Steve Rosenfeld discusses with Tamara Piety, author of Brandishing the First Amendment: Commercial Expression in America, what may be next if corporations have constitutional rights: almost no way to ensure truth in advertising.


Here’s an excerpt from the article featured on AlterNet:

“Tamara Piety is a constitutional law professor and dean at University of Tulsa’s College of Law. Her latest book, Brandishing The First Amendment: Commercial Expression in America, describes how federal courts have aggressively and inappropriately expanded the First Amendment rights of for-profit corporations in recent decades.”

“[Steven Rosenfeld]: The Court in Citizens United said that corporations should be free to spend unlimited sums in independent political campaigns. That’s in the political sphere. But your concern is that it actually goes far beyond the political sphere and has other impacts in the world of commerce. Can you explain that?

[Tamara Piety]: What happened in Citizens United is that you have this strong declaration that you can’t discriminate against corporations. And my contention was that personification, that idea that discriminating against corporations is invidious discrimination, was going to make its way into the [Supreme Court’s] commercial speech doctrine. And, in fact, I think it has.

What the commercial speech doctrine was announced in 1976, it was explicitly oriented to listeners’ interests. It carved out this very special narrow area of speech that would be protected, that had not been protected before, and that was truthful commercial speech. And it premised it on the idea that the government ought not to be paternalistically protecting people from the truth. And it was all about the listeners.

And over time, that doctrine has morphed into a much more strict scrutiny doctrine to the point that in last term’s Sorrell case where the Court basically said that a statute was unconstitutional because it singled out [pharmaceutical] marketing for special treatment, and that was unconstitutional content discrimination. And that’s just breathtaking.”

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