by Brenda Baletti, Ph.D. |May 24, 2024 | The Defender – CHD
Major corporations across the tech, pharma, food and energy industries are invoking a new legal strategy, using First Amendment claims to avoid complying with industry regulations, journalist Katherine Li reported in The Lever.
Major corporations across the tech, pharma, food and energy industries are invoking a new legal strategy, using First Amendment claims to avoid complying with industry regulations, journalist Katherine Li reported in The Lever.
The companies, and their lobbying groups, are invoking the First Amendment’s compelled speech doctrine to argue they can rightfully refuse to share information they deem controversial with consumers and employees.
Under the doctrine, the First Amendment’s free speech protections extend beyond prohibiting the government from suppressing speech — the doctrine also bars the government from compelling people to express ideas or beliefs they don’t want to affirm.
In recent months and years, corporations have invoked this argument to resist regulation on issues ranging from drug pricing to hazardous chemical disclosures, to food nutritional information to censoring online speech.
“Experts say the large corporations using this strategy are undermining efforts to regulate corporate behavior. They say these arguments limit states’ ability to act on matters not covered by federal law,” Li wrote.
The most recent example of this legal strategy is happening in California, Li wrote, where a new emissions disclosure law requires all companies with annual revenues over $1 billion to disclose the pollution emitted throughout their supply chains.
The companies argue that disclosing their emissions would unfairly compel them to engage in “controversial speech” because emissions discussions tend to be related to climate change, which is a controversial topic.
They say that the law, and the “speech” it compels, would enable policymakers and activists to “single out companies” for boycotts and investigations, Li wrote.
However, others argue the information corporations are being compelled to disclose is not political or a belief, it is simply commercial and factual.
The California case is the latest to highlight a wide range of questionable or corrupt corporate practices companies are seeking to protect under the doctrine.
The U.S. Chamber of Commerce is spearheading many of the cases. The chamber is a corporate lobbying group that gets most of its money from a small pool of anonymous donors, raising questions about its claim to represent businesses broadly, according to The Hill.
The chamber’s board of directors includes executives from Pfizer, Facebook, Microsoft, Chevron, Comcast and other major multinational firms.
First Amendment watchdog groups are sounding the alarm. Li wrote:
“If the courts agree that lawmakers can’t compel businesses to express ‘controversial’ or ‘politically charged’ messages, the effects could be devastating to wide-ranging regulatory efforts, said James Wheaton, founder of the public-interest law firm the First Amendment Project and former president of the Environmental Law Foundation.
“‘Anything can be political and controversial because science doesn’t deal in absolute certainty,’ said Wheaton, ‘The threshold for proving controversy is extremely low, and the science behind it doesn’t have to be sound — it just needs to exist.’”
Uses and abuses of the compelled speech doctrine
The most famous use of the compelled speech doctrine was the 1943 landmark U.S. Supreme Court case, where the court ruled that public school children couldn’t be compelled to salute the flag or recite the Pledge of Allegiance.
But in the past several years, some business interests have successfully invoked the doctrine to overturn regulations designed to protect investors, law and human rights.
For example, the food distribution company Sysco invoked the doctrine to argue it could not be compelled to announce notices of its labor violations to workers during work hours because it would contradict the company’s owner’s anti-union stance.
The company had committed several labor law violations against workers trying to unionize and was ordered to cease and desist.
In another example, when the federal government tried to negotiate maximum prices for some expensive drugs covered by Medicare, the U.S. Chamber of Commerce argued that forcing Big Pharma to “agree” with price determinations would constitute government-compelled speech.
The chamber also used the argument to undermine a law requiring companies to disclose information about stock buybacks — a practice that can artificially inflate a company’s value — to stockholders and the Securities and Exchange Commission.
The chamber argued that compelling companies to disclose such information should count as “compelled speech.”
Monsanto and a consortium of agribusiness groups have contended that a different California law, Proposition 65, which requires businesses to provide warnings on products that contain harmful chemicals, violates its First Amendment rights under the compelled speech clause.
Monsanto argued that because there is not yet “consensus” on precisely what levels of glyphosate exposure cause cancer, it shouldn’t have to provide warnings on Roundup, its flagship weedkiller. In November 2023, the 9th Circuit U.S. Court of Appeals ruled in favor of Monsanto.
Big Tech takes on Texas, Florida censorship laws
The compelled speech argument could also have major implications for how the First Amendment applies to powerful tech platforms.
The U.S. Supreme Court on Sept. 29, 2023, said it will hear cases brought by an advocacy group funded by Meta, Google, X (formerly Twitter) and other tech companies challenging Texas and Florida laws that prohibit social media companies from censoring content posted on their platforms.
The two laws, both passed in 2021, and the Supreme Court’s decision to consider them “could have nationwide repercussions for how social media — and all websites — display user-generated content,” CNN reported.
If upheld, the laws could open the door to more state legislation with similar obligations for social media sites.
Texas House Bill 20 (HB 20) and Florida Senate Bill 7072 (SB 7072) allow users to “sue social media platforms over allegations of political censorship” and “restrict companies from taking down or demoting certain kinds of content even when the platforms may decide it violates their terms of service,” according to CNN.
“The companies argue that choosing the type of content that appears on their platforms is an editorial decision, and therefore protected by the First Amendment,” Li wrote.
She cited Olivier Sylvain, a law professor at Fordham University and former adviser to the chair of the Federal Trade Commission, who said if these state laws succumb to a “barrage of attacks” using compelled-speech arguments, there are no federal regulations in place to deal with the problem.
“States are definitely trying to fill in where the federal government can’t,” said Sylvain. “But these same companies are going after the States as well, and they are invoking more than just the First Amendment.”
In their efforts to gut consumer protection laws, Sylvain said he believes corporations have “reached well beyond” protected speech:
“Courts should really be objective in their evaluation, and in my mind, the existing doctrine actually pushes back against many of these companies’ claims. …
“Courts have the responsibility to remain skeptical and hold the line, or else the First Amendment would become unrecognizable.”
Brenda Baletti, Ph.D., is a senior reporter for The Defender. She wrote and taught about capitalism and politics for 10 years in the writing program at Duke University. She holds a Ph.D. in human geography from the University of North Carolina at Chapel Hill and a master’s from the University of Texas at Austin.