Someone suggested earlier that prescription drug ads be outlawed from TV. This prompts the question, is commercial speech protected by the Constitution the same as political speech?

What do you think? If you think it's not, explain why.

As for me, I whole-heartedly believe that it is protected. I believe this for the following reasons:

1. Commercial speech falls under one's right to the persuit of happiness.

2. While the purpose of the First Amendment was primarily to protect political and religious speech, it is not limited to these.

3. The Constitution's purpose is to define the strictly limited powers of the Federal government -- not to limit the freedoms, rights, and liberties of the citizens. To verify this, look no further than the 9th Amendment of the Bill of Rights. The Bill of Rights was never intended to be an exhaustive enumeration of the rights of individuals.

Someone once said in these forums that companies don't have the right to create a generation of hypocondriacs. This is a loaded statement if I've ever seen one. The logic used to arrive at this statement could just as easily be used to restrict ANY right by means of finding some unpleasant by-product of that right's potential use. I could deny the rights of people to drive cars by saying, "people don't have a right to put my life in danger." Or how about restricting the rights of free religious speech by saying, "nobody has a right to proselytize my child," or, "nobody has a right to promote extreme religious fanaticism."

Potential outcomes that you may perceive as unpleasant do not constitute a nullification of one's rights. And let us be glad that it does not!

The argument can be made that companies are not individuals and are certainly not citizens, therefore they have no Constitutional rights.

I agree, however, that limiting speech (be it advertising, religious speech, campaign ads, or whatever) is detrimental in the long run. The truth of the matter (no matter what the matter is) will never come out if one side is restricted in its presentation of its views.

1. The pursuit of happiness is not protected by the Constitution.

2. It may not be limited to those, but should it be expanded to commercial speech? I guess it depends upon one's view of the Constitution. I think it should not.

3. One of those powers enumerated in the Constitution is the power to regulate interstate commerce. Since the airwaves are a media used to conduct interstate commerce, it would seem to follow that Congress has the right to regulate what goes on the airwaves, including commercial speech. As for billboards or local print media, there may not be such a right, depending upon the facts.

I suppose someone could claim that, however, as I said before, the purpose of the Constitution isn't to establish what rights exist, but rather to restrict and narrowly define the powers of the federal government. Therefore, the burden of proof is on the government to cite its authority in a particular case. The burden is not on the business or individual to prove they have a given right.

What's more, companies do have rights since they are comprised of individuals. The individuals have rights, and those individuals have a right to speak cooperatively through their property. If I own a drug company, I have a right to express my views using my property (my company). Now for corporations, it'd be subject to terms of the corporate charter as it is a legally binding contractual document.

But in neither case can it be assumed out of hand that individuals working through a commercial institution do not have rights.



Again, first, the persuit of happiness does not need to be explicitly listed in the Constitution for it to be a right. See the 9th Amendment. Second, in accordance with what I stated above, it would not be an expansion of the right of free speech, but rather the burden of proof is on the government to cite its authority to regulate such speech -- the right of individuals OR businesses (individuals working cooperatively) to speak freely in commercial matters exists by default. The burden of proof is to demonstrate its non-existance or the government's power to regulate it.



Had your statement been worded slightly differently, I'd possibly accept your reasoning. But as it is, you are saying that communication over air waves can be regulated by Congress because it is a medium for interstate commerce. Congress was not given the power to regulate all things pertaining to interstate commerce, but rather to regulate the commerce itself. Now if you had argued that the ads were interstate commerce itself, you might have an argument. However, even at that I don't think the original intent was for Congress to have carte blanche to regulate every aspect of commerce that happened to be interstate in scope.

Let me draw upon a couple of examples to illustrate what I mean:

1. Look at how Congress has regulated hiring practices of businesses that engage in interstate commerce. Whether or not you agree with the ends and moral objectives behind these regulations, look at them strictly from a legal perspective. When a small company that has only one location hires someone from within its own community, that act of hiring does not constitute interstate commerce. Nevertheless, if that company has ever sold a product or service to a customer in another state, it makes the company itself -- not just its interstate commerce -- subject to virtually unlimited legislation. So much so that even its hiring practices, which are decidedly not interstate in scope, can be dictated to it by Congress simply because one aspect (or perhaps only one sale!) of the business has interstate scope. This is not a case of Congress regulating interstate commerce since the interstate commerce itself is not being regulated, but rather the people and entities who engage in it are being regulated.

2. Let's say Congress passes a law regulating the content of paper publications. Such a law would probably be declared Unconstitutional unless it stated that it regulated only those print media establishments that engage in interstate commerce. But why should the fact that people in other states read that magazine/periodical/whatever mean that suddenly the freedom of speech or of the press can suddenly be abridged? Congress would not be regulating the commerce itself but rather the views exchanged across state lines.

Now before you say that the Constitution explicitly protects freedom of speech and of the press so therefore point #2 is handled by the 1st Amendment, realize that the right to exchange one's wealth (money) in exchange for services (employment) is no less a right than that of speech. Its absence in the Bill of Rights makes it no less a right than the right of free speech. This is made clear by the 9th Amendment.

I didn't pick up on this one the first time around.

For what it's worth, companies are viewed in many ways by the law as "persons." Obviously this is a legal fiction that is used in certain business law situations. I have no idea how it applies to a company's free speech rights.

I didn't pay attention to the title of the forum at the outset. I was viewing the question under the lens of what is being done and/or allowed now and not under a strictly Constitutional lens (if such a lens is even relevant anymore, to my lament). Lame excuse, I know.



Do you find it to be good policy to recognize rights not explicit in the Constitution so broad as the right to happiness? I mean, look what "finding" the right to privacy led to. I'd argue against recognizing such a right on public policy grounds, and anyway, in the terms of this debate, I think recognizing that right would not be the correct way to approach it to achieve your desired result.



I tend to agree with that. Although, one might argue, the government has been regulating commercial speech for a good long while. It seems like they've staked out their position on the issue, and I think you'd be hard-pressed to find a court with the, well, intestinal fortitude to find otherwise.



Not an argument from the Constitution, but it seems to me that the Congress has given itself just such power over the years. Again to my lament.



My point, imperfectly conveyed, was that they are interstate commerce since they travel on interstate media.



Original intent? What's that?

Seriously, I agree here, too. Interstate commerce has become almost magic wording for Congress when they seek to regulate something that they ordinarily have no right to regulate. Once again to my lament.

1. So does walking naked in the street, or smoking a joint in the playground, but sometimes individual 'rights to happiness' are usurped by the interests of society at large.

2. True, free speech isn't limited to only political and religious speech...although I believe that was the main intent of the founders. I doubt they envisioned a 12 foot tall billboard urging passersby to 'Eat at Sams!'. Commercial speech however, unlike political speech, can be regulated for truthfulness by the government.

3. The purpose of the Constitution is to define the limited powers of government, and also to protect individual rights. IOW...if I'm not free to take my children to the park because there exists a massive billboard of a penis, my rights are being violated. My rights to take my children to the park are at least as compelling as the penis promoter's right to advertise his attributes.

I don't have a problem with prescription drug ads in general, because they are (ostensibly) regulated for truth in advertising. I believe the population should be informed about those issues. However, is it really honest to promote the one most expensive product, and not indicate the numerous cheaper generic equivalents? Obviously, it is in the interest of the company to promote their product, but is it completely truthful? Is it really truth in advertising to present a product in such a way as to make it look like a panacea?

Suppose there is another product which is cheaper and works better. Now, the company sends their pharmaceutical salesmen to market their product to the doctors and those doctors promote the more expensive product because they receive some sort of benefit in exchange. It works, though not as well as some other less costly one, but the insurance pays so what does it matter? Then, the insurance rates increase due to increasing medicinal costs. Are the consumers being duped there, or is it simply freedom of advertisement and a smart marketing technique? Just a thought.

You certainly appear to know what is Constitutional, but you seem to be resigned to the idea that the Constitution is virtually meaningless today. May I strongly encourage you to hold fast to the Constitution and do not let its ill treatment today to discourage you from holding the government accountable to it. Some would say this is unrealistic, but it will never BE realistic until WE make it our own responsibility to bring these truths into the public conciousness.



Not at all! That's why it is the persuit of happiness - not happiness itself.



True. Nevertheless, this is what the Constitution says and it should be upheld. It should be shouted from the rooftops. However, I'm not opposed to regulation of things as they may be construed to be fraudulent. Fraud is a form of theft, and it is definitely the rightful role of government to punish and prevent theft. However, even at that, it would have to be demonstrated that the Federal government had a Constitutional basis to regulate it as opposed to the States.



Yes, Congress and the Federal Courts.






First, note that it is the persuit of happiness, not the realization of happiness. Second, these are all State issues - not Federal issues. Heck, some of them should rightly only be municipal issues, or neighborhood issues.



Yes, and that is because fraud is a form of theft as I stated above. But again, this should only come into the purview of the Federal government as it is appropriate.



This is implicit in the fact that government's powers are assumed to be none with narrowly defined exceptions. Indeed, some of the Founders did not even want a Bill of Rights included for fear that it would later be thought to be exhaustive and therefore unmentioned rights would be denied.



This isn't necessarily true. Do you really have a right to a certain view in a park? Do you have a right for the park and the area surrounding to appear a certain way so that it pleases you? No, you do not. However, that doesn't mean that you can't have municipal (the smallest level of government is the best for these kinds of laws [sumptuary laws]) codes for things that are neither political or religious. But Federal laws would be a massive mistake.



Are you sure you're a libertarian? Why should a company be compelled to promote the interests of its competitors at its own expense?



What do you propose as a remedy? Forced medicine? Should doctors be forced by the government to administer only certain brands of medicine? Based on cost? Based on effectiveness? Besides the issues of corruption in government and the uncertainty of who would decide what is most effective medically, you also have the issues of freedom and rights. It'd be dangerous to hand the power to the government to dictate what medicines will be sold and which will not (assuming both are safe).

I worded that poorly. Is it really truth in advertising to promote a product as the only one on the market for that specific purpose, if it isn't?


I won't go into the 'forced medicine' angle you gave because it would be off-topic. I believe you know as well as I do there's a difference between 'forced medicine' and patient awareness. If a product is being touted as the only one, and the doctors also have a vested interest in peddling it to an uneducated public, I believe there's something wrong.

Advertisement should promote a product honestly. If it is tauted as a panacea, that is a lie. If it is touted as the best if it isn't, that is a lie. If it is touted as the only and it isn't, that is a lie, ect.

Edited to add: There actually are Federal laws which prohibit the display of graphic violent or sexual imagery, to protect children from harmful images. What you claim would be a horrible mistake is absolutely necessary or zoning laws would be unenforceable. A person's federally granted right to free speech would usurp any local government restriction. As I recall, the Constitution mentioned promoting the general welfare, which I believe is served by not allowing indecent material to be displayed at the playground.

Edited again to add: Please explain the distinction between the 'pursuit of happiness' and the 'realization of happiness', as it relates to the powers of the federal government.

There are several points here:

1. Federal laws are not neccessary to prohibit these things, they can be prohibited on the State or municipal level.

2. Neither the Federal government nor the Constitution grant us our rights. Our rights are natural and primeval. The Constitution and the government itself only serve to secure those rights.

3. It was never intended for ANY Federal power to usurp the rights of States in ANYTHING domestic. The Founders were quite clear that the Federal government's domain was only to be foreign affairs and interstate disputes, whereas the States were to be completely sovereign with regard to everything domestic. Anything else is a perversion of the original intent of the Constitution (the only purpose of which was to create the Federal government).



Actually, the powers of the federal government don't enter into it. Except to say that if a realization of happiness were a right, it would require power in the government to enforce the realization of that "right". You have a right to pursue your own happiness, but you don't have a right for that pursuit to be successful. The right of pursuit means that you can do whatever you think you need to do to be happy so long as you don't violate the rights of others. A right to the *realization* of happiness would mean that the government would be responsible for seeing to it that you ARE happy. If you think success in business would make you happy, then the government would be responsible for seeing to it that you succeed regardless of your talents and abilities. Nobody has a right to a guarantee of happiness, but everyone does have a right to pursue that happiness.

One of the big problems today is that people seem to think that people should be guaranteed happiness. But this is a terrible mistake. Such a guarantee means that the government would then have to define what happiness is for everyone and then would have to violate people's other rights to attempt to bring this happiness about -- which would be a tremendous failure.

Corporations are not "citizens" and are actually "commerce" and therefore are completely under the rights of the congress to regulate them. This is both good and bad. As a corporation, the leader of the corporation is limited from liability for the corporations behavior, something that a sole propiertership is not AS protected from, so therefore, with less reponsibility, comes more regulation!

Lets not forget however that the airwaves were not considered by the framers of the constitution. That is not to say that there are no constitutional rights extended to new mediums; but it is important to realize that the airwaves are not a public forum, they are a property of the government on which space to broadcast is "rented out" or licensed to individuals or corporations. I have no more "right" to speak my mind there than I do to climb into someone's apartment and give them a lecture while they're in bed.

First, Congress is not given the power to regulate "commerce" -- only interstate commerce.

Second, that regulation must be on the commerce itself and not the entities engaged in commerce.

Third, there is no need to define "citizens" or any other such thing because the Constitution merely serves to outline the exceptions to the general rule of the powerlessness of the federal government. Any power not explicitly granted to it is assumed to be prohibited to it. Therefore, there is no basis for saying that there is a criterion (such as a definition of a "citizen") that, if satisfied, allows Congress to have carte blanche.

But we're not just talking about corporations anyway. We're talking about any commercial speech -- regardless of the speaker. The speaker could be an individual (or sole-proprietership), a co-op, or anything.



Ultimatejoe:

Careful, this is a dangerous path to take. If we accept the concept that the government has ownership of the airwaves and that we therefore do not have a right to speak our minds in that medium, then we've adopted a principle that will also allow the government to utterly control what is said.

Something else that is often overlooked is that much (if not most) television, etc, is not transmitted via airwaves, but rather through cables. And that is not a limited, public resource. Nevertheless, the FCC assumes jurisdiction to regulate communications across these essentially private and unlimited media, and Congress even assumes authority to regulate it.

See this is an interpretive understanding of the constitution. By your rationale a wiretap is legal since the fourth amendment only outlines privacy protection in the face of trespass; which involves the illegal violation of a person's physical residence. Of course the Supreme Court thought otherwise... The court essentially considered that the correct way to interpret the constitution in Katz vs. United States was that the law should ensure the same protection (of rights) given the changing context of society. Here's a really good example from Code: And Other Laws of Cyberspace by Lawrence Lessig.



This is the process of translation by the way.

Anyone here familiar with the court case in CA involving Nike...I ask this because it deals with this exact situation.
Janice Brown was very outspoken on this issue. I know this because I have been watching her As I believe she may in fact be headed to the Supreme Court someday.

Here is an article.

I have to agree with Justice Brown. I feel it is dangerous and unconstitutional to allow freedoms to one group in our society and not another.

Ultimatejoe:

No, it is not interpretive, it is a prima facie reading of the 9th and 10th amendments. And under the 9th amendment, a wiretap would still be illegal because, although it was not explicitly enumerated or described as a right in the Bill of Rights, it is nevertheless not to be "disparaged" by reason of its absence on the list. It is part of the individual's "indefinite and innumerable" rights. The Bill of Rights was not intended to be an exhaustive enumeration of rights, but merely an explicit enumeration of a few of them as a safeguard against encroachments over time. This is not my own interpretation. This is what is written in the 9th amendment, and this concept is also spelled out time and again by the likes of Madison and Jefferson.

If your interpretation were correct, then my premise would have to be that the government retains all powers by default and is only limited by explicit prohibition in the Constitution. This is, in fact, the reverse of how it works. The federal government's powers are strictly limited to only those powers explicitly granted by the Constitution (see the 10th amendment to verify this). Outside of these explicit enumerations of power, it has no authority.

As for having to interpret whether a wiretap constitutes "persons, houses, papers, [or] effects", if it is considered that it does, then it is still subject to the restrictions outlined in the Constitution. If it is not considered one of these, then the government would more likely be prohibited from it entirely being that it is not given explicit authority to do this. But under no circumstance could a wiretap be considered legal and Constitutional without restriction.

As far as I am aware, the USA is the only Western nation that permits public advertising of prescription medicines.

Doctors are the target of drug marketing and adverising in the UK, and as it still goes on, the advertisers must believe it to be effective. However, doctors and broadcasters, as well as legislators, oppose the targeting of end consumers for prescription medicines ont hte grounds that doctors are not only better informed than the general public, but have a moral, ethical, and professional duty to extend the best course of treatment to their patients, regardless of the advertising budgets involved. They believe that facing patients who insist on a particular drug to treat their condition, even if it is not clinically suitable, makes treatment more difficult and less effective.

International comparisons consistently show that the USA, while it has one of the most comprehensive healthcare systems (in terms of the variety of treatments available), is one of the most expensive based on quality of clinical outcome per dollar spent. (The hard-pressed NHS is, somewhat surprisiginly, one of the most efficient on the same measure. I don't have the figures to hand, having read them several years ago, but I will do some digging and link them here if I can find them.) This is driven by the ever-inflating costs of insuring clinicians against claims made against them, among other things. However, the cost of medicines is also a factor.

This is additionally complicated here by the drugs bill being predominatnly funded by taxpayers; drug advertising to consumers could very conceivably increase the total drug bill. Based on this experience,

In the light of this, it seems to me that, if television and radio qualify as interstate commerce, and [b]if[/i] Congress has more or less discretionary powers to regulate interstate commerce, Congress would be well within their enumerated rights to ban the acceptance of prescription drug advertising by broadcasters, as distinct form forbidding the drug companies from advertising their wares.

Given the structure of advertising media in the USA, where TV and radio advertising dwarf press ads, the two would have much the same effect, but one is legitimate exercise of enumerated powers in furtherance of the general welfare, and one is (arguably, but not incontrovertibly, as this thread demonstrates) an illegitimate interference in areas not covered by the powers of federal government.

I'm not clear from this thread which route the US federal authorities are taking, so I can't be sure whether they are acting correctly or not, although as I agree with their aims, I am tempted to give them the benefit of the doubt.

No...New Zealand also allows it.

As much as I'd love to debate the merits of a free healthcare system versus a socialist one, this is rather far off the topic of this thread. The question here is whether commercial speech is/should be protected the same as political speech. And one specific example is where someone started a thread a bit ago asking whether prescription drug ads should be banned.

My position is that we should be very careful handing the government any power to regulate speech of any kind.

Precisely, which is why I addressed precisely that issue in the last three paragrpahs of my post. The first few were for context, perhaps explaining the motivations for Congress to want to limit commercial speech in the case of drug advertising.

I see your points, Julian. However, I can't shake this skiddish feeling about allowing Congress to regulate speech on airwaves at their sole discretion. Fortunately, the airwaves are being used less and less and cable is more important now. Nevertheless, the Fed still tries to regulate cable providers as though they were using up airwave bands. Perhaps some advances in technology can alleviate or eliminate the situation of airwaves being a limited resource? If that were possible, then the government could no longer argue that the airwaves are a limited public resource and could therefore not claim any right to regulate its use... unless they still fell back on the idea that airwaves cross state borders... but that seems dubious to me seeing as how sound waves do the same thing but we don't regulate audible political or commercial speech near the borders.

I started that thread asking if prescript should be pulled from tv. To me it doesn't matter how the ads get through the television via air or cable. The point is it still does.



I was the one who said that. My reasons are these:

1. When you are a massive drug company you have to consider what your product is going to do (especially to the minds and bodies of) to society not only in terms of tomorrow but a lifetime.

2. With the 200+million people in the US and most have tvs and I'll be conservative with my estimate of 1/100 of those who are sick (mentally or physically). They think "hey this drug can help me". They go to a doctor who may possibly have stock in this drug company and "determine" this patient does have the symptoms this drug can cure. The profits are made.

I'm 36 and was just a bit too young to remember perhaps someone can add to this but...
Until the mid-1960/70s cigarettes companies advertised on tv then were banned. Can someone add who (FCC or Congress or ?)and why decided tobacco ads were not to be permissable television advertisments? Maybe because unhealthy to society?

But you aren't suggesting they cease the production of their product. You're suggesting they should simply be banned from advertising their product on TV.


This could still happen whether the commercials are on TV or not. If the doctor is crooked as your scenario states, then he would steer the patient to his favored drug regardless of whether the patient had seen a commercial or not.

What I'm saying is, if you think speech should be regulated because it has a potential to give people what you perceive to be "bad ideas" or attitudes, etc that may have negative effects, then you are essentially calling for the regulation of all speech. It is not for us or anyone else to decide what speech should be allowed and what speech should not on the basis that it may cause someone to be a hypocondriac or any other such thing we may perceive to be negative.

I believe that the matter was handled privately, with a deal from the tabacco companies through the court system to stop advertising their product as part of a settlement. Here's a commercial speech timeline.

No, not at all. I think that for the most part these companies are fine and do have a right to advertise. To market a product that effects the physical and mental body of millions when the symptoms are easily associated with other diseases some responsibility should be taken in regards of market strategy.



Oh of course this could still happen but if the ads weren't on t.v. it would happen on a much smaller scale.



I disagree with you on this Orat. It is all of our responsibility to respond within reason to every form of speech either written or verbal. You don't see KKK ads on tv or elsewhere as their association is destructive to society. But their association is still allowed to assemble.

Alcohol obviously effects the mind when used so the producers (most of them) knowing their products affect millions everyday add a short PSA at the end of their spot "Please don't drink and drive" or "Please drink responsibly".

The tire industry. When those people who were injured or killed due to faulty product, tire companies didn't put a disclaimer on their ads saying "rollovers may occur while using our product" . They redesigned them to function properly.

My last example is that of subliminal advertising. Back in the 60s/70s some movie theartre owners were discovered to have a few frames of "buy more popcorn" type of messages interwoven into the pre-show screenings. Is this moral free speech?

Then you may agree with me after all. Are you saying that the KKK should be legally banished from buying ads in media (be it broadcast, cable, internet, whatever)? If this is what you're saying, then I must disagree.


Sure, and that's great, if voluntary. The thing I'm not totally clear on here is if you think this should be implemented by force or if you're just stating that it is responsible and good.


Hmmm... this is an interesting case... I suppose the argument could be made that "speech" consists of the delivery of a message that is targetted at the concious mind of the viewer/reader/whatever. However, this is something of a dangerous definition too since lots of normal things could be construed to appeal to one's subconcious. I would say, however, that a technique that can be scientifically varified to psychologically control or heavily influence someone (possibly against their concious will), when used in such a manner as it has no relation to any kind of concious message, could perhaps be considered a kind of psychological assault. For instance, if it was possible to hypnotize somebody without their knowing it and actually gain a certain degree of control over that person against their will, I don't think that should be allowed. So subleminal ads could be such a case, but would have to be subject to thorough scientific and ethical scrutiny first.

Corporations are granted their charters of incorporation by the people, through the state. They should not be considered constitutional "entities," given the same rights as individuals. That they are is the fault of the Supreme Court. This isn't the vision of "market" that Adam Smith portrayed.

Orat, you are correct, but only IF corporations are granted the same rights as individuals. Smith was not alone in (rightly) fearing the kind of power corporations can have, and at the birth of our nation we adhered much more to his idea of temporary charters for specific purposes, with the mainstay of the market being tradecraft. Corporations are not mentioned in either the Constitution or the the Declaration of Independence. I don't believe it was the framers' intent for Merck to be granted the same rights and guarantees under the Constitution as "Orat."

Interesting view, quarkhead. Can you detail to me the specific legal and moral differences you perceive between a corporation and, say, a group of individuals who are acting in volutnary cooperation and concert?

Although I'm not Quarkhead, that might be a good question to ask a corporate lawyer.

With their reputation and philosphy no one would take on the account. Are you saying you want them to advertise? What's your take on Hitler? He used free speech.



What I'm saying is

1. It is a companies moral and legal responsibilty, from concept to completion, to question itself and its product about how its going to affect millions in society. If one has to pause in contemplation some more thought may be needed.

2. To test that product for defects or malfunctions. If found, fix before distribution rather than recall or being forced to put a disclaimer on future products.

Disclaimers only mean to me that "hey we're not going to admit we had these problems off the line but here's what happens just so you know and can't (or won't try) to sue us." When a company has to say that about it's product thats where I have a problem with free speech.

I don't know if this helps, but it's probably the same in America. One of the first things learnt in my high school Business Studies class is that businsses are legal entities. If they consisted of a group of individuals, employees could be held responsible if the business goes bust. Making them legal entities gives owners limited liability.

mrbluiis:

No, I'm saying that I want to be able to espous my views even if others don't like them. I don't like the KKK's views, but if we ban their views from the public forum on the basis that people don't like them, then views that may be "good" could also be banned because either some people don't like them, some people are misinformed about them, or a host of other reasons. Freedom of speech does not exist to protect "pleasant" speech we can all agree to like, it protects ALL speech. Without this blanket protection, no speech would be secure.

That having been said, I agree that people would likely not sign deals for ads with the KKK on the basis that it would bring criticism down upon the magazine/tv station/whatever in question. And as owners of a business, they have a right to serve as a conduit for whatever views they want, it's part of the rights of ownership. But the government is specifically porhibited by the Constitution from restricting freedom of speech.


But we're not talking about harmful products here, we're talking about the right of a company to engage in commercial speech. (And for the purposes of discussion, let's assume "commercial speech" to be non-fraudulent since I think we can all agree that should never be legal.)


You can't really say that. Every actual drug I'm aware of has some kind of side-effect(s). In fact, technically even placebos have side-effects (due to psychological factors). Besides the myriad and virtually endless possibly dangerous combinations of prescription drugs, all prescription drugs (AFAIK) have some kind of side-effect, and that's WHY they're prescription and not over-the-counter. If they didn't list the possible side-effects, you'd be complaining that they didn't do enough to inform the consumer. But what you're suggesting is that no prescription drug be allowed to be advertised (and presumably not allowed to even be produced).



Corvus:

I'm aware that in the US one of the features of a corporation is limited liability. But I'm not sure how having limited personal liability translates into the concept that corporations (which are just groups of people) don't have the same rights to free speech as individuals. In your class did they discuss any possible reason for this line of thinking? Thanks for the reply, Corvus.

Those who don't incur all of the responsibilities (in this case, liabilities) are not always entitled to the same freedoms. Limited culpability (other examples:children, or the mentally incompetent) often includes limited liberties.

Therefore, if the members of a group jointly agree to a legally binding document which limits their individual personal liabilities and frees them from responsibilities of their actions through that group, they simultaneously limit their liberties to say whatever they want through that entity.

But from what I understand, they haven't absolved themselves entirely of liability, only of personal liabiltiy. The liability is tranferred to the corporation, but the corporation still bears liability. AFAIK, the only way in which the corporation isn't liable is if it is dissolved.

So I'm not sure why this should affect the freedom of the people, acting through teh corporation, to speak.

It makes sense to me that if I could create a fictitious legal person (as is a corporation), and could act through that fictitious legal person without incurring liability, my actions through that person would be limited. For pretty obvious reasons..."I didn't say it, he did!" Judging from the commercial speech timeline link I posted a few threads ago, it seems like a nebulous and subjective area (of which I know very little).

I'm simply arguing that the corporation can't be viewed as a citizen or individual or a collection of individuals, or something governed by a collection of individuals. The views of the people don't express the views of the corporation. The corporation has views of its own that are supposed to reflect its own best interests and the best interests of the shareholders/owners/community/whatever.

Okay, let me simplify it. From what has been posted earlier, the Constitution protects the freedom of speech of citizens. But a corporation is something else entirely. Semantics, I know. But even then I find a problem with my theory, and I ask myself; Does that mean a sole trader, who doesn't have limited liability, could have his advertisements covered under freedom of speech, because a sole trader's business isn't classified an entity?



It's been over a year. Apart from that tidbit pulled from the top of my head, I can't remember anything else. I just thought it might backup, or give insight into quarkhead's view on how there really are some legal and moral differences between corporations, individuals, and groups.

To tell you the truth, I find it amazing how much the Americans revere their constitution. I understand it's the highest law in the land, but I can't help but wonder how people can fault common-sense laws on the basis that it would be unconstitutional, like compulsory seatbelts for drivers. Heh. It's just a sidenote. I do realise we're in the Constitutional debate forum.

A corporation is viewed, legally, as a person.

Well, that cancels that. It also proves that Australians should never get involved in Constitutional debates.

LOL!
Actually, I don't believe the average American knows that one. My point is, not only is a corporation considered a person, but it isn't subject to the same consequences (as you posted originally). It can go on for generations, or it can dissolve. It isn't subject to the same tax rates. There is an entire branch of law dedicated to the ins and outs of corporate legalities. Therefore, it doesn't seem (to me) that they are the equivalent of a 'group of individuals speaking in accord', and should not be afforded the same 'speaking' privileges.

Corvus:

Because we value the rule of law and realize that if we shred a small (and perhaps seemingly insignificant) part of our Constitution, we have set legal precedent for shredding more vital parts.

Also, so-called "common-sense" laws like seatbelt laws are bad in principle, and therefore bad in practice. Legal precedent is a principle that must always be kept in mind when considering law. If we say it is okay for government to pass law restricting liberty for the purposes of protecting people from themselves (like with seatbelts), then we've opened a legal pandora's box since many other, more serious, things can be justified by the same premise. Some here will tell you that the "slippery slope" argument is a logical fallacy, but it isn't. Especially when you take into account the concept of legal precedent and judicial review.



Mrs. Pigpen:

Aside from corporations having a lower tax rate (if you don't consider the "double-tax") and the ability to dissolve (which isn't going to happen in the case of large transnational corporations), I don't see how they are any less subject to the consequences of their actions as entities than an individual would be. They can be sued, they can be shut down, etc. The only difference I can see is that if they did something really awful and couldn't pay the damages, they could dissolve, but an individual can declare bankruptcy too, so again they're about the same in terms of exposure to consequence. Also, corporations do not have "views" of their own in a way that is somehow separate from that of any human involved in the corporation. The "views" or "speech" of the corporoation would be whatever the majority of the shareholders decides, so it most definitely does represent the views and speech of real human beings.

As far as I know, the corporation has clearly outlined missions, goals and visions. Also, the corproration can head in a direction the majority of shareholders may not approve of, forcing them to bid to change it. I can add nothing further. I really wish I could remember Business Studies class. Internet searches really aren't helping me.



Actually, I think in some cases - and in this seatbelt case - it is. Precedents tend to follow through horizontally, not vertically. That is, they don't go down the slippery slope, they apply to items on the same "level", so seatbelt laws could set the precedent for, say, hand-out-the-window-while-driving laws, but won't lead to any sort of autocratic government. Australia has both laws, and our liberties are still - well - free. They work in practice too.

But, we'll save that for another debate. If you want to talk about it, please, do private message me. That applies to anyone.

I'm a bit curious how far you believe such 'freedom of commercial speech' goes. Obviously, there are limits to freedom of speech even for individuals. Yelling fire in a crowded theatre, for instance. Should the president of the United states be able to include a promotion for Ford automobiles in his address to the nation?

As I've stated before, fraudulent and harmful misrepresentation should be prohibited because it is a form of theft. But as for the President promoting Ford, I don't know... it'd surely be in poor taste and I doubt he'd get re-elected if he did that sort of thing... but I don't see any laws against it and I'm not sure there should be.