November 16, 2010

Reversing the Polarities: The First Amendment and Commercial Speech


I was rereading the FCC’s “Third Way” proposal. (Why? I don’t know. The thing’s dead as the dodo, unless somehow Republican overreaching in the Congress to totally gut net neutrality inspires a surge of public outrage.) I thought I was wasting minutes of my life I’ll never get back, when this verbiage caught my eye:

Working to preserve the freedom and openness of the Internet through high-level rules of the road to safeguard consumers’ right to connect with whomever they want; speak freely online; access the lawful products and services of their choice; and safeguard the Internet’s boundless promise as a platform for innovation and communication to improve our education and health care, and help deliver a clean energy future.

I hadn’t really noticed at first, but looking back over the preceding lines I saw how the word “consumer” is littered all over the brief.
Now, maybe one shouldn’t read much into a political suck-up document by itself, but in fact the disparagement of the citizen in favor of the consumer is practically universal by now. The reason this example seemed interesting was because it’s a good example of how free speech as well is being redefined in “consumerist” terms, which is one manifestation of its being redefined in corporatist terms. Whether or not the FCC cares about freedom of political speech on the Interent (there is a brief mention elsewhere of “expressing opinions”), it clearly believes the most important speech interaction is commercial in nature.
This is implicitly a complete reversal of polarities. Historically, the First Amendment applied to political speech most of all. Implicitly, other kinds of speech were less important, while at the opposite end of the spectrum purely commercial speech was subject to the most regulation. Today we see how political speech is the speech most under assault, while Citizens United is the prime example of a SCOTUS surge to empower purely commercial speech as pseudo-political. We’re now in the midst of a complete inversion of these priorities. It’s a prime example of how politics itself is under assault by a corporatized anti-politics.
Consider the logic of Citizens United:
1. The SCOTUS enshrines “free speech”, including the right to make campaign donations, to “corporate persons.”
2. As the corporate apologists never get sick of saying, in principle a corporation is responsible only to the shareholders. Its one and only responsibility and prerogative is profit.
3. So by definition a corporation does not and should not function as a citizen. It functions only as a commercial entity.
4. So how can you call for free speech for a corporation unless you’re calling for the First Amendment to apply to exclusively commercial speech? Doesn’t this mean that all regulation of commercial speech – truth-in-labeling regs, terminological restrictions, nutrition listing, required warnings and disclaimers, any limits whatsoever on advertising – are implicitly void? Shouldn’t the tobacco companies fire up the old ad campaigns selling to children, claiming cigarette smoking is good for your health?
Implicitly, according to CU, the government can’t legitimately restrict it. Nobody can say, “CU was about political speech only”, because by definition a corporation cannot engage in political speech, only commercial speech. How can a corporation donate to a candidate other than as a bribe? Wouldn’t it be in breach of its duty to the shareholders if it donated on any other basis?


  1. […] and corporate shareholders was at least a momentous as the more recent “innovation” of corporate political speech and the corporation’s “right” to give money to political candidates.   Here too, […]

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  2. […] but the ideology of kleptocracy in the most literal sense. (I discussed in an earlier post how by definition corporate speech has to seek political corruption. If it didn’t, it would be a dereliction of the duty of corporate management to […]

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