Everyone knows about Citizens United v. FEC, but its jurisprudential “cousin,” the Court’s 2011 opinion inSorrell v. IMS Health, Inc.  – involving commercial speech by corporations rather than political speech – may end up being just as important.  That’s the topic of the next chapter in Constitutional Accountability Center’s The Constitution at a Crossroads series,Protecting Commercial Speech and Personal Privacy in the Internet Age: Is the Supreme Court “Lochnerizing” the First Amendment?

The Constitution’s text and history distinguish between living, breathing human beings – “We the People” – and corporations.  However, in Citizens United, the Court’s conservative bloc, led by Chief Justice John Roberts, declared that corporate speakers have the same rights as individual people in the area of political speech.  TheSorrell decision is pushing toward giving the same scrutiny to laws that limit a broadly-defined category of corporate activity labeled “commercial speech.”

Read the Crossroads chapter on ‘Lochnerizing’ the First Amendment.

As this new chapter chronicles, 70 years ago, the Supreme Court ruled unanimously that commercial speech by corporations was not protected at all by the First Amendment.  While no current Justice promotes this absolutist view of the First Amendment, there remains a strong ideological conflict about precisely how much protection commercial speech deserves. 

The majority in Sorrell (the Court’s conservative bloc plus Justice Sotomayor) ratcheted up the protection for commercial speech in two important ways: (1) by broadening the scope of what is considered “speech” to include things such as marketing research and “data mining” within the protection of the First Amendment and (2) by elevating the level of scrutiny for laws that burden such speech.

The Sorrell majority brushed aside dire warnings by members of the Court’s liberal wing, whose dissenting opinion in Sorrell echoed concerns first expressed by the late (and staunchly conservative) Chief Justice William Rehnquist when the Court began to protect commercial speech.  Both Rehnquist, in dissents written in the 1970s and 1980s, and, Justice Stephen Breyer, in his dissent in Sorrell,  explained that an expansive protection of commercial speech could return the Court to the infamous Lochner era, a widely-discredited 40-year period during which the conservative-dominated Supreme Court of the early 20th Century struck down a large number of federal and state laws designed to cabin the excesses of the growing American industrial economy of that era.

Cases now moving through the lower courts demonstrate that the ruling in Sorrell could spell trouble for a new federal law, passed by Congress and signed by President Obama in 2009, regulating the marketing practices of the tobacco industry.   More broadly, the Court’s protection of marketing research in Sorrellcould make it more difficult for elected officials to protect your privacy, especially in the internet age given the enormously sensitive personal information now held by corporations such as Amazon, Facebook and Google, all of it subject to extensive data mining. 

As you will see in this important new chapter, the First Amendment’s protection of commercial speech is clearly at a Crossroads before the Roberts Court.