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New Report Details How Expanding Commercial Speech Protections Does Not Advance First Amendment Values


July 20, 2015

New Report Details How Expanding Commercial Speech Protections Does Not Advance First Amendment Values

Expansion of Protection for Corporate Speech Threatens Political Spending Disclosure

WASHINGTON, D.C. – Although the U.S. Supreme Court has made clear that political spending disclosure rules are constitutional, rules mandating that corporations disclose their political spending may nonetheless be threatened by a line of Supreme Court cases granting expansive First Amendment rights to corporations, a new Corporate Reform Coalition (CRC) report concludes.

Corporations have succeeded in convincing the U.S. Supreme Court that corporations generally have the same First Amendment rights as people. Under this logic, the Supreme Court decided in Citizens United v. Federal Election Commission that corporations have a right to make unlimited expenditures to influence election outcomes. Citizens United, however, did uphold disclosure requirements for election-related spending.

At the same time, the court has expanded corporations’ speech rights – including for advertising – “in ways that likely diminish freedom for everyone else,” the CRC report concludes.

Encouraged by the high court’s solicitude for their First Amendment rights, corporations have begun an assault on requirements that commercial speakers disclose information concerning the products and services they market. With varying degrees of success, corporations have used claims of First Amendment speech rights to launch legal attacks on a wide variety of health, economic justice and humanitarian rules, including, for example, warnings on cigarette packages and a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act that requires companies to disclose whether their products contain “conflict minerals,” the trade in which is fueling violence in the Democratic Republic of the Congo.  

“The expansion of the scope of First Amendment protection to companies is part of a radical assault on government that even conservatives like the late Justice William Rehnquist warned against,” said report author Tamara Piety, professor of law at the University of Tulsa, who wrote the report for the coalition. “It resurrects the very dangers that Teddy Roosevelt alluded to at the dawn of the 20th century. If we are to avoid hurtling back to the 19th century, expanding corporations’ so-called free speech rights must be checked.”

This expansion “threatens the ability to counter the pernicious effects of corporate money in politics through disclosure requirements,” the report says, with the risk that a judge may focus on pro-corporate speech cases, rather than the Supreme Court’s upholding of disclosure requirements, in evaluating a challenge to disclosure rules for corporations. The Supreme Court cases that affirm the right of consumers to receive truthful information via marketing and advertising should not be used to prevent consumers from getting information about how those same companies play in politics.

The report cites the Supreme Court’s nearly unanimous support of disclosure in its now infamous 2010 Citizens United decision and discusses the erroneous argument that disclosure violates the First Amendment.
“Even accepting the dubious argument that corporations are entitled to robust protection under the First Amendment, the Supreme Court has consistently ruled that disclosure is constitutional,” said Lisa Gilbert, director of Public Citizen’s Congress Watch division. “It is well within the authority of agencies like the U.S. Securities and Exchange Commission to require disclosure.”

Read the report here.