OCTOBER 1996 · VOLUME 17 · NUMBER 10
E D I T O R I A L
OCTOBER 1996 · VOLUME 17 · NUMBER 10
E D I T O R I A L
Yes, according to a federal appellate court. A three-judge panel of the U.S. Court of Appeals for the Second Circuit held in August that implementation of a Vermont law requiring milk produced with bovine growth hormone to be specially labeled would violate dairy manufacturers' constitutional right not to speak.
The ruling provides further confirmation of the wrong-headedness of the legal doctrine by which corporations are afforded protection under the U.S. Bill of Rights substantially equal to that provided real human beings.
The ruling came on a motion from the International Dairy Food Manufacturers and a range of other milk-product manufacturing associations asking for a preliminary injunction preventing the state from implementing a law requiring dairy manufacturers to identify products made with recombinant bovine somototropin (rBST) with a blue dot.
In the wake of the federal appellate court ruling, Vermont Attorney General Jeffrey Amestoy decided to give up defending the state law, reasoning that further court action would be futile.
Amestoy's decision, though perhaps premature, was understandable. The court's decision was particularly distressing because, having found an infringement on the manufacturers' right not to speak, the court also had to consider the state's countervailing interest. Under the prevailing commercial speech doctrine, if Vermont's labeling law advanced a substantial state interest, and was no more extensive than necessary, it would be upheld.
The appellate court, however, found that the state interest in disseminating information to consumers was negligible. Since the U.S. Food and Drug Administration (FDA) has concluded that rBST poses no threat to human health, the court stated, demonstrated consumer interest amounted to nothing more than "curiosity."
"Were consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods," the court wrote. "For instance, with respect to cattle, consumers might reasonably evince an interest in knowing which grains herds were fed, with which medicines they were treated, or the age at which they were slaughtered." This is indeed so; it is not clear, however, why such disclosure requirements, if a state democratically decided to impose them, are excessive.
In dissent, Circuit Judge Leval disputed both prongs of the majority's decision.
Under the constitution, corporations' commercial speech rights, he wrote, primarily concern truthful disclosure the very goal the milk producers sought to undermine. "Notwithstanding their self-righteous references to free expression, the true objective of the milk producers is concealment," Leval wrote. "They do not wish consumers to know that their milk products were produced by use of rBST because there are consumers who, for various reasons, prefer to avoid rBST."
Moreover, Leval argued, Vermont citizens had a legitimate interest in desiring information as to rBST use. Despite the FDA "clean bill of health," consumer concerns about rBST effects on human health are legitimate, he asserted, noting that many products approved for use later prove to pose health risks. He also concluded that consumer interests in both the rBST effect on cows' health and in the economic impact of rBST-generated increased milk production were legitimate.
Judge Leval's arguments are compelling, and they demonstrate how the case could have been decided differently, even under current doctrine. But the fact that two out of the three judges on the panel supported the perverse outcome highlights the need for a full-fledged reconsideration of the entire body of law awarding constitutional speech rights to corporations.
The commercial speech rights doctrine affords valuable protection to citizen interests in obtaining marketplace information. The doctrine has been used, for example, to force states to permit advertisements of prescription drug prices. Price information empowers consumers and helps keep overall prices down.
That same result could be achieved, however, by grounding a narrow protection of advertising in citizens' -- real people's, not corporations' -- right to know, a right to receive information that can be read as implicitly based in the First Amendment. Such a citizen right to know could never give rise to a decision like the one in the rBST case.
Constitutional protections for corporations' political speech yield even more antidemocratic results. Citing corporate political speech rights, the U.S. Supreme Court has invalidated a state regulation requiring a public utility, at no expense to the utility, to allow a non-profit consumer ratepayer advocacy organization to enclose inserts in the utility's billing envelopes asking ratepayers to join the consumer group. As in the rBST case, forcing acceptance of the insert was held a violation of the utility's right not to speak. The Supreme Court has also relied on corporate political speech rights to hold that corporations must be permitted to make campaign contributions through political action committees, thus ensuring that big money will distort the democratic electoral process.
Again, a more prudent approach to the corporate speech rights issue is to ground protections for corporations in the public's right to know. Where categories or types of corporate speech advance the public interest -- that is, the interest of real people -- by providing truthful information, they should be protected; where they do not, they should not.