文章基本信息

标题：The Speaker the Court Forgot: Re-Evaluating NLRA Section 8(b)(4)(B)'s Secondary Boycott Restrictions in Light of Citizens United and Sorrell
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作者：Tasić, Zoran
期刊名称：Washington University Law Review
印刷版ISSN：2166-7993
电子版ISSN：2166-8000
出版年度：2012
卷号：90
期号：1
页码：237-278
出版社：Washington University School of Law
摘要：In the staggeringly unpopularCitizens United v. Federal Election Commission decision, the Supreme Court overruled precedent and struck down a federal law that placed restrictions on campaign spending by corporations and unions. Justice Stevens, writing for the dissent, observed that “[t]he basic premise underlying the Court’s ruling is . . . the proposition that the First Amendment bars regulatory distinction based on a speaker’s identity, including its ‘identity’ as a corporation.” Several commentators have argued that this basic premise will lead to the erosion or even the complete abandonment of the commercial speech doctrine, which holds that commercial speech—“speech which does no more than propose a commercial transaction”—is a less protected form of speech under the First Amendment. As Tamara Piety, a fierce opponent of the deregulation of corporate and commercial speech, put it: “[i]f a for-profit corporation is entitled to full First Amendment protection when it engages in political speech—speech which is in some sense peripheral to its existence—then it would seem [that] full protection for [commercial speech,] its core expressive activity[,] should follow.” Piety’s observation was prescient: in Sorrell v. IMS Health Inc., decided barely a year and a half after Citizens United, the Supreme Court appears to have begun reformulating the commercial speech doctrine, reasoning that a Vermont statute regulating commercial speech warranted “heightened judicial scrutiny” because the law “impose[d] a content- and speaker-based burden on . . . speech.” Sorrell suggests that the Court intends to adhere to Citizens United’s basic premise and increasingly scrutinize—and strike down—restrictions on all forms of corporate speech. This leads to an obvious question without an obvious answer: if the First Amendment bars all regulatory distinction based on a speaker’s identity, including its identity as a corporation, does it also bar all regulatory distinctions based on the speaker’s identity as a labor union? If the Citizens United and Sorrell decisions existed in a legal, historical, and political vacuum, the answer to this question would surely be yes. After all, the law that the Court so vehemently struck down in Citizens United regulated the political expenditures of both corporations and unions. If the Court is now (albeit tacitly) applying Citizens United’s rationale to commercial speech—speech that is quintessentially an economic activity, not a form of self-expression—it follows that union speech, whether on political or economic matters, should be treated no differently by the Court than similar speech by corporations, non-corporate institutions, and individuals.
关键词：commercial speech doctrine; Citizens United; Sorrell; content-based; corporate speech; corporations; unions; neutrality principal