Corporate America’s dirty trick The First Amendment is being abused

Far from protecting freedom of speech, the new administration has made it easier for financial platforms to kick users off for political expression. Among the red tape it has slashed were some CFPB rules that were designed to protect, of all things, free speech. This should all work out well for Andreessen, who is one of Silicon Valley’s biggest investors in crypto — the sector that, more than almost any other, yearns for looser regulation.

Just as the casual observer loses sight of the magician’s card, many observers missed Andreessen’s sleight of hand. His remarks on the Rogan show convinced those enraged about censorship to support a niche campaign to unwind protections against crypto fraud.

In this way, Andreessen conflated two unrelated issues for his own financial benefit. In a worrying global trend, a wide array of people — Canadian truckers, Brexit supporters and Palestinian activists — have been removed from financial platforms without due process. Unrelatedly, regulators concerned with keeping crypto startups in compliance with banking rules have taken steps to crack down. Some executives involved in the crypto trade have said they have had difficulty using traditional bank accounts simply because they were flagged by the system. The truckers were debanked; the crypto executives were not.

Consider the viewpoint of regulators. On several occasions in recent years, crypto brokerages and emerging cryptocurrencies have imploded overnight and left ordinary customers with nothing. Regulators have also repeatedly accused crypto startups — including those backed by Andreessen — of a variety of alleged financial crimes. These offences have included the undermining of rules on money laundering, and the violation of sanctions on terrorist groups. It’s not entirely surprising that those entrusted with safeguarding the financial system view these schemes with extreme suspicion.

As free speech has become a battleground for everyday Americans — waged on college campuses, over political correctness in the workplace, and on social media platforms — a simultaneous legal revolution has taken shape. Corporate actors seeking to eviscerate rules and restrictions on business conduct have attempted to conflate commercial action with free expression. In other words, the business elite is piggybacking off the free speech debate for its own ends.

This piggybacking has been taking place for decades. Lawyers have poked and prodded, attempting to find new legal manoeuvres to classify business behaviour as protected speech. In this vein, Southwest and Spirit Airlines have repeatedly litigated to block a regulation that required airlines to display the full price of tickets. Another example comes via the private rating agencies that were responsible for falsely certifying the safety of risky mortgage-backed securities in the lead up to the 2008 financial crisis. In court, the agencies argued that they were simply expressing First Amendment-protected speech, and were thus exempt from fraud lawsuits.

These efforts largely failed in court, but other, similar arguments have begun to prevail increasingly often. In the Supreme Court ruling Sorrell v. IMS Health Inc., Justice Anthony Kennedy struck down laws against health care firms mining and selling patient data to pharmaceutical companies. The patient data laws, Kennedy wrote, violated commercial speech laws and “burdened a form of protected expression.” In similar fashion, Kennedy and his Supreme Court colleagues cited the First Amendment when ruling in 2018 that the imposition of union fees on non-union public sector employees was unconstitutional. The imposition of fees, they said, amounted to coerced financial speech.

Most famously, Kennedy wrote the majority opinion in Citizens United, the 2010 decision that allowed unlimited corporate and independent spending in elections. The court ruling ushered in our current era of engorged Super PACs and dark money spending, all in the name of the First Amendment. The rules that had governed the financing of political campaigns, Kennedy wrote, had unduly restricted “corporate political speech”.

The flood of challenges continues. The First Amendment is being used to attack corporate regulations, ethics laws and consumer safety rules. Corporate attorneys are attempting to overturn the few existing laws restricting robo-calls and automated texts; interest groups funded by Google and Facebook have claimed that antitrust enforcement would increase censorship and stifle free speech; and state bans on lobbyist gifts to legislators are continually under threat. Lawyers have argued that such gifts are not bribery, but an example of free expression.

The new administration might find that this legal trend threatens some of its most consumer-friendly reforms. Processed food industry lobbyists have threatened to use First Amendment lawsuits to strike down the Food and Drug Administration’s new updated guidelines on what foods can be labeled as “healthy” — a cause that has been championed by Robert F. Kennedy Jr., Trump’s new health secretary. Trump has also promised to minimise pharmaceutical advertisements on television, but this endeavour, too, is likely to face challenge in the courts on the grounds of freedom of expression.

All of this is taking place without society having made much progress on what we should consider genuine freedom of expression. Banks are still free to arbitrarily remove customers, college students continue to face coercion over free speech, and social media platforms retain near-untrammelled power to censor their users.

Corporations, then, have taken an expansive view of the First Amendment in order to remove constraints on their power. But ordinary Americans have been left on the sidelines, as vulnerable as they ever were to government and corporate censorship.