Wednesday, February 28, 2007

Shiffrin tribute: philosophy discussion

Rob Kar: Fried says liberty is the central value, but how far does it extend? He didn’t hear much about democracy. Maybe restrictions on liberty are okay if self-authored, but then we need a careful definition of that process.

Fried: He has a political theory, not so much a First Amendment-specific theory. It’s important to begin with what liberty is and why it’s important. He thinks it extends all the way. That doesn’t answer the question of restrictions – only allowed when necessary – just puts the shoe on the right foot.

Baker: Fried uses precisely the notion of liberty Nozick uses. There’s a structure, in which freedom exists. Rawls was all in favor of freedom to work – the question is whether a person laid off by GM would like to be at dinner with us. Possibly, but the structure doesn’t allow that. Seana Shiffrin described a movement to make work more meaningful, and that’s really appealing. The issue is how to think about freedom in getting there.

Weinstein: Let’s call Fried’s view Lochner rather than making free speech jurisprudence more incoherent. To Baker: You haven’t given enough weight to listeners’ interests. The state’s reason for banning cigarette ads may be insulting, based on a lack of trust in the listener’s reaction.

Baker: He distinguishes formal and substantive autonomy. The First Amendment is about formal autonomy. Lots of information is useful to us but we don’t get it – it would be useful if people shared many secrets, for example. The information we get comes from our economic structure, not naturally. Government structures society; it would be paternalistic to say that citizens can’t choose to organize society in particular ways.

Redish: Baker’s argument isn’t just about commercial speech but also corporate noncommercial speech. He has a myopic view of what a corporation is. It’s a Jacksonian innovation – helping the common man compete with monied interests, allowing individuals to join for self-realization. Speech is always an attempt to advance one’s own interests by persuasion. Also, he underestimates the harm of taking corporate speakers out of the mix. Liberty requires information and opinion to be meaningful. If we take out the only party with an incentive to communicate information, we’re creating an externality.

Seana Shiffrin: Even if she’s overoptimistic, lots of noncorporate market actors act morally, and we might want to protect them against forced self-refutation. She wants to look across contexts – we shouldn’t insulate the First Amendment from contract law and corporate law. We should encourage market actors to think of themselves as moral actors. Some of her argument is particularly directed at Baker, asking what it would be like for a market agent to accept his account. She thinks it would be detrimental, because we should encourage people to take advantage of degrees of freedom for moral action.

Shiffrin tribute: my presentation

My turn: Dissent, and its translation into copyright’s fair use doctrine, has been a preoccupation of my work in copyright, and Shiffrin’s exploration of dissent as a central First Amendment principle is incredibly valuable because it emphasizes that dissent is not just something for crackpots. Dissent is communal and expansive, often seeking to persuade, participating rather than always walking away.

Because I’m not a philosopher, and come to these issues from a background in trademark and false advertising, I decided to focus my comments on questions surrounding falsity and misleadingness. In particular, I’m interested in the meaning of individual words and how we as a community make meaning. Much of the discussion at the conference assumed that, at the granular level, falsity judgments were relatively easy to make. But common fact patterns in trademark and false advertising cases cast doubt on this.

Two relevant quotes: First, Bill Clinton’s notorious claim that “It depends on what the meaning of ‘is’ is.”

Second, a quotation from Through the Looking Glass, featuring Alice and Humpty Dumpty.

“… There's glory for you!”

“I don't know what you mean by ‘glory,’” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don't -- till I tell you. I meant ‘there's a nice knock-down argument for you!’”

“But ‘glory’ doesn't mean ‘a nice knock-down argument,’” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean -- neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master -- that's all.”

The key parts of this dialogue are quoted literally hundreds of times in law review articles, usually as a disparaging reference to some strained or counterintuitive interpretation of a term. But Humpty is not engaged in an inherently illegitimate enterprise: It’s the combination of his undisclosed private meaning and Alice’s preexisting expectation that makes his use of “glory” infelicitous – not even misleading, because it obviously doesn’t mislead Alice, but a poor method of communication. In other circumstances, it’s perfectly reasonable to define a word for your purposes. Alice’s interaction with Humpty, indeed, continues beyond this oft-quoted exchange: Because he knows so much about words, she asks him to explain Jabberwocky, which is full of new words, and Humpty provides the now-standard definitions of Lewis Carroll’s various coinages. Humpty can be a reliable source of meaning, under the right circumstances.

So, while “that’s glory for you!” is a misstatement, “that’s a TiVo for you!” or “that’s a GPS receiver for you!” can be intelligible and even helpful. At what point do we allow individual commercial speakers to define or debate terms, the way we allow people to define and debate terms like “Democrat” or “family values”?

Many of the examples that follow already came up at the conference, often with the assumption that they were easy cases. I want to suggest that they’re not easy, even though we may want the government to step in and regulate them.

From trademark: “Glass Wax,” for a car polish that contains no wax. This raises the question: what does it mean to wax your car? Can you wax your car without wax? Ultimately, trademark’s answer is “yes,” but that’s not obvious.

Dolphin-free tuna: One possible definition of dolphin-free tuna is tuna caught in a net that didn’t happen to kill any dolphins. If the net brings up a dolphin, you throw out the whole catch. This doesn’t address the fundamental objection, which is that the method of catching the tuna routinely and predictably kills a lot of dolphins – but it remains the case that the cans of tuna don’t have any dolphins in them and didn’t even need to have dead dolphins picked out of them. The problem is in likely consumer understanding, as with Clinton’s parsing of “is.”

Not tested on animals: The Body Shop got in some hot water years back because of its definition of this term, which was that its particular products hadn’t been tested on animals. Some of the ingredients, however, were regarded as safe for cosmetic use because they had been tested on animals by others, and the Body Shop relied on that data. So is “not tested on animals” true or false?

Organic/made with organic: There has been substantial debate over the proper definition of “organic,” an official definition of which has now been adopted by the USDA. Products not meeting USDA standards, but meeting some other definition of “organic,” cannot be labeled organic. “Made with organic” is a separate standard, requiring at least 70% organic content. One effect of this rule is to decrease producers’ incentives to make processed food with organic content below the threshold, because they can’t truthfully advertise the organic content, and organic food is more expensive. It may also encourage producers to make more products with 70% or greater organic content and discourage them from adding a tiny bit of organic material to a conventional product in order to get the “made with organic” label. The overall effects are hard to predict.

Cajun: Can Cajun catfish come from China? This was the subject of a recent 11th Circuit case, in which a panel decided that it was not inherently misleading to label Chinese catfish “Cajun.”

Cashmere: What is cashmere? If cashmere is “recycled” – the fibers torn apart and reprocessed, creating a cheaper product missing some of the characteristics of traditional cashmere – can it still be labeled cashmere? It depends on what the meaning of cashmere is.

Safe and effective: To the FDA, a drug is safe and effective if that is shown by two sufficiently large, well-controlled studies. One study won’t do, nor will anecdotal evidence. Though individual doctors can prescribe and even proselytize based on their own experience with off-label uses of drugs, the drugs’ manufacturers can’t make claims unless they meet the FDA’s standards, lest they be deemed to have misbranded the drugs. Is the FDA suppressing truthful information, or defining what “safe and effective” means, or both?

Miles per gallon and milligrams of tar: These are both measurement systems chosen by the government from various alternatives. An advertiser can’t use other measurements, even though the government standards have known flaws and even if the advertiser tells the consumer that it isn’t using the conventional measurement.

A fetus is a human being: The New Jersey Supreme Court recently heard arguments in a case about what a doctor must tell a patient before an abortion. The plaintiff argued that, if she’d known that a fetus was a human being, she wouldn’t have agreed to an abortion. The doctor argued that requiring such a statement would force him to take a controversial moral and ethical position, and that in any event the patient must have known that a pregnancy at term would produce a baby.

These examples illustrate the vast range of situations in which truth and falsity, even for a single term, are hotly contested. Falsity aside, sometimes government regulates out of a direct worry over deception, as with the dolphin-safe tuna example. It’s possible that the tuna makers could eventually change the meaning of the term for consumers, but that might take a lot of time and cause substantial confusion in the interim. Moreover, reliance on changing consumer perceptions would also make it harder for producers who used safer fishing techniques to explain the advantages of their version of dolphin-safe tuna, which would also have the disadvantage of being more expensive because of the different production method. Thus, government regulation of the use of the term is justified as the fairest and most efficient way of avoiding deception.

Other times, government regulates out of concern over communication itself, reasoning that a fixed standard – as long as it’s reasonable – is in consumers’ interests to decrease “noise” regardless of deception. Consumers benefit when they can make comparisons knowing, or assuming, that all producers use the same standard, whether for organic food or car mileage or milligrams of tar. This has costs in fixing meaning and possibly deterring improvements that won’t show up on the standard measures, but it also has all the benefits that standardization usually allows.

The tradeoffs of government regulation can also be seen in the fact that consumers aren’t monolithic. Information, or lack of information, that helps some hurts others. Many consumers benefit from the government’s system of grades for meat, but more discerning consumers may suffer because they can’t get information about the differences at the highest end. We choose who to help by regulating or by refraining from regulation.

A common solution to this problem is to focus on who gets to decide what is false – the FTC, the FDA, or a jury. (And it’s important to recognize that even the people like Judge Kozinski who advocate full constitutional protection for commercial speech usually claim to want to preserve the common-law cause of action for fraud, which means that a jury would decide what “dolphin-free tuna” means.) We solve the problem of definition, in other words, by changing the question. That isn’t a real solution, since the decisionmakers on whom we rely will have to decide whose meaning to endorse. My own suspicion is that juries may not be better at this, and may systematically be worse, than agencies with experience evaluating a variety of advertising claims over time.

Shiffrin tribute: philosophy

Philosophical Underpinnings of First Amendment Principles

Moderator: Lawrence Solum, University of Illinois College of Law

Seana Shiffrin, UCLA School of Law: Shiffrin’s prior defense of the right to voluntary association includes rationales for allowing associations to exclude people for any or no reason. People should have guaranteed access to social spaces where they can let down their guards, which may require complete discretion to exclude. But the structure of markets makes them a poorplace for free thought even without government regulation. Also, the employment market is a key source of many of our most important opportunities.

Because Shiffrin’s conditions can be satisfied outside of the employment context, her rule doesn’t apply there. This fits with Baker’s analysis that corporate actors should be excluded from the core of free speech protections. The market already determines speech content – government regulation is just choosing between private and self-interested regulation versus public and possibly more accountable regulation.

Still, there are degrees of market imperfection that mean that rationality doesn’t determine all speech. Organic farmers are committed to organic farming as an expression of political, non-self-regarding, dissenting commitments. Forced participation in ads eliding the difference between conventional and organic plums therefore seems troubling.

Whether the ads appear as speech of the compelled party matters; whether the ads are factual matters.

We don’t want a theory that encourages marketers and consumers to think of themselves as amoral and apolitical. We should recognize attempts to moralize the market from within. Some on the left are trying to do this, as are various religious groups. Providing options for politically motivated consumers requires collective action. Organic farmers are not best understood as amoral profit maximizers. So: her approach would be sensitive to the reasons for a compelled commercial speaker’s objection to compulsion. Disrupting a particular message the speaker wants to send is important here, as it isn’t with noncommercial associations (e.g., Hurley).

C. Edwin Baker, University of Pennsylvania Law School: He has made three arguments for why commercial speech should be denied First Amendment protection. For him, free speech is libertarian. Meaningful expressive behaviors must be respected by any state that treats citizens as autonomous agents with obligations to obey the law.

(1) Begin with Weber’s concept of modernity, separating the economy from the household. The market dictates to all that they must act efficiently or fail. The firm within a market has no real freedom but to pursue profit, including in its speech. Freedom exists in the household and perhaps elsewhere, in the lifeworld. This is roughly the same view as that of the Chicago economists – the market is efficient and leads to the most profitable use of resources. It is also the same view as Marx had. Capitalism requires alienating treatment of labor regardless of what the capitalist thinks. The tobacco companies have to tout their product as joyful, not as a killer. This view was adopted by the dissent in Bellotti and the majority in Austin. Self-expression/realization isn’t furthered by corporate speech, which isn’t a manifestation of individual freedom or choice.

(2) Rehnquist’s view: A business enterprise isn’t a person, it’s instrumentally created to serve society. Society should be able to limit it to serve social interests. Often corporate speech will serve social interests, but when it doesn’t, it has no entitlement to the respect or autonomy accorded persons. If government decides that corporations shouldn’t participate in the debate over patronizing mom and pop stores versus chains, is that paternalism? Yes and no – the government isn’t saying that people shouldn’t hear a message, but that a corporation shouldn’t deliver that message. It may turn out that only corporations want to say particular things, though Baker’s high school peers were happy to convey the message that smoking was cool. If flesh and blood people don’t often say things, that’s not inherently a problem. Not many people want to deny the Holocaust either. Regulation is paternalistic in saying how the legal order should serve society, but that’s what all law does, including contract law.

(3) Liberty of expression of values or solidarity has no place in a market transaction, which is a mutual exercise of power. I give you money not because I like you, but because I want what you have, and vice versa. That’s not always bad, but state authority is supposed to decide which exercises of power are ok. Lochner was wrongly decided. Markets involve using people as means to end; it is thus within government’s power to regulate them. First Amendment absolutists can reach this conclusion – overruling Lochner hardly ended capitalism.

Charles Fried, Harvard Law School: He couldn’t disagree with Baker more. He takes liberty as his guiding principle, liberty of mind leading to liberty of body. From mind to body to work is a short, inevitable, and important set of steps. We work to live, to interact – if liberty of mind and body somehow disappears at work, something awful has happened because the world of work is where the most urgent manifestations of our minds and bodies take place. (In my experience, we usually call that the boss, not the government.) Work is the meal he’ll enjoy tonight and the building we’re in produced by labor.

Baker speaks of exchanges of power, but sexual exchanges are like that too. Are we all dominated by power in our professional lives? Compelled to make the most money? Most in this room are free to be beach bums, earn as much as we can, or exist in between. (Yes, we’re quite the representative bunch.) Thus, Fried doesn’t see the market as a radical discontinuity from life. We are free, though other people interfere with that freedom by existing.

Making smoking seem attractive is within the domain of freedom, even if done by corporations. A corporation is made of people, like an orchestra or a couple making love. He would not reify it as anything else. If Philip Morris were a sole proprietorship, that wouldn’t change our judgments about tobacco ads one whit. (And, as they say, if my grandmother had wheels she’d be a wagon. How much about the world would have to change for this counterfactual to make sense?)

Tuesday, February 27, 2007

Shiffrin tribute: compelled commercial speech

It’s What’s for Lunch: Nectarines, Mushroom and Beef: The First Amendment and Compelled Commercial Speech

Moderator: James Weinstein, Arizona State University Sandra Day O'Connor College of Law

Kathleen Sullivan, Stanford Law School: Overview of the case law at the Supreme Court level – there are numerous other cases in the lower courts. She began with Barnette, Wooley, and Hurley: you have a right not to have speech forced upon you. A right not to become a platform for speech, even in the absence of viewpoint disagreement – a right not to sponsor speech; that’s PG&E v. Public Utilities Comm’n. Extension of that right was rjected when a corporate speaker wouldn’t be associated with the speech, as in PruneYard and Turner. You also have a right not to associate with members with whom you’d rather not associate – Boy Scouts. That also has limits, when the offending association isn’t really contrary to speech – Jaycees.

That’s the background for these cases, involving the compelled extraction of money to pay for speech with which you disagree. The opponents of compelled exaction rely on the Abood line: having to pay for speech is like forced speech, and if the exaction isn’t germane to a regulatory purpose you can get a refund. Limit on the Abood line: when you can’t disaggregate the germane from the nongermane – e.g., Southworth, where all the university’s activities, including funding student groups, were part of its expressive mission—you have no right to a refund. The ultimate limit: you have no right to reject paying your taxes.

Glickman: Upholds the stone fruit marketing scheme. (1) There’s no violation of conscience in promoting plums generically even if you think your plums are better than others’. (2) The exaction is germane to a larger neutral purpose of a Stalinist agricultural scheme, part and parcel of other collective requirements.

US v. United Foods: Invalidates compelled exaction for mushroom ads, because that wasn’t a general scheme, but only existed to generate speech.

Johanns v. Livestock Marketing: The Justices scatter like bowling pins in a new configuration, upholding an exaction for beef ads. It’s part of a broader marketing program, but the difference here according to Scalia is that the government is speaking, which can’t create a First Amendment problem. Except that the ads say “paid for by America’s Beef Producers.” Scalia admits a possible as-applied challenge, but it wasn’t proved on the record.

Robert Post, Yale Law School: It’s incoherent to ask whether there’s a right not to be compelled to speak. You can be subpoenaed to testify; you can be made to serve on a jury and vote; mandatory reporting of child abuse/car accidents/positive HIV tests all proceed without First Amendment challenge. We view compelled subsidization as a problem because it seems “like” compelled speech, but that analogy is already problematic. We’re five steps down the road from the problem of commercial speech in the first instance, and the Court stumbles because it lacks a theoretical understanding of why commercial speech is protected.

Glickman offers one powerful rationale – this is just economic regulation – and two less-powerful ones – this is non-ideological, and it’s germane to a broader program. United Foods then says that you can never be compelled to subsidize what you disagree with, which creates big problems if taken seriously. Are attorneys’ fees awards unconstitutional? The real problem, though, is taxes. Why should forced subsidization of government speech be unproblematic when forced subsidization of nongovernment speakers is an insurmountable insult to free speech? Also, why does Scalia say in Johanns that matters would be different were the speech attributed to the taxpayer? Wooley involved a compulsion to subsidize the state’s message with the individual’s property, which is what Scalia would allow in Johanns.

The problem for commercial speech: all the early commercial speech cases were about listeners’ rights. The speaker’s right to disseminate is deemphasized. Compelled disclosure is a routine remedy for misleadingness. You can’t do that to the NYT when the NYT leaves out facts in its reporting, because of the NYT’s autonomy interest. Compelling more speech increases its value to the audience. (Note: true only if the audience gets more from, instead of ignoring, the extra information.)

Those early cases contradict United Foods’s idea that a commercial speaker has an interest in not speaking truthfully. Johanns leaves that holding in place. We should recognize that public discourse must be divided from sales for these purposes.

Post sees the compelled association cases as a separate line. I don’t have a First Amendment right to incorporate, or to marry. I have a right to get together with others to do things the First Amendment protects, and likewise a right not to be forced to associate with a speaking organization. This is analytically distinct from the compelled exaction cases; I can be forced to associate with a union when germane, but can’t be forced to buy life insurance through a union.

One reading of United Foods is about coerced affiliation. If so, it stands for a right not to be forced to associate with an association that only engages in commercial speech. So, do I have a First Amendment right to affiliate with a commercial speaker, say an ad agency? (For a post-United Foods version of this problem, see Eric Goldman’s post on Langdon v. Google.)

Sullivan: Post’s reference to Zauderer suggests friendliness to compelled commercial speech, which is like Breyer’s view – Breyer likes to see First Amendment interests on both sides. (As do I.) But the comparison of Zauderer, which required the disclosure of efficiency-enhancing and factual, to the compelled speech here is misleading because here the speech is neither efficiency-enhancing nor factual. “Plums are good” is not “I will charge you court costs if you lose your lawsuit.” The government speaks out of both sides of its mouth: it promotes beef here, but its dietary guidelines say eat less mean. Moreover, this isn’t information to which producers have asymmetric access. It’s anti-efficient, because generic advertising prevents product and price discrimination and makes it harder to do niche plum advertising.

Sullivan is wary of accepting compulsion, even in the commercial speech context, because it can go too far and dry up speech. For example, the SEC says that if you say anything to a private gathering you have to file an 8K and tell everyone. Therefore, corporations won’t speak in private.

Post: There’s no issue of deception here, but Zauderer doesn’t depend on the strength of the state interest. It says only a rational basis is required because the reason we protect advertising is for information flow. You only need a little government interest to overwhelm the commercial speaker’s residual interest. (And presumably it is rational for the government to decide that certain individual plum producers are wrong; all plums really are the same.) If the speaker has a separate autonomy interest, that starts to undermine other regulatory regimes.

Sullivan: Souter endorses an autonomy principle. Post says it doesn’t have much bite here. But Souter is also making a political process argument. In the general taxation area, an invidious burden on unwilling speakers will even out over time and there won’t be entrenched losers. Spot taxes are different. Sullivan raises the question: Isn’t this Lochner? She may be objecting to the Stalinist regulatory scheme, not the speech regulation part of it.

Post: Thomas definitely wants to resurrect Lochner. Souter makes a second democratic accountability argument – the government speaks but doesn’t signal that it’s speaking -- but that doesn’t seem related to the autonomy of the individual beef producers who are paying. He does say that the payment makes the speech even more “galling.”

Consider tobacco companies forced to pay taxes to support anti-tobacco ads. Souter uses Jefferson’s justification for the Establishment Clause – it’s wrong to be forced to pay for a church against my conscience. But why is there a First Amendment right to separate accounting?

Volokh: The problem is that Abood is wrong. It’s all metaphor to say that this is compelled speech. There’s nothing wrong with compelled contribution of money. We don’t need to say much about the proper scope of commercial speech doctrine to deal with this. It’s just a bad analogy to say that compelled contributions are speech just because voluntary contributions are expressive.

Post: Sometimes we treat contributions as speech – Abood relies explicitly on symmetry with Buckley. Many times we don’t consider compelled contributions speech – specifically, when they’re compelled contributions to the government. That’s not my speech, but the state’s speech.

Seana Shiffrin: Three examples: (1) Spot tax for ads – “California recommends against smoking”; (2) spot tax for ads – “Paid for by tobacco producers. Smoking causes cancer”; (3) spot tax for ads – “Paid for by tobacco producers. Smoking is totally uncool.” She sees (1) and (2) as unproblematic, (2) because it’s information disclosure. (3) compels the companies’ involvement and self-representation, which is different.

Post: He agrees, and would apply an endorsement principle. If the state makes you endorse a nonfactual proposition with which you disagree, that’s compelled speech, and we must evaluate your interest as a speaker (if any). Here, he’d find a First Amendment problem in affecting the formation of public opinion. If you believe corporations lack autonomy interests you’d allow (3) too.

Sullivan: (3) is these cases – elite food producers try very hard to differentiate their products. This generic advertising destroys self-identity by identifying organic hybrid plums with mass-produced plums. There is blurring between merely commercial speech and broader political importance. The more we talk about identity through consumption – defining ourselves through what we buy – the further we get from the rationale for regulation. Thus, we are wrongly denigrating modern commercial advertising precisely because it supplies a mode of self-definition.

Question: Isn’t the justification for the compulsion the tragedy of the commons? That is, beef producers would like to free ride on generic advertising.

Sullivan: The record was that at least some producers wanted to use that money to advertise their own beef.

Post: Breyer analyzes it this way. Another point about Shiffrin’s example – he doesn’t want to elide the distinction between forced contribution and forced identification of an individual producer. Suppose California did (3) without a spot tax but still named the tobacco producers – the taxation isn’t doing the First Amendment work that makes us object.

Redish: Endorsement seems a risk even with a government-labeled warning – what if RJR disagrees with the Surgeon General? Are we back to Galileo and the Church, with the government deciding scientific truth?

Post: Look at the label on your clothes, which identifies their fiber content and origin. If you think that’s Galileo, you need to make some distinctions.

Redish: I’m assuming there are no factual disputes about the clothes.

Post: If the government prosecutes me for labeling clothes as 100% wool that aren’t, it’s a factual dispute but it’s still not a First Amendment question.

Monday, February 26, 2007

Panel on practice, discussion

Redish: If the caselaw is so incoherent, why not turn to theory?

Johnson: The doctrine’s built by the Supreme Court, with major influence by academics. But that results in the 3- or 4-part test problem: looks great to a reviewing court, but hard to apply for a trial court. Example: forced assessments for agricultural products. The Court decides that it’s ok to assess for ads on plums and peaches, but not mushrooms. Practicing lawyers have difficulty articulating the difference. It may have depended on the quality of oral argument, which is distressing for the rest of us bound by the decisions in future cases. Another example: the Children’s Television Council says nasty things about wrestling; the wrestling show sues for Lanham Act violations, and the judge refuses to dismiss because the Council included a fundraising appeal and was thus engaged in commercial speech. Years later, the same judge throws out a false advertising claim against a diet book that includes pitches to buy diet products on First Amendment grounds.

Vladeck: But the CTC case involved allegations of deliberate falsehood that would have been actionable under common law – the plaintiff at least alleged it could meet NYT v. Sullivan standards.

Question: The Court, when it finds an issue too difficult and not sufficiently momentous, often just ducks. The justices didn’t realize that Nike was a case like that until after the argument. In the Tony Twist case, the petition for cert was very clear on the conflicts, but cert was denied – too difficult, and not important enough.

Eugene Volokh: Johnson is right to identify the slippage of commercial speech arguments into other contexts. Courts and law review articles routinely say that “this is commerce, therefore it is commercial speech.” Perhaps this is about the power of labels: maybe commercial speech doctrine should have been called advertising speech doctrine.

There are difficulties in saying advertising for a book is subject to the same standards as advertising for another product, as in the Buena Vista case – are they really the same standards? (I’d say yes, with the caveat that the puffery doctrine would do a lot of work in making most statements about books nonactionable.)

The Court tried to clarify what it meant by “misleading” by distinguishing actually and potentially misleading speech. But all speech misleads someone. This is undertheorized. If misleading 10% is enough, lots of speech is regulable; if 90%, it’s close to the common law standard for fraud.

Johnson: Classic case: a weekly newspaper runs a joke, with a straight face, claiming that a judge had done something really stupid, so stupid that the writer thought it should have been obvious that it was a parody. Many judges in Texas, however, thought that the newspaper should have made it more clear to even the stupidest reader. What we need is a reasonableness requirement, which is imposed in the securities field. (Frankly, I think Lanham Act caselaw has a much better handle on this problem than First Amendment law. At least it’s grappled with the appropriate percentages, though Volokh would probably argue that the bar’s been set too low.)

Volokh: Even if a statement would be misleading to a reasonable person, there are multiple types of reasonable people. If 20% are misled – they may be just skimming, and it’s often reasonable to skim – is that enough?

Vladeck: This is the next hard issue. Suppose you have a dietary supplement, with one not very good study suggesting it may grow hair. The FDA has regulatory authority over this claim – can the FDA prohibit it? Require disclaimers? Suppose there are 8-10 studies suggesting it doesn’t work at all. The FDA, with respect to dietary supplements and food, doesn’t regulate most of these claims even though the statute requires significant scientific agreement before health claims are allowed. Instead, the FDA merely requires a disclaimer. This comes from Pearson v. Shalala, which has caused a substantial change in enforcement, which has also spilled over to the FTC. These claims are confusing, or, while literally truthful, they omit salient facts. Commercial speech doctrine has thrown 60 years of case law upholding regulations of such speech into doubt.

Lasnik: It’s easy to mislead people, as with Orson Welles and the War of the Worlds broadcast. We have to resist going too far down that path.

Lots of people leave out “reckless disregard” from the actual malice discussion. Reckless disregard is easier to find, and in this day of saved emails there is often enough evidence to show disregard for certain information. Then the question is whether the disregard was reckless. So maybe an actual malice standard for all speech is really the way to go. (Including for products liability-type cases, e.g. drug cases?)

Post: Clarify the difference between false and misleading?

Lasnik: It’s not false for Amazon to say their revenues went up. It’s misleading, though, if they don’t say that their returns also went up so much that if you subtracted revenues, their revenues went down.

Post: Isn’t that false?

Lasnik: It depends on what you mean by false.

Johnson: It’s partly a burden of proof issue. Misleadingness is a regulatory approach, which doesn’t turn on how any individual reacts, but on which direction it pushes people because of facts that may have been omitted or unfairly distorted.

Post: So maybe misleadingness is about impact on audience, where as falsity/truth is about evaluating a state of the world?

Lasnik: That makes sense. We really care about the audience’s reaction in these cases – what would a reasonable investor want to know?

Vladeck: Literal truth may be misleading if it omits an important fact.

Post: In defamation, we’d say that’s a case of false innuendo.

Question: Likelihood of confusion surveys are used to deal with this at the trial level. Invariably, the control cell shows some ambient confusion. (This produced a great deal of laughter from the audience; I myself am pretty sympathetic to the occasionally confused.) Five percent of jurors are also going to be ambiently confused. These cases don’t get simpler in reality than in theory.

Shiffrin: We haven’t talked about what the value is of noninformational advertising – the sexy car driving down the road. That may be the overwhelming majority of broadcast ads.

Right of publicity: Suppresses truthful advertising – “Elton John didn’t authorize us to tell you this, but he drives a Mercedes” would violate John’s right of publicity if Mercedes put it in an ad, but Newsweek could put that on the cover and be perfectly safe. The Tony Twist case is a real oddball, and is dead wrong. But the field is pretty messed up, and the Court has only had one, unusual case early on, Zacchini.

Johnson: This is not unique: the whole commercial/noncommercial divide in private causes of action is a total mess. Rudy Guiliani sued a magazine that used his image to advertise on buses – is that noncommercial speech? Even if it isn’t, should Guiliani win? It may be harder and harder to distinguish ads from non-ad content, especially on the internet. The distinctions are breaking down.

Question: Kasky went out of his way to allege no harm. One of the core reasons for regulating commercial speech is to avoid harm, and so his suit seems deeply problematic. Assume that Nike says to the NYT: we aren’t guilty of these wrongs alleged. There are consumers who take this into account in purchase decisions. Assume it makes the exact same statement to its stockholders. It seems that the statement to the stockholders can easily be regulated without much controversy, and yet a lawsuit based on the same statement to the general public triggers huge First Amendment outcry.

Johnson: Point of sale discussions ought to be regulated. But Nike didn’t involve a point of sale discussion. (I don’t find this responsive. What’s a point of sale discussion for a stockholder?) Where there’s no damage, the government has no interest in regulating speech on matters of public concern.

Vladeck: Shares the concern about the abstract nature of the claimed injury in Nike. But there are many statutes that permit people who haven’t suffered direct injury to sue, and it’s not clear those are wrong. The state can decide that some false claims pose too great a risk, and we need to enlist private attorney generals to help the state enforce its law against false advertising. Suppose a publicly traded company makes a misleading claim: we expect FDA approval of our new drug. An investor doesn’t have to prove individual reliance on that statement.

David Skover: The nature of advertising has moved so far from fact-based claims of the 1900s that Nike became inevitable: that is, we are now blurring the commercial/political line by deciding who we are through what we buy. I am a member of the Pepsi Generation, and this is important to who I am. To consume is to be a citizen. Whether this is good or not, it is true. So, what is this corporate beast doing when it is claiming to be a good citizen in Southeast Asia?

Vladeck: If you look at the Court’s recent rationale for commercial speech protection, you see a seismic shift. The early cases were all audience-centered. In more recent cases, the Court’s all of a sudden talking about the autonomy/self-expression rights of the commercial speaker. Image advertising relates to that because corporations are constructing personae through such advertising. The Court is suggesting it will protect that even though it’s just the advertiser’s strategic positioning.

Johnson: Generally, the audience’s reaction is something we keep out of doctrine, and yet it’s very much a part of commercial speech doctrine. (This is misdescriptive: what is defamatory depends on the audience’s reaction, as does whether a statement is fact or opinion. Johnson says the speaker’s intent is relevant because of NYT v. Sullivan, but so is the audience’s reaction.)

Tribute to Steve Shiffrin: Panel on Practice

First Amendment Principles in Practice, Moderator: Patrick Lynch, O'Melveny & Myers LLP

David Vladeck, Georgetown University Law Center: Why has there been so little post-Nike development in caselaw, despite predictions? Nike may have been an aberration, unlikely to recur. Most early commercial speech cases were brought against anticompetitive restraints on professionals and others that were unassailable under antitrust laws because of the state action bar. Virtually all commercial speech cases at the Court involve (1) regulation of professionals or (2) regulation of activities that were at one time thought to be sinful. Nike was the first private litigant case to reach the Court – the first without a specific government regulation.

One reason we haven’t seen more Nikes was that there was something aberrational about the commercial speech doctrine providing the rule in a private party v. private party case.

Also, commercial speech cases came in waves. Lawyers; then drugs and dietary supplements (a wave down in the DC Circuit). The FDA/FTC aren’t the pitbulls Shiffrin hopes they are; in response to evolving commercial speech doctrine – which is hardly “lite” – the regulatory agencies have retreated a lot. Sellers of food products can now make health claims that aren’t provably true, because the FDA doesn’t believe it could sustain those regulations.

Second reason for decline: the government is not trying all that hard to regulate commercial speech, Vladeck argues to our collective detriment. Also, the drug companies suffered enormous setbacks in what happened with their actual advertising – e.g., Celebrex. Now the drug industry asks the FDA to prescreen all direct to consumer ads, and is asking Congress to expand and accelerate FDA review, funded by the industry. (This is designed to get liability protection through preemption.)

There will be other waves. But the pace won’t be substantial.

Bruce Johnson, Davis Wright Tremaine LLP: Nike was odd; other reasons included (1) California’s consumer protection statute, since amended, allowing any consumer to sue without a purchase and without any damages, (2) Nike was subject to strict liability, (3) Kasky alleged misleadingness rather than falsity, and (4) Kasky’s allegations were largely based on press releases. This made Kasky’s claim very difficult to litigate for the defendant. ((2) and (3) are not at all unique to California law – state and federal advertising law, as well as the FTC/FDA regimes, have these features, which I think is often overlooked in discussions of Nike.)

The transactional test, requiring a connection to a proposed transaction before there's commercial speech, will force some discipline on these causes of action, as opposed to lawsuits based on feel-good corporate claims of being a “nice guy.”

Hon. Robert Lasnik, U.S. District Court for the Western District of Washington: These are difficult concepts to explain to a judge or a jury. Yet – when Bill Gates speaks about Microsoft, Lasnik has some skepticism about truth and motive, whereas when he speaks as the head of his foundation, Lasnik gives him more leeway. This is a commonsense rule, and judges and juries are always analyzing motives in this way. So when Amazon tells investment advisors that the company is doing really well, and the advisors talk to newspaper reporters, and the newspapers report it – where on that chain does the First Amendment kick in? Is there a kickback? What is really going on? That is the judge’s perspective.

Vladeck: Lasnik has laid out the underlying theory of commercial speech: commercial entities have a special incentive not to tell the truth. The doctrine is a sensible way to accommodate the enormous information value of advertising with the falsehoods and half-truths that permeate the market. The government alone can’t police the market; competitors and consumers also need to be able to enforce public norms, which is what drove the enactment of California’s consumer protection law.

Even with amendment, a new Kasky could sue if he actually bought the shoes and alleged that he acted in reliance. So the legal change isn’t a complete explanation for the lack of new cases.

Johnson: Six years into the Bush Administration, it’s odd to hear Vladeck speaking of commercial speakers’ peculiar incentives to lie. He also thinks there are problems with the indeterminacy of the test – did neo-Kasky really buy shoes in reliance on representations about labor practices? (Well, I do. I may be unusual but I’m not unique.) Commercial actors want to sell, not to further self-governance, so they will move on to the next sale rather than defend the last set of advertisements.

Lasnik: Companies want to get rid of bad publicity more than anything else. Likewise, the Nike plaintiffs were more concerned with making a political statement. Any company worth its salt is going to try to get this off the front page, regardless of the legal regime.

Johnson: There are two models of the First Amendment – marketplace and regulatory. (The marketplace doesn’t have regulators? Even the nightwatchman state has a nightwatchman.) They give different answers on how to control the market. Johnson sees the regulatory model as growing out of the guild system, and then the New Deal attempts to carve up the economy and allow corporations to regulate themselves. Deregulation coincided with the creep of the marketplace model into the First Amendment as well.

Lynch: But is the commercial speech doctrine keeping (good) information from the public that the public would otherwise get? Or is regulation too toothless now?

Johnson: Commercial speech surfaces in private cases in odd ways. That’s what’s next – copyright, trademark, false advertising all consider commercial use, which courts are now conflating with commercial speech. The Dustin Hoffman case, for example – Dustin Hoffman’s image altered to show off a dress in a magazine. If it was a regular feature, it was protected by the First Amendment and his right of publicity claim would fail; if an ad, he’d win. He lost. Book covers for the Beardstown Ladies Investment Guide promising investment returns that were, in fact, false – a New York court threw out a consumer lawsuit on First Amendment grounds, but a California court allowed an identical claim to succeed. The Tony Twist case, Doe v. TCI: the Missouri Supreme Court ruled that a comic book was commercial speech and Twist had a valid right of publicity claim. Either a comic book character is entitled to First Amendment protection or not, but there’s incoherence in the lower courts now.

Something is wrong when the First Amendment gives more protection to a comic book featuring half-worm creatures based on albino singers than to a letter to the editor debating working conditions in Southeast Asia.

We are now premising private causes of action on the commercial/noncommercial distinction, and commercial speech doctrine doesn’t match up well with the concerns of typical private cases.

Lasnik: Agrees. When even the judge seems to be floundering, litigants feel pressure to settle.

Vladeck: Let’s answer the question about the regulatory impact of commercial speech doctrine. Most of the statutes being enforced were written well before the doctrine existed, with no eye towards First Amendment review. This forces agencies to be gunshy. Also, those of us who worked on the early cases thought we were empowering consumers, not hamstringing government. There are problems in private cases, but more serious is the inability of the federal government to take regulatory measures to keep half-truths from taking over the marketplace. The pendulum has swung too far.

It’s true that Lanham Act cases have generated lots of confusion about commercial speech doctrine and its applicability in private cases. The Lanham Act simply federalizes common-law claims for product disparagement, and these problems predated it. That’s not a product of the commercial speech doctrine, but a longstanding problem that exists any time courts are asked to intervene and punish speech.

Sunday, February 25, 2007

Panel on First Amendment principles: discussion

Responses: Robert Post, Yale Law School: Redish shares two widely held views: First, we start with the notion that the First Amendment protects speech, and any derogation needs justification. Second, any derogation is likely to be viewpoint discrimination and bad.

Post’s brief responses: First, those notions are wrong. We need to distinguish between First Amendment protection and coverage. Does the First Amendment extend to all speech acts? The answer is unequivocally “no.” All of contract; informed consent requirements; dozens of other speech acts. Whatever value you have for speech, it will single out some speech and not others – some speech is relevant to democratic self-government and some isn’t; etc. It makes a good deal of sense not to cover all speech acts because basically everything we do as human beings is done through speech. The First Amendment only covers those forms of speech dictated by the values we hold that justify protecting speech.

Second, on viewpoint discrimination as the original sin. We have viewpoint discrimination as the rule. If Condoleeza Rice said Bush’s foreign policy was a disaster, she’d be fired. If a student writes on an exam at a state school that the First Amendment doesn’t apply to the states, the student gets a bad grade. The government funds certain studies and not others. The doctor tells you you have cancer and really you have an ulcer; you can sue. Mostly, the state has to regulate or not based on truth, which is something we determine regularly in trials – epistemological humility is not the rule because the state needs to regulate on a regular basis. Only where we want to exercise epistemological humility, and treasure differences of opinion – mostly in politics – do we want the free speech principle to apply. The question is where to draw the line.

Every town meeting has an agenda. If an issue is not on the agenda, you can’t talk about the issue – is that viewpoint discrimination? It turns out to depend on your notions of baseline.

Post’s account of commercial speech: Start with the value of democratic self-governance. The ability to participate in the formation of public opinion, so I can view the government as responsive to me. There are speech acts that aren’t participating, and the normative question is which speech acts I attribute that value. When Chrysler sells cars, it isn’t participating in the relevant way. The First Amendment-lite protection for commercial speech is that the information communicated is valuable to public opinion – it’s not protected as participatory or autonomous, but only secondarily as an aid to others who are participating/autonomous. This has numerous doctrinal consequences, including protecting truthful communications and allowing required disclosures.

Redish says that Chrysler has personal autonomy; Post denies that this is true or that it is relevant to democratic self-governance. Post doesn’t need to reach the Consumer Reports question because he distinguishes selling cars from supporting Bush. Consumer Reports’ categorization is open for debate, but no matter how you come out on that, you can still reject equalizing Bush and cars. Thinking is about making distinctions; Redish’s slippery slope fears are implausible, and Post is convinced that treating everything the same will make even more of a mess.

Steven Shiffrin, Cornell University Law School: The question is whether commercial speech is different because of all of the reasons people offer taken together, not whether you can pick off one at a time. The deep structure of multifaceted principles can be difficult to articulate, and are often understood before they are defined.

The FTC says we will determine for you what statements are false and true. If Redish is right, the FTC and the SEC should be closed down, and that’s a pretty radical view – you don’t have to be anticapitalist to support these institutions. They make decisions for us because consumers don’t have the time to determine everything about products, and also because sellers and corporations cannot be trusted. We don’t engage in viewpoint discrimination in the sense that Consumer Reports both endorses some products and condemns others, but we do treat sellers differently.

Redish’s paper says his argument is confined to truthful advertising. Why? We impinge on autonomy by paternalistically taxing cigarettes to deter smoking. Why is speech special? Self-government can be impinged upon in various ways, not just-speech based.

Corporations don’t have a self-realization or self-government interest, only listeners. In that case, we already know that an individual’s interest is greater, so that corporate speech is of lower value than other forms of speech. That has nothing to do with an ideology about the message. (But this is vulnerable to the NYT Co. problem.)

All the other speakers believe in self-government. Shiffrin thinks this is one of the great fictions of the US. He doesn’t find himself in the government. It might be for the people, but it’s not of the people or by the people. A 1/300 million share isn’t the self. We think the perceived opportunity to participate is important, but self-government is an unnecessary and confusing term – it allows Redish to argue that self-government is even more implicated when a single person has 100% of a relevant “vote.” Information for consumers is important, but democracy is about justice and protecting dissenters, not self-government. Commercial speech is part of the problem, not the solution. When $30 billion is spent telling children to buy products, and 40% of children have already decided what car to buy when they grow up, and many children’s favorite ad is Budweiser, we are hardly promoting the sort of active citizenry of self-governers that we should want. Of course this is an ideological position, but we can still take it into account in our theory of the First Amendment.

Viewpoint discrimination is often bad. But sometimes it’s good, like special protection for parody under fair use, or educational uses. In the public figure/issue context, a public issue is something you’re supposed to be interested in, and a private issue is something you’re not supposed to be interested in. In intentional infliction of emotional distress, figuring out how a reasonable person would react involves viewpoint discrimination. Shiffrin would take into account the goals of democratic citizenship in setting the level of protection for different types of speech.

James Weinstein, Arizona State University College of Law: Redish takes the position that people who disagree with him are either fools or knaves, anticapitalist knaves at that. Do you have to be hostile to capitalism, as Redish says, to say that (truthful) commercial speech deserves less First Amendment protection than political speech? Rehnquist was an implacable foe of commercial speech protection. Was he an anticapitalist?

Even Redish is prepared to allow regulation of false commercial speech, but we don’t have enough jail space for politicians who speak falsely or misleadingly – is he engaged in viewpoint discrimination?

Weinstein is troubled by the California Supreme Court decision in Nike; if we keep the definition of commercial speech limited, the viewpoint discrimination problem is minimized. He is also interested in the Consumer Reports question: why does CR get NYT v. Sullivan-type protection, if it does? There is a difference in the social practice of selling something and evaluating a product (criticizing or praising). Weinstein might not give it political-level protection, but he wouldn’t reduce it to commercial speech.

Weinstein finds it a hard question whether you can have ascriptive autonomy for political/democratic self-governance questions and then also regulate, for example, doctor-patient relations with the premise that patients are vulnerable (or, likewise, working conditions with the premise that employers have structural power over employees). He thinks there are reasons we have to ascribe autonomy to people as voters, but those reasons don’t always apply to individuals who are in particular private relations, or even to aspects of decisionmaking like whether to smoke cigarettes. Weinstein would like a little more Lochnerism to protect against paternalism using substantive due process, but that doesn’t commit him to protecting commercial speech as strongly as criticism of government policy.

Redish responds: Shiffrin is the poster child for the views he opposes – Shiffrin doesn’t want kids deciding what types of cars to buy. This is discrimination! Why is the promotion of sale by the commercial seller less worthy of protection than CR’s evaluation of the sale? (I am now reminded of Catharine MacKinnon’s discussion of Aristotelean equality – what does it mean to treat likes alike and unlikes unalike? What does it mean under conditions of subordination, in particular?)

Moderator: how do we identify the proper underlying values?

Redish: Reverse engineering, reasoning from the premises of our democratic system.

Post: A Rawlsian reflective equilibrium, trying to make sense of our tradition through dialogue.

Shiffrin: Doesn’t believe in general theory; to have a system is to lack integrity, as Nietzsche said. The premises of the system are themselves contested, as with descriptions of democracy.

Weinstein: Are we being descriptive or normative? Redish is trying to give a descriptive account. What possible value/s account for most cases? With a rich tradition like the First Amendment’s, we can’t be completely descriptive.

Question: Contracts are speech, performative speech used to create a legal relation. If the law takes you at your word and imposes an obligation, e.g. marital obligations after you say “I do,” there’s no viewpoint discrimination. If so, “I am selling you this shirt along with a warranty” can also be enforced without a problem. We are taking the seller at its word, and the buyer and seller ex ante would both want that. Much of the speech regulated by the FTC/SEC etc. has to do with explicit or implied in law warranties.

Redish: Speech does transform into action, but not always. Blackmail and threats are coercive, not protected speech. Words part of a contract are performative, and not the same as other speech.

Shiffrin: The issue is what speech counts as a warranty. The SEC counts the same statements at issue in Nike. The SEC refutes Redish’s thesis because it’s clearly making decisions on what speech is appropriate for consumers here.

Post: If a political candidate promises to go into Iraq and doesn’t, has he violated a warranty? Can law enforce a remedy? Clearly not. We have to distinguish classes of speech.

Redish: What about NYT v. Sullivan? Intentional/reckless falsehoods get no First Amendment protection.

Post: There’s a fact/opinion divide; also, punishing falsehood is viewpoint discrimination on Redish’s terms.

Redish: No, ideas v. facts is something different. Viewpoint regulation is regulation of “ought” claims. Statements of fact are a different ballgame.

Post: “Clinton is immoral”: Fact or opinion?

Redish: Opinion, but if knowingly based on false facts it wouldn’t be protected.

Post: “The eggrolls at the restaurant were cold.”

Redish: This is Bose v. Consumer Reports – the question is whether you’re lying, which is also an issue of burden of proof.

Post: That goes to intent, not fact v. opinion. The question is what propositions can be regulated for validity. The answer is context-specific and differs in commercial versus political speech.

Shiffrin: Sullivan involves balancing reputation against press rights. Gertz strikes a different balance. Applying Sullivan to truthful commercial speech or other contexts where the opposing interest is something other than reputation isn’t the obvious solution. In copyright, for example, property rights outweigh truthful speech; also the tort of public disclosure of private facts.

Seana Shiffrin: Getting back to the difference between Chrysler and Consumer Reports, she wants to expand on Chemerinsky’s argument – it’s not just that Nike has market power, but it’s also better positioned with respect to information about Nike. We legally protect that position: ordinary people can’t go on tours of Nike factories. Trade secret, property law, employment law, confidentiality agreements, etc. all give companies special control over their information. We give these rights for instrumental reasons, not to protect companies’ intrinsic privacy rights. As a result, we can reasonably expect higher standards of accuracy from the company than from those external to the process.

Redish: Plausible, but we never apply that analysis anywhere else. Judith Miller had more access and protection for her confidentiality than almost anyone else. In other areas of the law, information disparities don’t justify these distinctions.

Also, CR has special access to information – who has more information than Consumer Reports? (Nike does, as does Chrysler. Testing ten cars or pairs of shoes isn’t the same as having special access to information.)

Tribute to Steve Shiffrin: Panel on First Amendment principles

Panel on First Amendment Principles

Moderator: Kurt Lash, Loyola Law School Los Angeles

Keynote Address: Martin Redish, Northwestern University School of Law

Opposing commercial speech protection is wrong and indeed pathological in regulating viewpoints. Government finds the viewpoint offensive, wrong, or dangerous – we consider regulation on that basis categorically unconstitutional because it violates democratic notions of epistemological humility. In a constitutional democracy, the electorate gets to make the choice of what positions to take. (Here I presume he means individual members of the electorate, since the viewpoint-based regulation comes from the elected representatives.) It’s a Rawlsian veil of ignorance: we make a rule without knowing who’ll be in power.

The Supreme Court may have mistakenly viewed some regulations as not viewpoint-based, but it’s never upheld a regulation as viewpoint-based. You can’t recognize one exception without recognizing all exceptions – if one thing can be regulated because it’s offensive, so can the next thing that’s offensive to someone else. (“Offensive” is a key word here, as opposed to “harmful” or some other word.) There are some hidden viewpoint regulations, such as bans on flagburning justified because flagburning is a fire hazard. When a regulation isn’t justified on the rational ground asserted, it’s furtive viewpoint discrimination. There are also judicially imposed viewpoint distinctions, some of which are exceptions to general rules. There are speaker-based viewpoint restrictions, e.g., no Democrat can speak. (Another key move, it seems to me.)

Commercial speech deals with the private political process, the process of making choices and decisions that affect the individual. Imagine a society where every decision – what mouthwash to use, what restaurant to patronize, etc. – is made by the entire collective. In those cases, speech trying to persuade the collective to choose a particular restaurant would be political. We need that speech for self-government. If we cede to the individual those decisions, the individual now has 100% of the vote instead of a tiny fraction, and it’s still a self-governing choice.

The Court defined commercial speech as proposing a commercial transaction. Ralph Nader’s criticism of cars isn’t commercial speech, but the manufacturer’s defense is. Once this is the definition, a type of viewpoint regulation is going on – a new kind. “Twilight zone” viewpoint regulation, not based on dislike for the speech or the speaker’s ideology, but the ideological ether surrounding the speech. The speech isn’t controversial, but the process from which it springs is ideologically offensive to those who want to regulation. In that way it’s like obscenity. Obscenity isn’t directly a political statement, but the regulation is based on opposition to the mores and sexual values contained in obscenity.

Three justifications for regulating: (1) Rationalist arguments purporting to ground regulation in neutral First Amendment values. E.g., commercial speech isn’t part of the political process: But Consumer Reports deals with the political process. Others argue that corporations aren’t speakers because they’re economic entities. But the recipients are the ones who are making self-governing choices, and they’re who matter. Also, the NYT Co. is an enormous corporation. Baker says the difference is the product – speech v. nonspeech. Redish says, so what? Speech has often been designed to persuade others to take nonspeech acts, and that’s a commonly understood First Amendment value. Also, if the corporation is a robotic profit-maximizer, its product shouldn’t matter in whether it has a speech interest.

(2) Intuitionist arguments that commercial speech is just different. Anti-intellectualism combined with intellectual arrogance, immune from any rational response. Redish’s intuitions differ!

(3) Ideological arguments: Commercial speech promotes materialism. But the people get to decide what they need. By not protecting commercial speech, we risk reverse dilution. When we regulate speech because we think people will be fooled into buying things, why doesn’t the same thing apply in the political area? The people might believe antiwar demonstrators and make silly decisions. Either people are capable of making rational decisions through open debate or they’re not. (Okay – so I’m just as capable of making a rational decision about which drugs are effective as I am about which color looks good on me? I’m just as capable of making a rational decision about whether my child is cute as I am about whether I should buy a new car? There’s absolutism of principle, and then there’s obliteration of distinctions.)

Saturday, February 24, 2007

Commercial speech: Tribute to Steve Shiffrin

Commercial Speech: Past, Present & Future: A Tribute to Steven Shiffrin, sponsored by the Loyola Law School Los Angeles and the Loyola Law Review

Opening roundtable discussion, Ronald Collins, First Amendment Center, moderator.

Collins: Three questions to structure our discussion. Does the identity of a speaker as a corporation matter? Can lines be drawn between political and commercial speech? Can progressives endorse freedom of commercial speech?

Steven Shiffrin: Commercial speech should be lower in our hierarchy than other forms of speech because dissent should be higher. Other First Amendment theories also produce this result. In some circumstances, particularly informational advertising, there should be a measure of protection.

Erwin Chemerinsky: Disagrees with it all. Dissent is not the central/only purpose of the First Amendment; speech is also protected if it supports government or consists of art/music that is not about dissent. Even hate speech and sexually degrading speech are protected. Also disagrees with the idea of having a hierarchy or distinguishing speakers. The only relevant question: is there a compelling reason to ban speech? One can find such interests in many situations, and indeed in Nike v. Kasky. But we must remain focused on that question. (Isn’t that a hierarchy without the name? I suppose its benefit is that if your reason for a ban isn’t the usual reason for disfavoring a category of speech – e.g., Discovery Networks – then the regulation gets stricter-than-usual scrutiny.)

Kathleen Sullivan: She is closer to Chemerinsky than Shiffrin. Fear of government is an extra reason to protect commercial speech. We fear government more than markets, for antipaternalistic reasons specific to speech. We fear thought control more than wage and hour laws. (Why don’t we fear Enron’s paternalism and attempts to control our thoughts?) There may be good reasons to regulate, such as information asymmetries, but the solution is disclosure rather than leveling down through silencing.

Shiffrin: The SEC engages in paternalism – it doesn’t trust consumers in the absence of a policed market. The FTC engages in paternalism, and the FDA. When we talk about false statements, paternalism is at the center of what we do, not the margin. Why do we need a compelling state interest? NYT v. Sullivan involved balancing the interests in reputation with the needs of the press, which is a good strategy. It would radically change First Amendment doctrine to say there’s no hierarchy. He agrees with Chemerinsky that multiple values underlie the First Amendment that can’t be reduced to one. Protecting the practice of dissent is extremely significant, though, and commercial speech doesn’t maximize that.

Sullivan: The Sistine Chapel wasn’t created by a single artist, it came only from sponsorship. NYT v. Sullivan arose from an advertisement. Advertising is a late 20th-century art form. Commercial speech is continuous with and perhaps indispensible to the rest of speech. Virginia Pharmacy recognizes that commercial speech is useful to people – economic decisions are important and commercial speech has a role in providing relevant information. It’s not for government to decide what matters. (Though she agrees on the potential for harm, so it apparently is for government to decide what harms, if not what helps.)

Liptak: Define commercial speech.

Chemerinsky: Bolger tried three factors – not exhaustive, but it’s a good starting point and shows that speech isn’t commercial just because it comes from a corporation.

Sullivan: Commercial speech is an offer of goods for a price. It’s not anything said with a motive of commercial gain.

Shiffrin: Media speech is not, with narrow exceptions, commercial speech. Ed Baker has it right: for media, the product is the speech, unlike Virginia Pharmacy where the product is drugs. Also, the press has a checking function that makes it special. He distinguishes informational advertising that’s true from false advertising – commercial speech encompasses many different kinds of problems, and is broader than just proposing a commercial transaction. The bigger question (which is not entirely overlapping because non-corporate entities run ads) is how to deal with corporate speech in general. Corporate participation in political campaigns is limited, even though that’s core political speech.

He also notes that Virginia Pharmacy is atypical of cases – you have an aged person who needs cheap drugs, versus an alcoholic looking for the cheapest high in a case like 44 Liquormart. John Stuart Mill, invoked by many (including Sullivan), didin’t think commercial speech should be protected.

Chemerinsky: He’s skeptical of distinguishing media from nonmedia corporations. Which is Time Warner? Media companies advertise to get you to consume more of their programs. Separately, he wants to emphasize that he might find a compelling interest in banning corporate campaign contributions, and definitely does in banning false advertising. Finally, cheap alcohol may be a valuable choice. It’s paternalistic to say it’s not valuable.

Shiffrin: On the compelling interest question – look at tobacco ads. Tobacco kills 400,000/year; ads reach children and create preferences in them. Do we have a compelling interest? As for distinguishing media/nonmedia: of course there are linedrawing problems. That doesn’t mean you give up.

Sullivan: The government shouldn’t be allowed to regulate truthful ads about lawful products. More speech drives out bad speech. Right of reply requirements on TV drove cigarette ads off TV. (Isn’t that silencing? Even intentionally discriminatory silencing, if the requirements are targeted at smoking? She quickly added that equal time requirements were compulsion.) Where government can provide contrary messages, it shouldn’t regulate. Also, we should regulate the product directly through bans and taxes. That’s always an alternative, so the state shouldn’t be able to prohibit truthful advertising.

Shiffrin: When 400,000 people die every year, efforts to prevent that are good even if you call them paternalistic. The alternatives have costs, such as black markets. It would be more effective to have counterspeech and ban ads.

Chemerinsky: Banning ads isn’t necessary to serve a compelling interest. The evidence doesn’t show that ad bans work. Also, he’s concerned about a slippery slope. What about liquor ads? Fast food/potato chip ads? If this were necessary, maybe he’d go along, but the evidence isn’t there.

Shiffrin: $265 billion is spent on ads in a year, contibuting to the creation of an apathetic, hedonistic citizenry. It’s problematic to find value in that. Would a ban on cigarette ads stop smoking by all kids? No. Would it help? Well, why do cigarette companies advertise? They think it works. As for the slippery slope: Many of these ads are targeted to kids, and Shiffrin sees no right to advertise to kids. Beyond that, corporate power will take care of itself. If bans did spread, he doesn’t see the harm.

Liptak: Another consideration: Corporate speech is powerful and can overwhelm counterspeech by repetition, according to the pro-regulation story.

Sullivan: She doesn’t start from the individualistic/dissent notion of speech. The First Amendment protects other values, including a system of free flow of information determined through private interactions. Markets are regulated but ideas aren’t. Regulation and taxation should be lexically prior to advertising bans and we haven’t exhausted the non-speech regulatory possibilities with respect to tobacco. We should protect advertising unless and until particular harms manifest. (The reverse precautionary principle! A couple of side notes: This discussion makes crystal clear why lots of people see the First Amendment as the new substantive due process. Also, I just read Shiffrin’s The First Amendment, Democracy, and Romance on the way out, and one of its many strengths is that it emphasizes that “dissenting” and “individualistic” are not synonyms. Dissent is often participatory, communal, and engaged – a point I’ve tried to make, though less well than Shiffrin, when discussing how free speech principles have been translated into fair use doctrine.)

Liptak: Given what Chemerinsky has said so far, why was he on Kasky’s side?

Chemerinsky: Nike was engaged in selling a particular product and was allegedly speaking falsely. Analogies: “dolphin-safe tuna,” “organic lettuce,” “not tested on animals.” These are important claims to consumers. California has other relevant laws, like those governing false “union-made” claims.

Sullivan: Nike went far beyond simple branding – its communications covered labor conditions and sweatshops and used long infomercials. It made broader claims about corporate behavior as part of a debate about exporting US labor standards. (So is “organic” part of a broader debate over agricultural policy. Kasky wasn’t alleging that any of Nike’s normative claims were false.) Nike deserved a chance to fight back against the anti-sweatshop campaign. There are other ways to stop a company’s false claims than suing – run a counter-ad or do an investigative report.

(This is one of the most unpersuasive parts of the Nike-side argument. You can run a counter-ad if you can afford to, and if a media outlet will run it, which they often won’t. Nike reaches a heck of a lot more people than a NYT investigative report. It’s often noted that lies can get around the world while the truth is still putting on its shoes (no pun intended), and that’s without considering resource disparities. Note also that Sullivan appears to be saying here that “not tested on animals” is also a claim that must be free from government regulation. That’s getting pretty extreme.)

Chemerinsky: Nike ran an ad; you can embed a claim about animal testing in a long paragraph too. How are people to evaluate this claim? The company has information competitors and consumers lack.

Shiffrin: He agrees that the existence of alternatives to speech regulation aren’t dispositive. If the SEC were regulating, Nike’s statements would be subject to strict liability despite the fact that the statements were part of a “dialogue” with political aspects. Nike was describing what it was doing. That’s relevant to a debate, but it’s put forward to sell products.

A new question: Should Kasky have had to show that Nike acted negligently to win his case when the SEC could use strict liability to govern the same statements? There’s a legitimate concern that private plaintiffs could bring actions against Nike that could chill its speech, but it’s not in the record. The California statute was on the books for more than 70 years. Strict liability is appropriate in the absence of contrary evidence.

Sullivan: This relegates misleading speech to oblivion. Ordinary fraud statutes can cover falsity, at least with intent (big caveat!), but misleadingness is more. In politics, false statements like “I won’t draw a salary if elected” are protected against liability. (Why is this a relevant example if you’re trying to distinguish between false and misleading speech and argue that only the former can be banned for commercial speech?) Shiffrin and Chemerinsky are presuming the Nike statement was false. The misleadingness standard chills speech about, say, how a company performed in its last quarter. The statements here are different than saying “I’ll sell you X product for Y price.”

(Really? What does “X product” mean? What happens when we replace that with “a product that will kill cold germs”? Also, Sullivan’s example of a truly regulable ad is, perhaps ironically, one where government regulation might seem least necessary. It’s often relatively easy to confirm price, though there are bait and switch laws regulating misrepresentations regarding price. If we trust consumers so much, why not trust them to figure out price as well?)

Shiffrin: The FTC can go after misleading speech, not just false speech.

Sullivan: Yes, but that applies to speech that’s not presumptively protected – advertising. You’re broadening that speech beyond consumer sales to anything designed to increase sales, which is everything a corporation says because it’s always designed to create goodwill.

Shiffrin: Note that the statements Sullivan worries about have to be included in SEC filings, and strict liability applies. (Sullivan is no longer worried about democratically/demagogically imposed government thought control, but government enforcement of a private party’s false advertising claim as well.)

Chemerinsky: Factual statements made to increase sales are commercial speech. Not all corporate statements are like this. That’s what makes Nike an easy case. Nike took out ads saying it didn’t use sweatshops. We aren’t presuming that Nike was speaking falsely: There was never a trial, but basic civil procedure is that you take the statements in the complaint as true for evaluating a demurrer. As for the SEC, it has a compelling interest in protecting investors.

Liptak: Isn’t the Shiffrin/Chemerinsky position viewpoint discrimination? And should we care?

Shiffrin: It’s often said that viewpoint discrimination is never allowed, and yet obscenity can be banned. Appeals to healthy sexual interest are ok, but not appeals to prurient and depraved interest. Judges are licensed to determine literary, artistic, political and scientific value. Copyright’s fair use test distinguishes viewpoints. (This is a debatable claim– there’s a good argument that even the transformativeness evaluation is more content- than viewpoint- based – but I’m with him on the bigger point.) The free speech exceptions are riddled with viewpoint discrimination.

Chemerinsky: Viewpoint aside, there’s a compelling interest: consumers can’t find out for themselves that Listerine doesn’t kill cold germs. Competitors may have no incentive to correct the falsehood (e.g., tobacco companies’ shared interests in ignoring health harms).

Liptak: But Consumer Reports could do a study on Listerine and get actual malice protection.

Chemerinsky: Yes, because the speaker – not the viewpoint – has different interests and incentives.

Audience questions: Bruce Johnson: Kasky and Nike’s representative both give interviews to the NYT. Commercial speech?

Chemerinsky: No.

Johnson: But under the California Supreme Court’s test?

Chemerinsky: Nike took out ads – start there. Statements to intermediaries are arguably commercial speech, but we need not get there.

Martin Redish: Should we adhere to Bolger? If Nike wanted to sue Bob Herbert, who works for a powerful corporation, Herbert gets NYT v. Sullivan protection. But Nike doesn’t get the same protection. This is viewpoint discrimination and manipulation. Nobody is on the other side of obscenity in the same way. (Really? What about producers of R-rated movies, who get to put out their view of proper social mores without regulation?) Judith Miller’s false reporting on Iraq did more harm than Listerine ever did.

Chemerinsky: Nike wasn’t engaged in a debate when it made false factual statements. Also, the most your argument can prove is that NYT v. Sullivan applies, and Kasky’s allegations included actual malice.

Charles Fried: The two leading cases, Virginia Pharmacy and 44 Liquormart, are not as they’re represented here. They didn’t serve interests in protecting professionalism or temperance. In both cases, they were protecting mom & pop stores who had state legislatures in their pockets. The regulations were corrupt. When we do theory, remember that.

Sullivan: Virginia Pharmacy also destabilized attorney fee schedules set by the bar. Lochner with respect to this type of corruption is entirely appropriate. (Here, I think, is a key source of my disagreement with Sullivan. I do think that regulating truthful advertising is different than regulating false and misleading advertising. But I include “misleading” in the regulable category, which leaves room for arguments about what is misleading – none of which were particularly persuasive, or even seriously offered, in the two named cases.)

James Weinstein: Equalizing protection for commercial and political speech would be dangerous, because then we’ll start to use Chemerinsky’s “soft” compelling interest test – allowing punishment of speech when it causes harm, which political speech often does.

Chemerinsky: We all agree the First Amendment involves value choices. Even false statements about the Iraq war are protected, and some advertising claims aren’t. How will we define the lines? He wants to do it openly, whereas predefined categories of speech seem to him to be a bad solution. Let’s have the value discussion and say that political speech is more important than the harm it causes even if the harm is big. The categories just hide that analysis.

Shiffrin: All of us on the panel think that truthful advertising should get some First Amendment protection. For Shiffrin, it’s because it furthers some but not all relevant First Amendment values. Commercial speech has importance in people’s lives and that’s what gives us reason to protect it, not because it’s the same as political speech.

Sullivan: She wouldn’t assimilate commercial to political speech, but would protect it all strongly, distinguishing content-based from content-neutral regulation. Copyright’s fair use doctrine, by the way, isn’t about viewpoint discrimination, it’s about transaction costs. (Even Wendy Gordon’s strong account doesn’t easily admit of this interpretation, because she counts certain noneconomically-based refusals to license as transaction failures, which is a viewpoint-based aspect of the analysis.) Sullivan is willing to tolerate more compulsion with commercial speech, not leveling down but leveling up through disclosure. Compelled disclosure is the greatest regulatory success of the 20th century. (My lungs might vote for the Clean Air Act.) She would allow compelled disclosure as speech-enhancing as long as it doesn’t chill speech. (Another big caveat!)

Question: Is there any way to distinguish Nike’s defense from an attack? If I attack Nike because I have an economic interest in another shoe company, that’s not commercial speech. (The questioner seems not to know about the Lanham Act. Cases have applied the Act to statements by individuals within a corporation, at least, and the standard would be strict liability, not actual malice.)

Chemerinsky: Maybe we should use the same scienter standard. Nike, however, wanted absolute protection for its speech; at most it should get NYT v. Sullivan.

An amazing start to what promises to be a challenging conference.