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Organic Consumers Association

Why Corporate 'Negative Speech Rights' Is as Dangerous as Corporate Free Speech

For related articles and information, please visit OCA's Politics and Democracy page.

We all know about political free speech. With a few exceptions, you can say what you want, whether people listen or not. But corporations have twisted the First Amendment to claim that their free speech rights as "people" also means that they cannot be forced by government to put warning labels on their packaging. An established and growing body of law elevates private marketing above public health warnings.

It's called corporate negative free speech rights, and it falls under one particular area of First Amendment law-commercial speech. It's been wielded in a variety of for-profit settings. Cigarette companies have used this rationale to avoid photos on warning labels. The dairy industry has evoked it to hide the use of manmade bovine growth hormones in milk production. Cell phone companies have cited it to block radiation warnings on their packaging.

In all these cases, the government's effort to protect the public health and inform consumers has been trumped by this relatively new form of protected speech. Government is told again and again that it cannot infringe on corporate speech rights. And the cases continue. Today, there are a few to keep an eye on.

The US Court of Appeals struck down on  April 14 a Securities and Exchange Commission rule forcing manufacturers to disclose, on their websites, if their electronics contain minerals mined from the war-torn torn Democratic Republic of the Congo (DRC). The court ruled that "[b]y compelling an issuer to confess blood on its hands, the [SEC] statute interferes with that exercise of the freedom of speech under the First Amendment." The government can't force a company to talk about something so controversial, even if the public is consuming it.   


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