Dissenting Opinions

Free Speech Capitalism (with Genevieve Lakier)

Episode Summary

Will is joined by UChicago law professor Genevieve Lakier to discuss what she likes about Virginia State Board v. Virginia Consumer Council as a First Amendment case, whether money is speech, and how we could regulate political speech and lies.

Episode Notes

Will is joined by UChicago law professor Genevieve Lakier to discuss what she likes about Virginia State Board v. Virginia Consumer Council as a First Amendment case, whether money is speech, and how we could regulate political speech and lies.

Audio clips from the case argument and opinion are from Oyez.org (https://www.oyez.org/cases/1975/74-895)

Episode Transcription

Will Baude:   Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, William Baude, and each episode we'll have top legal minds discuss a Supreme Court case they believe is misunderstood.

[David Currie Audio]:  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Will Baude:    This episode, we're going to talk to Professor Genevieve Lakier about Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. This is a Supreme Court case decided in 1976, where the court decided that commercial advertising is protected by the Constitution. The court stopped the state of Virginia from enforcing a law that said pharmacists couldn't advertise drug prices. This decision changed the course of free speech doctrine, by holding that commercial speech is entitled to constitutional protection.

[Case Audio]:       We'll hear arguments next in 74-895, Virginia's Board of Pharmacy against the Consumers Council.

Will Baude:    Today, I'm here talking with one of my favorite colleagues, Genevieve Lakier, about the First Amendment, about which she luckily has a lot of interesting and different views. Genevieve, as you know, this podcast is about Supreme Court cases most people think are terrible, but that you might think actually have some virtues or vice versa. So I'm curious, what decision do you have in mind for us to talk about?

Genevieve Lakier:    The decision I really like, that most people don't like, is called Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. For First Amendment and free speech people, it's a really important case because it was decided in 1976. It's one of the Burger Courts blockbuster First Amendment cases. And it's important because it's the first time that the court explicitly holds, holds directly that purely commercial advertising is protected by the First Amendment.

[Case Audio]:       We hold that these consumers enjoy the same First Amendment protection that advertisers have to disseminate prescription drug price information. And thus that the appellees, as recipients of the information, have standing to bring the suit. We further hold that so-called commercial speech is not wholly outside the protection of the First and Fourteenth Amendments. The individual consumer and society in general may have strong interest in the free flow of commercial information.

Genevieve Lakier:    By the time we get to this decision, Virginia State Pharmacy Board, there's been a lot of internal disagreement and uncertainty, anxiety in the court about what to do about advertising. And so little by little in the years prior to Virginia State Board, the court had been extending more First Amendment protection to certain kinds of ads. But it had always been holding out the idea, the principle that purely commercial advertising isn't protected.

            Just had been narrowing the scope of what counts as purely commercial advertising to include, for example, two years earlier, it had held that ads advertising abortion services, even though they look like commercial ads, they were providing information about a service that was provided on the commercial marketplace. Because abortion had to do with a tough political issue, a contentious political issue at the time, that wasn't a purely commercial advertisement. Virginia State Pharmacy Board is the first time the court says "No, even purely ads that are just simply advertising prices for drugs are entitled to First Amendment protection.

Will Baude:    So like buy cheap beer, cheap beer, 5 cents.

Genevieve Lakier:    Or gas is $3.99 a gallon or whatever it may be. The simplest form of price advertising, the Court holds, in Virginia State Board, is protected by the First Amendment. And lots of... Immediately there is criticism, both within the Court, while First Amendment people are outside the Court. And really what's amazing about the decision is some decisions, I think, people get worn down into accepting.

            They slowly forget that they used to hate the decision. Maybe they still would hate the decision if it was handed down today. But it's such a well established part of the framework that they stop complaining about it. Virginia State Board is not one of those decisions. People continue to say "It was a bad decision. This marked a terrible departure in First Amendment law," continues to be a very well hated decision.

Will Baude:    All right, so good. So let's talk about why people hate it first. And I'm curious if these are the same or different, why people hated it then and why do they hate it now? I'm guessing, from my rudimentary knowledge of free speech law, that it's "Free speech is supposed to be about important stuff like democracy and government. And this is beneath us, this is not important. This is just how much things cost."

Genevieve Lakier:    Yeah. There's a way in which the objections are the same and there's a way in which they're different. So they're the same in the way you identify, there's a certain rejection of the idea that we're going to treat commercial speech on the same plane or a similar plane to non-commercial speech.

[Case Audio]:        Mr. Chief Justice, and may it please the court. It has been traditional that the practice of professions are to be above the morals of the marketplace. This case presents the question, whether the practice of pharmacy and the dispensing of drugs should be subject to the morals of the marketplace.

Genevieve Lakier:    So saying, right, as you said, "Beer, sale on beer," doesn't seem like the same kind of august important democratic speech as "President Trump should be impeached," for not just a hypothetical example. And so there is a strong view that Virginia State Board represents the beginning of what some called the Imperial First Amendment, where we're just going to be expanding the First Amendment beyond its proper domain. And thereby, because we're extending too much protection to speech that isn't really politically important or we don't need to protect in order to protect democracy, we're actually going to be intruding on the prerogatives of the democratic legislature. Because we're going to allow federal courts to second guess the decisions legislatures are making.

            And this is a point that Rehnquist makes in a dissent in Virginia State Board. And then he makes it again in a number of other commercial advertising cases, in which he brings up aspect of Lochner. He says, "Just like in those due process cases in the early 20th century, late 19th century, the courts were going outside of their domain and they were striking down legislative enactments when they had no right to do so, in the name of democracy. The court's doing the same thing here." And so I think that criticism of Rehnquist's continues to be made, that this is just the beginning of the anti-democratic First Amendment.

Will Baude:    So how's the criticism of Virginia State Board different today?

Genevieve Lakier:    One of the ways in which the criticism is a little bit different, maybe, is that... The point of Virginia State Board, I don't think people knew what was coming. And so there is a way in which the focus of the criticism about Virginia State at the time is really about advertising per se. I think now it's become sort of emblematic of this broader expansion of the First Amendment and so...

Will Baude:    To what?

Genevieve Lakier:    To include corporate speech. So people just worry that we're extending more and more into this economic domain. And so Virginia State Board now in retrospect, looks like the beginning of a slide that hasn't stopped.

Will Baude:    Yeah. Okay, great. So I feel like there are two different aspects of this, so tell me if this is right. One is the sort of worry about demeaning the First Amendment. Like "We're going to stretch the First Amendment over to stuff that's not as important as its core duty and then we're going to lose stuff."

Genevieve Lakier:    Yeah.

Will Baude:    And the other is sort of more specifically about anxiety about economic regulation. Even if it was okay to stress the First Amendment in general, we shouldn't put it in the economic regulation. Cause it's really important that we have lots of state power over economic regulation because unchecked capitalism is scary. Are there both?

Genevieve Lakier:    Yes. I think both arguments are made. I feel like the first argument, that it's demeaning, definitely still affecting, underpinning a lot. But there was this early argument made against it, which is that it's going to weaken protections for high value speech. Because we're expanding the First Amendment, courts are going to be required to apply very similar kinds of principles and doctrinal rules to this low, bad speech, course, crass commercial speech, as to high political speech. And so in order to do what they want to do with commercial speech, the worry was we're going to lower the level of protection for all speech.

Will Baude:    Yeah.

Genevieve Lakier:    I feel like that concern has largely gone away because what we've seen is just that there's increasingly stringent protection for commercial speech, but it hasn't lessened protection for political speech. Although, perhaps there's some people who still are worried about that.

Will Baude:    Yeah, and actually this is something I've often wondered about the First Amendment and may be talking about it for just a second. So sometimes I hear this sort of description of the political model, the First Amendment as being, "We've got a certain amount of free speech and you're going to use it up," right? If we protect too many different kinds of free speech, then they all only get like two free speech points rather than 10 free speech points.

            But other times you hear a model that's more like "We have to protect really horrible speech because that will strengthen us in our ability to protect really good speech. So we have to let the Nazis march through Skokie because that will let us protect the Black Lives Matter protestors or whoever it is later." So it's more like a virtuous cycle or protecting more speech builds on more speech.

            So it seems like the commercial speech critique is the first kind. But it seems like we live in a world, maybe it's the opposite. We've protected commercial speech, and now we've protected campaign finance, and hate speech, and signs, and religious speech. So do you have a view of which dynamic it is?

Genevieve Lakier:    I feel like both those accounts are insufficient really to explain how these dynamics operate because... So because there is this sort of complex cultural and social world in which legal doctrines operate, and so it is going to be the case sometimes... I do hear the concern that if you are rendering decisions that are really unpopular or they seem illegitimate, it's going to weaken political support and maybe that'll subsequently weaken the, sort of, commitment of judges.

            And so I get the like, "We mustn't undermine the First Amendment." There's this idea that the First Amendment has this great popularity, the "Cultural magnetism" Fred Schauer has said. And so we don't want to do anything to do away with that magnetism. I hear that, but you are right that one of the ways in which you make these kinds of legal ideals of freedom of speech really politically and culturally salient, is maybe expanding them. So we're thinking about free speech all the time. We're constantly being schooled that free speech is an important American virtue because it comes up in all these different domains.

            And so it does seem like the First Amendment continues to have a kind of cultural magnetism, but at the same time, I also think that there is increasing resistance, certainly on the left, to the way that the First Amendment operates. But on my view, that's not because... And this is where I begin to diverge from the critics. I don't blame that on the expansion of the scope of the domain. Cause I think that can be actually really useful as I said, in reminding you of why this matters and making you commit to it. But I think the problem there is that it's so anti-redistributive right now, so it has this effect tending to favor the powerful. I think that is proving politically difficult, but I don't really blame that problem on Virginia State Board.

Will Baude:    Okay. So yeah, let's talk about why everybody's wrong now. So why is it fine or good that we have this right to advertise cheap pharmaceuticals despite everything you've just said, very persuasively, about why that doesn't make sense?

Genevieve Lakier:    Yes. There's two different aspects, I think, to why I like Virginia State Board. Maybe there's a little bit of tension between them, but I really do, I firmly believe both. Okay. So one is, there's this thing that happens in the New Deal period, when we get basically the framework of the modern First Amendment and we get a lot of our modern constitutional law, which is, this is a progressive court. It is really worried about all the things that contemporary critics of Virginia State Board are worried about, which is "We don't want having these elite federal courts running roughshod over democratic decision making and important political choices made. But we live in a democratic society. We don't want the courts to be deciding everything."

            And so, one of the ways in which the court tries to both preserve the importance of judicial review, while still allowing the democratic process to operate, is by suggesting, in the Carolene Products opinion maybe most famously, there's distinction between commercial and non-commercial regulation. When we regulate ordinary commercial practices, when we regulate other things, our standard of scrutiny might differ.

            And I think this is the framework that a lot of the critics of Virginia State Board rely upon and think that it's violating. "In Carolene Products," there's this distinction between ordinary commercial regulation or, I think it's regulations affecting ordinary commercial processes, and other kinds of regulations that affect either our enumerated constitutional rights or that strike at the heart of our democratic integrity, legitimacy.

Will Baude:    People say, "This is like... The New Deal settlement is you can regulate the maximum hours and wages of people who work at bakeries, but you can't regulate whether students can say The Pledge of Allegiance, public school or, access to abortion, or things like that.

Genevieve Lakier:    Yes. And I understand the desire for that to be the distinction that's drawn. The problem is when it comes to the First Amendment, I imagine many other parts of the constitution, but I'm a First Amendment person, so just going to focus on that right now. When it comes to the First Amendment, it raises immediately all these really difficult questions. Because the reality is that a huge amount of speech that travels around our democratic society travels by market mechanisms. It travels in commodified forms, is produced and distributed, disseminated, controlled by profit oriented actors, AKA corporations.

            And so right from the beginning... And even when it isn't, even when we're talking about sort of small scale, deeply felt, say religious expression. That often was, because we live in a market society, that often was being sold for money. So there's these early set of cases that the court has to deal with, right around this time of the New Deal settlement, involving Jehovah's Witnesses. And they were selling their magazines for money. And so there's this question, "Well, if they're selling it for money, and we're regulating the ability to do that without a license, is that a commercial regulation or a non-commercial regulation?"

            I think that this distinction proves very difficult for the court to understand, deal with, in any kind of sensible way, when it comes to the First Amendment. And it is not a useful way of thinking about where we want courts reviewing legislative determinations stringently and where we don't. Because there's a lot of things that look like it's regulation of commercial practice, like say campaign finance, that go right to the heart of our political society. And so Virginia State Board, this is the reason people hate it, this is one of the reasons I like it. It suggests, or makes very explicit, that this purely commercial thing is just not going to cut it when it comes to the First Amendment, it is not going to limit the scope of the first Amendment's reach.

Will Baude:    Yeah. So you mentioned campaign finance. There's a slogan that many people, Justice Stevens among them, would have in the campaign finance area where he'd say "Money is not speech." Congress could regulate money. So as long as they're regulating money, it's okay. That doesn't count as a speech regulation. I take it, you disagree. You think money is speech.

Genevieve Lakier:    I don't think money is speech, and I'm going to make so many enemies with this podcast, but that's okay. I believe in vigorous debate. Money is not speech, but money facilitates speech. And so when the government regulates money that is being used to pay for speech, we should think that the First Amendment is implicated. Just like if the government regulates newspaper ink. Newspaper ink is not speech, it's ink. My six year old would think I'm crazy to say ink is speech. It's not speech. But it is a crucial mechanism for, and a whole important arena of speech.

            And so if the government is trying to restrict speech by targeting newspaper ink, I don't want courts to be so dumb as thinking, "I could only worry about speech. The First Amendment only talks about speech." So I think money isn't speech, but money can raise all kinds of First Amendment questions. And so again, there too, I don't think that this commercial, non-commercial distinction is really helping us. Sometimes, regulating money doesn't raise serious First Amendment issues. Sometimes it does, as in the campaign finance context.

            And so, simply thinking that the way in which we're going to have a good balance between legislative and judicial power is by making a kind of commercial, non-commercial distinction when it comes to the objects as regulation, I don't think works. Virginia State Board makes clear that's not going to be good enough from here on out. And I think that's useful because, so long as that's the law, and the court seems pretty committed to it, we can either complain about it and... That's useful too. It's lots of things... Academics like to complain. But also, maybe we have to start thinking about other ways of limiting the boundaries of the First Amendment. Thinking about, what choices is it appropriate for the legislature to be making independent of the courts and what choices are not?

Will Baude:    Okay, good. So maybe I'll... Let's try to give you a chance to win some of your friends back. For a minute, I'm getting all excited that this sounds like my sort of Libertarian ideal of government regulation or the First Amendment. But I think that's not where we're going, right? I think, even though you're saying that, "Okay, all these choices for the government to intervene in commercial speech implicate the First Amendment," you haven't yet promised me who's going to win. You haven't yet promised me what kind of regulation is okay. So in Genevieve Lakier's world, what does the First Amendment let the government do? Can they...Yeah?

Genevieve Lakier:    Okay, this is the second reason I love Virginia State Board. So the first reason is it demolishes this distinction between commercial and non-commercial, I think, as a basis for boundary setting. And I think that's very useful because it raises all kinds of questions then. That's not very concrete. That's just a negative thing it does. The positive thing it does, is it provides us some hint of how we might have a First Amendment that doesn't require a laissez-faire approach to regulation. Because of course-

Will Baude:    Right, now I'm getting sad.

Genevieve Lakier:    ...that isn't Libertarian in the way that, precisely, maybe you want it to be, because I don't think that the speech market can be left to it's... I don't think that the democratic goals or the First Amendment are best facilitated by tying the government's hands in every instance. Because the fact is that, in our society, there is tremendous power inequalities, that mean that, if we're just leaving it to the market, some voices are going to be amplified and some voices are going to have... It's going to be very difficult for them to express themselves.

            And we might think that this has predictable and overdetermined structural features. The wealthy are going to be able to speak a lot more than the poor. The minorities are going to have real difficulty. And we might think that, for all that it says... The modern First Amendment says it cares about minority or dissident voices, there's going to be a lot of minority or dissident voices that, if the government doesn't do anything to correct the imbalances of the market, are going to be silenced, or muffled. Or they're going to have a great deal of difficulty expressing themselves.

            And so what's interesting about Virginia State Board is it says, step one, purely commercial advertising is protected by the First Amendment. But step two, and this is what I think is so interesting about it, and I would like to expand beyond the commercial speech realm. And this is my... The third thing I think about Virginia State Board, but... So it says commercial advertising is protected, but the government can still prohibit false advertising, misleading advertising. And in contexts where we are worried that the seller is going to confuse the listener, they're not going to know all the relevant information, the government can mandate disclosure.

            And that has been interpreted to mean we don't get to be paternalistic, which I, again, I really like. I like this whole line of cases, really, which is... Paternalism is not a good justification for speech regulation. We don't get to tell people, "No, no, no, it's better for you not to know that thing, because then you're going to make bad choices." I'm sure there are people who are going to disagree with me about that. But I do think that the democratic commitments of the First Amendment mean that we should try and not have... We should be against paternalistic regulations. The idea is that the people get to make choices for themselves and they get to tell the government what's correct rather than the reverse.

            But in situations where we have to worry about power imbalances between speakers and listeners, or we have to worry about falsity or misinformation, deception, Virginia State Board says, "Okay, you can regulate in that way." This is in contrast to many other areas of First Amendment regulation where that kind of stuff is not allowed. And so I think one of the downsides of the criticism of Virginia State Board and this sort of distaste towards it, one of the consequences of that has been to... An effort to strictly limit its reach to the commercial speech cases.

            People haven't stopped complaining, but to the extent that they've gotten used to it, how they've gotten used to it is by strictly segregating this naughty line of cases to deal only with commercial speech and commercial advertising. And so that we can protect the rest of the First Amendment against, maybe it's corrosive force. Whereas I want us to take the...

Will Baude:    You want this to be the paradigm for...

Genevieve Lakier:    [crosstalk 00:21:18] and think more broadly. Well, that's interesting, Virginia State Board says "We're going to recognize that the First Amendment is implicated, but we are really worried about power imbalances and manipulation and fraud and abuse," all the things that we are worried about when we worry about commercial transactions. "And so we're going to allow the legislature to regulate speech in these ways." And I think that's really interesting and intriguing.

Will Baude:    Okay. So, right. So not only... I see why this is a great case for you. So not only do you think we should extend the First Amendment to advertising the prices of random commodities, but then you think all free speech should be like that. We should regulate all free speech, the way we allow the government to regulate advertisement of the prices of commodities. You want the commercial speech paradigm to apply everywhere.

Genevieve Lakier:    Potentially, yes. Now that's a little bit broad, it's going to get me in trouble. I think we should be sensitive to the fact that maybe institutional incentives are different when it comes to different kinds of speech. So Jeff Stone has written really powerfully about the differences between political and nonpolitical speech, advertising, and core political speech, when it comes to the government's incentives. We might think when government is regulating political speech and when it's regulating essentially it's competitors, it's opponents... I worry that there's just much more potential for double dealing or for abuse and manipulation, than when it's dealing with commercial speech.

            Potentially, on the other hand, the companies that are producing the commercial ads are funding the politicians. So it's not obvious to me that that's the case, but that's the kind of questions that I would want us to be thinking about. I wouldn't... But in theory, I think the same concerns with power imbalance and with allowing the government to... The distinction between paternalistic regulation, which we don't like, and power correcting regulation, which we do like, I want that to extend to other domains of First Amendment law, yes.

Will Baude:    So let's think about how that would work for a minute. So as I understand the commercial speech paradigm, part of it is, sort of what's underlying it is this focus on truth, right? The things government... The government can do is it can regulate things that are false, that are not true. Things that are misleading, so they're not technically false, but they cause you to believe things that are false. You require disclosure of things that are true. And again, it can't say like, "These ideas are bad for you. You shouldn't want them." But what it's mostly trying to do is to correct, sort of failures in truth, right? And to kind of help get more truthful information out there? Is that the right way to think about it?

Genevieve Lakier:    Yes, I think that's right.

Will Baude:    Okay. So how do we translate that to, let's say, politics and morality, where it seems like truth is not the coin of the realm? And maybe it should be, but then is that even possible? Is there truth about like, what is most just for America?

Genevieve Lakier:    Yeah. So, well, two things. I think there are two really important implications that expanding Virginia State Board to other domain's First Amendment law might have, and that I would be in favor of both. So one is allowing the government to require disclosures in contexts where we're worried about miscommunication, maybe intentional, maybe unintentional. It is definitely about truth, but really this focus on disclosure is sort of a prioritized way of regulating speech.

            In recent years we've seen the court, outside of the commercial speech context, making it much, much more difficult for the government to require warnings and disclosures. And that seems to me, bad. A retreat from the intuition underlying Virginia State Board, that disclosures... That in cases where there's power imbalance, where you have someone seeking something from someone else, and they don't have all the facts, the best... The first step should be, at least to make sure that they have access to the relevant information.

            That seems like pretty low-hanging fruit. But it turns out it's not low-hanging fruit, because this is sort of one of the pitched areas of fighting in contemporary First Amendment law. And the court has been very anti-disclosure in its approach, on the view that it's not up to the government to be intervening in these kinds of private relationships. And I think that that's wrong and goes against the spirit of what Virginia State Board was saying.

            Okay, but go to the harder question which is, what do we do about truth? Yeah, I think this is... Right now, this is the $10 million question, I think, when it comes to the regulation of speech. There are, at least provisionally, some easy things one could... Easy extensions of Virginia State Board one could have, that would still be pretty shocking changes to contemporary law, I think, but I don't think it would- [crosstalk 00:25:52]

Will Baude:    Like what, like what? Shock me.

Genevieve Lakier:    So I would be in favor of... I mean, I'm open to pushback and institutional concerns. I don't want to be insensitive to the different contexts in which these rules apply. But on its face, if a politician lies about a fact that the audience doesn't have information about, can't check him, and it's difficult to be able to check him, I think we should be open to regulation of that kind of lying. Just like we're open to regulation of that kind of lying in the commercial speech context.

            Because in both cases, the problem is the power imbalance. Whenever possible, we want the market to be able to take care of lies itself. But we know from our regulation of the commercial marketplace, fraud is a huge problem with the everyday operations of the market. And we have tremendous regulatory concern... A whole framework of laws meant to rout out fraud when it comes to commercial sale of goods.

            This is where I really like taking away the line between the commercial and non-commercial, cause I think it can help illuminate how we could be thinking about these things in the non-commercial sphere. So if fraud is such a problem when it comes to the choices we make about what toothbrush to buy, maybe we should worry about fraud when it comes to the choice about what politicians to represent us. So that'll be one implication, I think, of having a more expansive understanding of Virginia State Board.

Will Baude:    And now, so maybe this is where I'm going to sound like Jeff Stone, but... We talk about regulation, I'm just trying to think of how that would work. So imagine we have a president who lies about facts that are within his knowledge, we don't have access to like, what the deliberations were like, or what the size of the crowds at some event were, or something like that. Well, where would the regulation come from? Congress would pass a law, the president would veto, or... And then we're imagining prosecutors would prosecute the president and he would pardon himself?

Genevieve Lakier:    Yeah, the politics of this get really difficult, and maybe it's not good to start with the president. Presidents are famously hard to prosecute. The president is immune from prosecution all kinds of ways, for all kinds of political reasons. But I agree, there are lots of challenges. Even ordinary politicians, not presidents, would we worry that it would be overdetermined by political forces? I don't know. This might be a context in which civil cause of action is better than giving it to the state actors.

            Perhaps the practical concerns are too severe to overcome. And it's just, for practical reasons this is not going to work, and I'm really open to that. But at least at the first cut, as a theoretical matter, when thinking about how should we be conceptualizing the problem of say, lies and misrepresentations in the political context, I think the approach the Virginia State Board Court takes is a good one. And then there's this whole host of other questions about what do we do in the political context?

Will Baude:    It's a perfect note to end on. Thank you, Genevieve, for joining us today. Special thanks to Barbara Flynn Currie and David Currie for the reading of the Constitution in our introduction. Be sure to hit subscribe and follow us on Twitter @UChicagoConLaw.