How Corporations Took Over the First Amendment

[marmar]

(The Atlantic) When the D.C. Circuit Court of Appeals ruled that POM Wonderful was overstating pomegranate juice's health benefits in its advertisements, a press release from the FTC, which was challenging POM in court, called the decision “a victory for consumers.” The Wall Street Journal agreed, describing it as “a notable win.” In a sense, it was: The company was banned from trumpeting its juice as an elixir that could help prevent heart disease, prostate cancer, and erectile dysfunction if there wasn't sufficient research done to back up those claims.

But in another sense, the decision wasn’t a victory at all. Buried in the FTC’s press release was the reluctant acknowledgement that the Circuit Court denied the FTC the ability to require that POM base its advertising on at least two randomized, well-controlled clinical trials. (POM only relied on one.) It’s a loss for consumers if there are situations in which no disclaimer of “initial” or “preliminary” must accompany any product whose benefits were determined by a single study—a fairly flimsy standard, given how frequently published studies are withdrawn.

To arrive at this decision, the Court wasn’t relying on some obscure bit of corporate law; it was relying on the First Amendment. How problematic is it that a company selling at least $100 million worth of juice every year based on sketchy empiricism could defend its preposterous advertising claims in court on free-speech grounds, and still be humored?

That’s one question that John Coates, a professor at Harvard Law School and a former corporate lawyer, explores in a recent survey of what he calls “the corporate takeover of the First Amendment.” According to Coates, companies are now the beneficiaries of cases involving the First Amendment just as often as individuals, and the frequency of those cases has been rising since the mid-70s. This represents a troubling appropriation of the law: “Power is taken from ordinary individuals with identities and interests as voters, owners, and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money,” Coates writes. .............(more)

http://www.theatlantic.com/business/archive/2015/04/how-corporations-took-over-the-first-amendment/389249/?utm_source=nl__link2_040115