Brandishing the First Amendment: Commercial Expression in America

Notes

Notes Introduction 1. Nat Ives & Rich Thomaselli, “Marketing Takes a Beating in Beltway,” Advertising Age, July 27, 2009, 19. 2. Id. (quoting Bob Liodice, president and CEO of the Association of National Advertisers). 3. Nicholas Quinn Rosenkranz has recently argued that the key instrument of constitutional analysis is focus on the subject to be restrained. Nicholas Quinn Rosenkranz, “The Subjects of the Constitution,” 62 Stan. L. Rev. 1209 (2010). Rosenkranz argues that the First Amendment and the Commerce Clause are framed as diametrical opposites; the former is written in the active voice as a prohibition , (“Congress shall make no law . . .”); while the latter, also in the active voice, is written in terms of an af‹rmative grant of power (“Congress shall have . . .”). Id. at 1275. This is undoubtedly correct as a grammatical matter. It is unclear that it illuminates when something should be considered speech and when it should be considered commerce. 4. Advertising Age, Editorial, “Time for Industry Workers to Make Case to Congress,” July 27, 2009, 9. 5. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 6. John J. Walsh, “The Supreme Court Should Expand Commercial Speech Protection,” Legal Backgrounder (online publication of Carter Ledyard & Milburn LLP), Sept. 8, 2000, available at http://www.clm.com/publication.cfm/ID/90 (last accessed May 24, 2010). It is interesting that in this article that is more than 10 years old, the author identi‹es Justices Kennedy, Stevens, Souter, Ginsburg, and Thomas as favoring strict scrutiny for commercial speech. Of course, Justice Souter has been replaced by Justice Alito, and Justice Stevens has retired. But 233 given the dissent of Stevens in Citizens United, in which Ginsburg joined, it is no longer clear that Ginsburg could be counted as among those who would favor strict scrutiny for commercial speech. However, Citizens United suggests there might still be ‹ve votes—from Roberts, Alito, Scalia, Thomas, and Kennedy—for strict scrutiny. 7. Citizens United v. Federal Election Comm’n, 130 S.Ct. 876 (2010). 8. Id. 9. See generally David D. Kirkpatrick, “Lobbyists Get Potent Weapon in Campaign Ruling,” N.Y. Times, Jan. 21, 2010. 10. See, e.g., Lawrence Lessig, “Institutional Integrity: Citizens United and the Path to a Better Democracy,” Huf‹ngton Post, Jan. 22, 2010, http://www.huf‹ng tonpost.com/lawrence-lessig/institutional-integrity-c_b_433394.html (last accessed May 24, 2010). 11. Tamara R. Piety, “Citizens United and the Threat to the Regulatory State,” 109 Mich. L. Rev First Impressions 16 (2010), http://www.michiganlawreview .org/assets/‹/log/piety.pdf. 12. Bob Herbert, “Brutality in Vietnam,” N.Y. Times, March 28, 1997, A29. See also Bob Herbert, “In America: Nike Blinks,” N.Y. Times, May 21, 1998, A33; and Bob Herbert, “Let Nike Stay in the Game,” N.Y. Times, May 6, 2002, A21. For one of the best summaries of the facts surrounding this case, see Ronald K. L. Collins & David Skover, “The Landmark Free-Speech Case That Wasn’t: The Nike v. Kasky Story,” 54 Case W. Res. L. Rev. 965 (2004). 13. Id. 14. See, e.g., Deborah J. La Fetra, “Kick It Up a Notch: First Amendment Protection for Commercial Speech,” 54 Case W. Res. L. Rev. 1205, 1210 (2004). 15. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). See also Walsh, “Supreme Court.” 16. See Brief for Petitioners, at 43, Nike, Inc. v. Kasky, 539 U.S. 654 (2003) (No. 02-575) 2003 WL 898993. There is more to the New York Times v. Sullivan test than the malice element. A plaintiff must also show that he or she is not a public ‹gure. That portion of the opinion is not relevant to the discussion here. 17. Id. at 44–45 (contending that some erroneous statement in speech is inevitable and that protection must be given to that error). 18. See Tamara R. Piety, “Grounding Nike: Exposing Nike’s Quest for a Constitutional Right to Lie,” 74 Temp. L. Rev. 151 (2004). 19. It is dif‹cult to attribute any “state of mind” to a legal ‹ction, let alone a disordered state of mind. But a corporation might have a better basis for a claim to something like multiple personality disorder than a human being, given that there are several people “in there” in the corporate mind. Canadian author Joel Bakan claims that if you apply the diagnostic criteria in the DSM-IV to a corporation , the corporation is a psychopath. Joel Bakan, The Corporation (Toronto: Penguin, 2004), 56–59...