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.

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