The first amendment to the US constitution – guarantor of freedom of speech and of the press, as well as the freedom of religion and assembly – is a sacred creed to many Americans.

For most of its history, it was understood principally as a guardian of individual liberty and a protector of public discourse. Increasingly, and not accidentally, the business community is using the first amendment to block economic regulation.



Last week, the US Department of Justice and the Federal Drug Administration surrendered to big pharma, and gave up on trying to enforce a rule that had prohibited pharmaceutical companies from marketing their drugs for purposes that have not been expressly approved. This marketing restriction had long been a sort of policy compromise that let doctors prescribe drugs for novel uses, but restrained drug companies from marketing those uses until fully vetted.

But industry prevailed on the argument that the rule violated the marketers’ freedom of speech, and this is only the most recent development in a growing trend to restrict economic regulation in the name of corporate free speech. US courts grow more sympathetic to the “civil liberties” of corporations, and no businesses stand to gain more than tech companies.

Over the past few years, industry has successfully beaten down tobacco warning labels and corporate supply chain reporting requirements. Trade associations are currently battling GMO food labeling, obesity warning labels for sugary drinks, and surely will soon take up arms against new nutrition labels. In all these cases, the business community has argued that the government has overstepped by compelling corporations to speak against their will. The aggrieved companies have made use of precedents that protect individuals from swearing loyalty oaths or pledging allegiance to the flag. They have argued, in essence, that corporations have a kind of conscience, and that when government mandates speech of anything more than the clearly rote and descriptive – such as “this way out” – it threatens the integrity of that conscience.

It wasn’t until 1976 that the supreme court first held that commercial speech was entitled to free speech protection. Professor John Coates has found that since then, the beneficiaries of first amendment litigation have shifted decidedly towards corporations and away from individuals. The pace of the litigation has picked up speed in the past five years as free enterprise thinktanks, such as the Washington Legal Foundation, came to see that corporations could assert the first amendment against regulations that either restricted or compelled their speech, such as disclosure requirements. First amendment scholar Frederick Schauer has called this “First Amendment opportunism”, while Tim Wu has described “how corporations hijacked the First Amendment”.

This corporate colonization is proceeding from two directions. First is the expansion of the legal fiction that corporations are people. The more endowed with individual liberties a corporation becomes, the more that disclosure requirements and product labels come to look like compelled testimony.

It is not much of a leap from data = speech to code = speech

Second, the scope of protected speech is growing. When the supreme court first recognized protection of commercial speech, it was at a decidedly lower level than protection of individual speech, “commensurate with its subordinate position in the scale of First Amendment values”. Courts are extending protections to more kinds of speech, with the current US supreme court under Chief Justice John Roberts issuing the most expansive first amendment rulings ever. The most recent supreme court case to deal with the issue of corporate speech held that physicians’ drug-prescribing data was protected by the first amendment and could not be regulated for the sake of patient privacy. Following on this, some scholars such as Jane Bambauer have argued that data = speech, making privacy and other sorts of regulation difficult to sustain over constitutional objection.

It is not much of a leap from data = speech to code = speech. And that is what Apple has argued in its ongoing battle with the FBI over unlocking the San Bernardino shooter’s iPhone.

Apple claims that the government’s order that the company produce code “amounts to compelled speech and viewpoint discrimination in violation of the first amendment”. Apple characterizes the encryption that is required to make the code function as bearing its “signature”, likening it to the kind of personal authentication that might underlie a confession. The Electronic Frontier Foundation supports and explains Apple’s position. The idea is that the Apple signature required for the software “conveys its strong endorsement of the signed code” and constitutes “an affirmation of belief” along the lines of a pledge of allegiance.

If this kind of argument prevails, it would mean that a company could configure its software to require signed code for any substantial modification. As a result, any regulation requiring such a modification would transgress the conscience of the company by forcing its signature. Such mandated modifications might involve making a device handicapped-accessible, defending against a cybersecurity threat, enabling interoperability, or complying with an emergency response protocol. All such regulation would become fields of constitutional battle.

Apple is not the only technology company reaching for the first amendment as a cudgel. Telecommunications carriers have also asserted it as an argument against net neutrality regulations. In these cases, the companies have stronger arguments against regulation. The attempt to constitutionalize these regulatory fights is bound to further blur the line between individual liberties and corporate license. And in a world that is increasingly run on data and regulated through information, it could gut reasonable regulation and perhaps lead to more draconian governmental intrusions.