Special Privilege versus Citizens
More Courts Grant Special Privileges to Corporations
| Below are a few excerpts extracted from an article that appeared in the Wall Street Journal. |
by Robert S. Greenberger
Should a company have as much right to free speech about its products as people have to air their political views?The courts' longtime answer has been no. Even though the First Amendment bars laws "abridging the freedom of speech" [of individual citizens], the courts have deemed corporate advertising to be an exception. That distinction has allowed government at all levels to impose consumer-protection rules on advertisers, such as the ubiquitous health warnings on cigarette ads.
But a growing number of cases are challenging that concept. The latest example is last week's Supreme Court ruling striking down a tough Massachusetts law restricting tobacco advertising, including a ban on ads within 1,000 feet of schools and children's facilities. The justices said Massachusetts' limits on advertising of smokeless tobacco and cigars violated the companies' First Amendment rights, on the grounds that the state failed to prove that its regulations were "not more extensive than necessary to advance the state's substantial interest in preventing underage tobacco use."
[The Progress Report interjects -- the government gives a huge special privilege to corporations already, in the form of the "limited liability" privilege. Now the government appears to be granting corporations a "free speech" privilege. For individuals, free speech is a right guaranteed in the U.S. Constitution; corporations have no such right. For the government to make "free speech" into a corporate privilege is to bestow a huge unearned benefit. Corporations should pay for the value of benefits that they receive from the government.]
Free-speech advocates see great significance in the decision. "Future advertising restrictions can be expected to receive similar skeptical treatment," says David Remes, a First Amendment lawyer who worked on the case on the industry's side.
For instance, California's top appeals court last year ruled that a Nike ad campaign in which the company falsely denied using sweatshop labor has First Amendment protection. So an individual sued Nike for false advertising under a state statute.
The pace of change began to accelerate about six years ago, as so-called vice businesses -- liquor, gambling and tobacco -- rebelled against laws curbing their ads on moral or health-related grounds. The high court's rulings in these cases struck at the heart of the government's longstanding argument that the public needs protection from products deemed to be harmful or sinful. The justices countered that such rules were overly broad and that the public didn't need such protection as long as the advertising was truthful and not deceptive.
And the nation's top court is expected to continue to move towards further privileges for commercial speech. So far, the Court doesn't yet have any other significant commercial-speech cases on its docket for next year. But experts say more significant change is inevitable.
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