THE DISEMBODIED FIRST AMENDMENT.
Table of Contents I. The Speech Threat to Governance A. Information-Based Regulation B. First Amendment Lochnerism C. Nihilism About Categories D. Skiing to the Bottom: Straining the Logic of Protection II. The Artifices and Their Discontents A. The Artifices 1. Economic Rights Become Civil Rights 2. The Artificial Becomes the Natural 3. The Atypical Becomes Typical B. Their Discontents 1. Content-Based Distinctions 2. Speaker-Based Distinctions 3. From Listeners to Speakers to Information Itself III. Reconstructing Corporate Commercial Speech A. Rejecting Libertarian Corporatism B. Escaping Corporate "Personhood" C. Resisting Counter-Majoritarian Intervention D. Taking Harms Seriously Conclusion Introduction
Corporate speech lives a charmed constitutional life. Within the last half-century, businesses have used the First Amendment to challenge a remarkable range of laws. Efforts to regulate robocalling, pharmaceutical marketing, tobacco warnings, business licensing, product labeling, workplace disclosures, health and safety notices, adult entertainment, and even corporate influence in elections have all given way to the speech rights of corporations. The First Amendment may also prohibit, we are told, laws regulating cryptocurrencies, search engines, social media bots, and even the sale of sensitive encryption software or directions for making weapons.
When first presented with commercial speech in the 1940s, the Supreme Court held that it was not covered at all by the First Amendment. (1) Three decades later, the Court recognized limited protection for commercial speech, "commensurate with its subordinate position" among First Amendment values. (2) But today, corporate commercial speech (3) enjoys many of the same judicial protections and suspicions of regulation enjoyed by core political and religious speech. (4) The Court's initial instinct to apply intermediate scrutiny to corporate commercial speech gradually mutated to "heightened" scrutiny and de facto strict scrutiny. In the process, the Court has transplanted doctrines designed to protect core speech--such as the presumptive invalidity of content- and speaker-based distinctions--to corporate commercial speech, (5) where the doctrines make little sense and thwart rather than promote First Amendment values.
This Article explains how this happened, why it matters, and what can be done to reclaim the First Amendment from corporate commercial speech.
On the question of how this came to be, we describe what we call the "artifices" of corporate commercial speech: the dubious precedents, doctrines, assumptions, and theoretical grounds that delivered corporate commercial speech from the periphery of the First Amendment to its core. Each "artifice," standing alone, represents a major shift in doctrine. But together, the artifices of corporate commercial speech reveal a radical departure from a First Amendment concerned with individual rights or the public good. For example, corporations gradually convinced courts to recognize not just economic or property rights in the corporation, but civil rights and liberty interests, too. Corporations also invited courts to pare away commonsense distinctions between artificial entities and natural persons. At the same time, the Supreme Court used atypical cases involving atypical corporations to extend constitutional protections to all businesses. These "artifices" we describe are just that--clever constructs used to elevate corporate commercial speech from a subordinate position to one on equal footing with core protected speech.
On the question of why this matters, we explain how corporate speech claims may frustrate efforts to use modern, information-based regulation to govern our modern, information-based economy. Because so much economic activity today concerns itself with information and communication, regulation of such activity is particularly susceptible to First Amendment challenges. Today's anti-regulatory atmosphere is exacerbated by the fact that courts increasingly are reluctant to observe previously accepted distinctions between different types of speech or different types of speakers, while blurring the distinctive types of interests protected by the First Amendment's free speech guarantee. Thus, well-founded skepticism of content- and speaker-based distinctions in core speech have been transported to commercial contexts where the skepticism is not well-founded. These doctrinal shifts also risk extending speech rights in unnatural and problematic ways. For example, some scholars argue that regulating robotic communication "implicates" free speech rights. (6) Considered as a whole, commercial speech protections are invoked routinely to disable reasonable efforts at economic regulation and democratic self-governance, reminiscent of the Lochner era.
On the question of what can be done, we consider four ways to deconstruct the artifices and thus properly reconstruct corporate commercial speech. First, we suggest that courts return to the original justification for covering commercial speech--protecting the interests of human consumers and listeners--and abandon later justifications that look to the interests of non-human speakers or the value of information for its own sake. Doing so will reclaim important individual, political, and social objectives of the First Amendment, properly subordinating economic objectives. Second, we engage the debate over corporate "personhood," arguing that, whether or not one embraces corporate personhood for some purposes, courts should resuscitate authentic distinctions between natural and corporate persons. Third, we argue that courts can blunt the countermajoritarian effects of judicial review in corporate commercial speech cases by regarding consumer welfare as a proxy for the public interest--an approach familiar to courts applying federal antitrust law. Finally, we explain why an appropriate balance between public regulation and individual liberty must account for the harms caused by modern forms of corporate and artificial speech. Properly orienting corporate speech, therefore, may require a theory of free speech that identifies and values its affirmative benefits, such as autonomy, dignity, self-governance, and the expression of ideas.
We proceed in three parts. Part I considers the stakes, particularly the threat to modern, information-based regulation. Part II describes the "artifices," explaining how the Supreme Court has transplanted doctrines designed to protect core speech to corporate commercial speech. Part III considers what it will take to reclaim the First Amendment from corporate commercial speech, resuscitating consumer welfare as the lodestar.
The Speech Threat to Governance
Corporations have seized on the First Amendment's deregulatory potential, challenging a wide variety of laws on free speech grounds. (7) The Roberts Court has embraced these arguments, leading many scholars to call this a new Lochner era, in which courts invalidate fairly prosaic economic regulation based on claims grounded in individual rights. (8) This section builds on prior work, first by demonstrating how the First Amendment frustrates efforts to use information-based regulation to oversee an information-based economy, then by explaining how modern judicial skepticism, or even nihilism, about categorization under the First Amendment risks extending speech rights in unnatural ways. The effect is to further disable efforts at reasonable economic regulation and democratic self-governance.
Our economy has largely transitioned from an industrial to a postindustrial economy. (9) Information and informational goods have become central to many, if not most, industries. (10) Indeed, information is "arguably the most important commodity in a post-industrial economy." (11) Thus, the objects of modern regulation are more speech-like than in an industrial economy, where regulation focuses on tangible products and places. (12) Thirty years ago Carl Mayer called information the "Modern Property," observing that "defense of this Modern Property is an increasingly urgent corporate concern." (13)
An information-based economy is increasingly subject to information-based regulation. (14) In recent decades, regulators have turned away from traditional command-and-control regulation, which relies on binding laws enforced through formal sanctions, toward lighter-touch regulation that relies on information production, affirmative disclosures, and other "soft" forms of law. (15) Although the historical development of information-based regulation is beyond our remit here, (16) it has a long pedigree--from the mandated disclosures of the Securities Act of 1933, designed to deter companies from harming investors, (17) to the executive orders from President Reagan onward, directing agencies to consider alternatives to command-and-control regulation. (18) Thus, rather than banning cigarettes outright, the government requires a Surgeon General's Warning; rather than banning sodas, the government requires labels to disclose sugar content; rather than banning prescriptions for unapproved uses, the government bans drug companies from promoting such uses; rather than punishing hospitals for high mortality rates, Medicare publishes data sets so users can compare hospital mortality rates. (19)
Disclosure mandates have crept into almost every industry and economic activity. (20) And it is important to understand why. Disclosure mandates appeal to policymakers because they seem to be "an easy and effective intervention compared to more traditional regulation." (21) They also appeal politically because disclosure requirements represent a "path of least resistance for administrative agencies seeking to promote meaningful change." (22) Most policymakers intuit that information-based regulation is consistent with free markets, individual autonomy, and even the pursuit of...
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