Cross-posted at WLF’s Forbes.com contributor page
Those who support increased government regulation of free enterprise have been doing quite a bit of hand-wringing lately about purported obstacles to their agenda that are imposed by the First Amendment. To their way of thinking, this is a faux First Amendment being flacked by powerful businesses intent on undermining the democratic process. The latest such complaint comes from Columbia Law Professor (and former senior adviser to the Federal Trade Commission) Tim Wu in a New Republic article, “The Right to Evade Regulation: How Corporations Hijacked the First Amendment.”
What such critics fail to confront, however, is that the rule of law requires that constitutional rights be applied in a consistent manner. Unless Professor Wu is willing to sacrifice his own First Amendment rights, he is in no position to complain when those rights are extended to everyone, including those whose agenda he apparently opposes.
Wu labels as “extreme” a D.C. Circuit decision holding that the First Amendment prevents the government from forcing tobacco companies to include gruesome pictures of dying smokers on their product labels. Yet in the next breath, he applauds other “compelled speech” decisions, such as the Supreme Court decision that prevents the government from forcing individuals to recite the Pledge of Allegiance.
We’re not talking here about the right of the government to require companies to disclose factual information about their products, a right that no one disputes. We’re talking about whether the government is authorized to force others to express support for the government’s policies, whether it be respect for the flag or an anti-smoking campaign. Wu suggests that the First Amendment ought to be reserved for “the little guy” and ought not be extended to corporations and other powerful interests. But it is doubtful that he would be willing to overturn New York Times v. Sullivan and deny First Amendment protection to news organizations, virtually all of which are owned by corporations. Wu’s other suggestion — that perhaps the First Amendment should be inapplicable when the speaker’s economic interests are at stake — would also require reversal of Sullivan, given that newspapers are for-profit entities. Indeed, the speech at issue in Sullivan was a paid newspaper advertisement soliciting contributions for the advertiser, a form of speech that is about as economically motivated as speech can get.
Wu reserved particular ire for Sorrell v. IMS Health, a recent U.S. Supreme Court decision striking down a Vermont law that prohibited some speakers from disseminating publicly available information about the drug-prescribing practices of doctors. Vermont concluded that suppressing this information (which can help drug companies in marketing their drugs) would lead to reduced health care costs by reducing the number of prescriptions for expensive drugs. The Supreme Court held that the law was subject to “heightened scrutiny” because it discriminated against speech based both on its content and the identity of the speaker — two practices that have long been anathema under well-established First Amendment doctrines. Wu argues that the law should have been upheld as a measure designed to protect the privacy of doctors’ prescription-writing practices. What Wu fails to mention is that the Court expressly found that the law was not enacted as a privacy measure and could not possibly have served that purpose because it permitted the information to be conveyed to anyone except drug companies.
Wu criticizes court decisions protecting commercial speech rights as a return to the discredited Lochner era of the early 20th century, when some judges began interpreting the Due Process Clause as a license that allowed them to overturn economic legislation based on their own economic policy preferences. Justice Anthony Kennedy penned an effective response in his majority decision in Sorrell: “The Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics.’ Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.” Judges cannot fairly be criticized for unwarranted activism when they do no more than insist on even-handed application of principles that are explicitly set forth in the U.S. Constitution.
Wu notes that our current notions of First Amendment rights date back at most 75 years. Rights that are now well accepted — protection for offensive speech such as demonstrating at funerals, burning the flag, or depicting animal cruelty, and protections against libel judgments — were unheard of in the not-too-distant past. So it is no indictment of court decisions extending First Amendment protection to commercial interests to note that such protections are of relatively recent origin. Those courts decisions will not interfere with the government’s ability to impose reasonable regulations on the business community so long as they continue to do no more than afford the business community the same First Amendment protections that are granted to everyone else.
In the end, Professor Wu’s complaints about courts’ recognition of businesses’ First Amendment rights amount to little more than an ideologically-driven unwillingness to extend to others the same constitutional rights that he demands for himself. His assertion that businesses should be denied First Amendment protection because they don’t need it rings hollow — unless he is willing to concede that large incorporated entities like Columbia University are similarly unentitled to such protection.