By Mike Dorf
My family and I spent Thanksgiving at the home of a friend who invited a number of other guests I had not previously met. During the course of a pleasant evening, one of these guests made the following statement (which I quote more or less from memory): "Because the law treats corporations like people with rights of free speech, they don't have to list ingredients on labels. They just do it as a kind of advertising." I found this statement so astonishing that I was dumbstruck and by the time I thought to intervene, the topic of conversation had changed. To return to it to correct this woman's mis-impression would have been pedantic, if not bullying, and accordingly I let it go. I return to it now because I think it is an interesting window on how the lay public understands the Citizens United decision.
To begin, the factual claim about the law is plainly false. By statute and regulation, foods can only be offered for sale with labels containing nutritional information, including ingredients lists. There are exceptions--and some of these exceptions probably reflect the influence of money on politicians and regulators. But they do not have anything directly to do with the free speech rights of corporations. If Congress or the FDA were to lower the threshold below which trace ingredients can be omitted or otherwise make the labeling requirements stricter, that would not violate the First Amendment. Even Judge Leon, in a ruling earlier this month that found a free speech right of cigarette makers not to display FDA-mandated graphic images, acknowledged that a requirement of text disclosing true facts about a product can be mandated by the government, notwithstanding the First Amendment. Indeed, even cigarette makers acknowledged that such mandated disclosures are constitutionally permissible.
So why did my Thanksgiving dinner companion -- an intelligent, well-educated person -- think otherwise? Presumably because she, or whoever planted the notion in her head, was under the impression that Citizens United is at the root of all that is corrupt about our law. My guess is that this story originated with a kernel of truth. She learned about one of the ways in which food ingredient labeling requirements are incomplete or lax and assumed that this must be the consequence of the awesome power of corporate free speech. At some point, this idea morphed into the preposterous conspiracy theory that listing ingredients is actually something food makers do voluntarily. To know that's preposterous, all you have to do is read the ingredients of any highly processed food or drink. Would the makers of Hawaiian Punch list ester gum, sodium hexametaphosphate, red 40, blue 1, and sodium benzoate on its label if they didn't have to? Shouldn't whoever would be so stupid as to make that marketing decision be fired immediately?
Ordinarily, I would think that this sort of ignorance about government and law is harmful to democracy. But upon reflection, I'm actually somewhat sanguine about this particular form of ignorance. I do not share the view that corporations are the root of all evil, nor do I even share the view (held by many Americans on both the left and the right) that bailing out the banks and GM was a bad idea. On the contrary, TARP was about the best thing to come out of the Bush Administration. Still, the palpable sense that our government is largely for sale to the highest bidder is basically true, even if the public have the details mostly wrong. A mass movement to change the way that government operates does not depend on details. It depends on passion. The critics of Citizens United and the broader philosophy it represents have that passion.