Public Citizen thinks of itself as the “countervailing voice to corporate power,” and over the years, it has been exactly that. It is one of the most important voices for the people in Washington, D.C. arrayed against a sea of corporate lobbyists. Nonetheless, I want to focus on two episodes where Public Citizen has advanced the interests of corporate power.
The first was the effort of Public Citizen to establish that certain forms of commercial advertising were protected under the First Amendment. In Virginia State Board of Pharmacy v. Virginia Citizens Council, Public Citizen argued that drug price advertising should be protected under the First Amendment. The Court agreed and firmly established for the first time in our nation’s history that true commercial advertising enjoyed a degree of protection. From the perspective of Public Citizen this was a vindication of the consumer’s right to know. And it set the stage for protection of attorney price advertising as well. But it also set the stage for much more. In particular, the commercial speech doctrine has protected the work of big tobacco. 400,000 people die each year because of the work of the merchants of death and suffering. It is regrettable that the efforts of tobacco companies to secure the addiction of even more smokers now has come to enjoy a mantle of constitutional protection. Moreover, the commercial speech doctrine is being used to undermine various regulatory efforts to combat corporate behavior that uses speech to harm consumers. If Public Citizen had known where the courts would take this doctrinal innovation, I would hope they would have never helped to get this train rolling.
I cannot blame Public Citizen too much because I made the same mistake by arguing many years ago that Virginia Pharmacy was rightly decided. But there is another mistake of Public Citizen that should have been obvious. In 2010, Public Citizen joined with New York attorneys Alexander & Catalano to protect advertisements that were quite different from the informational price advertising in Virginia Pharmacy. The advertisements of Alexander and Catalano called them the “heavy hitters,” contained jingles and special effects, including wisps of smoke and blue electrical currents surrounding the firm's name, and depicted Alexander and his partner as giants towering above local buildings, running to a client's house so quickly they appear as blurs, and providing legal assistance to space aliens. The Second Circuit Court of Appeals in Alexander v. Cahill rightly characterized the speech as irrelevant, unverifiable, and non-informational, but bizarrely ruled that the speech was protected under the First Amendment. I understand that Public Citizen would want to protect the efforts of plaintiff personal injury attorneys to secure clients. But the principle of the case is bankrupt and foreign to the mission of Public Citizen.
The principle of the case does not protect consumer’s rights to acquire information. Alexander and Catalano may be good attorneys, but these commercials provide no information that would justify selecting them. As the court said, the messages are irrelevant, unverifiable, and non-informational. They are exactly the kind of non-rational messages used by corporations to manipulate consumers and to foster a materialistic, hedonistic society. Public Citizen ordinarily stands up as a strong voice against consumer manipulation. I suspect that in this case someone in Public Citizen was shortsighted in focusing on the value of plaintiff attorneys in fighting corporate tortious actions and perhaps in drinking too much First Amendment cool aid.
Don’t get me wrong. Public Citizen does way more good than bad. It is an organization enormously worthy of financial support. But, in my judgment, these blunders are whoppers.
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