Abstract
In her acknowledgements, Tamara Piety, associate dean and professor at the University of Tulsa College of Law, expresses the hope that the recently departed C. Edwin Baker would have approved of this book that he never got the chance to read. While I can’t claim any special knowledge, I feel quite sure that he would. Ed Baker helped to pave the way along a path that Piety has followed with wit, skill, dedication, and considerable audacity. Indeed, after making it clear just how dangerous the equation of money with speech and the expansion of the protections extended to corporate speech actually are, Piety proposes a radical, but compelling response to the problem. She argues for “expanding the definition of ‘commercial speech’ to include everything that for profit entities say” because such entities have no other legitimate purpose than the realization of profit.
She builds her case in eleven chapters, organized into three coherent sections. She begins with an examination of foundational concepts within the law. She then explores the underlying values that are threatened by unconstrained corporate speech, and concludes with an emphasis on the threats to democracy and economic stability that justify her proposals for change. As befits a serious legal scholar, the footnotes and bibliographic references are extensive, but presented in well-organized separate chapters.
Her chapter on the “scope of commercial expression” is a masterful presentation of the different forms, devices, and techniques through which the goals of corporate speech are pursued. The similarities between the advertising of goods and services and the messages designed to influence government policy directly and indirectly through the management of public opinion are made quite clear. The role of agents and intermediaries, including those who engage in “product placement” and “stealth marketing,” is described along with those who bear responsibility for the cultivation of front groups and “astroturf organizations.”
In the next chapter, Piety makes it clear why she believes that speech, of the sort that natural persons create and rely upon to develop themselves and the institutions that are supposed to protect their individual and collective interests, has to be shielded from the distortions of commercial expression. Because she believes that individual autonomy, or freedom of choice, depends upon access to truth, Piety also believes that it is essential for us to understand how distortion and misdirection have become the central features of commercial speech. Because this speech is designed to shape or condition consumption, it is not an exaggeration to characterize marketing as attempted manipulation.
Piety then begins to build her argument for the role of government as a regulator of commercial speech in an attempt (as paternalistic as it seems) to protect individuals from this multidirectional assault and perhaps to assist them in making truly informed decisions in the various markets they confront. An important part of this argument, and indeed for her policy recommendations, is a direct engagement with the nature of the corporation as an entity entitled to the rights and privileges that the First Amendment guarantees to natural persons.
We are introduced to “the corporate person” in a carefully constructed chapter that emphasizes the differences between the “legal fiction” that we understand the corporation to be and those other persons with feelings, desires, and responsibilities that are vastly more complex. It is in this chapter that Piety underscores the “primacy of the profit motive” for the corporation and its executives, and makes the case that all corporate speech is and should be recognized as commercial speech. She carefully sets aside as inadequately justified expansions of corporate interests to include something called social responsibility, and then moves on to demonstrate how corporations generate external costs, for which they actively seek to avoid responsibility. Here, too, she argues that because of the special nature of the corporate form, more often than not, corporations are able to pass on to consumers the costs of whatever limited penalties governments may assess when their misbehavior has been both extreme and publicly exposed.
In the third section of the book, Piety turns away momentarily from her focus on the conditioning of consumption to examine what she sees as threats to the democratic process and our collective interests. It is here where the Supreme Court’s over-reaching in its Citizens United decision takes central stage. Unlike many observers who limit their concerns to electoral campaigns, Piety presents corporate lobbying and its role in shaping the regulatory environment as one of the ways that corporate persons are able to overwhelm the attempts by citizens to petition their government.
Piety revisits the problems of corporate speech and the conditioning of consumption in her discussion of the role that marketing has played in normalizing the massive amounts of consumer debt at the heart of the Great Recession. She extends this critique to include the highly successful transformation of environmental concerns into an opportunity for marketing all things “green.”
In her final chapter, Piety takes the time to remind us of all the harms that she associates with corporate speech. She combines them with a bit of moral outrage about the contributions made to income inequality and hardship through the attempted commodification of everything of value. Then she asks a simple question: “Why should false statements, manipulation of fears and self-esteem, manipulation of cognitive biases and other means of exploitation not be considered means that are foul rather than fair?”
Why not indeed!