Title: How Corporations Hijacked the First Amendment to Evade Regulation | The New Republic
Headings: The Right to Evade Regulation
The Right to Evade Regulation
How corporations hijacked the First Amendment

Content: But when it comes to the First Amendment, we live in interesting times. In June 2011, the Supreme Court struck down the new data-protection laws, arguing that they discriminated against IMS Health. “ The State,” wrote Justice Anthony Kennedy for the majority, “has burdened a form of protected expression. ... This the State cannot do.” It was Kennedy, of course, who authored Citizens United, which established that independent political spending by corporations is shielded by the Bill of Rights as well. The IMS Health case, which drew much less attention, shows just how pervasive such free speech arguments have become. Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint. It is tempting to call it the new nuclear option for undermining regulation, except that its deployment is shockingly routine. Last summer, the tobacco industry used the First Amendment to have new, scarier health warnings on cigarette packaging thrown out on the grounds that the labels constituted a form of compelled speech. Ratings agencies like Standard and Poor’s and Fitch, whose erroneous and possibly fraudulent AAA ratings of worthless securities helped cause the banking crisis, have leaned heavily on a defense that deems their ratings mere opinions and therefore protected by the First Amendment.