Some pro-business federal judges have shockingly approved a constitutional right for big companies to avoid revealing product dangers on labels.
By Steven Rosenfeld
December 12, 2011
In recent years, corporate lawyers representing industries whose products touch millions of American lives have stopped numerous government efforts to better inform the public about possible health risks with an eyebrow-raising legal strategy. They have asserted a constitutional right not to speak, or say more than they want on labels and advertising, and pro-business federal judges have agreed, rejecting the public’s right to know.
In cases involving manmade hormones fed to dairy cows, heart and lung disease caused by tobacco, the nutritional value of foods contributing to childhood and teenage obesity, and even radiation emitted by cell phones, the industries keep returning to court until a business-friendly judge or majority on an appeals court rules that the First Amendment includes the corporate right not to ‘speak’ if it could harm profits.
“They invoke the Amendment’s protection to accomplish exactly what the Amendment opposes,” wrote U.S. Court of Appeals Judge Pierre Leval, in a lengthy dissent in an early case in which his peers sided with industry and cited the First Amendment to overturn a state law labeling hormone-containing milk products. “The majority’s invocation of the First Amendment to invalidate a state law requiring disclosure of information consumers reasonably desire stands the Amendment on its ear.”
The labeling cases are not the only way corporations have been seeking to enlarge First Amendment speech rights outside the political arena.
This past June the Supreme Court ruled that drug makers’ constitutional speech rights included ‘selling’ patient records, overturning a Vermont law that sought to keep the files private. Justice Stephen Breyer’s dissent said the Court was setting a dangerous precedent by allowing the First Amendment to be used to avoid reasonable government regulation.
“At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message,” he warned. “At worst, it reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision making where ordinary economic regulation is at issue.”