December 2012

by Dan Urman, Director of Northeastern University’s Doctorate in Law and Policy. Urman is also a member of the ACS Boston Steering Committee.

On Dec. 12, as part of the ACS Boston Lawyer Chapter’s “Legal Legends in the Law” series, Laurence Tribe reflected on his remarkable career as a constitutional law professor and Supreme Court litigator.  Tribe, Carl Loeb University Professor at Harvard University, began by providing an overview of the Supreme Court’s decision to hear two cases related to marriage equality: Windsor v. U.S. and Hollingsworth v. Perry. Disagreeing with popular news reports already predicting the outcome, Tribe argued that more than one justice is uncertain about how he or she will vote.

Tribe (pictured) has decades of experience writing, teaching, and litigating constitutional rights for gay and lesbian Americans, often at his professional peril. He referenced his discussion of sexual orientation in his 1978 Treatise, American Constitutional Law, taking a stance well outside of the legal and social “mainstream.”  \Tribe argued that laws discriminating against individuals based on sexual orientation were “indistinguishable from laws discriminating against individuals based on their race or gender.”  Many friends and colleagues advised him against taking such a position publicly, because it could cost him a position on the U.S. Supreme Court. These warnings resurfaced when he prepared to testify against Judge Robert Bork’s 1987 Supreme Court nomination. Senator Alan Simpson (R-Wyo.) told Professor Tribe that it would be great to see “both of them (Bork and Tribe) on the Court,” and if Tribe testified against Bork, he would be “burning a bridge.”  Twenty-five years later, Tribe said that if serving on the Court meant holding back his actual views, it was a bridge he did not want to cross. 

by Professor Tamara R. Piety, Associate Dean of Faculty Development and Professor of Law, University of Tulsa College of Law

The Supreme Court has been very active on the First Amendment in the last few years. In 2010 it issued Citizens United, a controversial and unpopular decision which announced a robust vision of the role of corporate personhood. According to the New York Times, “[t]he First Amendment dominated” the 2011 term as well when the Court decided, among other cases, Brown v. Entertainment Merchants, a decision striking downa California statute which attempted to restrict the sale of violent videos to children, and Sorrell v. IMS Health, a decision striking down a Vermont statute which attempted to limit the sale of physician prescriber information for marketing purposes without the doctor’s permission on First Amendment grounds.  These cases, and others, taken together reflect a distinct trend, in the Supreme Court and elsewhere, toward greater protection for commercial speech. This trend is the subject my new book, Brandishing the First Amendment: Commercial Expression in America (U.  of Michigan Press, 2012). In Brandishing the First Amendment I discuss the way in which increased First Amendment protection for commercial speech has provided the intellectual foundation for increased protection for corporate political speech, which has, in turn been then used to argue for greater protection for commercial speech, thereby turning the First Amendment into a sort of all-purpose weapon against a variety of governmental regulations.            

This is a troubling development because it is difficult to meaningfully and effectively regulate commerce if you cannot regulate commercial speech. This new and robust commercial speech doctrine threatens to undermine a good deal of the basic regulatory regime legitimized since the New Deal.In Brandishing the First Amendment I look at the various theories that have been offered for why we might want to protect freedom of expression, using as a starting point the work of the late Yale law professor

Thomas Emerson, in particular his book Toward a General Theory of the First Amendment, and conclude that none of interests that freedom of expression is meant to protect are particularly advanced, if at all, by protecting commercial speech.  To the contrary, I argue there is good reason to suppose that offering robust protection to commercial speech may well undermine the very interests the protection for freedom of expression is thought to advance.

In Brandishing the First Amendment I draw on work in marketing research, psychology, behavioral economics, and professional and academic work in marketing and public relations to explore marketing practices and how they work and how marketers,  driven by the imperatives of the market, may engage in promotional practices that are contrary to the public health and welfare. I also explore the attributes of corporate “personhood” as dictated by principles of corporate law and argue that an examination of all of these elements suggests that full First Amendment protection for commercial expression is likely to exacerbate many of the pressing social problems of our times, from changing consumption patterns to ameliorate global climate change to protecting the public from unsafe pharmaceutical drugs; from reining in unsafe promotional practices in the consumer credit market to regulating the sale of securities.  Those interested in the interaction of the First Amendment, commerce, commercialism, and corporate influence in modern life will want to read this book.