Bad Prescription for the First Amendment


It’s a good thing the USA isn’t experiencing any financial or economic problems, because if we were someone might notice that plans being hatched in committees of both the House and Senate will hurt all kinds of American businesses—and trash the First Amendment in the process.

The plans that are the subject of this note would deny the pharmaceutical industry—a perennial whipping boy—the right, afforded every other for-profit corporation, to deduct for tax purposes their advertising and marketing expenses.

The upshot of it all? An immediate hit to advertising agencies and to the media, all of whom are struggling in an economy that is tanking, and to the profitability of pharmaceutical companies, thereby putting downward pressure on their dividends to shareholders.

The impetus behind these congressional schemes is the frantic search for additional tax revenue as might (but won’t) cover the extraordinary costs, estimated at $1 trillion, associated with health care “reform.”

Of special note in these parts is the breezy dismissal by their congressional authors of the unconstitutional aspects of such legislation. From early landmark cases, such as Virginia Pharmacy and Central Hudson, to the present day, the Supreme Court has accorded commercial speech, as it’s called, a significant and growing amount of constitutional protection under the First Amendment.

Never mind. As demonstrated time and again, lawmakers are inclined to pass legislation without regard to its constitutional infirmities, leaving it to the courts to sort things out. Sorry to say, they are aided in this by a press corps that has demonstrated little or no interest in protecting the First Amendment rights of anyone other than themselves. (See, for instance, the coverage of McCain-Feingold.)

So it is that there’s a certain irony in the effort now underway by a number of media companies to resist this legislation. Having failed for years to explain to their readers and viewers how and why commercial messages too are protected speech, they now find themselves in the unhappy position of having to pay for that neglect.

None of which is to say that this legislation is deserved or a good idea. It is neither. It is, instead, just more economic mush issuing from people who are neither informed nor principled.