When Silence is Not Golden: Negative Free Speech and Human Rights for Corporations
When is silence not golden? When it supplants people's authority by allowing corporations to remain silent on factual information, protected by the doctrine of negative free speech. Negative free speech is a Supreme Court expansion of the free speech provision of the First Amendment; it is a right to be free from forced association with a particular expression of speech. This legal existence has significant implications for social justice activists and serves to illustrate how the law is used to promote a narrow conception of democracy and human self-governance.
We find the origins of negative free speech in court battles over state laws intended to promote a diversity of views on issues of public concern. Two laws and the subsequent court battles over their constitutionality are worth noting. The first is a 1973 Florida state law that granted political candidates the right to equal newspaper space to respond to criticism of their record by a newspaper, often called "right of reply" statutes. The second is a 1980 administrative law passed by the California Public Utilities Commission that mandated access to the billing envelopes of the Pacific Gas & Electric Company for use by a ratepayer's organization; if the utility company took a stance on an issue of ratepayer concern and distributed that stance in billing envelopes then ratepayers should have equal access to voice their divergent opinion. The Miami Herald Publishing Company successfully challenged the Florida law in the US Supreme Court1, and the Pacific Gas & Electric Company successfully challenged the Commission's administrative law. 2 Both corporate victories helped establish the right not to speak -- negative free speech -- as a First Amendment protection.
In numerous cases, US courts at all levels affirm informational diversity as one of the intentions of the First Amendment -- the more voices, the better it is for a democracy. These good intentions have led to some decisions antithetical to democracy, such as the equation of money with speech (thus granting constitutional protection to corporate spending for political purposes) 3 and the doctrine of negative free speech -- particularly when it causes the withholding of factual information of public interest. 4
The federal courts permit some legislation to infringe upon constitutional liberties, inventing the doctrine of strict scrutiny as a tool to determine whether or not a particular piece of legislation will be "allowed" to do so, or whether it should be struck down. Strict scrutiny requires that the government prove a compelling public interest is being served. For example, a law that prevents people from falsely yelling "Fire!" in a crowded theater is allowed to restrict freedom of speech because that particular expression of speech poses an imminent threat to public safety (e.g., a human stampede can cause injury and death), and public safety is a compelling state interest. The second prong of the test asks whether or not the legislation implements a "narrowly tailored means" to satisfy the compelling state interest. To continue with our "Fire!" example, a law that forbids all speaking inside a theater may be applauded by those bothered by others who talk during performances, but it is far too broad to meet the compelling interest of public safety. Outlawing a falsely shouted "Fire!" is suitably narrow. Legislation is deemed unconstitutional if it fails either part of this test of strict scrutiny. 5
The Supreme Court applied strict scrutiny to both the Florida and California laws, decided that they failed the test, and overturned them. The Court noted the laws in question depended upon the content of speech; it was only in those cases where there was opposition to corporate speech that citizen access to the corporate-controlled communication channels was required. In Florida, this was space in the same newspaper that had printed criticism of a political candidate. In California, this was in the billing envelopes the corporation sent out to utility customers. In both cases the corporations claimed their free speech rights were violated because they were being forced to associate with speech the corporations did not endorse. The Supreme Court hypothesized that if these laws remained on the books, the only way for the corporations to avoid the association with disagreeable speech would be for them not to publish any controversial speech at all. Thus the Court concluded that these laws impeded the informational diversity that the First Amendment seeks to foster and placed an undue burden upon corporate speakers. The Court thereby decided these laws infringed upon the fundamental liberty of free speech. Applying the test of strict scrutiny, the Court saw neither a compelling state interest being served nor a suitably narrow means of achieving whatever interests that state did possess. Thus both the Florida and California laws were revoked, and negative free speech became a new tool in the corporate fight against the potential for human self-governance.
There are two other assumptions of note in these Supreme Court decisions. First, the Court made no distinction based on who was speaking; that is, corporate speech and that of humans were considered equal before the law. Second, even a highly regulated company like a public utility warrants the same speech protections as a less or lightly regulated company. These assumptions magnify the impact of negative free speech because they remove from citizen authority the ability to distinguish between speakers, thereby creating the circumstances for conflicting claims over rights. This particular point is well illustrated by the 1996 federal Court of Appeals case of International Dairy Foods Association v. Amestoy.6
At the heart of this case were conflicting claims to the human right of free speech by humans and corporations. As readers of constitutional cases know, the framing of a case substantially determines whose rights, and thus whose interests, shall triumph: the right of human beings to be informed of factual information or the corporate claims to negative free speech? Current Supreme Court doctrine holds that both reside in the First Amendment protection of freedom of speech. International Dairy Foods concerns a Vermont labeling law that sought to provide factual information to consumers, enhancing their ability to make informed purchasing decisions.
The law required that dairy products produced by cows treated with genetically engineered recombinant growth hormone (rBST) be labeled as such. 7, 8 The labeling technique detailed in the law was simple: either producers of affected products would add a blue rectangle to their packaging or retailers would affix a blue dot to the package. The Vermont merchant would also post a sign in their store defining what that blue symbol meant to the purchaser:
THE PRODUCTS IN THIS CASE . . . CONTAIN OR MAY CONTAIN MILK FROM rBST TREATED COWS. . . . The United States Food and Drug Administration has determined that there is no significant difference between milk from treated and untreated cows. It is the law of Vermont that products made from the milk of rBST-treated cows be labeled to help consumers make informed shopping decisions. [caps in original]
A closely related collection of dairy industry corporations appealed the law. 9 The Monsanto Company, the producer of the only FDA-approved rBST product, filed an amicus brief. Their lawyers claimed the statute violated the corporations' negative free speech rights of the First Amendment. 10 But the court recognized that the human beings who were to be the beneficiaries of this factual information were also making claims upon the First Amendment -- specifically the right to be well informed. 11
The court decided on behalf of the dairy corporations, agreeing with their lawyers' claims that the statute required them to make involuntary statements in violation of their First Amendment rights. The court then failed to see any substantial state interest as being served by the labeling law. Unlike food additives, rBST is not directly added to food but rather added to dairy cows. "[T]he state itself has not adopted the concerns of the consumers; it has only adopted that the consumers are concerned. Unfortunately, here consumer concern is not, in itself, a substantial [state] interest." 12 Ideologically speaking, the court presumed that consumers had no interests other than curiosity, which is inadequate justification to pass a law restricting corporate speech. The court decided that the knowledge of how products are produced -- including such unsavory production practices as child labor and environmental damage resulting from production process -- is beyond the authority of its citizens' demands and not of legitimate concern for the purpose of labeling laws.
The Court of Appeals recognized this power of law to influence ideology and thus public consciousness. If mere human concern alone were sufficient to compel corporations to label products with details on how a product was produced, then it is reasonable to infer that any and every request for informational disclosure could be justified. So the Court of Appeals used the law to temper such human expectations and ideals:
Although the Court is sympathetic to the Vermont consumers who wish to know which products may derive from rBST-treated herds, their desire is insufficient to permit the State of Vermont to compel the dairy manufacturers to speak against their will. Were consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods. For instance, with respect to cattle, consumers might reasonably evince an interest in knowing which grains herds were fed, with which medicines they were treated, or the age at which they were slaughtered. Absent, however, some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it. 13 [italics added]
The Court of Appeals, because of its limited definition of "safety," did not recognize any legitimate safety issue because the FDA had already determined there were no health or human safety issues related to the use of rBST in dairy cows. In the end, basing their opinion on "sound science" -- i.e., that what the FDA does not know (or tell us) cannot hurt us -- the court struck down the Vermont labeling law.
International Dairy Foods decided that humans do not have the right to even know where rBST is used. And inconveniently for consumers, the Monsanto Company's filing of lawsuits against two Vermont dairy producers, and their threats of legal action against two thousand others, effectively prevent the public from knowing where rBST is not used. 14 This arrangement grants corporations the right to silence people's right to know, thwarts the concept of "enlighten[ing] public decision-making in a democracy," 15 and denies citizens the ability to "exercise the power of their purses" as the Court of Appeals cynically suggested would be a viable alternative to the labeling law.
The dissenting opinion of Justice Leval took a different tack on this case. He recognized that the labeling law dealt with factual information -- not opinion. The judgment arising from facts comes from the reader -- not the speaker of the facts. This factual information is exactly the kind of information that citizens have a right to request, and the government has the legal capacity to procure an answer. He wrote:
[T]he true objective of the milk producers is concealment. They do not wish consumers to know that their milk products were produced by use of rBST because there are consumers who, for various reasons, prefer to avoid rBST. . . . In my view, the interest of the milk producers has little entitlement to protection under the First Amendment. The case law that has developed under the doctrine of commercial speech has repeatedly emphasized that the primary function of the First Amendment in its application to commercial speech is to advance truthful disclosure -- the very interest that the milk producers seek to undermine. 16
In other words, consumers have a legitimate right to know factual information, and manufacturers do not have a legitimate grant of authority to remain silent. Compared to the majority opinion, this dissent reflects a very different understanding of citizen sovereignty and self-governance, in particular that citizens possess an authority superior to those of their corporate creations. It also reflects an understanding that the case represents a conflict over authority, not a conflict over rights. This issue of authority deserves additional attention as it widens the scope of ethical investigation in thinking about the corporate claims to free speech rights in the specific context of this case, and claims to any human rights in general.
In theory a government should provide for the safety of its citizens and for keeping the peace. Towards fulfilling these responsibilities, citizens tacitly accept the need for an enforcement "branch" of government, populated by the police and military. Additionally, these state responsibilities are considered valid justification for laws that infringe on constitutional rights. The recurring questions for self-governing people are whose safety, whose peace, and who is being forced by police power to be peaceful? In International Dairy Foods we can see that it is safety for corporate markets and that citizens do not have the sovereignty to demand that police power instead be used to insure that self-governing people be well informed in order to be effective in their practice of self-governance. Here the police power was applied to keep people uninformed.
International Dairy Foods represents rivalrous claims upon the First Amendment: the corporate claim upon the right not to be associated with certain speech versus the human right to be informed. It calls attention to the immoral arrangement of granting human rights -- those few recognized in the Constitution -- to corporations. And this arrangement calls attention to a presumption that people and corporations have equal claims to rights, and thus are equal in the eyes of the law and of the courts. Ignoring this arrangement and its presumption perpetuates the ideology that conflicting claims upon the Constitution by human beings and corporations must be settled on the merits of individual conflicts of rights, whereas the whole conflict could be settled swiftly by conferring upon human beings sole claim to all constitutional and human rights. 17,18 By this arrangement, conflicting rights claims by human beings and corporations would not be possible, and human beings would recover a sovereignty in practice now asserted only in US mythology.
As we can see, framing the International Dairy Foods case as one of conflicting claims to rights insures that many fundamental issues regarding democracy and self-governance will not be dealt with. Should commercial speech receive any constitutional protections? Is it rational to believe that corporations engage in any speech other than commercial speech (a crucial point to make regarding corporate claims to a "right to lie")? Why do states fail to grant legal force to citizen concerns not sanctioned by regulatory agencies like the FDA and EPA? The largest question is ignored as well: should corporations possess any constitutional rights at all?
International Dairy Foods failed to address any of these issues. The federal Court of Appeals instead framed this case as one of conflicting claims to the same right, and thus it only had to decide whose claim was superior and thus triumphant. The rule of law presumes that such conflicts can be impartially resolved but alas, that is a myth. The framing of this case imposes a distinct partiality, a bias perpetuating corporate ideology, and eliminating issues of legitimate concern for a self-governing people. Activists and lawyers should not shy away from these issues, as their public discussion will raise our standards and demands for democracy in the United States.
© 2003 by Dean Ritz, who is the editor of the POCLAD anthology, Defying Corporations, Defining Democracy, and co-producer of the Montana Public Radio show Ethically Speaking.
Published in By What Authority, Vol. 5, No. 2 - Spring 2003, A publication of the Program on Corporations, Law and Democracy. POCLAD is a project of the nonprofit Council on International and Public Affairs.
1. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
2. Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1988).
3. See Buckley v. Valeo, 424 U.S. 1 (1976), and First National Bank of Boston v. Belotti, 435 U.S. 765 (1978).
4. This raises the question of what is of legitimate public interest. For purposes of this article I minimally consider legitimate all factual information even obliquely pertaining to human and environmental safety or to human self-governance. The purpose of this information is empowerment to make informed decisions.
5. There is a third component of strict scrutiny that only arises when the legislation is directed at a "suspect class," such as African-Americans. With this legislation the government must demonstrate that such a restriction to a suspect class serves a compelling state interest and is itself as narrowly tailored as possible.
6. 92 F.3d 67.
7. Vermont Stat. Ann. tit. 66, § 2754(c).
8. rBST is also known as recombinant bovine growth hormone, or "rBGH." Recombinant Bovine Somatotropin (rBST) is a synthetic growth hormone approved in 1993 by the federal Food and Drug Administration (FDA) for use in dairy cows producing milk for human consumption. Cows treated with rBST produce more milk, but also suffer from increased risk for "clinical mastitis [udder infections] (visibly abnormal milk), digestive disorders such as indigestion, bloat, and diarrhea, enlarged hocks and lesions, and swellings." Currently the Monsanto Company markets the only FDA-approved rBST formulation under the trade name "Posilac."
9. Readers are directed to: www.idfa.org/about/mission.cfm#who and www.nfpa-food.org/whoweare.htm.
10. Actually, they also claimed that the statute violated the commerce clause. The Court of Appeals did not address this claim as they threw the law out based on the negative free speech.
11. See Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
12. International at 73.
13. International at 74.
14. "Critics charged that the [FDA labeling] guidelines [for dairy products procured from rBST/rBGH treated cows] contained language 'strikingly similar' to that found in a legal memorandum Monsanto previously distributed, which warned companies not to label their products as rBGH-free. In any event, following the publication of the guidelines, Monsanto proceeded to levy suit against two dairies, which did just that, and the company wrote to over two thousand other firms, threatening them with legal action if they dared to do the same." From "Pushing RBST: How the Law and the Political Process Were Used to Sell Recombinant Bovine Somatotropin to America," by D. Aboulafia, Pace University Law Review, 15 (Summer 1998), 604-653; cited material 617-619.
15. Virginia at 787.
16. International at 80, dissenting opinion.
17. Constitutional rights are minimally identified as those rights enumerated in the Constitution. Some people additionally include those rights identified by federal courts as being found within the scope of the enumerated rights. What is in the set of human rights -- that is, those rights a person has by virtue of being a human being -- and which exist regardless of the person's citizenship or lack thereof, are not universally agreed to. The Universal Declaration of Human Rights as advanced by the United Nations provides a starting point for discussion.
18. Patricia Werhane has written about this with regard to employee/employer relations. See Persons, Rights, & Corporations, Englewood Cliffs: Prentice-Hall (1985).