June 14, 2013
A Corporate Takeover of the First Amendment?
Cliff SloanPartner, Skadden, Arps, Slate, Meagher & Flom LLP; Member, ACS Board of Directors
Charles FriedBeneficial Professor of Law, Harvard Law School; former U.S. Solicitor General
Elizabeth B. WydraChief Counsel, Constitutional Accountability Center
Burt NeuborneInez Milholland Professor of Civil Liberties, NYU School of Law; Founding Legal Director, Brennan Center for Justice
David M. BrodskyPrincipal, Brodsky ADR LLC; Member, ACS Board of Directors
Sherrese M. SmithChief Counsel to Former Chairman Genachowski, Federal Communications Commission
Corporations have prevailed with First Amendment arguments in several contexts, including credit rating agency opinions, and most recently, marketing and advertising regulation. In the 2010-2011 Term, in Sorrell v. IMS Health, Inc., the Court held that pharmacies have a First Amendment right to sell prescription records to marketing and data mining companies. In Citizens United, the Court held that it was unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions. Is the Court’s First Amendment jurisprudence furthering corporate interests at the expense of public interests? Are these decisions fueling litigation strategies in the lower courts that promise increased expansion of corporate rights? Or are critics just being dismissive of free speech rights because they do not like the speaker? Our panel will describe, from a variety of perspectives, the implications of the Court’s pronounced shift on corporate First Amendment issues.