Commercial Speech and the First Amendment (2020)

Bios and Readings are located at the bottom of this page.

8:45 – 9:00 Welcome by Sandra Baron and Introduction by Floyd Abrams

Floyd Abrams "I’d like, at the outset, to thank all of you who are participating as panelists or virtual attendees for doing so. And to tell you all that this presentation today could not have occurred without the dedicated and superlative efforts of Sandy Baron, without whom there would have no conference at all. Thank you, Sandy.

I know that in the world we live in these days, in which we may shortly be governed under the Insurrection Act of 1807, it may seem a bit anomalous, even incongruous, to focus on anything else. But if only to retain our sanity, we must continue to do just that, particularly when the First Amendment is involved.

We’re meeting a full half-century after the beginning of the decade during which First Amendment protection for commercial speech was born. It was 1971 when the words “commercial speech” were first used in a judicial opinion. It was in 1973 and 1975 that the Supreme Court first made clear that there was no per se exception of commercial speech from First Amendment review. And it was in 1976, in the Virginia State Pharmacy Board case, that for the first time a law banning commercial speech was held by the Supreme Court to be unconstitutional based on the First Amendment.

So I suggest to you that as we proceed today that you keep in mind three topics.

The first is just how far we have come in a time span that at least some of us are old enough to remember from its inception.

The second is the potential impact of these decisions on other far more clearly established areas of First Amendment protection of speech.

And the third and most difficult one is this: What has been the impact on American society of the half-century of generally increasing protection of commercial speech?Is the public better informed because of the rulings? Has the health or other well- being of the public been adversely affected? Would we live in a much different world if then Justice Rehnquist’s dissent in the Virginia State Pharmacy Board case had carried the day? And if so, how?

Our first panel today is chaired by Amanda Shanor. Amanda is an Assistant Professor at the Wharton School at the University of Pennsylvania. She is a scholar in constitutional law and, in particular, the First Amendment. I am delighted to say that we have worked together on briefs, that I have learned much from her and that her scholarship is of the highest order.

Amanda, please proceed."

9:00 – 10:30 The Supreme Court’s Framework for Commercial Speech: Shifting? Unmoored?

Panelists:

• Robert Post – Sterling Professor of Law, Yale Law School, New Haven, CT
• Beth Brinkmann – Partner, Covington, Washington, DC
• Genevieve Lakier - Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School, Chicago, IL

Moderator:

• Amanda Shanor - Assistant Professor, Wharton School of the University of Pennsylvania, Philadelphia, PA

10:30 – 10:45 Break

10:45 – Noon Regulating Political Advertising Online: Is disclosure still the key?

In the wake of the 2016 election, states are getting more aggressive in regulating online political advertising, including by trying to shift some of the disclosure and record-keeping burdens onto the media platforms that host political ads, as opposed to just the advertisers themselves. The Fourth Circuit recently held that Maryland’s attempt to do so was unconstitutional. What are the boundaries of the state’s power to require disclosures under the First Amendment?

Panelists:

• Richard H. Pildes – Sudler Family Professor of Constitutional Law, NYU Law School, New York, NY
• Daniel I. Weiner – Deputy Director, Election Reform Program, Brennan Center for Justice, Washington, DC
• Allen Dickerson – Legal Director, Institute For Free Speech, Washington, DC

Moderator:

• Paul Safier – Of Counsel, Ballard Spahr LLP, Philadelphia, PA

12:00 – 12:30 Break

12:30 – 1:15 From Across the Atlantic: A heads-up on what EU Influence to anticipate on the U.S. Internet Law, Policy and Practice

• Remy Chavannes – Partner, Brinkhof, Amsterdam, NL

1:30 – 2:45 Where Algorithms Meet The First Amendment

Digital platforms such as Facebook, Twitter, and Google are increasingly crucial spaces for public discourse. But they are also the sites of great conflict over election interference, misinformation, discriminatory and false advertising, and the future of free speech values. The platforms shape the discourse they host through rules on “content moderation” and through black-box algorithms that invisibly decide what users will see and in what order.

Should free speech values inform the ways in which platforms moderate the speech they host? If so, which, and how should the platforms resolve conflicts between competing free speech values or between free speech values and other democratic ideals? Is regulation desirable, and if so, what kind? Would the First Amendment permit this kind of regulation?

Panelists:

• Jack Balkin – Knight Professor of Constitutional Law and the First Amendment, Yale Law School, New Haven, CT
• Daphne Keller – Director, Program on Platform Regulation, Cyber Policy Center, Stanford Law School, Palo Alto, CA
• Nathaniel Persily – James B. McClatchy Professor of Law, Stanford Law School, Palo Alto, CA

Moderator:

• Alex Abdo – Litigation Director, Knight First Amendment Institute at Columbia University, New York, NY

2:45 – 4:00 Milk from Nuts. Burgers from Soybeans. Can the states regulate what you call them?

As alternative food products have grown in popularity, states have passed laws limiting what such products can be named. These laws’ proponents view them as promoting truth in labeling, but opponents see a violation of First Amendment rights.

Panelists:

• Sarah Roller – Partner, Kelley Drye and Chair of Food and Drug Law practice, Washington, DC
• Justin Pearson – Florida Office Managing Attorney, Institute for Justice, Miami, FL
• Claudia Haupt – Associate Professor of Law and Political Science, Northeastern University School of Law, Boston, MA

Moderators:

• Brendan Healey – Partner, Baron Harris Healey, Chicago, IL
• Jonah Knobler – Partner, Patterson Belknap Webb & Tyler, New York, NY

CLE credit is pending.

Hosted by Patterson Belknap Webb & Tyler LLP

With additional sponsors: Ballard Spahr LLP, Baron Harris Healey, Davis Wright Tremaine LLP and Charles Koch Institute

Readings below

The Supreme Court’s Framework for Commercial Speech: Shifting? Unmoored? (9:00 – 10:30) Panelists: Robert Post, Beth Brinkmann, Genevieve Lakier. Moderator: Amanda Shanor.

1. Robert Post & Jennifer Rothman, The First Amendment and the Right(s) of Publicity
2. Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165 (2014)
3. Amanda Shanor, The New Lochner, 2016 Wisc. L. Rev. 133
4. Genevieve Lakier, Reed v. Town of Gilbert, and the Rise of the Anti-Classificatory First Amendment, 2016 Sup. Ct. Rev. 233 (2017)
5. Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117 (2019)
6. Laura Portuondo, Abortion Regulation as Compelled Speech, 67 UCLA L. Rev. 2 (2020)
7. National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361 (2018)
8. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)
9. Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015)

Regulating Political Advertising Online (10:45-12:00) Panelists: Richard H. Pildes, Daniel I. Weiner, Allen Dickerson. Moderator: Paul Safier. Washington Post v. McManus, 944 F.3d 506 (4th Cir. 2019).

1. Washington Post v. McManus, 355 F. Supp. 3d 272 (D. Md. 2019).
2. Br. of Plaintiffs-Appellees, Washington Post v. McManus, No. 19-1132 (4th Cir. May 31, 2019), Dkt. No. 49.
3. Br. of Amicus Curiae The Brennan Center, Washington Post v. McManus, No. 19-1132 (4th Cir. Apr. 19, 2019), Dkt. No. 43-1
4. Richard H. Pildes, Elections As A Distinct Sphere Under The First Amendment, in Money, Politics, and the Constitution: Beyond Citizens United 19 (Monica Yaun ed., 2011)
5. Richard H. Pildes, Small-Donor-Based Campaign-Finance Reform and Political Polarization, 129 Yale L.J. F. 149 (Nov. 18, 2019)
6. New York’s “Democracy Protection Act”
7. California’s “The Disclose Act"

From Across the Atlantic: A heads-up on what EU Influence to anticipate on the U.S. Internet Law, Policy and Practice (12:30-1:15) Remy Chavannes.

1. European Commission, Communication on Shaping Europe’s Digital Future, February 2020
2. European Parliament (Committee on the Internal Market and Consumer Protection), Draft report with recommendations to the Commission on Digital Services Act: Improving the functioning of the Single Market (2020/2018(INL)), April 2020
3. Institute for Information Law, “The legal framework on the dissemination of disinformation through Internet services and the regulation of political advertising”, December 2019
4. R.D. Chavannes & D. Verhulst, “Regulation of Online Platforms in the European Union – The State of Play”, MLRC Bulletin May 2019
5. P.J. Leerssen et al., ‘Platform ad archives: promises and pitfalls’, Internet Policy Review 2019-8(4)
6. T. Dobber et al., ‘The regulation of online political micro-targeting in Europe’, Internet Policy Review 2019-8(4)
7. European Commission Staff Working Document, Guidance on the implementation/application of Directive 2005/29/EC on Unfair Commercial Practices, SWD(2016) 163

Where Algorithms Meet The First Amendment (1:30– 2:45) Panelists: Jack Balkin, Daphne Keller, Nathaniel Persily. Moderator: Alex Abdo.

1. Jack M. Balkin, How to Regulate (and Not Regulate) Social Media, Knight First Amendment Institute (Mar. 25, 2020)
2. Daphne Keller, Who Do You Sue?, Hoover Institution (Jan. 29, 2019)
3. Platform Policy Bingo, The Center for Internet and Society at Stanford Law School, http://cyberlaw.stanford.edu/bingo

Milk from Nuts. Burgers from Soybeans. Can the states regulate what you call them? (2:30-3:30) Panelists: Sarah Roller, Justin Pearson. Moderators: Brendan Healey, Jonah Knobler.

1. Ocheesee Creamery LLC v. Putnam, No. 16-12049 (11th Cir. 2017)
2. Compl., Upton’s Naturals Co. v Bryant, No. 3:19-cv-00462-HTW-LRA (S.D. Miss. 2019)
3. Text of “An Act To Require Truth in Labeling of Agricultural Products,” Arkansas (2019)
4. Turtle Island Foods v. Soman, No. 4:19-cv-00514-KGB (E.D. Ark. 2019) (order granting preliminary injunction)
5. National Milk Producers Federation, Citizen Petition to FDA Commissioner (Feb. 21, 2019)
6. Justin Pearson, Censorship and Sensibility: Does the First Amendment Allow the FDA to Change the Meanings of Words?, 17 Georgetown L. J. & Pub. Pol'y 521 (2019)
7. Justin Pearson, Dairy industry doesn't own the word 'milk', TheHill.com (Feb. 04, 2020)
8. Text of “An Act to Make Various Changes to the Agriculture Laws”, North Carolina (2017)