Free Speech Protects Profit-Makers, Too

For a century after the Civil War, blacks in America's South were subjected to shameful acts of oppression and violence. Deprived of voice and vote, they had no choice but to suffer mutely as they were scurrilously attacked.

Two California-based lawsuits indicate that a new minority scapegoat has been thrust, disarmed and disenfranchised, into the crosshairs. No, it is not a racial, ethnic, or religious minority. In Ayn Rand's words, now validated vividly by California's legal system, America's new persecuted minority is Big Business.

Consider the suit filed recently by two tobacco giants, R.J. Reynolds and Lorillard, in an attempt to defend themselves from state-sponsored attack ads. Under the terms of a 1988 agreement, cigarettes in California are subject to a 25-cent tax, and the proceeds are supposed to be used for "education" about the health risks of smoking. Instead, for the past year this tobacco-industry money has gone to fund an advertising smear campaign in which tobacco executives are portrayed as plotting to lure children into smoking while openly chuckling that cigarettes are deadly. California freely admits that the goal of the ads is not to educate the public, but to vilify the tobacco industry.

As Thomas Jefferson wrote, "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical." How much worse is it to force a man to support, not only ideas he finds abhorrent, but personal attacks on his own character?

If any other group of people were forced to finance their own defamation, they could rely on the aid of every civil-liberties organization in the country. Yet when the victims being smeared at their own expense are the executives of a for-profit corporation, no one objects.

A second California-based case officially declares this open season on the free-speech rights of businessmen.

Sporting-goods giant Nike, long accused of running so-called "sweatshops" overseas, responded to the charges in a series of letters to newspapers and to college presidents and athletic directors. Nike argued that its overseas workers are paid more than the local minimum wages, receive reasonable benefits, and are shielded from the physical abuse common in many Third World nations.

In a case now before the U.S. Supreme Court, Marc Kasky brought suit under California's false advertising law, claiming that Nike's arguments were factual misrepresentations. The fine sought by Mr. Kasky is equal to Nike's entire profit from the state of California--which would be a crippling blow to a company already suffering from the weak economy.

Nike responded that its letters were political speech, protected by the First Amendment. Last year California's high court ruled that the letters are not protected by the First Amendment because they constitute "commercial speech"--even though they address a political controversy and don't specifically mention any of Nike's products. The California court explained that its ruling merely requires that when a company "makes factual misrepresentations about its own products or its own operations, it must speak truthfully." Yet Nike's critics, including Mr. Kasky, are under no such legal obligation to tell the truth and do not have to fear any penalty if they are caught fabricating facts to use against Nike--because, the California court held, their speech is noncommercial.

Under this standard, for-profit corporations are subject to special penalties and denied the protection of free speech because they are for-profit. To engage in commerce, according to this argument, is to waive one's constitutional rights. There could be no clearer expression of anti-business bigotry.

Imagine a debate in which one side is free to distort the truth or to invent outright fabrications, and to have those attacks paid for by the very people they slander--while its opponents are subject to bankrupting fines if any of their factual claims are judged by a jury to be incorrect. Such is the view of "free speech" being promoted today in California's courts.

It is significant that these cases arise in California, a state with a reputation for being "liberal." The political left has long enjoyed an undeserved reputation as a defender of free speech--but this supposed advocacy of free speech extends only to those who share the left's blind hatred of profit-making and commerce.

During the age of legalized discrimination, America's courts were sometimes tacit, sometimes overt participants in the persecution of minorities. Let us hope the courts now will reject the notion of separate and unequal constitutional protection for today's persecuted minority, Big Business.

Robert Garmong, Ph.D. in philosophy, was a writer for the Ayn Rand Institute from 2003 to 2004. The Institute promotes the philosophy of Ayn Rand, author of Atlas Shrugged and The Fountainhead.