customers with separate lists of the base fare, taxes, and other charges. Reflecting the new libertarian outlook of businesses about free speech, Spirit insisted it had a right to tell its customers about “the huge tax burden that the federal government imposes on air travel.” The federal appeals court in Washington, D.C., ruled against the airlines, by two to one, but the dissent embraced their libertarian argument: “if discourse regarding these charges results in the government lessening the financial burden it imposes, airfares would become more affordable and people would fly more often.”
The decision in Citizens United was even more aggressive. It took a central concept of the Court’s rulings in commercial speech cases and twisted it drastically, viewing the matter not from the viewpoint of the consumer—its original intention—but from the viewpoint of the corporation.
In his 2014 book Citizens Divided, Yale Law School’s dean, Robert C. Post, who specializes in the First Amendment, explained what the Court got wrong: “the speech of an ordinary commercial corporation possesses constitutional value only because it provides information to auditors”—that is, it provides consumers with truthful information by removing government restrictions that kept them from getting it. Or so the Court said four decades ago, when it extended First Amendment coverage to commercial speech. (...)
Nothing in the text or history of the amendment says exactly what the freedom of speech means—or abridging, for that matter. The Supreme Court has explicitly identified five categories of speech that the First Amendment doesn’t cover: lewd, obscene, profane, and libelous expressions, plus face-to-face insults that trigger a violent response, known as “fighting words.” Ronald K. L. Collins of the University of Washington has counted “at least 43 other additional types of unprotected expression,” ranging from blackmail and bribery to perjury and harassment in the workplace; from plagiarism and child pornography to some kinds of panhandling; from telemarketing to lying to government officials. And free speech in public schools, courtrooms, prisons, the military, and other public institutions may be limited—from the government’s viewpoint, to help them function effectively.
Rather than developing a unified theory about free speech, the Supreme Court has taken an issue-by-issue approach, explains Geoffrey Stone. The Court has been mindful of three recurring problems that the law must guard against: the chilling effect, the pretext effect, and the crisis effect.
However sacred the idea of free speech remains for us today, we should recognize that its most fervent champions are not standing up for mistrusted outliers, such as Holmes had in mind, or for the dispossessed and powerless. Today’s advocates do the bidding of insiders—the super-rich and the ultra-powerful, the airline, drug, petroleum, and tobacco industries, all the winners in America’s winner-take-all society. In a country where the gap between the haves and have-nots has grown so extreme that both political parties now pay lip service to populism, the haves have seized free speech as their cause—and their shield.
The landmark Citizens United v. Federal Election Commission case in 2010, in which the Supreme Court ruled that the government may not ban so-called independent spending by corporations in elections, is often described as being about campaign finance law, since it dealt with a statute intended to boost confidence in the political system by reducing the role of big money in elections. But to the justices in the majority (Roberts, Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr.), the case was about free speech. The principle, Kennedy wrote, is that “the Government lacks the power to restrict political speech based on the speaker’s corporate identity.” To mark the fifth anniversary of the Citizens United ruling, public-interest organizations issued reports that, as a result of it, corporations, unions, and individuals have spent more than a billion dollars on political campaigns, with the Center for Responsive Politics estimating that contributions from business dwarf those from labor by about 15-to-one.Citizens United was about political speech, but it was built on principles established for commercial speech—the kind of solicitation that a business makes to potential customers. The Supreme Court initially treated commercial speech as having less importance than political speech. But the protection of commercial speech is now a formidable tool for American enterprise—and Citizens United shows how far the Court has taken the concept.
In 1976, in a case about whether pharmacists had the right to advertise prices for prescription drugs, the Supreme Court ruled for the first time that the First Amendment covers commercial speech. Unless an ad for a drug is false or misleading or promotes something illegal, the Court held, government must let a business make its pitch and trust that consumers will make good use of the information.
The new ruling gave commercial speech enough importance to come under the First Amendment’s coverage, but Justice Harry Blackmun noted “common sense differences” between commercial and political speech and said that it was “less necessary to tolerate inaccurate statements” in commercial speech because of its lower political and social value. The ruling seemed to strike a balance between the interest of a business in touting its lower prices and the interest of the government in ensuring that commercial information flows, as Blackmun put it, “cleanly as well as freely.”
For the past decade, however, corporations have used the idea of commercial speech as a basis for sweeping claims about what the First Amendment entitles them to. With it, they have persuaded courts to strike down a broad range of well-founded regulations, from health warnings on cigarette packs to bans against pharmacies selling data about prescriptions for marketing. Spirit Airlines, joined by other carriers, argued that the government violated its First Amendment rights by requiring it to prominently list the total price of a ticket, to avoid confusing customers with separate lists of the base fare, taxes, and other charges. Reflecting the new libertarian outlook of businesses about free speech, Spirit insisted it had a right to tell its customers about “the huge tax burden that the federal government imposes on air travel.” The federal appeals court in Washington, D.C., ruled against the airlines, by two to one, but the dissent embraced their libertarian argument: “if discourse regarding these charges results in the government lessening the financial burden it imposes, airfares would become more affordable and people would fly more often.”
The decision in Citizens United was even more aggressive. It took a central concept of the Court’s rulings in commercial speech cases and twisted it drastically, viewing the matter not from the viewpoint of the consumer—its original intention—but from the viewpoint of the corporation.
In his 2014 book Citizens Divided, Yale Law School’s dean, Robert C. Post, who specializes in the First Amendment, explained what the Court got wrong: “the speech of an ordinary commercial corporation possesses constitutional value only because it provides information to auditors”—that is, it provides consumers with truthful information by removing government restrictions that kept them from getting it. Or so the Court said four decades ago, when it extended First Amendment coverage to commercial speech. (...)
Nothing in the text or history of the amendment says exactly what the freedom of speech means—or abridging, for that matter. The Supreme Court has explicitly identified five categories of speech that the First Amendment doesn’t cover: lewd, obscene, profane, and libelous expressions, plus face-to-face insults that trigger a violent response, known as “fighting words.” Ronald K. L. Collins of the University of Washington has counted “at least 43 other additional types of unprotected expression,” ranging from blackmail and bribery to perjury and harassment in the workplace; from plagiarism and child pornography to some kinds of panhandling; from telemarketing to lying to government officials. And free speech in public schools, courtrooms, prisons, the military, and other public institutions may be limited—from the government’s viewpoint, to help them function effectively.
Rather than developing a unified theory about free speech, the Supreme Court has taken an issue-by-issue approach, explains Geoffrey Stone. The Court has been mindful of three recurring problems that the law must guard against: the chilling effect, the pretext effect, and the crisis effect.
by Lincoln Caplan, American Scholar | Read more:
Image: David Herbic
