‘Their Effort to Avoid Accountability Is Very Thinly Veiled’: CounterSpin interview with Katherine Li on Corporations’ First Amendment Dodge

Janine Jackson interviewed The Lever‘s Katherine Li about corporations’ First Amendment dodge for the May 31, 2024, episode of CounterSpin. This is a lightly edited transcript.

Extra! (3–4/95)

Janine Jackson: CounterSpin listeners will likely know about what’s been called the “right-wing media machine.” It started, you could say, with ideologues and politicians with ideas, generally ideas about how to hurdle us back to at least the 19th century, legally and culturally. They then created think tanks and funded academics to polish up and promulgate those ideas. And they created and funded media outlets to push those ideas out.

It’s not, in other words, a reflection of a fortuitous coming together of like-minded individuals, but an echo chamber forged with the explicit purpose of maximizing a narrow viewpoint into a false consensus. The news article you read, after all, cites a professor and a pundit and a think tank and a guy on the street who read a thing, so it looks like multiple disparate sources who happen to agree.

Something analogous is happening now with corporations claiming the First Amendment says they don’t have to comply with regulations they don’t want to comply with, because those regulations reflect ideas that are “controversial,” and they can’t be compelled to take a public position on a controversial idea, like, for example, that climate disruption is real. It’s a weird, important maneuver, at once complicated and pretty simple, and it’s usefully unpacked in a recent piece by our guest.

Katherine Li is an editorial fellow at the Lever, where the piece, “Corporations Are Weaponizing Free Speech to Wreck the World,” appears. She joins us now by phone from Oakland, California. Welcome to CounterSpin, Katherine Li.

Katherine Li: Hi, Janine, very happy to be here. And let’s unpack this complicated piece.

JJ: Well, before we get to its current—you could say artful—employment, what is the “compelled speech” doctrine under the First Amendment? What do we think was the point of it when it was adopted?

KL: Well, as with the First Amendment, the compelled speech in the First Amendment—the original purpose is to say that the government cannot force people to say something they disagree with. That is perhaps illustrated in a very early compelled speech case that basically says that students do not have to stand up in school and salute the flag or the national anthem if they don’t want to.

Basically, it is to protect people from things that the government is forcing them to do, and it’s kind of to insulate people from government policies that impose things on them. The original intention, I do not believe, and experts I have interviewed for this story do not believe that the intention is for corporates to use such an argument in lawsuits.

Lever (5/23/24)

JJ: All right, well then, let me just move on to asking you to please lay out for us what you call, in the lead to this informative piece for TheLever.com, “the novel legal strategy” that some corporations are now “pioneering,” you say, which sounds very different than “relying on”; they’re kind of trying to make something new here. Explain what you’re seeing.

KL: So traditionally, like I have just mentioned it, is to protect people from the government imposing things on them. But what is considered as speech has really exploded when it comes to the corporate landscape: Are tax returns and contracts considered speech? What does that mean for our government’s power to look into financial wrongdoing, and prevent tax fraud and prevent money laundering, if all of those things are considered as speech, and the government cannot force anybody to “say” and disclose such information?

So the corporates have definitely spotted that, and they have been trying to argue that these financial documents are considered as speech. So it started with drug pricing, it starts with the Corporate Transparency Act, that once there’s a precedent in the court system that says these things are considered speech, more cases are being invited and more cases are coming in this specific landscape. So basically they are saying that these things are considered speech, and therefore the government cannot compel them to disclose this information.

At first it starts with financial information. And right now we’re seeing that in Medicare drug negotiations, it is also happening. These commercial speeches are, according to the lawyers and experts I have spoken to, they don’t believe that these things should be considered; they don’t believe that this so-called commercial speech should be afforded the same amount of protection as traditional political expression, for example, like protesting or writing something in the media, or being censored or being prevented or being forced to make a certain political expression in the non-commercial sense.

So that is why in the article, and according to my experts, they believe this is a new strategy, that corporates are basically exploiting this argument in order to bring more and more cases, and expand the definition of what speech is.

Verge (9/12/23)

JJ: Right. So then they seem as though they are complying with a law, or relying on a law, rather than sort of forging this new way.

Well, I think the examples really bring it home for people, what’s happening here, and there are a number of those examples in the piece, and each one is more disturbing and illuminating than the last. But one key one is, California has a new emissions disclosure law, that major companies doing business in California have to make public how much pollution they’re emitting throughout their supply chain. And we can understand why that’s important, because a company can say, “Well, our home office is zero emissions,” and that’s great, but what about your factories? What’s happening there?

So the public needs this information, this is information that the public is looking for, to get through the PR that these companies—fossil fuel companies in this case—might be putting out. And they’re saying, “No, we don’t need to comply with an emissions disclosure law, because that’s speech”?

KL: That is precisely what is happening. And the thing is, these emissions laws, they target companies with annual revenue above $1 billion. That is not asking our local coffee shop or the marketplace around the corner to figure out how much emissions are in their supply chain. It only really applies to large companies, especially oil companies, very large agricultural factory-farming companies.

So what initially caught my eye in the story is actually the arguments they have in the complaints that they filed against the emission disclosures law. The complaint, if you read it very closely, to anybody with common sense, it almost sounds ridiculous. Some of the arguments are saying that they fear that disclosing their emissions would allow activists, nonprofits and lawmakers to single out companies for investigation, which to me is just another word for accountability. I mean, that’s what our nonprofits and lawmaking agencies, it’s what they’re supposed to do, investigate and help create policy that can improve lives. So to me, it sounds like their effort to avoid accountability is very thinly veiled.

If you look at their complaint very closely, they also complain that this law would be compelling them to change their behavior. They complain that this law is changing and shaping their behavior, when, in reality, isn’t that what any laws and regulations are supposed to do? I mean, in any daily-life law, such as, like, hey, you cannot jaywalk, that is aiming to shape our behaviors, it’s aiming to change our behaviors.

So if you read the complaint closely, their efforts to avoid accountability, it’s honestly very thinly veiled. And it is, in a way, further expanding what is considered as speech, and also the whole circular argument that climate change is somehow “controversial.”

I also looked into the threshold of what could be considered as controversial when I first read their complaint. So then the lawyers I was talking to, the question I brought to them was, how low is the threshold to prove that something is scientifically controversial? And it turned out my instincts were correct, that the threshold of that is extremely low. They just have to prove that there’s a dissenting opinion. They don’t really have to prove that it is scientifically sound, and there’s no one to really check that.

JJ: So it’s just laid in a lap of particular courts, or particular decision makers. And it sounds as though they’re saying, particularly with that low threshold—or that very vague, undetermined threshold—that any regulation, because any regulation is about shaping behavior, it sounds like any regulation, they can dispute, because it’s aimed at asking them to do something different. I mean, am I misreading that, or is it really anti- any regulation whatsoever, in some way?

KL: In some way, that’s what it sounds like. Because if the complaint is about changing and shaping behavior, any regulations, that’s the point of it, changing behavior. And what is so wrong, what could be so wrong about forcing someone to lower their emissions at this point? It sounds like they’re saying that they shouldn’t lower their emissions, because either climate change doesn’t matter enough, or that climate change is not real. Like they said, they think it’s controversial.

JJ: Right. Well, just in case folks don’t understand, and of course we’ll send them to TheLever.com to read the piece, but you also have a food distribution and a restaurant supplies company, Cisco, that’s saying that you can’t force companies to read out notices of labor violations to workers, because they don’t want to. They don’t want to make that information available. And if they talk about labor violations in the workplace, well, that’s a “confession of sins,” and they shouldn’t be forced to do that. So this can reach into pretty much any area of our life, yeah?

KL: Yeah, definitely. Companies argue that if there has been a labor dispute, whatever the result is of that dispute, the company would post a sign somewhere in the facility, basically detailing the labor violation. But it doesn’t really achieve the same effect as reading it out in front of everybody, because it’s the difference between passively posting a sign somewhere and actively informing people what happened. And obviously, if a company has labor violations, they likely don’t want their workers to know. And if workers have also suffered the same violation, if the company reads it out, they might become more aware of it.

JJ: Well, it’s funny—if by funny, we mean perverse—because the narrative of capitalism that we often hear is that it relies on everyone being an informed economic actor, an individual actor who is making economic choices based on knowledge. And here we have corporations actively trying to reduce the available amount of information that a person could have to make decisions about what to buy or where to work or anything like that. It’s weird. This is how corporate capitalism subverts this notion that we hear about Capitalism 101, and building a better mousetrap, and all of that sort of thing.

Katherine Li: “They’re actually afraid that this information is going to get out and impact their profits, so that a lot of times their greenwashing or disinformation isn’t going to work anymore.”

KL: Definitely. Well, about the emissions case, part of their complaint is also that they might be more susceptible to boycott. I do believe that in this day and age, especially people of the younger generations, they’re much more aware of climate change, and a lot of times they would choose companies and products based on their perception of whether that company is being socially responsible enough.

So it’s obvious that a lot of corporates have caught up on that, and they’re now afraid that if they disclose how much they’re actually emitting, people are going to stop buying from them. They’re actually afraid that this information is going to get out and impact their profits, so that a lot of times their greenwashing or disinformation isn’t going to work anymore, because there will be a real concrete number for people to go on, and a number they cannot fake.

They could put on their website all they want, that we have this commitment in 10 years, we have this kind of green commitment; we’re going to become zero emissions by 2030. They could say what they want to say on their website, but once there’s a concrete number out there, none of that is going to work anymore. And they’re really afraid of that, clearly.

JJ: Afraid of an informed public.

Well, this only works with a certain kind of judicial landscape. I mean, you have to count on not getting laughed out of court with what looks to many people like a fairly transparent shenanigan, but obviously they believe that, for some reason, courts are going to be open to this particular kind of argument.

KL: Yes, unfortunately, multiple times courts have been open to this particular argument. And in terms of science, in California, the well-known case would be the Monsanto case.

Food & Water Watch (4/5/17)

For everyone who doesn’t know, Monsanto is a herbicide company. They make this herbicide called Roundup, and there is a certain chemical in it, where a lot of international scientists have said that it could potentially cause cancer in humans. So because science is never 100%, and that knowledge is constantly evolving, there is a loophole for them to say that there is contradicting science. And as we have later found out, Monsanto, the company, has also commissioned scientific studies to say that their product is safe.

And in California, that stood up in court. Because the court doesn’t really look at whether or not Monsanto has engineered this controversy that they’re claiming, this argument was allowed to pass California Proposition 65, which requires a warning label for a whole host of chemicals that could be cancerous and cause birth defects–Monsanto would not have to put that label on their specific herbicide product, because this whole “scientific controversy” thing was allowed to stand up in court.

So the consequences of that is now this argument was expanded. It’s not just one chemical anymore. It’s the entire mechanism of climate change that is being brought into question.

BioSpace (5/8/24)

But the good news here is that sometimes courts are also beginning to hold the line, and recently there have been some positive developments. If you look at the most recent case of the Medicare drug negotiations under the Inflation Reduction Act, I believe it is the US Chamber of Commerce and different pharmaceutical companies, they were arguing that the Medicare drug negotiations, that the Inflation Reduction Act, is trying to “compel” them to agree with a government-determined price, and that they’re saying that is compelled speech.

So they have brought that point to multiple federal courts, including, most recently I believe, a federal court in Ohio. And these courts have fortunately rejected this argument, basically blocked the case on multiple occasions. So I do believe that courts are becoming aware of that, and that they’re beginning to curb these arguments, because in the past, when they have allowed these arguments to pass, sometimes, likely in the next case, the argument becomes expanded.

JJ: Right. Well, I was going to push you further on that, in terms of, it sounds like courts are cottoning on and pushing back. Are there other policy or legislative responses that seem appropriate here, or is it mainly a matter for the courts? And then, do you have thoughts about—because I have not seen this in other reporting—what media might do in terms of disclosing this, putting some sunlight on this, as part of a pushback against what seems clearly like an anti-regulatory, anti–public information effort?

KL: Well, to answer the first question, I do believe this matter is mainly up to the courts, even though, in terms of lawmaking, there can be laws that make up for what the courts are not doing. At the end of the story that I wrote about this, I mentioned a doctrine called the major questions doctrine. A lot of times what the states are allowed to do and what the states are allowed to regulate, what the federal agencies are allowed to regulate in states, is significantly limited. So a lot of times, these things become left up to courts in a major case, to basically make a decision on whether what the individual states are doing is lawful or not.

I believe that if the federal regulatory agencies oftentimes could have more power to pass more sweeping regulations on these things, and that federal regulatory agencies could have more power to fight these law cases if they are sued on a particular point, for example, like the Inflation Reduction Act…. I believe that federal agencies should be given more power to decide, instead of leaving it up to the courts, because the court doesn’t always hold the line.

They’re beginning to, but, for example, the California emissions disclosure case, it’s still very much up in the air, and it’s an entirely new regulation. No other states have implemented it yet; it’s just California, and there are no federal regulations on how companies could be more accountable for the emissions they’re putting out.

And in terms of how media could report on this, I would say, a lot of times, this type of story, it’s very, very helpful to talk to lawyers, because a lot of the cases that I have found, and also trying to figure out how low the scientific threshold is to basically prove that something is controversial: the lawyers know. They are a treasure trove of past cases, because that is their job. And a lot of times, they really enjoy talking to journalists, laying out their cases, and basically walking you through the steps and loopholes that are in our law, because that is their profession.

I would also say, I can understand that sometimes it’s hard to write about something that doesn’t have a main human character in it. Sometimes it’s hard to make it interesting, and it could be easy to overlook these stories. But personally, I think that even a seemingly boring document could contain very interesting information.

For example, the initial complaint that’s filed against the California Emissions Disclosure Law, if you look at the information closely, it might look like a boring document, but the more you read, you’re like, “Wow, this doesn’t make sense. Am I hallucinating this, or is this real?” So then you go to a lawyer, and verify that information. Is this a trend I’m spotting? Is this a problem? Do you think it’s a problem? And these kind of stories could end up being very interesting.

And I would say that, also, it’s important to look into lobbying data, and frame the story looking at who is responsible, and not only looking at what the problem is. I feel like stories could become much more powerful when you look at the how, the mechanism, the larger mechanism that’s at work, instead of only focusing on one specific event or one isolated event that’s happening. Sometimes the more people, the more professionals, you talk to, you start to see a network and a storyline, and how there’s a loophole, and the mechanism of how things work behind the scenes.

JJ: Absolutely. Well, that’s excellent. We’ll end it there for now.

We’ve been speaking with Katherine Li. She’s editorial fellow at the Lever, online at TheLever.com, where you can find this informative article, “Corporations Are Weaponizing Free Speech to Wreck the World,” that we’ve been talking about. Thank you so much, Katherine Li, for joining us this week on CounterSpin.

KL: Thank you so much. It’s a pleasure.

This content originally appeared on FAIR and was authored by Janine Jackson.

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