The First Amendment and Catch 22

Submitted by: Mike Spindell, Guest Blogger

220px-Anthony_Kennedy_official_SCOTUS_portraitIt’s been so long that I can’t really remember when I first started thinking about and supporting freedom of speech. Perhaps it was when I was eight and went to the local library to borrow Sir Walter Scott’s “Ivanhoe”. I was told I could only borrow books from the children’s section. At the time I didn’t see that as a First Amendment Issue, because I still hadn’t learned about the Constitution. However, as the “Fifties” progressed and the issue of banning books and movies heated up, my social studies education caught up with my natural predilections and I became a full supporter of the idea of the rights of free speech, free press and everyone’s right to access information. During the “Fifties” movies were regularly cut down so as not to offend groups such as The Catholic League. The novels of some of the great authors of the Twentieth Century, such as James Joyce, D.H. Lawrence, William Burroughs and Henry Miller were banned in the U.S. as pornography and their shipments confiscated at our borders. Those of us, like myself, who are old enough to have lived through those times understand that the meaning we give to the First Amendment now, was not the same as it was for the first 160 years (or so) of our country. The lesson of this is that in the courts and with the ever changing political scene , we must ever be vigilant to protect our right as a people to say, read and write what we please, providing it doesn’t cause real danger to others. The catch of course in my last sentence, is what exactly “real danger” is and then what too should be the limits of using freedom of speech as a defense?

The “Citizens United” case defined political contributions by individuals as “freedom of expression”, thus opening the floodgates  of corporate money to influence elections and has been discussed extensively on this blog as shown by these links:: By Jonathan Turley,   Elaine Magliaro,  and myself.  Actually those links alone don’t do justice to the amount of comments and discussions here about this particular case. What I find interesting is that following this case, though sometimes congruent with it, were other cases involving the First Amendment and corporations that might be just as destructive to our nation. What was seen as the “cutting edge” of the fight for freedom in America, for so many years after the 1950’s, may now be the sword of corporate excess, further being used to make us subservient to the expediencies of corporate profits. This new corporate incursion is the subject of this blog.It is appropriate to begin with the actual wording of the First Amendment:

“Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Those 45 words cover a lot of territory and innumerable arguments and court cases, which spread across so many areas of civic life and the lives of our citizens. The words “or abridging the freedom of speech” probably is responsible for court cases that number into five figures. With this always in the back of my mind I ran across an article in the New Republic titled “The Right to Evade Regulation: How corporations hijacked the First Amendment”  BY TIM WU.

Mr. Wu writes about a data mining firm called IMS Health which began buying up the patient data from Pharmacies all across the country. This allowed them to create a data base of patients, their medications and dosages, their prescribing physicians and the other data that would normally be kept for such transactions. This allowed them to create databases of millions of patients and thousand of doctors that were then sold to commercial interests. It is easy to understand how individual companies, such as Pharmaceutical Manufacturers could benefit from this data. They could target Physicians based on their prescriptions for the companies’ drugs, possibly reward them, or send agents to encourage them (in many ways) to prescribe a larger amount. Medication records also would tell much about the patients the drugs are being prescribed for, allowing companies’ to target those patients and not necessarily for drugs. For instance, as a heart transplant patient, I must daily take certain anti-rejection medications that are used for transplant patients alone. These databases would disclose that and possibly I could be targeted by companies who sell products that heart transplant patients would use. Another instance, that might make some men cringe, is that their Viagra prescriptions would give away that they suffer the dread “ID” Impotentancy Disorder, and we need little imagination to understand why advertisers might want to have a database covering them. Mr. Wu writes:

“Eventually, doctors and state officials caught on to what IMS Health was doing. Where the company saw a business opportunity, they saw a strategy that violated patient privacy and could increase health care costs. Three states—New Hampshire, Maine, and Vermont—decided in 2006 and 2007 to ban pharmacies from selling prescription records for commercial purposes. By late 2010, 26 other states were considering similar measures.

Had the issue remained subject to a normal democratic process, it would have continued to play out that way—through a gradual, state-by-state debate about whether so-called “prescription confidentiality” laws make for good policy. But IMS Health did not want that kind of fight. Instead, it filed separate suits against the three states that had first cracked down on its business, invoking the First Amendment. The selling of prescription records, the company asserted, is a form of free speech.”

So ponder this, collecting and selling your prescription records is being asserted as a form of “free speech” by this corporation and thus government regulation against it is impinging upon this corporation’s First Amendment Rights.

“For most of U.S. history, such a claim would have been a dead letter in court. But when it comes to the First Amendment, we live in interesting times. In June 2011, the Supreme Court struck down the new data-protection laws, arguing that they discriminated against IMS Health. “The State,” wrote Justice Anthony Kennedy for the majority “has burdened a form of protected expression. … This the State cannot do.”

It was Kennedy, of course, who authored Citizens United, which established that independent political spending by corporations is shielded by the Bill of Rights as well. The IMS Health case, which drew much less attention, shows just how pervasive such free speech arguments have become. Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint. It is tempting to call it the new nuclear option for undermining regulation, except that its deployment is shockingly routine.”

Here we have yet another example of the “Law of Unintended Consequence”

“The law of unintended consequences is the outgrowth of many theories, but was probably best defined by sociologist Robert K. Merton in 1936. Merton wrote an article, The Unanticipated Consequences of Purposive Social Action, which covers five different ways that actions, particularly those taken on a large scale as by governments, may have unexpected consequences. These “reactions,” may be positive, negative or merely neutral, but they veer off from the intent of the initial action. Merton also described five reasons why a “law” or change might fall under the heading of the law of unintended consequences.

The two top reasons why the law of unintended consequences works, according to Merton, is that the framers of a social change are either ignorant of possible far reaching effects of the law or make errors when they develop a change that don’t have the effects they desired. Other reasons why we sometimes see changes occur after any type of event, new scientific development, or treaty is passed may have to do with “self interest,” so much so that a person who desperately wants to see a change doesn’t evaluate the ultimate effects of that change.”

How were those who led the fight for freedom of speech in the 1950’s and beyond to have foreseen a time when the principles they were fighting for would be turned around and used by corporate America as a means of violating the privacy of tens of millions of people? We know that government is doing it in the name of the “War on Terror” and most of us feel that is bad enough, but now companies can invade the privacy of our lives, with the impunity of protection granted by our own Supreme Court.  What it shows is both the strength and the weakness of our Constitution. Its strength lies in its presenting broad principles that can be interpreted as times change, thus giving it a great deal of flexibility. Yet the Constitution’s weakness is also the fact that its broad strokes are open to interpretations that at times can prove dangerous to the very principles which it embodies.

Mr. Wu continues:

“Last summer, the tobacco industry used the First Amendment to have new, scarier health warnings on cigarette packaging thrown out on the grounds that the labels constituted a form of compelled speech. Ratings agencies like Standard and Poor’s and Fitch, whose erroneous and possibly fraudulent AAA ratings of worthless securities helped cause the banking crisis, have leaned heavily on a defense that deems their ratings mere opinions and therefore protected by the First Amendment. The U.S. Chamber of Commerce is pushing to gut the disclosure requirements in new securities regulations, citing the free speech rights of hedge funds and publicly traded companies. Attorneys working for Google have argued that, since search results are speech, its rights are impinged by the enforcement of tort and antitrust laws. Southwest and Spirit airlines have employed the First Amendment to resist efforts to force them to list the full price of tickets. The incomplete, misleading cost, they have argued, is a form of free speech, too.

Fred Schauer of the University of Virginia calls such claims “First Amendment opportunism.” Free speech is a cherished American ideal; companies are exploiting that esteem, as he puts it, “to try to accomplish goals that are not so clearly related to speech.” The co-opting of the First Amendment has happened slowly, but not at all by accident. First, it was helped along by questionable court decisions. Today, it is being accelerated by a strange alliance between two groups: a new generation of conservative judges, who have repudiated the judicial restraint their forebears prized, and legendary liberal lawyers, like Floyd Abrams and Laurence Tribe, who, after building their reputations as defenders of free speech, are using their talents to deploy it as a tool of corporate deregulation.”

Floyd Abrams and Laurence Tribe are people that I’ve admired because of their dedication to civil liberties and to some degree I can see how their life’s work fighting for First Amendment Rights can lead them to the position that corporate regulation is a restraint upon free speech. While I can understand their train of thought might lead them to this defense of corporate speech, in the end I condemn it. Corporations are legal fictions that the radical members of our Supreme Court have fully empowered beyond the realm of reason. To grant personhood rights to a corporation is to sound the death knell of any sort of democratic or republican system of government in this country. It creates to paraphrase Orwell’s “Animal Farm” the idea that “some people are more equal than other people”. What are my rights or your rights in such a system as compared to the power of the rights and prerogatives of Exxon/Mobil, or Wall-Mart? Part of why this has literally snuck up upon those, like me, who support undiminished free speech, is that we have forgotten the lessons of history and relaxed our vigilance being involved with other issues. Mr. Wu looks at that forgotten history:

“What people think of as the American free speech tradition, is, like civil rights and the Super Bowl, a tradition that turns out to date back only a half-century. As late as the 1950s, cities or states could ban motion pictures they found distasteful, arrest a man for calling the local sheriff a fascist, and lock up declared members of the Communist Party, all without violating the Constitution.

The shift toward free speech as we now understand it can be attributed in part to the Jehovah’s Witnesses. In 1935, the school board in Minersville, Pennsylvania, instituted a mandatory Pledge of Allegiance in its classrooms. Lillian and William Gobitas, children from a local Witness family, refused to participate, following church teaching that holds that seeking salvation from an “earthly emblem” is a sin. The Gobitas siblings were expelled. For good measure, a Catholic parish in the predominantly Catholic town announced a boycott of their parents’ store, wrecking its business. Yet when the Supreme Court took up the case, it voted eight to one against the family. Justice Felix Frankfurter, a liberal Franklin Roosevelt appointee, wrote that to overturn the expulsion would be to make the Court a “school board for the country.”

In the months following, the publicity the case generated turned Jehovah’s Witnesses nationwide into targets. The ACLU recorded nearly 1,500 attacks on members of the religion in more than 300 communities; in some towns, their houses of worship were vandalized or set ablaze. As a small, widely despised group, the Witnesses had no real recourse in the political system. In 1943, the Supreme Court, in a rare move, reversed its earlier ruling and decided that Jehovah’s Witnesses should be able to abstain from the Pledge without facing punishment. So did the modern First Amendment begin its career: as a form of protection for discrete and insular minorities who would otherwise face majority oppression.

From there, the free speech revolution spread slowly before exploding in the 1960s. Schoolchildren protesting the Vietnam War won the right to wear black armbands. A man’s right to wear in public a jacket adorned with “F*CK THE DRAFT” [Note: I inserted the asterisk to comply with WordPress rules on banned words and have as such bowed to a rule with which I disagree and deem silly] was affirmed. Some types of sexually explicit speech got protection. Unsurprisingly, it was also during these years that conservatives staked their original, parsimonious position on the First Amendment. Politicians like then-Governor Ronald Reagan and Richard Nixon denounced what they viewed as a misuse of the Constitution to protect “subversives.” Conservative legal thinkers such as Robert Bork and Justice William Rehnquist led an intellectual assault on an interpretation of the First Amendment that they considered sharply at odds with majority rule. “I like the freedoms of the individual as well as most,” Bork wrote in 1971. But, he concluded: “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.” The battle lines were drawn. To the left, the First Amendment was becoming sacred writ; to the right, it was a living symbol of judicial excess.”

Mr. Wu goes on to detail the history of how the free speech movement has now devolved into a movement that is using the First Amendment to destroy privacy regulation and to destroy our individual privacy. I will not quote him further because I urge you to read the rest of the article to fully understand how we have arrived at this point and to some extent been hoisted upon our own free speech petard. The author supplies much information of which I wasn’t aware and fully details how we have slid down a slippery slope into a wormhole of corporate excess protected by the first amendment.

Detaching myself for a moment from my strongly held views on free speech and what the nature of our Country should be, allow me to look upon the changes times have wrought dispassionately in order to clarify what I see have been the overarching mistakes that people who think like me have made, that has led to this point. It was bad enough for those of conservative mind when the 50’s allowed such books as “Ulysses”, “Lady Chatterley’s Lover”, “Naked Lunch” and “Tropic of Cancer” to be brought into and published in this country. The frank, detailed sexuality of these novels, done by master craftsmen of the written word both shocked and titillated, offending (publicly at least) many a prudish person.  That these books were pornography, in the sense of being sexually arousing, cannot be denied. However, they were pornographic, while being at the same time great literature and to me and others personally I see nothing wrong with books that create sexual arousal. Apparently a fair number of the American public agreed with this notion and they were at least accepted as being within the realm of permitted speech.

The freedom allowed literature to portray sexuality became extended to the Movies in the 1960’s. The first movie I remember to receive wide distribution was the Swedish import “I am curious yellow”. Others followed but the real breakthrough came with Marlon Brando’s “Last Tango in Paris” in 1972. After the major American Movie Star of the time did a movie with intense sexuality in it, the genii was out of the bottle. However, I am using censorship of art as a point of entry in discussing America’s checkered history of allowing freedom of expression. For many reasons sexuality has always been used as a lynch-pin of oppressing free expression in this country, usually under the guise of protecting children.

We Americans have always been suckers when some demagogue invokes protecting children as a banner to put forth their own repressive measures. We are a sexually prudish nation compared to the rest of the Western World, but since sex is the means whereby humanity replicates itself, it is far easier to ban sexuality then under the guise of sparing children’s innocence. The reality though is that while it probably has been used the most often, there are other more insidious ways that freedom of expression has been banned in our country.

Wartime censorship has been going on since the founding of our Republic. Public demonstrations have been disrupted, even when peaceful, because they were for “seemingly unpopular” causes. The Communist Party has been banned during various eras in this country. The Union Movement has had troops called out to quell strikes, even though the strikes were peaceful. A labor strike, without violence is a form of free expression.

I cite these instances to make the point that the movement for First Amendment rights has usually come from people seeking social change. As we are now seeing the First Amendment can represent a two edged sword and right now that edge seems to be cutting on the side of corporate intrusion into the privacy of individual citizen’s. For so many years so many of us exulted in the rulings of the Warren Court since they seemed to herald a change in the texture of this country. Our vigilance waned as we imagined that the enlightened nature of these changes would continue on into the future. In the 1980’s a Democratic Senate defeated Reagan’s nomination of Robert Bork and happy in its victory indulged Reagan’s next nomination of the more moderate Arthur Kennedy. How has that worked out?

I believe that by accepting the definition of free expression put forth by “Citizen’s United” and “ITM Health” the Supreme Court has made a grievous error that will have grave consequences. I don’t believe in an unfettered freedom of expression for corporate entities, since I see it as a danger to freedom in the name of freedom. The price of maintaining our freedom requires constant vigilance and in this instance, in so many ways, I think we’ve dropped the ball. What do you think?

Submitted by: Mike Spindell, guest blogger.

37 thoughts on “The First Amendment and Catch 22”

  1. Mike S.,

    Regarding ALEC:

    South Dakota approves paying legislators’ ALEC dues
    The state legislature’s Republican-controlled Executive Board decided that the treasury should pay the fee
    By Jillian Rayfield
    Apr 24, 2013

    The South Dakota legislature’s Republican-controlled Executive Board approved a measure for the state treasury to cover legislators’ membership fee to the shady lobbying group, the American Legislative Exchange Council.

    From the Aberdeen News:

    “The Republican-dominated board decided the state treasury should pay for the $100, two-year memberships for all 105 South Dakota lawmakers and for unlimited out-of-state trips to ALEC meetings by legislators who are members of ALEC committees.”

    The vote came down to 10-4.

    ALEC is a corporate-funded organization that drafts conservative model legislation and then pushes it out through its members, who serve on state legislatures. Probably the most infamous of the legislation that came from the group was Stand Your Ground, though ALEC says it no longer endorses the policy. ALEC has also been successful at pushing through right-to-work laws and laws that mandate the teaching of climate change skepticism in schools.

  2. mahtso:

    that is a different kind of corporation, it is a legal fiction chartered to provide fiction so it is OK.

  3. News organizations are specifically protected by the 1st Amendment. Otherwise corporations exist only by state charter. We are free to regulate them – including curtailing their freedom of speech – in any way we see fit.

  4. ” However, corporation are legal fictions, not people and they should not have the rights of citizens.”
    So the New York times should not enjoy freedom of press?

  5. What would we do if they did not leave the mike on sometimes?

    The co-opting of the First Amendment has happened slowly, but not at all by accident. First, it was helped along by questionable court decisions. Today, it is being accelerated by a strange alliance between two groups: a new generation of conservative judges, who have repudiated the judicial restraint their forebears prized, and legendary liberal lawyers, like Floyd Abrams and Laurence Tribe, who, after building their reputations as defenders of free speech, are using their talents to deploy it as a tool of corporate deregulation.”

    Lord Acton comes to mind and his power tends to corrupt observations.

    Fame is a form of power, especially when surcharged with money.

    Some may find it interesting that the federal judiciary is composed of “conservative judges” more so now than at any time since the decade of the “Great” Depression (Here Come De Conservative Judges).

    A correlation to their excessive numbers now, and what some call the second “great” depression now, may exist in fact.

    Or it may simply be circumstantial.

  6. Gary T:

    it would seem to me a collection of individuals have the right to pool their money and determine what sort of message they wish to distribute.

    Individuals apply for a coporate license, individuals work in and run corporations. It is no different from a union or a political party. They both generate revenue from the free association of individuals just as a corporation generates revenue from voluntary action of individuals.

    It seems to me a union or political party is a legal fiction as well. In fact any association of people who rely on any sort of government charter could be considered legal fiction.

    But Gene H and Bob Esq and Mespo, all apparently good lawyers, dont agree. So why do you think they arent? There must be a good reason why they dont agree.

  7. I agree that general gag orders are unconstitutional.
    I can almost see where, within a limited context, be it temporal or situational, temporary gag orders may be imposed in the interests of justice, and it irks me to even say that.
    Gag orders related to agreements of being gagged, or perhaps in an ongoing criminal investigation (that would have time limits of say a few months), or related situations. The point is a gag order should have a very well defined purpose and reasonable pre-determined time limit.
    It should never be imposed as matter of hiding something from the public, or to prevent legitimate communications of interested parties.
    (this forum is too short to state properly where a gag order might be permissible, but overall it needs to be particularized)

  8. The First Amendment means that the so-called “court order” by Robert Vinson which claims that everyone is prohibited from revealing it… it means that THAT IS ILLEGAL.

    As soon as the government admits that gag orders are unconstituional, we can start talking about “commercial” speech rights. As long as the government claims that it can issue gag orders, there’s no reason to allow companies to publish my private data.

  9. Mike:

    Fiction smiction.
    What is not a fiction is free speech in whatever form it arrives, and by whatever content it may have.
    Whether that speech comes directly from an individual, or from an association of individuals, it makes not a tad of difference.

  10. Tony & Gary,

    The Walton’s and the Koch Brothers probably can’t be prohibited for directly using their money to support yheir political views. However, corporation are legal fictions, not people and they should not have the rights of citizens. Associations like Alec also can be regulated without giving them First Amendment rights. You may well ask what is the distiguishment I make between ALEC and the Koch’s. ALEC provides anonymity for the Koch’s. If they were to directly fund a political message that is covered by the 1st, but transparent. Yet ALEC provides them cover and I believe is tax deductible to boot. Also Exxon should not have the same free speech rights as you and me. As a legal fiction it rightly can be controlled via legislation.

  11. WordPress is not letting me post.
    Says that that my post is a resubmission of something it refused to post the first time.
    It only let me re-post it on my own blog.
    Something needs to be fixed.

  12. Information in the matrix…. Are you viable…. I wonder what Harold would have to say on Person of Interest….

  13. Mike: I don’t believe in an unfettered freedom of expression for corporate entities, since I see it as a danger to freedom in the name of freedom.

    I think that misses the mark by being too specific. To me, the question to answer is this: If Warren Buffet or Bill Gates or the Koch Brothers or a few members of the Walton family, using their own personal funds, devoted a billion dollars to defeating a Presidential candidate, is that free speech?

    I do not like Citizens United either, but I think we have to struggle with that question in order to have a coherent and logical position.

    As for ITM Health, I think that is an easier question, I do not think selling anything should ever be classified as a form of free expression. Should selling drugs be classified as a form of free expression? How about selling child pornography? After all, it is just a stream of information encoded as binary digits, just like the patient records purchased by ITM Health!

  14. I agree with you Mike. I can not understand how health records that belong to me, can be sold by a corporation that I have not contracted with, to another company under the guise of the First Amendment. Citizens United needs to be overturned by Congress or by a Constitutional Amendment. Crazy.

Comments are closed.