I’ve been thinking about the First Amendment lately, since the death of the peerless Anthony Lewis, the legal affairs columnist who over the years came to understand the Bill of Rights better than some of the justices he covered (and whom he generally revered). In his last book, “Freedom for the Thought That We Hate,” Lewis wrote that “freedom to speak and write as you wish is the inescapable necessity of a democracy.” Precisely.
For most journalists, “Congress shall make no law abridging freedom of speech” is a kind of secular commandment, and we treat it with respect. I’ve written editorials myself opposing curbs on published ideas I found repugnant (websites denouncing abortion providers, for example) because I believe so deeply that the most obnoxious views are the ones that need protection most.
But something distressing is happening to the First Amendment in our courts. Increasingly, it is exploited to promote an ideology that has little to do with free speech and more to do with commercial profits. And it has been twisted to support some behavior its drafters never imagined.
Courts have been using the First Amendment to knock down regulations intended to protect consumers. In December, a federal appeals court ruled that selling off-label drugs by pharmaceutical representatives is protected free speech, even if the new uses have not been approved by the Food and Drug Administration. Until then, pharmaceutical companies had been paying millions in settlements to avoid prosecution for misbranding drugs. The dissenting judge in the case noted that drug companies will now have “little incentive to seek FDA approval” for off-label uses, which are weakly regulated as it is.
In March, the Obama administration decided not to appeal a court ruling that graphic labels on cigarette packs proposed by the FDA violate the tobacco industry’s free-speech rights. Congress had passed a law requiring nine tough new labels in 2009, but in December the US Court of Appeals in Washington, D.C., agreed with the tobacco firms that the labels block their ability to communicate with their customers on the cigarette packs. Last week the Supreme Court declined to hear a separate tobacco industry appeal, which will allow some of the FDA warnings to proceed. But Big Tobacco’s free-speech claim is still uncontested.
The First Amendment has been twisted to support some behavior its drafters never imagined.
Another kind of consumer protection is threatened by a case in Washington state. Last month, the owner of Arlene’s Flowers in Richland refused to provide flower arrangements for the wedding of two of her longtime customers because they are gay, citing her First Amendment right to oppose same-sex marriage. The state attorney general sued her under consumer protection laws, saying that a public business has to provide the same services to all (gay marriage is legal in Washington state). But the owner is arguing that requiring her to serve the couple forces her to accept gay marriage. Here the issue isn’t government suppression of speech, but the florist’s claim that antidiscrimination laws compel a certain kind of speech. It’s the First Amendment through the looking glass.
Of course, the best-known perversion of free speech rights is the 2010 Citizens United decision, in which the Supreme Court ruled that corporate contributions to political campaigns cannot be limited under the First Amendment. The idea that money is a form of speech — literally, “money talks” — was first established in the 1976 Buckley v. Valeo case, but that case still allowed for limits on corporate contributions under the reasonable belief that buckets of cash could corrupt the electoral system.
Then Citizens United went further, saying not just that money equals speech but that corporations are people. By taking the concept of free expression to such absurd lengths, the court actually undermined the intent of the First Amendment — to foster vigorous debate — because opening the floodgates of “political speech” only drowns out less well-financed voices.
Lewis writes that “we rely on the courts to enforce what the Constitution promises.” But these free-speech cases seem more like opportunistic score-settling than sincere evocations of constitutional guarantees. The free-speech protections in the Constitution aren’t absolute — there are reasonable exceptions for libel, obscenity, and incitement — but they are fundamental to democracy. Now, it seems, the First Amendment needs some protection itself.
Renée Loth’s column appears regularly in the Globe.