RFK, Jr. Wants To Ban Big Pharma Ads

Part Three: The Corporate Right Of Free Speech

Taking a pause from the various and ongoing news items of the day, it is time to close out an examination of Robert F. Kennedy, Jr’s., proposal to ban Big Pharma ads on television, by considering where corporations stand with regards to the First Amendment rights of free speech that are at the core of all discourse in this country.

RFK, Jr. Wants To Ban Big Pharma Ads

Whatever philosophical merits such a proposal might have, they amount to naught if the proposal stands in contravention of the First Amendment. Even if we notionally support the proposition, if the proposition is unconstitutional it simply cannot stand.

Which brings us back also to the propositions made by Margaret Anna Alice in discussion of RFK, Jr’s, proposal.

Previously I explored the evolution of the doctrines of legal personhood for corporations in the United States.

RFK, Jr. Wants To Ban Big Pharma Ads

As before, my purpose here is not to challenge Margaret’s position that “money is not speech”. Rather, the goal is simply to explore the Supreme Court cases that culminated in the ruling she cites as a “catastrophe”, Citizens United v. FEC¹. Taking the cue from the historic Marbury v Madison², which posited that the role of the courts is “to say what the law is”, in questions of corporate speech just as in questions of corporate personhood, effective discussion and opposition to such concepts requires we be extremely clear and precise on what the law says, as well as what it does not say.

Citizens United addressed statutory limitations on corporate expenditures and contributions related to any political election or campaign, expenditures historically limited as part of the Federal Election Campaign Act of 1971³ and particularly revised in the Bipartisan Campaign Reform Act of 2002⁴. The broad thrust of the statute was that corporations could not make political expenditures or contributions out of its general funds⁵.

It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section.

At issue in Citizens United was a principle established in an earlier opinion, Austin v Michigan Chamber of Commerce⁶, to the effect that corporate political speech could be banned.

Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209 (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity.

In Citizens United, the Court overturned Austin, ruling that 2 USC §441(b)’s limits on “electioneering communications” were unconstitutional.

To understand how the Court arrived at this conclusion, we must first clarify Margaret Anna Alice’ initial proposition above: the principle that “money is speech” did not arrive with Citizens United, but is actually the result of a 1976 ruling, Buckley v Valeo⁷. Citizens United was in fact largely a decision by the Court to return that ruling to prominence as a controlling precedent.

In Buckley, the Court held that expenditures for political expression were tantamount to that political expression—i.e., political speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical, restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate," 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press [Footnote 19] from any significant use of the most effective modes of communication. [Footnote 20] Although the Act's limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns [Footnote 21] and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.

As a result of the Buckley ruling, the notion that “money is speech”—rather, that expenditures of money by and on behalf of political candidates consitutes a mode of political speech that enjoys broad First Amendment protection—has been an accepted part of at least the election law landscape in this country since 1976.

Moreover, even in Austin, the ruling Citizens United wished to overturn, there was not only acknowledgment that expenditures to promote political expressions were protected speech but also that such protections were not vitiated merely because of corporate status (emphasis mine).

To determine whether Michigan's restrictions on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether they burden the exercise of political speech and, if they do, whether they are narrowly tailored to serve a compelling state interest. Buckley v. Valeo, 424 U. S. 1, 424 U. S. 44-45 (1976) (per curiam). Certainly, the use of funds to support a political candidate is "speech" independent campaign expenditures constitute "political expression at the core of our electoral process and of the First Amendment freedoms.'" Id. at 424 U. S. 39 (quoting Williams v. Rhodes, 393 U. S. 23, 393 U. S. 32 (1968)). The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment. See, e.g., First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 777 (1978).

That corporations could enjoy broad First Amendment protections also is not a novel creation of Citizens United, as the citation of First National Bank of Boston v Bellotti⁸ shows.

In Bellotti, the Supreme Court rejected the line of reasoning used by the appellate court, which was to pose the question as to the extent of a corporation’s particular First Amendment rights, and instead approached the question from whether the statute under challenge intrinsically creates a challenge under the First Amendment.

The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect. We hold that it does.

Substantially, the Court found that if a law or regulation ran afoul of the First Amendment, it did so regardless of whether the afflicted party was a natural person or a corporate—i.e., an “artificial person.”

In Bellotti, the Court explicitly held that the enjoyment by a particular exemplar of speech to First Amendment protection was irrespective of whether the author of that speech was a natural person or a corporate (“artificial”) person.

If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, [Footnote 11] and this is no less true because the speech comes from a corporation, rather than an individual. [Footnote 12] The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

Under Bellotti, speech did not lose First Amendment protection simply because its source was a corporation rather than a natural person.

Bellotti also drew from Court precedent that a legislature may not restrict speech because of its subject matter, making explicit reference to the 1972 Police Department Of The City Of Chicago v Mosley⁹ case:

But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Separately and some years later, the Court ruled in FEC v Massachusetts Citizens For Life¹⁰ that the application of 2 USC §441(b)—the same statute at issue in Citizens United—towards non-profit corporations such as MCFL was an unconstitutional infringement of political speech.

Regardless of whether that concern is adequate to support application of § 441b to commercial enterprises, a question not before us, that justification does not extend uniformly to all corporations. Some corporations have features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of their incorporated status.

Substantially, in MCFL, the Court made a distinction between for-profit corporations using their amassed wealth to champion political candidates and causes and non-profit entities formed specifically to engage in such political public discourse. Likening entities such as MCFL to “voluntary political associations”, the Court held that such entities should not have their rights of free speech burdened solely due to their corporate status.

Consequently, by the time of the Citizens United case, the idea of a corporate First Amendment protection for political speech was nearly forty years old—hardly a novel judicial or legal theory.

MCFL figured prominently in Austin, the ruling Citizens United sought to overturn, as the Court examined the distinctions between a Chamber of Commerce—an association of businesses—and an advocacy group such as MCFL.

The final characteristic upon which we relied in MCFL was the organization's independence from the influence of business corporations. On this score, the Chamber differs most greatly from the Massachusetts organization. MCFL was not established by, and had a policy of not accepting contributions from, business corporations. Thus it could not "serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." Ibid. In striking contrast, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State.

Because of the significant differences between the corporate entity of a chamber of commerce and the corporate entity of an advocacy group such as MCFL, the Court reasoned in Austin that Section 54(1) of the Michigan Campaign Finance Act¹¹ was a permissible regulation of corporate speech. Central to the Court’s logic in Austin was that corporations are a type of entity particularly suited for amassing and concentrating wealth—reasoning also found in MCFL, and in fact Austin merely quotes the logic from MCFL.

corporations are "by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth."

In upholding the Michigan campaign finance law, however, the Austin Court departed from the precedents established in Buckley and Bellotti which largely precluded speech regulation based on corporate identity.

In considering Citizens United, the Court noted that Austin presented the Court with conflicting precedents:

The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Before Austin Congress had enacted legislation for this purpose, and the Government urged the same proposition before this Court.

The Court was discomfited by the anti-distortion logic of Austin. Based on that logic, the government argued in Citizens United that the government had the power to ban almost all forms of corporate speech merely by virtue of it being corporate speech.

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation.

The Court in Citizens United rejected Austin’s logic, in part because it saw a danger that such logic could allow Congress to ban the political speech of media corporations, a danger it found “unacceptable”. Indeed, the Court held that 2 USC §441(b)’s exclusions for media corporations confirmed the unconstitutional nature of the statute.

Thus the Court concluded in Citizens United that Austin should be overturned. By so doing, far from establishing new corporate rights of free speech, the Court saw itself as restoring the pre-Austin standard that corporate identity could not be used to regulate political speech. The Court sought in Citizens United to affirm the Buckley and Bellotti precedents by rejecting Austin.

That the Court sought to restore earlier understandings of how the First Amendment applied to corporate speech is important to appraising Citizens United and its significance as a precedent going forward. The reaffirmation of Bellotti’s rationale is particularly noteworthy with regards to RFK, Jr’s, proposals to ban pharmaceutical advertising from television.

Citizens United and all the cases upon which that decision were built focused exclusively on political speech. However, Bellotti, which the Court sought to reestablish as a controlling precedent, also made offhand reference to a corporation’s right to commercial speech—which advertising unquestionably is:

Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 425 U. S. 761-770 (1976). Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.

While the Court in Bellotti did not explicitly rule that corporations had a right to commercial speech, it clearly leaned considerably in that direction.

Moreover, in Bellotti, the Court also somewhat paradoxically made political speech rights more problematic to the corporate form than commercial speech rights.

It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. [Footnote 4/5] A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.

Following the Court’s logic, a corporation’s rights to engage in commercial speech are arguably superior to its rights to engage in political speech, even though the Court reasoned that political speech itself is far more deserving of Constitutional protection than purely commercial speech.

While Citizens United sought to restore the Buckley and Bellotti precedents on political speech by corporations, it arguably also reaffirmed Bellotti’s belief that corporations have an almost intrinsic right to commercial speech as well. Commercial speech might potentially enjoy less First Amendment protection than political speech, yet in light of Bellotti it is highly likely that a particular mode of commercial speech can not be regulated merely because its source is a corporation.

Consequently, whatever societal benefits might accrue from banning Big Pharma’s pharmaceutical ads from television, such bans would likely not be sustainable within the Court’s current understanding of First Amendment protections towards various modes of speech if based primarily on the status of Big Pharma companies as corporations. To limit pharmaceutical advertisements, different legal logic is likely to be necessary.

However, there is another important takeaway from Citizens United: Precedents can be and sometimes are overturned. Just as Austin moved the Court’s position on corporate speech away from Buckley and Bellotti, Citizens United moved it back. Margaret Anna Alice’ opposition to constructions of monetary expenditures as tantamount to speech is not rendered disproven or wrong merely because Citizens United takes a different position. Rather, opposition to the notion of “money is speech”, in order to prevail within the law, must build up an argument that refutes Citizens United, Buckley, and Bellotti.

Much as with corporate personhood, the treatment of corporate expenditures as protected speech under the First Amendment is the result of a constantly evolving understanding of speech by the Supreme Court. That understanding has changed over time, and almost certainly will change again in the future.

Today, the current state of the law is that speech may not be limited or infringed merely because the source of that speech is a corporation. Similarly, the expenditures necessary to effect various modes of speech themselves today enjoy the same First Amendment protections as the actual utterances themselves.

Such is what the law is today. What the law should be tomorrow is the crux of all political debate, and is the question we must constantly both ask and answer if we are to move the law forward.

1. Citizens United v. FEC, 558 U.S. 310 (2010)

2. Marbury v. Madison, 5 U.S. 137 (1803)

3. United States Congress, Public Law 92-225. United States Statutes At Large, vol. 86, 1972, pp. 3-20. US Government Publishing Office, https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg3.pdf

4. United States Congress. Public Law 107-155. United States Statutes At Large, vol. 116, 2002, pp. 81-116. US Government Publishing Office, https://www.govinfo.gov/content/pkg/PLAW-107publ155/html/PLAW-107publ155.htm

5. 2 USC § 441b, subsequently transferred to 52 U.S. Code § 30118

6. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)

7. Buckley v. Valeo, 424 U.S. 1 (1976)

8. First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978)

9. Police Department of City of Chicago v. Mosley, 408 U.S. 92 (1972)

10. Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)

11. Michigan Legislature, Act 388 of 1976, Michigan Campaign Finance Act, legislature.mi.gov, 1976, Michigan Compiled Laws, http://legislature.mi.gov/doc.aspx?mcl-Act-388-of-1976