Corporations hijacked the First Amendment
June 4, 2013 11:12 PM   Subscribe

In case anyone is interested, some people are working on fixing the problem. Shame that this is even something that needed to be fixed.
posted by 1adam12 at 11:37 PM on June 4, 2013 [1 favorite]

I… can't believe the argument that advertisers shouldn't have to show the total price of an airline ticket most prominently because of the First Amendment [PDF] was made with a straight face. I suppose we should be thankful [PDF] that it was more or less laughed out of court. This time.
posted by ob1quixote at 2:09 AM on June 5, 2013 [1 favorite]

It seems weird that the locally distributed fuel oil conglomerates are regulated enough that they have to display pricing including taxes, and even they didn't seem to want to join this farcical argument. But Southwest did?!?

What a very weird world we live in.
posted by Blue_Villain at 5:39 AM on June 5, 2013

Easy fix. Since legislation is speech, shouldn't it be protected under the First Amendment?
posted by Garm at 6:30 AM on June 5, 2013 [2 favorites]

That was a very good article (I was not shocked to see that Tim Wu had written it).

As always from my perspective of a new lawyer in Canada, it feels like the First Amendment needs a balancing provision, consideration of whether it's the least-harmful way to do something, all the normal jazz. But that's an amendment-level change, which is not exactly easy.
posted by Lemurrhea at 6:46 AM on June 5, 2013 [2 favorites]

Within the last couple of years, Apple were forced to withdraw a couple of iphone ads from British TV. Each of the ads, which had been shown in the US and in other countries, was a continuous, steady shot of a pair of hands using an iPhone to perform its new functions, showing how shiny, fast and simple everything was. Despite being a continuous shot of the phone in use with no cuts, the ads omitted a load of button presses, menu transitions, typing, and waits during loading times that are actually encountered when performing those tasks. They were banned on the grounds that they misrepresented the product.

The split of reactions that I saw online was very interesting. Broadly, Brits approved of the bans: you shouldn't be allowed to misrepresent your product in an advert. In contrast, there was a decent cohort of American posters saying that it was an example of Britain's poor protections for free speech, and that Brits were somehow childish for ever expecting a certain standard of truth in advertising.

IANAL and don't even play one on TV, but my understanding is that it's probably true that speech in the UK is less free than in the US: the relevent protection comes from an article of the EU Charter which explicitly refers to "duties and responsibilities" associated with speech which include "protection of health or morals", we have "hate speech" legislation which includes incitement to racial hatred, news organisations are required to present a (nebulously defined and barely regulated) balanced viewpoint, and while our libel laws are set to be changed they have always been much more aggressive against the speaker.

I wouldn't argue that all of these are unambiguously good, but it does seem to be true that the freedoms we lose make it slightly harder for us to be lied to or harraunged by bigots. Free speech is a wonderful ideal but, like "Fire!" in a theatre or an advertiser (...or a news network) deliberately lying to the public, you need to have some limitations in place in order to have a functioning society. Exactly where those lines get drawn is a tough debate to have, and I'd imagine that it's even harder in the US, where the characterisation of certain rights as "inalienable" and "self-evident" must make arguing for their limitation (or at least against their expansion) a rather tricky thing to do.
posted by metaBugs at 7:21 AM on June 5, 2013 [2 favorites]

Rights discourse tends towards reification.
posted by kewb at 7:33 AM on June 5, 2013 [1 favorite]

The funny thing is, despite the difficulties in the US, for much of our history, we have recognized sensible limits on certain categories of speech and US law has dealt with commercial speech in a more qualified way. It was only under Reagan that we started dramatically relaxing FTC and FCC regulations on advertising and speech on the public airwaves.

People had grown so accustomed in the US to truth in advertising and fairness in broadcasting being strictly policed by regulatory bodies that I think many people still labor under the illusion today that there are strict truth in advertising and accuracy in broadcasting rules enforced. It's not uncommon to hear Americans still envoke "truth in advertising laws" as if any of ours still had power. But under Reagan, and even continuing through Clinton under Michael Powell, we've had nothing but drastic deregulation in these areas for the last three decades or more. I think most Americans still don't really appreciate how much the confusion and dysfunction so commonly remarked upon in the US media landscape is a direct result of those regulatory reforms that began in the Reagan administration. Tellingly, de facto restrictions on individual free speech--in the form of new precedents that in some cases allow employers to penalize workers for expressing political opinions in their off-work lives--have expanded in the meantime.
posted by saulgoodman at 7:37 AM on June 5, 2013 [7 favorites]

Because rights are analogized as things, and things quickly become property in a system of unequal distribution. Corporate employers have as much free speech; your free speech, like your time, is a thing that employees increasingly give over to corporate employers as a condition of employment.
posted by kewb at 8:24 AM on June 5, 2013

As a condition for my severance pay at my last employer, I agreed to a ridiculous abridgment of my speech rights that had no time limitations.

I'm not allowed to say anything negative about the company, it's current and former employees, its executive staff (current and former), its products, nor even discuss the fact that I can't discuss these things.

In summary, I'm legally prohibited, for the rest of my natural life, to acknowledging any of my own farts (that would be disparaging towards a former employee of the company).
posted by el io at 9:45 AM on June 5, 2013 [2 favorites]

I don't think the issue is corporations' rights of free speech, as much as the idea that "the press" includes advertisers; that "speech" includes selling data; and that "free speech" includes the right to falsely advertise. Corporations are surely the main beneficiaries of this, but that's because anything affecting trade primarily affects corporations. The fundamental problem is that a constitutional right that was (IMO) already too broad has been broadened yet further, to the detriment of other rights.
posted by Joe in Australia at 8:26 PM on June 5, 2013

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