Shiffrin tribute: concluding reflections

Moderator: Tamara Piety, University of Tulsa College of Law: Has commercial speech become an empty set, like obscenity, given that most advertising doesn’t say anything you could identify as true or false? People run through fields of flowers, making you desire the purple pill – what is that saying and how do we think about regulating it? (Largely, we don’t – we’ve given up.) Imagine that the positive claims in ads had to be made in tombstone format and the disclaimers and warnings had to be vivid and imagistic.

Also, we tend to talk about corporations as natural beings that just happen to have a particular structure, rather than as a product of law (which is what makes Seana Shiffrin’s perspective so helpful).

Eugene Volokh, UCLA School of Law: There are two ways of applying First Amendment theories – first, does this speech advance the interest we care about? For Shiffrin, does this advance the goal of preventing injustice? Shiffrin says some speech encourages materialism and distracts from justice, and thus should be valued less than other speech. But we might get our evaluation wrong. Volokh thinks that materialism and consumerism promote justice. The countries that have emphasized consumerism have done better than ones that haven’t. We could engage in status competition in other ways, like destructive political battles or hypernationalism or utopian ideologies; compared to that, liking tennis shoes is nicer. It fosters attitudes favoring consensual trade and material improvement for yourself and your family, and usually requires you to acquire skills and habits that make it more likely that other people will want to trade with you. Advertising may not promote justice directly, but it doesn’t hinder it. In fact, desire for equal access for material goods has driven many equal rights movements.

There are different visions of what promotes and prevents injustice. If your theory of First Amendment theories is that courts should evaluate individual types or even instances of speech for furthering the relevant values, you risk serious systematic errors. Don’t ask whether communist speech promotes democratic self-governance, but whether protecting a broad range of speech promotes our values more than giving judges discretion on a case-by-case basis. Sometimes the answer will be: judges should have discretion. But often it won’t be.

Second, Shiffrin said in response to Redish that you can’t just look at one argument against protection, but at the complex of arguments taken together. Volokh argues that, likewise, a lot of the information we get in private conversation, in bits and pieces, ends up being more important to our decisions than political stump speeches. Commercial advertising is another input, whether it’s “buy American” or simply “this is a good car,” which may affect our overall views about automobile regulation. Maybe it’s the aggregate of speech that’s relevant to Theory X rather than a particular ad.

Another question: do we define speech in (protected if within our categories) or out (presumptively protected absent exception)? How open should we be to moving speech in or out? There’s a tendency to overstate the extent to which lack of coverage is uncontroversial, for example on informed consent requirements. A court actually struck down an informed consent requirement on First Amendment grounds. We can’t just assume that professional/client speech is outside the First Amendment. Of course such speech is relevant to the formation of political and public opinion, as when our doctors talk to us about abortion.

The intentional infliction of emotional distress tort, for another example, has been substantially limited on First Amendment grounds, and the remainder is still controversial. Likewise the disclosure of private facts tort, and the public concern test, and other limits/exceptions that we’ve been treating as clear limits on speech.

C. Edwin Baker, University of Pennsylvania Law School: We ought to reflect on the utility and dangers of symbols and images. Shiffrin’s early work was appealing because it offered the dissenter as a symbol rather than the marketplace. Most of people’s examples of valuable speech – opera, State of the Union address – were types of speech that no one is proposing to regulate. So should we find some other core examples? Another notion: suppressing “one side” is wrong. If you can convince Americans that’s what’s going on, you’ve gone far on the way to First Amendment success as a practical matter, regardless of theory.

Another image: The personalization of the corporation as if it were just another speaker, so that General Motors and a car buyer are the same. Are we being tricked about the way the world is? If we imagine Nike as identical to a natural person, then we see “one side” suppressed in Nike, even though any natural person is free to speak out on Nike’s side, and many did.

Criticism of the marketplace of ideas: it doesn’t work. If we were all perfectly rational and had infinite time, maybe discourse would really lead to wisdom. But some groups have more power than others, and what society concludes is powerfully affected by the resources supporters are able to put into persuasion. Given that we don’t even have an idea of what it would be like for a marketplace of ideas to be fair, it’s inadequate as a constitutional metaphor. But we still depend on people making decisions after hearing claims, and that commitment is important to our society and our freedom. This is where social engineering, in Shiffrin’s terms, come in.

How should social engineers think? Look for failures. If hundreds of billions are spent on advertising, how much is spent on promoting “green” or nonmaterialistic values? Even if the latter aren’t the right ones, the question is whether they have a fair shot. How do we empower people to disrupt the status quo that dominates not because of the brilliance of its arguments but because of the resources backing it? The image of the dissenter can help guide us.

Piety: She’s sympathetic to the idea that materialism can be progressive – the creation of a market advertising overtly to gays and lesbians helps legitimize them as subjects. But what about a tobacco company’s idea that women’s liberation means smoking? Consumers often try to avoid ads; why should Philip Morris be able to dictate to me what liberation means any more than the government? At least I voted for government representatives.

Volokh: Why is it paternalistic to advertise to you? I’m saying my view is better than yours, but that’s the essence of persuasion. When the government keeps you from hearing certain views, that’s different.

Why isn’t it disrupting the status quo for Philip Morris to say “screw all this health stuff, smoking is fun”? The very fact that tobacco is restricted makes it a source of dissent. The broader point: to say the marketplace of ideas doesn’t work is hyperbole. Holmes doesn’t say truth will come from the market, but that the best test of truth is its ability to succeed in the marketplace.

Piety: Often true, but consider “green” claims – government institutions may be better positioned to evaluate truth than consumers in the market.

Redish: How far does the dissent approach get us? Isn’t there a circularity problem? Every time speech is regulated based on content, it’s dissenting.

Shiffrin: Two points – in crafting categories, look at the overall category. Dissent is the practice of criticizing customs, habits, authorities, etc. Commercial speech generally doesn’t do that. That there might be some instances in which it does criticize does not make it dissent. Perjury is not dissent; it doesn’t criticize the existing system.

Re Volokh’s point – children now think the point of life is to get rich, and they have hugely increased levels of anxiety about being able to get particular products. We have to make a choice – to choose neutrality is to choose to have our kids live this way. There is neutrality liberalism, which assumes rationality and assumes that truth emerges in the marketplace. (Holmes is not good on this because he’s a social Darwinist; he doesn’t even believe in truth.) The other version believes we have a commitment to moral beings and should structure society for them. When you decide not to regulate, you get $265 billion of spending to promote products, and the overall impact is different than trying to promote a single product – the overall impact is to convince people that being rich is important. People somehow think they’re not influenced by this and that advertisers are wasting billions of dollars.

Throughout, people have said that those who want to regulate commercial speech are foisting ideologies on others. The fact is that liberal neutrality -- a commitment to the idea that people act rationally when bombarded with imagistic advertising -- is also an ideology, and not a neutral one and not one backed by evidence.

Volokh: You’re hoping that the voters will agree with you and regulate imagistic advertising despite this bombardment. There are different views of the good life, and suppressing some speech to persuade people of the right meaning of life is viewpoint discrimination. And if you win, would speech advocating materialism become dissent?

Shiffrin: Under no circumstances would he say that non-commercial speech advocating materialism should be suppressed. He’s arguing for something rather modest. It would not be unconstitutional to move to a system of mass communications – TV – that didn’t involve advertising. The current system is run by advertising and has a significant cultural impact, and the government could take that into account.

Weinstein: Our theories don’t depend on fears that people will be persuaded by something (except, apparently, that they will be persuaded by Shiffrin’s pro-regulation argument). We aren’t worried about how people are persuaded. That’s a different level of values.

Shiffrin: What about advertising to children?

Weinstein: That might be constitutional. (Not clear what he means here; I think he means he’s willing to accept regulation.) But if you’re worried about adults being persuaded, you’re advocating viewpoint discrimination, whereas our theories are of course not value neutral but don’t require viewpoint discrimination. (There’s some manipulation of baselines going on in this argument.)

Also, is discriminatory speech about racial and sexual equality now dissent? Would you want to restructure society to make sure that such viewpoints don’t get lost in the new social consensus, as you want to restructure society for nonmaterialistic views?

Baker: As to individuals, you don’t tell them that they can’t speak or can’t associate. We’re choosing different structures in communication to favor and disfavor certain things, as we choose certain distributions of income and property rights. Unorthodox positions must be allowed, but he wants to reserve judgment on particular solutions.

Collins: Equating corporate and commercial speech is problematic from the outset. R.J. Reynolds the natural person/zillionaire making a statement about tobacco shouldn’t be different than R.J. Reynolds the corporation. The critique of corporate power assumes that corporations are big and tyrannical, but there’s also the idea that corporations and limited liability allow the little guy to come into the market and not be blown away. If corporate structure can enable moral behavior in the market, as Seana Shiffrin said, shouldn’t we respect that?

Congratulations to Loyola and the organizers for an excellent conference.