Tuesday, February 20, 2007

Commercial speech conference: Tamara Piety on obscured-source speech

Tamara Piety, Florida State (visiting)/Tulsa, Flogging, Fronting and Fakery: Corporate Public Relations Advocacy, Research Groups & Commercial Speech. Corporations are using the First Amendment as a method of resurrecting substantive due process. We can make them citizens for certain purposes – jurisdiction – without letting them vote; we can deem them entitled to certain rights but not full First Amendment rights. This is consistent with the Framers’ suspicion of large accumulations of power. Unlike human beings, corporations are not ends in themselves. They are not appropriate holders of speech interests.

As a matter of corporate governance, anything a corporation says is directed at the bottom line, which is why Milton Friedman says that the only time corporate social responsibility is legitimate is when it’s insincere and the corporation is only doing it to boost its image. But she is not saying that corporations shouldn’t speak, just that avoiding false statements is enough reason to regulate.

Public relations speech is among the most problematic speech in this arena. There’s an ethos in PR that sometimes leads to slippage – thinking that curing perceptions is the same thing as curing problems. We have the tools to determine truth in many circumstances; courts decide questions of fact all the time.

Piety was solicited to represent the Sierra Club on behalf of Marc Kasky, and she’s published on this, but she invites you to look at the pleadings and the California decision. Nike was making representations about its labor practices; arguably the reason Nike didn’t bring a SLAPP suit is that then Nike would have borne the burden of proof on the truth of its representations. Kasky also claimed for fraud and deceit. The court of appeals accepted Nike’s demurrer – that even if Kasky’s claims were true, there was no cause of action. The California Supreme Court said that there was a factual issue and that discovery would be required. That’s far from nuts. The form – letter to the editor – should not dictate the result. Every time Nike’s representatives open their mouths on behalf of Nike, as opposed to on their own behalf, they are trying to serve Nike’s best financial interests.

Piety thinks there is a real problem with “front groups.” The Wal-Mart Across America blog is actually connected to a PR firm, but didn’t disclose it. It is hard to identify harm to any particular consumer, but there is something troubling. Likewise, for over 40 years, the tobacco industry created groups to speak for it and to generate doubt in the information environment over whether smoking harmed health, even when the industry knew internally that it did so. The technique of creating a “research council” is a valuable PR tool, because marketers understand that ads have less credibility and they rarely know when a particular ad works. Thus, getting someone else to carry your message, and keeping it from being identified with you, is really useful.

The tobacco industry had more information on smoking than anyone else, and suppressed it. This is typical of industries – they know more than we do and can manipulate the information we get. This dynamic is at work now with global warming.

Even so, not all these groups are created equal. Some are completely funded by PR firms. Others are composed of actual professionals. Austin suggests that we can create rules distinguishing between non-profits and profit-seeking or mixed groups, just as In re Primus distinguished between ACLU lawyers and lawyers seeking private payouts.

It can’t be the case that we’re powerless before the onslaught of large amounts of money used to create uncertainty and doubt about the safety of our food, our environment, our drugs. If what Nike initially proposed had been taken up by the Supreme Court, it would have been hard to prosecute the tobacco companies for conspiracy, because the entities speaking were somewhat removed from the companies itself. Yet we should be able to respond to grave public health problems and avoid unfettered misleading speech. To the extent that credibility comes from obscuring the source, that’s not a legitimate interest for a corporate speaker.

She always is surprised by paternalism critiques of advertising regulation. The advertising argument is always “tough love.” We said it, we intended for you to rely on it, and you did and were harmed, but you shouldn’t have listened to it. It will be good for you to stop relying on ads! That’s just paternalism of a different sort. She’s not sanguine about Exxon-Mobil deciding her fate; at least she has a vote and a stake in the government. (And as others have pointed out, if advertising really is misleading, it’s autonomy-enhancing, not to mention efficient, to ban it.)

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