Academia’s best and brightest include conservatives who help
corporations hide behind the First Amendment to protect profits.
June 18, 2012 |
Corporate America is hijacking the First Amendment.
In
the political world, the Supreme Court continues to expand corporate
speech rights, opening one more avenue for big money to flow into
elections. And in the business world, federal courts have also cited
commercial speech rights to block all kinds of government efforts to add
health warnings on products or change the way unhealthy products are
advertised.
The list is startling. America has an obesity crisis, but food
producers and broadcasters beat back voluntary advertising guidelines.
Tobacco beat back adding images to cigarette boxes. Milk companies beat
back milk hormone labels, as did cell phone makers with radiation labels
and video game makers with violence and sexual content labels. These
defeats were based on asserting corporate speech rights—arguments with
which the courts have all too often agreed.
But behind this depressing trend—which could change if there were more
fair-minded federal judges—is an eyebrow-raising corporate ally:
esteemed law professors who have been paid by business to expand on
their scholarship as private consultants.
They develop pro-corporate strategies in papers and are far better paid
than their liberal counterparts. Their work is cited by lobbyists and
judges. Whether conservative scholars see the social costs of using the
First Amendment as a deregulatory tool is debatable, but what is
indisputable is that they are a key pillar in America’s ongoing "war of
ideas."
“The work of many of these legal scholars has indeed undercut common-sense standards of free speech rights,” said
Craig Holman, Public Citizens’ government affairs lobbyist.
Scholarship And Commerce
The best-paid corporate lawyers are like master chess players. They are
always thinking about their next series of moves to win—to protect
profits. They look for accomplished scholars to help them frame new
issues and arguments in many areas of law, including law professors who
specialize in the First Amendment.
Does Google’s search engine have the brain of a newspaper editor,
making decisions that entitle it to First Amendment protections, such as
being able to decide what and how to publish what it wants free of any
regulation? Google thinks so and has paid a respected conservative First
Amendment law scholar,
Eugene Volokh, to write about it.
Similarly, when drug and medical device makers wanted to make a case
that the federal government should let them tell medical professionals
about ways their products can be used that haven’t been approved by
federal regulators, they turned to
Martin Redish,
one of the foremost commercial speech scholars, to write a paper
arguing exactly that—by citing the First Amendment privilege to
disseminate information.
And when communications giant Viacom wanted to attack the federal
government’s proposed food marketing guidelines for teenagers and
youths—guidelines that would be entirely voluntary—it turned to
ex-Stanford Law School Dean
Kathleen Sullivan,
who said the federal effort, though well-intended, did not meet the
legal threshold in First Amendment law. Her brief was part of a campaign
that defeated the guidelines effort.
Are Volokh, Redish and Sullivan legal scholars or corporate shills, or
are there shades of grey where academics—including faculty in other
fields—have long-developed expertise that they have been asked to take
outside the academy with big economic and political consequences?
The answer appears to be yes to all of the above. It’s clear these
accomplished scholars—especially Sullivan, who has since left
academia—have used their scholarly credentials and smarts to advance and
expand corporate speech rights, in some cases at public-interest
expense. While that more than bothers progressives who seek to
reverse
constitutional rights granted to corporations, it raises questions
about why so much constitutional scholarship seems to be on one side of
the fence.
Both Volokh and Redish defended their outside advocacy as consistent
with intellectual views they have had for years, saying there was no
conflict of interest posed with their scholarly work—where the
pre-eminent value is impartial inquiry—because their views are known and
fully disclosed, as is their consulting. (Sullivan did not respond to
AlterNet’s request to comment.)
“I don’t plan to answer your questions (which, by the way I consider
insulting and offensive). Instead, I will direct you to my first three
articles (all written before I became an academic),” Redish said in an
email. “Hopefully, those articles will demonstrate to you that the views
I now hold are not all that different from the positions I developed as
far back as my law school days.”
“The question you raise is important,” said Volokh, “but it’s hardly
limited to corporate clients, or to paid consulting: a criminal law
professor who takes on some criminal defendants’ cases faces the same
problems, as does a constitutional law professor who litigates in favor
of (say) abortion rights or a military detainee. One’s desire to win
cases, to appear consistent with one’s past positions, and to help the
clients to whom one owes a duty of loyalty can affect a scholar’s
judgment as much as fees.”
Volokh said the way to avoid conflicts of interest was to disclose
one’s advocacy, adding that his students appreciated hearing about it
because it was an activity in the real world. But beyond the issue of
finding the “right balance between commerce and learning,” as Ken
Auletta put it in a recent
New Yorker profile
of Stanford University titled, “Get Rich U.,” the outside consulting by
leading First Amendment scholars underscores a troubling trend—that in
recent decades corporate commercial speech rights have grown and
triumphed over public interest concerns more often than not in federal
court.
“Commercial speech rulings in the federal courts have increasingly been
upheld or expanded in recent years—with public interest efforts stymied
or blunted,” Public Citizen’s Holman said. “The federal courts have
generally enlarged commercial speech protections afforded under the
First Amendment while limiting or rejecting government attempts to share
information, via labeling, messaging or simple disclosure that is in
the public interest.”
Corporations, of course, would not hire liberals who would argue that
their speech rights should be restricted—as anti-corporate personhood
activists do. Volokh, Redish and Sullivan have plenty of company in the
academic legal world who privately consult, where the focus can be
evidence, anti-trust, regulatory policy or political speech. Their
scholarship and arguments reveal how corporations obtain and maintain
powerful positions, particularly by expanding First Amendment corporate
speech rights.
Editorial Brain or Smart Machine?
In April, Volokh, a well-known and prolific
blogger and UCLA law professor, co-wrote a
much-discussed paper for Google with Donald Falk, a lawyer at Mayer Brown LLP, a major Silicon Valley law firm,
titled,
“First Amendment Protection for Search Engine Search Results.” Google
has been attacked by competitors for favoring other Google operations in
its searches, which European regulators
said
might be anti-competitive. Like many large companies, it wants some
scholarship on its side to protect its core business should it end up in
court. It found that expertise in Volokh.
“Search engines are speakers,” Volokh boldly declared, saying the
search process is akin to any writer making an editorial decision, and
that publishing the results of that intellectual process is the same as
offering “useful information” in “newspapers, guidebooks and
encyclopedias.” Thus, “these exercises of editorial judgment are fully
protected by the First Amendment,” Volokh concluded, which handily for
Google, also protects it from antitrust laws. Legal precedents—in
federal court rulings—shield corporations in precisely this way.
While Google wants its search engine to have the same speech rights as
an editor under the First Amendment, it is notable that it also did not
want to be held liable should anything bad result from the information
it provides. Volokh’s paper also contained a liability argument,
positing that a Google search wasn’t mechanical like a computer virus,
but instead was a brainy editorial process deserving constitutional
protection.
This line of thinking is not very different from gun makers, who have
spent decades in court drawing legal lines that separate their products
from users’ actions. “Thus, if a Web page contains a virus, courts and
legislatures may be able to impose liability on the producer of the
page,” Volokh said, whereas, in contrast, “the information output by a
search engine ‘is pure expression’ and … implicate[s] the First
Amendment.”
It is not unusual for big corporations to pay scholars for innovative
legal interpretations. Conservative think tanks have been doing this for
years—funded by big business, while liberal think tanks for the most
part have ignored commercial speech issues, instead focusing more on
campaign finance and political speech. (The last big commercial speech
case captivating the political left arguably was about Nike, which was
sued for making incorrect and misleading claims about conditions in its
overseas athletic shoe plants. It went to the Supreme Court, which
returned it to a lower court in 2003. A settlement was quickly reached.)
Volokh was proud of his Google work as cutting-edge legal thinking. He
said that he was careful to disclose his outside consulting, both
current and past, to his students, and that he tried to avoid writing
“as an impartial academic” on a subject where he has been consulting,
such as on freedom of speech and search engine law. Volokh said he only
accepts consulting for views he has long espoused.
“The main barriers to impartiality for an academic are generally not
concerns about consulting or clients,” he said, “they are (a) the human
tendency to let one’s ideological and emotional predispositions affect
one’s frank evaluation of the arguments, and (b) the tendency to not
want to find evidence that one has erred in the past. All of us
academics have to constantly struggle against these tendencies (as I
imagine journalists must as well).”
Desperate Patients, Desperate Profits
The pharmaceutical industry has some of the
deepest pockets
of any industry when it comes to lobbying and pushing federal officials
to license its products, as such approval can yield billions over many
years. But obtaining federal approval is often slow, costly and very
frustrating, both to drug makers and to sick people who are desperate
for cures when legally approved prescriptions fail.
Enter Martin Redish, who for decades has been widely respected as a
First Amendment scholar at the Northwestern University School of Law and
in August 2008
joined Sidney Austin LLP, a globally known corporate law firm, as a senior counsel. In March 2011, Redish co-authored a
paper
with Coleen Klasmeier, a partner in the firm's Washington office. The
first footnote emphasized the paper’s importance, saying, “both authors
are involved in the representation of one or more drug manufacturing
company clients… in which the arguments in this article have been or
could be presented to a court or prosecutorial authority, including the
Department of Justice and the Food and Drug Administration.”
The paper, “Off-Label Prescription Advertising, The FDA and The First
Amendment: A Study in the Values of Commercial Speech Protection,”
argues that drug and medical device makers should be able to sell their
products for uses not licensed by the FDA (hence the "off-label"
moniker). They argue that the FDA is “unambiguously inconsistent” with
approving alternative uses for drugs and devices, which ultimately harms
the public. Moreover, not sharing information about other uses with
medical professionals violates the company’s First Amendment commercial
speech rights, Redish said, because the information they want to share
is factual and true.
First Amendment law is complex. There are different legal standards for
political speech and commercial speech. Redish’s argument that the
FDA’s failure to allow discussion of these alternative uses is
unconstitutional censorship is shrewd and parses some fine legal lines.
Researchers and physicians are free to share information about off-label
uses and do all the time—that’s how science works. The FDA’s
prohibition is about how companies market those off-label indications,
which involves profit motives.
Redish’s paper acknowledges that the FDA’s approval process is designed
to weed out “quackery—fraudulent therapeutic claims,” but he says that
in many treatment areas, starting with pediatrics and oncology, there is
an “indisputable value of off-label uses” and “the obvious reality that
manufacturers are in a unique position to provide valuable information
[about] off-label uses to the medical profession.”
After citing a history of the FDA changing its mind about approved uses
since the 1960s, Redish becomes indignant, noting that between 1993 and
2001, the FDA took strong steps against “materials of a lasting nature
like books, audio, video tapes and software” that curbed the “free flow
of information.” But “starting in 2001, the FDA at least gestured in the
direction of First Amendment values, but that period of greater
circumspection proved short-lived.” In other words, under the Clinton
administration, the FDA cracked down. Under the Bush administration, its
political appointees initially eased up. And now, under the Obama
administration, the FDA is again saying no.
Like Volokh’s Google paper, Redish argues that his client’s core
business should have full First Amendment protection but be free from
liability if something bad happens to consumers who use it. He cites a
lawsuit where the conservative Washington Legal Foundation filed a brief
against the FDA arguing, “that a manufacturer should be permitted to
provide information about off-label uses as long as the information is
accompanied by an adequate disclaimer.” He cites the FDA response, which
said, “WLF’s suggestion that the manufacturer of … a dangerous product
has a First Amendment right to promote it for unapproved uses, and to do
so without providing adequate directions (or, in this case, any
directions) for use, is breathtaking.” However, Redish calmly returns to
his argument, repeating that drug companies have a First Amendment
right “to give physicians information they need.”
Redish took great offense when asked if there were conflicts of
interest between being a constitutional law professor specializing in
commercial speech—where one teaches all views of issues—and his
consulting. He said he has espoused the same views since his Harvard Law
School thesis in 1970, and in early law review articles in 1971 and
1972. Beyond that, he declined to answer any questions.
Obesity Crisis? Don’t Blame Us!
The federal government’s effort to push junk food makers to
voluntarily change
the way they advertise to children and teens is one of the
highest-stakes legal battles over product labeling. After a multi-year,
multi-agency effort based on extensive science, the food and broadcast
lobbies prompted Congress to withhold funding for this Federal Trade
Commission-led effort earlier this year—despite the startling fact that
many tens of millions of American youths are either overweight or obese.
One of the most aggressive advocates for media giants, which did not
want to see any loss of advertising revenue, was Kathleen Sullivan, the
former dean of Stanford Law School who left academia and is now a
partner at Quinn, Emanuel, Urquhart and Sullivan, where she chairs its
national appellate practice. “Since joining Quinn Emanuel in 2005,
Sullivan has represented a wide range of clients,” her firm bio
says,
“including Shell Oil, Entergy, Morgan Stanley, General Electric,
Samsung, Pfizer, Motorola, Coca-Cola, Google, Siebel Systems, Oracle,
Intuit, Hearst News, the Alliance of Automobile Manufacturers, Allegheny
Energy, PG&E, AIG and CNA.”
Her
brief
on behalf of Viacom, the media conglomerate, against the federal
Interagency Working Group on Food Marketed to Children (IWG) was
dismissive of the federal effort to adopt voluntary marketing
guidelines. From the start, she attacked it as one “that would limit the
advertising of food and drinks directed at children and adolescents… in
violation of the basic First Amendment principle that regulation of
speech, including commercial speech, should be a last, not a first
resort, for government action.”
The public health effort to stem childhood and teenage obesity by
adopting voluntary marketing guidelines—which, as the FTC repeatedly
stressed, were not requirements—was “government paternalism,” Sullivan
wrote, saying it was a fiction that these were called voluntary. “The
food marketing ‘guidelines’ cannot escape full First Amendment analysis
merely because [they are] styled ‘voluntary.’”
Even though Sullivan taught at Harvard and then Stanford, there is not a
drop of public-interest blood in her brief. She noted the target of the
FTC labeling effort—“breakfast cereals, snack foods, candy, dairy
products, baked goods, carbonated beverages, prepared foods and meals,
frozen and chilled desserts, and restaurant foods”—and said these are
“definitions that sweep in many adult audience members as well.”
Indeed, there is a national obesity crisis, among all ages, and yet
Sullivan said, “The proposal would… have the effect of reducing the
quality of original children’s programming (as well as adult programming
attracting a high share of children) by diminishing or diverting the
advertising revenues upon which such fully protected forms of
programming depend.” Moreover, she said that, “any causal connection
between advertising and childhood obesity is far too attenuated to
satisfy the strong empirical showing required for restrictions on
commercial speech.”
In other words, Sullivan is saying "don’t blame us" and "leave our ad revenues alone."
Sullivan’s brief describes in great detail how the federal courts and
particularly the Supreme Court in recent years has “repeatedly
invalidated commercial speech regulations for failing to directly
advance the goal of discouraging consumption of some product or service
(electricity, beer, vodka, gambling, underage tobacco use), even where
it has accepted that such goals are substantial.” In the cases she
cited, just as in the voluntary food marketing guidelines, Sullivan said
the government had not shown that its need to act was sufficiently
compelling to interfere with commercial advertising rights.
Sullivan did not respond to an email requesting comment.
To be fair, there were plenty of briefs
submitted
to the FTC by progressives during its comment period on the voluntary
food marketing guidelines. However, advocacy groups submitting comments
to a government agency is not the same as having the nation’s top
conservative legal scholars write position and strategy papers, and then
also filing briefs. One is a longer-term strategy, while the other a
shorter-term response.
Do Google searches deserve the same constitutional protections as New York Times
editorials? Should drug and medical device makers tell physicians about
alternative, unapproved uses for their products? Should broadcasters
take a role in assisting the government to reverse the largest health
crisis facing America’s young people?
These are interesting and timely questions for law students, scholars
and public officials on both sides of the issues to study and debate.
But that becomes harder when most of the First Amendment commercial
speech scholarship is coming from the pro-corporate side of the fence,
and the federal courts are packed with judges who reject public interest
arguments.
Steven Rosenfeld covers
democracy issues for AlterNet and is the author of "Count My Vote: A
Citizen's Guide to Voting" (AlterNet Books, 2008).
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