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.)

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