‘Brandishing the First Amendment’ author Tamara Piety talks commercial speech with Alternet

by Shaun Manning on July 18, 2012

Tamara Piety, author of Brandishing the First Amendment: Commercial Expression in America, spoke with Alternet’s Steven Rosenfeld about the expansion of the Commercial Speech Doctrine post-Citizens United, exploring the consequences beyond the much-talked-about impact on electoral politics.

Piety said that several recent court decisions, notably the 2003 Nike case and culminating with Citizens United, have made it “incredibly more difficult” to regulate commerce. “The whole Federal Trade Commission is premised on the ability to regulate a good deal of speech that is, at least, at present, of questionable constitutional foundation given the recent decisions,” she told Alternet.

“What happened in Citizens United is that you have this strong declaration that you can’t discriminate against corporations,” Piety said, which may have distorting effects on protection for public relations and other marketing, advertising, and sales-driven speech. In fact, under this rubric, nearly any regulation can be framed in First Amendment terms. As an example, Piety cites a San Francisco ordinance against certain toys being packaged with children’s meals, which was overturned on First Amendment grounds.

“In many cases, consumers actually actively don’t want to receive advertising and now the First Amendment is used as a reason why they must,” she said.

Read the whole interview on Alternet, and read Brandishing the First Amendment for a deeper exploration of corporate speech.

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