In more than 200 years, the United States Constitution has been amended just twenty-seven times. The primary reason for this is not hard to fathom: it is almost fantastically difficult to amend the Constitution. A proposal must secure the approval of two-thirds of both houses of Congress and three-quarters of the states before we can say the Constitution has been amended. To have a chance, then, any serious proposal must have a great deal of sustained popular support.
One proposal that appears to have that kind of support is an amendment that would overturn the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, in which a majority of the Court lifted certain restrictions on corporate political speech. As Jeff Clements details in his new book, Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It, the proposed amendment would make clear that the terms “people,” “person” and “citizen” in the Constitution do not include corporations or limited liability companies established here or abroad—thus eliminating the premise underlying Citizens United, that the speech of corporate entities is as valuable under the First Amendment as that of flesh-and-blood human beings.
In the book and his blog, Clement captures the outrage people (actual people, not corporations) feel toward Citizens United. To be fair, there is a plausible First Amendment rationale for the Court’s decision: one goal of the freedom of speech is to promote a diversity of views and wealth of information in the marketplace of ideas. The problem is, that is not the only goal of the Amendment, and that goal is in any event undermined when certain speakers may flood the market with their particular views on a variety of issues.
Further, in its focus on maximizing the amount of speech in the marketplace, the Citizens United court failed to appreciate that only flesh-and-blood humans will suffer the consequences of lawmaking in a tangible way. Corporate interests might, for example, favor the wide use of technologies that can track our activities, such as automobile smart passes and GPS software, and speak through contributions to officials who would adopt these technologies. But no corporate entity will ever have to deal with any of the real-world consequences of that adoption, such as the potential for undermining individual privacy interests.
Perhaps more critically, Citizens United is wrongheaded because it suggests that the product of thought—the ideas that end up in the marketplace—is somehow disconnected from its source. If the premise of Citizens United is correct, whether speech is generated by humans, corporate public relations flacks, or a computer programmed to spit out random policy proposals, makes no difference—it’s all the same. But that can’t be right: humans have an inherent dignity that neither corporations nor computers possess, and the notion that their speech is worth the same as ours ultimately demeans us in a fundamental way.
Lawrence Friedman
Showing posts with label Free Speech. Show all posts
Showing posts with label Free Speech. Show all posts
January 3, 2012
July 5, 2011
Privacy v. Free Speech in Florida
With a majority of the U.S. Supreme Court in recent years supporting a robust understanding of the First Amendment’s protection of the freedom of expression, it’s interesting to see that some state legislatures remain unbowed. In the term just ended, for example, the Court struck down state regulations limiting the sale of violent video games to children, as well efforts to publicly fund election campaigns and to prevent data mining of physician prescription records.
And now comes Florida and its new law aimed at protecting the privacy of firearm owners. Signed into law last month by Governor Rick Scott, the law prohibits physicians from inquiring of their patients about such matters as “the ownership of a firearm or ammunition by the patient or by a family member of the patient,” or “the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.” (An exception may be made if the doctor “in good faith believes the information is relevant to a patient’s medical care or safety, or the safety of others.”)
In addition, the law prohibits doctors from entering into a patient’s medical records information about the subject of gun ownership, if that information “is not relevant to the patient’s medical care or safety, or the safety of others,” and it prohibits doctors from “unnecessarily harassing” patients in the subject of “firearm ownership.” Violations of these provisions may expose a physician potentially to revocation of the license to practice, administrative fines in the thousands of dollars, and letters of reprimand.
Unsurprisingly, this law is vulnerable to a First Amendment challenge—and it has already been challenged by several physicians and medical organizations. The prohibition is an express, content-based restriction on the speech of qualified medical professionals seeking to make determinations within their realm of expertise about how best to care for their patients. The critical question will be whether the state can assert an interest sufficiently compelling to justify the speech prohibition.
The U.S. Supreme Court’s decision last month in a case called Sorrell v. IMS Health may be particularly instructive on this question. Sorrell concerned a Vermont law enacted to restrict the sale, disclosure, and use of pharmacy records that revealed the prescription practices of individual doctors. The Court concluded that, because the state allowed such records to be made available for other reasons, the law discriminated against certain speakers—namely, the data miners who sought the prescription record information for commercial purposes. Among the interests the state asserted as justifying the law was the privacy of the doctor-patient relationship, but the Court was unconvinced that the restriction sufficiently promoted this interest.
In light of Sorrell, it’s not clear that protecting the privacy of firearm owners would be deemed so important as to convince a court to uphold the Florida law. The expression the Sorrell Court deemed protected was commercial speech, traditionally subject to broader regulation than other forms of expression. If privacy was not a sufficient justification for restricting commercial speech, it is probably not a sufficient justification for restricting speech, like a doctor’s legitimate medical inquiries, that traditionally has received more protection under the First Amendment.
This is not to say that privacy is not an important value. But many cases involving constitutionally protected individual rights present a choice between competing and important interests, and it falls to the courts to determine which interest should prevail in a given instance. As recent cases have demonstrated, the Roberts Court almost always values free speech over other interests. Whether the Court will someday encounter an obstacle on its free speech campaign remains to be seen, but it is not likely to be the Florida law protecting the privacy of firearms owners.
Lawrence Friedman
And now comes Florida and its new law aimed at protecting the privacy of firearm owners. Signed into law last month by Governor Rick Scott, the law prohibits physicians from inquiring of their patients about such matters as “the ownership of a firearm or ammunition by the patient or by a family member of the patient,” or “the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.” (An exception may be made if the doctor “in good faith believes the information is relevant to a patient’s medical care or safety, or the safety of others.”)
In addition, the law prohibits doctors from entering into a patient’s medical records information about the subject of gun ownership, if that information “is not relevant to the patient’s medical care or safety, or the safety of others,” and it prohibits doctors from “unnecessarily harassing” patients in the subject of “firearm ownership.” Violations of these provisions may expose a physician potentially to revocation of the license to practice, administrative fines in the thousands of dollars, and letters of reprimand.
Unsurprisingly, this law is vulnerable to a First Amendment challenge—and it has already been challenged by several physicians and medical organizations. The prohibition is an express, content-based restriction on the speech of qualified medical professionals seeking to make determinations within their realm of expertise about how best to care for their patients. The critical question will be whether the state can assert an interest sufficiently compelling to justify the speech prohibition.
The U.S. Supreme Court’s decision last month in a case called Sorrell v. IMS Health may be particularly instructive on this question. Sorrell concerned a Vermont law enacted to restrict the sale, disclosure, and use of pharmacy records that revealed the prescription practices of individual doctors. The Court concluded that, because the state allowed such records to be made available for other reasons, the law discriminated against certain speakers—namely, the data miners who sought the prescription record information for commercial purposes. Among the interests the state asserted as justifying the law was the privacy of the doctor-patient relationship, but the Court was unconvinced that the restriction sufficiently promoted this interest.
In light of Sorrell, it’s not clear that protecting the privacy of firearm owners would be deemed so important as to convince a court to uphold the Florida law. The expression the Sorrell Court deemed protected was commercial speech, traditionally subject to broader regulation than other forms of expression. If privacy was not a sufficient justification for restricting commercial speech, it is probably not a sufficient justification for restricting speech, like a doctor’s legitimate medical inquiries, that traditionally has received more protection under the First Amendment.
This is not to say that privacy is not an important value. But many cases involving constitutionally protected individual rights present a choice between competing and important interests, and it falls to the courts to determine which interest should prevail in a given instance. As recent cases have demonstrated, the Roberts Court almost always values free speech over other interests. Whether the Court will someday encounter an obstacle on its free speech campaign remains to be seen, but it is not likely to be the Florida law protecting the privacy of firearms owners.
Lawrence Friedman
January 13, 2011
Free Speech and Inflammatory Rhetoric
None of the outrageous comments coming out of the mouth of Sarah Palin has been more disturbing than her use of the term "blood libel" to describe media criticisms of her in relation to the tragedy in Tucson.
I doubt that Palin has any understanding of the significance of the phrase, what it refers to, or why it is laden with emotional content, especially for Jews. Undoubtedly, it is the product of the frenzied imagination of someone on her staff.
Nevertheless, it represents a new low in American political rhetoric. It has subliminal power which Palin is now mobilizing to counter the well-founded, nearly universal media critique of how she has conducted herself, particularly in the run-up to the recent election and her very deliberate targeting of Congressional districts like that of Gabrielle Giffords, who just happens to be Jewish.
There is absolutely no justification for this. The press and the media should be uncompromising in condeming this for what it is—in the name of free speech and free expression, nothing less than a blatant attempt to stir up a witches’ brew of hate, bigotry, and mindless passion at a time when there is a need for balance, reason, and self-reflection.
George Dargo
An abbreviated version of this essay was published in the New York Times on Jan. 13, 2011.
I doubt that Palin has any understanding of the significance of the phrase, what it refers to, or why it is laden with emotional content, especially for Jews. Undoubtedly, it is the product of the frenzied imagination of someone on her staff.
Nevertheless, it represents a new low in American political rhetoric. It has subliminal power which Palin is now mobilizing to counter the well-founded, nearly universal media critique of how she has conducted herself, particularly in the run-up to the recent election and her very deliberate targeting of Congressional districts like that of Gabrielle Giffords, who just happens to be Jewish.
There is absolutely no justification for this. The press and the media should be uncompromising in condeming this for what it is—in the name of free speech and free expression, nothing less than a blatant attempt to stir up a witches’ brew of hate, bigotry, and mindless passion at a time when there is a need for balance, reason, and self-reflection.
George Dargo
An abbreviated version of this essay was published in the New York Times on Jan. 13, 2011.
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