Judge Alex Kozinski likes free speech and Lochner

Commercial Speech Conference, Abrams Institute

 

Interview: Who’s Afraid of Commercial Speech? — 26 Years Later

 

Ron Collins (Harold S. Shefelman Scholar, University of Washington, School of Law) & Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit). (Both, incidentally, won their episodes of The Dating Game.)

 

Collins: Skelly Wright said commercial speech doesn’t directly communicate ideas and thus isn’t at the core of the First Amendment.

 

Kozinski: clearly it does communicate ideas.  As a clerk, watched the argument in Bates lawyer advertising case.  The idea that ideas belong in one intellectual realm and commerce in a different realm is discredited.

 

Collins: does the 1A have a central purpose as such?

 

Kozinski: clearly not, if you mean the 1A as a whole.  Speech/press/assembly: never thought of it that way.  Probably, an idea like the 2A’s: a way to protect against gov’t overreach.  A popular check on what gov’t can do.

 

Collins: what is commercial speech?

 

Kozinski: A noncategory.  Valentine case: strike it from the lexicon. Doesn’t make sense to have a hierarchy, both theoretically and practically.

 

Collins: You’ve criticized theory-based approaches.  So one theory is that speech is more protected the more it furthers democratic self-governance.

 

Kozinski: Bull.  Society is not compartmentalized between gov’t and other endeavors. Speech is speech, just as a functional matter. You get ideas and they feed into popular culture, which leads to changes in gov’t.  Example: article on criminal law I wrote in Geo. L.J., including on forensic science used by prosecutors.  State of science in criminal cases is a shambles. Basically voodoo.  As a result of writing this article, I was invited to be a member of a presidential commission dealing w/forensic science.  My piece in academia then is part of the wave of ideas that (hopefully) affects and is affected by gov’t.  After all, nobody but the occasional prosecutor wants to convict the innocent. And some of that speech started in purely scientific fields.

 

You can characterize everything as democratic self-governance; it’s not that everything feeds into governance, but what we do in gov’t has effects in real life.

 

Collins: Meiklejohn had a theory of free speech; ran into difficulties when Harry Kalven asked him about artistic expression, and he expanded his views to include art.  Is artistic expression, when done for commercial purposes, is that self-realization, or self-governance, or something else? I ask b/c these theories are the constructs by which speech is gauged as protected or not. A talented artist who says she’s in it for the money: what is that?

 

Kozinski: it’s difficult and futile to characterize speech that way. Useless. Subjective intent of artist: baring soul or trying to make a buck, doesn’t matter.  [I’d like to know why the question is being asked: what regulation might stand or fall on the artist’s intent?]

 

Collins: you said reason for lower protection for commercial speech was in history, not logic; view echoed by Justice Thomas in 44 Liquormart.  So someone selling cars, and making claims about those cars, should be treated the same way as speech in the political arena by Mr. Trump?

 

Kozinski: depends on what you mean and for what purposes.  When there are commercial transactions, you can have fraud, civil liability and criminal liability based on speech.  Blackmail, securities transactions—those are possible, which should not be possible for political speech.  As a matter of theory they aren’t different.

 

Collins: but what you just said indicates that political speech is more protected in your view than commercial, b/c of how you treat false speech.

 

Kozinski: some things have implications that allow for punishment, b/c of direct harm to victims from speech itself; that’s a narrow category. [Directness doesn’t do the job he thinks it does—remember caveat emptor and letting the market decide.]  Doesn’t mean that speech is less important.

 

Collins: current constitutional status, in your view?

 

Kozinski: SCt takes cases at the margin, not the center; doesn’t mean a test is bad, just that sometimes all tests have difficult applications.

 

Collins: then can bright line rules survive in any constitutional context?

 

Kozinski: they’d better, b/c the alternative is “who’s the panel?”  At least tests give you some broad ability to predict/advise clients.  In 90% of cases overall, it doesn’t matter who the panel is.  Need to give a rationale that’s capable of application in future cases; that’s part of the appellate judge’s role. Having tests w/prongs channels this thinking, channels att’n of future decisionmakers and gives some measure of predictability.  The fact that close/difficult cases are still uncertain doesn’t negate that principle or prove that tests are useless.

 

Collins: one taboo of our time is “Lochner.”  Linda Greenhouse: the Court returns to the bygone era of Lochner by labeling econ. reg. of business conduct as a restraint on free speech.  (Borrowed from Rehnquist dissent in Central Hudson.) Others have echoed that charge, criticizing the Roberts Court for using 1A as a deregulatory tool.  Your thoughts?

 

Kozinski: Can’t speak to Rehnquist, but he likes Lochner, so that’s ok with him.  He doesn’t see a problem w/that.  When you talk about regulation, you’re talking about gov’t control. 1A as a way of controlling gov’t: regulatory state is a reality.  Does more day to day governing our conduct than actual legislation.  Good thing to put another check on gov’t regulation.

 

Collins: What about data as speech/algorithmic securities trading?

 

Kozinski: it surely is a form of communication, becoming the dominant form.  Has 1A implications, but not prepared to say to what extent.

 

Collins: we tend to think of speech as person to person, but when computers are sending data to each other, the result of which is a commercial transaction, do you think it’s w/in the umbrella of 1A coverage (whether or not protected)?

 

Kozinski: Doesn’t see why not.

 

Collins: TM and free speech: any thoughts about how to approach such issues?

 

Kozinski: wrote an article, Trademarks Unplugged, about how TMs get injected into culture; easiest way to communicate may be to use TM as shorthand for communicating an idea. Displace other ways of saying the same things; give up the right to control such uses.

 

Collins: what about offensive speech in a TM context?

 

Kozinski: won’t try to decide the REDSKINS case. Hard to say in the abstract; depends on the Q. If Q is whether you want to make a reference to the TM in communication, that’s different from whether TM owner is entitled to a particular mark that’s offensive.

 

Collins: off-label promotion by pharma cos?

 

Kozinski: Possible fraud issue. 

 

Collins: if truthful?

 

Kozinski: full answer: claim that it’s truthful is beginning of inquiry. Might be truthful but misleading, particularly w/things that are highly regulated like drugs. Ability to mislead or create harmful effects w/truth is pretty high.  Concurrence in Alvarez: not a big believer in truth as a talisman; lying is part of life. Distinction b/t truth and lying is not that useful in the 1A context.

 

Collins: porn is a $97 billion global industry.  Some men are convinced that porn sabotaged their sexual responses.  What sort of considerations would come into play if a gov’t tried to regulate porn on public health grounds? 

 

Kozinski: can be asked about other kinds of speech, such as Stevens (crush videos) and violent video games.  Had some doubts, similar to those of Alito’s dissent in Brown. Part of the problem is that Cal. didn’t do particularly thorough job of documenting link b/t violent video games and bad effect, but if there were really good, reliable research on a type of speech doing harm, particularly to minors, gov’t should have ability to restrict it.  For adults, that’s a more difficult question; probably not, but trouble coming up w/principled reason.