Corporations take First Amendment and apply it liberally

Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters.

These days, a provocative new study says, there has been a “corporate takeover of the First Amendment.” The assertion is backed by data, and it comes from an unlikely source: John Coates IV, who teaches business law at Harvard and used to be a partner at Wachtell, Lipton, Rosen & Katz, the prominent corporate law firm.

“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Coates wrote. The trend, he added, is “recent but accelerating.”

Coates’ study was only partly concerned with the U.S. Supreme Court’s recent decisions amplifying the role of money in politics.

“It’s not just Citizens United,” he said in an interview, referring to the 2010 decision that allowed unlimited independent spending by corporations in elections. His study, he said, analyzed First Amendment challenges from businesses to an array of economic regulations.

Tim Wu, a law professor at Columbia, described the shift in First Amendment doctrine in 2013 in the New Republic.

“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,” Wu wrote.

“Madison’s Music,” a new book by Burt Neuborne, a law professor at New York University, gives a detailed history of the transformation of First Amendment law. In his account, “the American right discovered the First Amendment” in the early 1970s.

“An expansive conception of free speech became attractive to Republican justices,” he wrote, “both because robust free-speech protections fit neatly into the right’s skeptical, deregulatory approach to government generally, and because it energized vigorous transmission by powerful speakers of the right’s newly energized collection of ideas.”

Those conservative justices, Neuborne wrote, found willing allies in liberal justices long committed to free speech.

In the next two decades, the Supreme Court continued to protect dissent, twice voting to strike down laws banning flag burning. But now, Neuborne wrote, broad coalitions of justices also voted to protect the powerful.

In 1976 alone, he wrote, the court shielded both unrestricted election spending by rich people, “giving the 1 percent a tangible reason to celebrate a muscular First Amendment” and commercial advertising, “giving corporate management a strong stake in the First Amendment.”

By the time the left woke up and realized it had made “a Faustian bargain,” Neuborne wrote, “the bipartisan coalition had generated an enormously powerful body of precedent establishing an imperial free speech clause.”

The case on commercial speech, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, was a turning point, Coates found in his study. After that ruling, the average number of First Amendment cases in the Supreme Court involving businesses started to rise to 2.2 a year from 1.5, and the number involving individuals started to fall, to 3.6 from 4.3.

More striking, the success rates for both groups increased, but far more for businesses. Individuals won 55 percent of the time, up from 41 percent. Businesses also won 55 percent of the time, up from 20 percent.

Before 1976, First Amendment challenges from corporations generally involved companies in the business of free expression, like newspapers, book publishers and film producers. More recently, companies have filed free-speech challenges to laws regulating how ordinary products may be marketed or advertised.

Coates also analyzed data from federal appeals courts, finding that “businesses are growing steadily more aggressive in their use of the First Amendment.” Court dockets these days are full of free-speech challenges from pharmaceutical firms, tobacco companies, miners, meat producers and airlines.

Such lawsuits, he wrote, have pernicious consequences for both free enterprise and the rule of law. Corporations are diverting resources from research and innovation to litigation, he wrote.

“Concentrated, moneyed interests, represented by those in control of the country’s largest business corporations,” he wrote, “are increasingly able to turn law into a lottery, reducing law’s predictability, impairing property rights and increasing the share of the economy devoted to rent-seeking rather than productive activity.”

The court led by Chief Justice John Roberts Jr. has been receptive to arguments based on corporations’ free-speech rights.

In a recent essay, Laurence Tribe, a law professor at Harvard, offered a cautious partial defense of the Citizens United decision. But he said it was an instance of a larger phenomenon. “It is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism,” he wrote, “in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

Tribe gave examples of the sorts of people whose First Amendment arguments have not fared well in the Roberts court: students, prisoners, pacifists and whistle-blowers.

Floyd Abrams, a leading First Amendment lawyer who has defended the New York Times and was on the winning side in Citizens United, reflected on the trend toward protecting the powerful in a speech last week at Temple University.

“There is truth in the proposition that a number of recent First Amendment victories in recent years have been on behalf of the ‘haves’ - some of them corporations, some individuals,” he said. “But that is no basis for concluding that the decisions were wrongly analyzed or wrongly decided.”

Adam Liptak covers legal affairs for the New York Times.