With a fight looming over the future of the U.S. Court of Appeals for the D.C. Circuit, law professor Tim Wu offers an excellent analysis of one of the most significant legal trends to emerge as supposedly conservative jurists - including some on that key appeals court - have embraced a new avenue of judicial activism: allowing corporations to use the First Amendment as a shield against regulation.
Citizens United v. Federal Election Commission, the 2010 case in which the Supreme Court said corporations were entitled to the same free-speech rights as individuals, is much better known. But Wu sees it as part of a larger, long-term fight against any restrictions on corporate "speech" - a position that, if applied to ordinary commercial speech, can undermine the government's ability to regulate any marketplace activity.
In The Right to Evade Regulation How corporations hijacked the First Amendment in the New Republic, Wu says a key commercial-speech case came a year after Citizens United, when the high court sided with pharmaceutical marketers on free-speech grounds in a data-mining case. In Sorrell v. IMS Health, the court overturned a Vermont law that barred the sale of "de-identified" prescription records to drugmakers - data that identified doctors but not patients, and that enabled drugmakers to target marketing efforts at physicians deemed more likely to prescribe their products. The court said barring data miners from selling their knowledge violated their corporate First Amendment rights.
The irony, of course, is that conservatives once complained about the left's First Amendment activism. But it's worth recalling the history Wu recounts of how pre-New Deal courts used corporations' constitutional rights to reject laws that most Americans now consider untouchable, such as restrictions on child labor, and considering what a return to that kind of judicial activism could portend. Wu writes:
Wu doesn't dispute that regulations can sometimes impose undue burdens - a question that rule-making procedures, backed up by the political process, should address. But the Columbia University scholar is rightly troubled by corporate attorneys' attempt to play the First Amendment as a "trump card."
"These massive corporations are not the Jehovah’s Witnesses, unpopular outsiders needing a safeguard that legislators and law enforcement could not be moved to provide. They are active, influential participants in American politics turning to the Constitution for a second bite at the apple when the political process fails to give them what they want," Wu says. "Every time that strategy succeeds, the underlying debate is placed beyond democratic decision-making, supposedly because the authors of the First Amendment would have wanted it that way two centuries ago. Whatever your politics, it seems a strange way to conduct economic and regulatory policy."