Speech, citizenry, and the market: A corporate public figure doctrine

Minnesota Law Review

Volumn 98, Issue 2, 2013, Pages 455-510

  Desai, Deven R ^a  

^a Thomas Jefferson School of Law   (United States)

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EID: 84891823808     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (225)

1. This Article follows the logic of expanded speech rights for corpora-tions to its conclusion. It shows that if such expansion is at hand, certain out-comes are required. Nonetheless, there are reasons to question whether such an expansion is well grounded or wise. Several other authors have excellent discussions of why corporations are different than individuals for speech and other purposes. See C. Edwin Baker, The First Amendment and Commercial Speech, 84 IND. L. REV. 981, 987-90 (2009) (arguing that commercial entities are "created for. . instrumental purposes" and have "a morally different sta-tus than living, flesh-and-blood people");
2. see also Patricia Nassif Fetzer, The Corporate Defamation Plaintiff as First Amendment "Public Figure": Nailing the Jellyfish, 68 IOWA L. REV. 35, 65-69 (1982) (tracing the Supreme Court's different approaches to corporate personhood depending on the question pre-sented);
3. cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (connecting the protection of someone's good name to dignity);
4. Ashutosh Bhagwat has made a strong argument that the nature of an association matters for consti-tutional analysis of whether a corporate entity has speech rights. Ashutosh Bhagwat, Associational Speech, 120 YALE L.J. 978, 1023-25 (2011). A corpo-rate entity not engaging in associational speech should not be afforded the same protection as one engaged in other speech, including commercial speech. Id. Bhagwat defines associational speech as "speech that is meant to induce others to associate with the speaker, to strengthen existing associational bonds among individuals including the speaker, or to communicate an associa-tion's views to outsiders (including government officials)." Id. at 981. As I ar-gue, corporate commercial claims have become political, associational, and commercial at the same time, which is why maintaining boundaries on corpo-rate speech has become difficult.
5. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 562-63 (1980) ("The Constitution. . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." (citation omit-ted)).
6. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) ("[T]ruly in-voluntary public figures must be exceedingly rare. . Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.").
7. See Mark McKenna, A Consumer Decision-Making Theory of Trade-mark Law, 98 VA. L. REV. 67, 69 (2012).
8. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 343 (2010) ("The Court has thus rejected the argument that political speech of corpora-tions or other associations should be treated differently under the First Amendment simply because such associations are not 'natural persons.'" (cita-tions omitted));
9. Cf. Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1 (2004) (arguing that digital technologies require that freedom of speech pro-mote a "democratic culture" that allows many to speak and participate in de-mocracy).
10. See, e.g., Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 MICH. L. REV. 581, 588-90 (2011).
11. Citizens United, 558 U.S. at 342
12. (quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784 n.14 (1978) (speech rights do not disappear "simply because its source is a corporation")).
13. Id. at 343 (quoting Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion)).
14. See Fortune 500, CNN MONEY (May 23, 2011), http://money.cnn.com/ magazines/fortune/fortune500/2011/full-list/401-500.html.
15. Fortune 500, Snapshot, CNN MONEY (May 23, 2011), http://money.cnn.com/ magazines/fortune/fortune500/2011/snapshots/927.html.
16. Citizens United, 558 U.S. at 389 (Scalia, J., concurring).
17. Id. at 342 (majority opinion) (quoting Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion)).
18. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
19. Sullivan, 376 U.S. at 256.
20. Citizens United, 558 U.S. at 325.
21. Sullivan, 376 U.S. at 258.
22. Citizens United, 558 U.S. at 325
23. See Sullivan, 376 U.S. at 264 (noting the claim for libel was "constitu-tionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct");
24. see also Mary-Rose Papandrea, The Story of New York Times Co. v. Sullivan, in FIRST AMENDMENT STORIES 252-55 (Richard W. Garnett & Andrew Koppelman eds., 2012) (tracing the later nuances of reputation protection by the Supreme Court).
25. Sullivan, 376 U.S. at 266 (citations omitted).
26. Id. The Supreme Court's commitment to protecting mediums to allow political engagement persists and is seen, for example, in Reno v. ACLU, where the Court embraced the Internet as a way for anyone to become a "town crier" or "pamphleteer" pressing his or her views to the world. 521 U.S. 844, 870 (1997).
27. Sullivan, 376 U.S. at 267 (internal quotation marks omitted
28. Id. at 268 (quoting Beauharnais v. Illinois, 343 U.S. 250, 263-64 (1952)) (internal quotation marks omitted).
29. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 385 (2010) (Roberts, C.J., concurring) ("Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at [certain] time[s]. . .").
30. Douglas Kysar, Preferences for Processes: The Process/Product Dis-tinction and the Regulation of Consumer Choice, 118 HARV. L. REV. 525, 535 (2004).
31. New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)
32. (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).
33. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976).
34. The Court reiterated this point in Bates v. State Bar of Arizona, 433 U.S. 350, 364 (1977)
35. and Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011).
36. We protect commercial information not because it enables economic efficiency in the marketplace, but because it is relevant to public decision making in a democracy. See ROBERT C. POST, DEMOCRACY, EXPERTISE, AND ACADEMIC FREEDOM 39-40 (2012).
37. Va. State Bd. of Pharmacy, 425 U.S. at 765.
38. Curtis Publ'g Co. v. Butts, 388 U.S. 130, 163-64 (1967) (Warren, C.J., concurring).
39. Cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (granting a business credit report "no special protection" when the speech was "solely in the individual interest of the speaker and its business audience");
40. Deana Pollard Sacks, Snyder v. Phelps: A Prediction Based on Oral Arguments and the Supreme Court's Established Speech-Tort Jurisprudence, 2010 CARDOZO L. REV. DENOVO 418, 426-27 (noting that private mat-ters are of "reduced constitutional value" and receive less "First Amendment protection from tort liability").
41. Citizens United v. Fed. Election Comm'n, 588 U.S. 310, 354 (2010).
42. Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974).
43. United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (plurality opin-ion).
44. See Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 909-10 (2000) (noting a corporation's ability to engage in counter-speech supports treating the corporation as a limited-purpose public figure under Gertz).
45. See, e.g., Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 354-56 (2010) (holding that the expenditures ban unconstitutionally silences both non-profit and for-profit organizations, as well as corporations both large and small).
46. See Gertz, 418 U.S. at 351 (noting one becomes a limited-purpose pub-lic figure by "injecting [one]self. . into a particular public controversy").
47. Gertz, 418 U.S. at 351.
48. Citizens United, 558 U.S. at 320 (noting Citizens United was to pay $1.2 million to make the VOD programming available at no extra charge to the viewer).
49. See Stan Karas, Privacy, Identity, Databases, 52 AM. U. L. REV. 393, 438 (2002) ("[C]onsumption patterns may identify one as a liberal, moderate Republican, radical feminist, or born-again Christian.").
50. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).
51. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985).
52. See, e.g., Dun & Bradstreet, 472 U.S. at 759 ("[S]peech on matters of purely private concern is of less First Amendment concern.").
53. See generally NAOMI KLEIN, NO LOGO (2002) (arguing corporations and their brand strategies have political implications).
54. See, e.g., Margaret Chon, Marks of Rectitude, 77 FORDHAM L. REV. 2311, 2315 (2009) ("[M]arks now express-whether implicitly or explicitly-environmental, human rights, and labor characteristics, as well as classic health and safety standards. . .").
55. Margot Roosevelt, Local-Food Movement: The Lure of the 100-Mile Di-et, TIME, June 11, 2006, http://content.time.com/time/magazine/article/0,9171, 1200783,00.html.
56. See generally Pallavi Gogoi, The Rise of the 'Locavore', BLOOMBERG BUSINESSWEEK (May 20, 2008), http://www.businessweek.com/stories/2008-05-20/the- rise-of-the-locavorebusinessweek-business-news-stock-market-and-financial- advice (detailing the rise of the lo-cal food movement, which Gogoi defines as food grown within 250 miles of where one lives).
57. Compare Vasile Stanescu, "Green" Eggs and Ham? The Myth of Sus-tainable Meat and the Danger of the Local, 8 J. FOR CRITICAL ANIMAL STUD. 8, 8 (2010) (arguing that the locavore movement needs to be "reunderstood and rearticulated")
58. with Kathy Rudy, Locavores, Feminism, and the Question of Meat, 35 J. AM. CULTURE 26, 26 (2012) (offering a "qualified endorsement of local eating").
59. See, e.g., Marion Nestle, What Google's Famous Cafeterias Can Teach Us About Health, THE ATLANTIC, July 13, 2011, http://www.theatlantic.com/health/ archive/2011/07/what-googles-famous-cafeterias-can-teach-us-about-health/241876/ (noting how Google's food program is "designed to promote. . environmental values").
60. See, e.g., Anne Thompson, Paper or Plastic-What's the Greener Choice?, NBC NEWS (May 7, 2007 7:37 PM), http://www.nbcnews.com/id/18538484/ns/nightly- news/t/paper-or-plastic-whats-greener-choice/(stating paper bags create more air pollution, while plastic bags produce more solid waste).
61. See, e.g., BusinessGreen, Europe Considers Plastic Bag Ban, GUARDI-AN ENVIRONMENT NETWORK (May 20, 2011, 11:23 AM), http://www.guardian.co.uk/ environment/2011/may/20/europe-plastic-bag-ban (distinguishing between plastic bags that will biodegrade naturally and those that will not).
62. See, e.g., David Zahniser & Abby Sewell, L.A. OKs Ban on Plastic Bags at Checkout, L.A. TIMES, May 24, 2012, http://articles.latimes.com/2012/may/24/ local/la-me-0524-bag-ban-20120524 (noting that Los Angeles is the largest city to pass such a ban, while San Jose, San Francisco, Long Beach, and Santa Monica already have such bans in place).
63. See A Better Bag, WHOLE FOODS MARKET, http://www.wholefoodsmarket.com/ mission-values/environmental-stewardship/better-bag (last visited Nov. 2, 2013) (noting that reusable bags are the "eco-nomical" op-tion).
64. See, e.g., Jane Black, Plastic Bags Headed for a Meltdown, WASH. POST, Feb. 6, 2008, at F1.
65. See, e.g., Paper vs. Plastic-The Shopping Bag Debate, GREENFEET BLOG (Feb. 25, 2009, 2:51 PM), http://web.archive.org/web/20120125030733/http://blog. greenfeet.com/index.php/paper-vs-plastic-the-shopping-bag-debate/ reducing-your-footprint/121 (accessed by searching for original URL in the In-ternet Archive index).
66. Compare Myth: Paper Is Better than Plastic, REUSEIT.COM, http://web.archive.org/web/20130208060558/http://www.reuseit.com/learn-more/ myth-busting/why-paper-is-no-better-than-plastic (last visited Nov. 2, 2013) (accessed by searching for original URL in the Internet Archive index) (challenging the contention that paper is better than plastic)
67. and Do Plastic Bag Bans Help the Environment?, NPR (Jun. 5, 2012, 12:00 PM), http://www.npr.org/2012/06/05/154354092/do-plastic-bags-bans-help-the- environment (noting that with bag choice, "everything is [a] tradeoff ")
68. with Top 10 Myths About Plastic Grocery Bags, AM. PROGRESSIVE BAG ALLIANCE, http://www.plasticsindustry.org/files/about/fbf/myths%2Bfacts- grocerybags.pdf (last visit-ed Nov. 2, 2013) (highlighting trade group's claim about plastic bags' impact on environment).
69. See, e.g., Justin Gillis, To Fight Climate Change, Students Aim at Portfolios, N.Y. TIMES, Dec. 5, 2012, at B1-B2 (energy);
70. Janean Chun, John Metz Denny's Obamacare Surcharge Stirs Big Mess for Restaurant Chain, HUFFINGTON POST (Nov. 20, 2012, 9:01 AM), http://www. huffingtonpost.com/2012/11/20/john-metz-denny's-obamacare-surcharge-n-2146735. html (health care);
71. Tim Cuplan, Foxconn Plans American Expansion as Clients Seek Made in U.S.A., BLOOMBERG (Dec. 6, 2012, 10:01 AM), http://www.bloomberg.com/news/2012- 12-06/foxconn-plans-american-expansion-as-clients-seek-made-in-u-s-a-.html (made in the U.S.A.);
72. Nate C. Hindman, At 'Dump the Trump' Macy's Rally Sparks Fly, HUFFINGTON POST (Nov. 21, 2012, 11:21 AM), http://huffingtonpost.com/2012/11/21/trump- macys-dump-the-trump-n-2170136.html (birther claims); infra notes 299-304 and accompanying text (gay mar-riage and same-sex rights).
73. See, e.g., Dan Burk & Brett McDonnell, Trademarks and the Bounda-ries of the Firm, 51 WM. & MARY L. REV. 345, 361 (2009) (noting that a trade-mark is a reputational asset).
74. See, e.g., Rochelle Cooper Dreyfuss, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397, 398 (1990) (noting the "Constitution. . favor[s] public access to the tools of expression," which include trademarks);
75. Laura Heymann, The Public's Domain in Trade-mark Law: A First Amendment Theory of the Consumer, 43 GA. L. REV. 651, 715 (2009) (arguing that trademark law deserves First Amendment protection);
76. Lisa P. Ramsey, Increasing First Amendment Scrutiny of Trademark Law, 61 SMU L. REV. 381, 381 (2008) (stressing that "[t]rademarks consist of language").
77. See Robert C. Denicola, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols, 1982 WIS. L. REV. 158, 198 ("Famous trademarks are the functional equivalent of famous names. . [a trademark] functions as the visual 'likeness' of its incor-poreal owner as well.").
78. See, e.g., MARCEL DANESI, BRANDS 33 (2006) (explaining that brands are personalities with identities);
79. cf. CELIA LURY, BRANDS: THE LOGOS OF THE GLOBAL ECONOMY 24, 33-34 (2004) (discussing brand personality as reflecting the internal connection between the brand and employees who become "the soul" of the brand, as well as reflecting consumer needs).
80. WILLIAM SHAKESPEARE, MERCHANT OF VENICE act 3, sc. 1;
81. see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 12 (1990) ("But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed."
82. (quoting WILLIAM SHAKESPEARE, OTHELLO act 3, sc. 3)).
83. See WILLIAM SHAKESPEARE, MERCHANT OF VENICE act 3, sc. 1 ("[A]nd if you wrong us, shall we not revenge?"). The rest of Shylock's speech asks whether he, a Jewish man, does not have eyes, hands, organs; is not subject to the elements; would not laugh if tickled, bleed if pricked; just as any other Christian and impliedly any other person. Id. Corporations as of yet do not have such capabilities, but they can and do seek revenge.
84. See, e.g., Steve Silberman, Mattel's Latest: Cease-and-Desist Barbie, WIRED, Oct. 28, 1997, http://www.wired.com/culture/lifestyle/news/1997/10/8037 (reporting that a Mattel attorney allegedly claimed the company wanted a defendant's house);
85. cf. Deven R. Desai & Sandra L. Rierson, Confronting the Genericism Conundrum, 28 CARDOZO L. REV. 1789, 1839-42 (2007) (addressing abusive trade-mark litigation spawned by policing requirement);
86. K.J. Greene, Abusive Trademark Litigation and the Incredible Shrinking Confusion Doctrine-Trademark Abuse in the Context of Entertainment Media and Cyberspace, 27 HARV. J.L. & PUB. POL'Y 609, 631-38 (2004) (examining instances of abusive trademark litigation);
87. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1045-46 (2005) (discussing the damages available to trademark and other intellectual property holders for misuse of their intellectual property).
88. See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003) (criticism of Barbie by juxtaposing a nude Barbie and various kitchen appliances);
89. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) (reference to Barbie in a song by the band Aqua).
90. See Walking Mountain, 353 F.3d 792;
91. MCA Records, 296 F.3d 894.
92. The artist in one case sought expenses and fees of $1.6 million after prevailing. Walking Mountain, 353 F.3d at 815.
93. Jonathan L. Schwartz, Making the Consumer Watchdog's Bark as Strong as Its Gripe: Complaint Sites and the Changing Dynamic of the Fair Use Defense, 16 ALB. L.J. SCI. & TECH. 59, 70-72 (2006);
94. Hannibal Travis, The Battle for Mindshare: The Emerging Consensus that the First Amendment Protects Corporate Criticism and Parody on the Internet, 10 VA. J.L. & TECH. 1, 3-5 (2005).
95. See, e.g., Leah Chan Grinvald, Shaming Trademark Bullies, 2011 WIS. L. REV. 625;
96. Irina D. Manta, Bearing Down on Trademark Bullies, 22 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 853 (2012).
97. The artist in the case was represented by the ACLU. See Walking Mountain, 353 F.3d at 795.
98. Mattel, Inc. v. Walking Mountain Prods., No. CV99-8543RSWL(RZX), 2004 WL 1454100, at *4 (C.D. Cal. June 21, 2004).
99. New York Times Co. v. Sullivan, 376 U.S. 254, 300-01 (1964) (Gold-berg, J., concurring in the result).
100. See, e.g., JOHN STUART MILL, ON LIBERTY 21-22 (Ticknor & Fields, 2d ed. 1863) (noting the way in which people invoke the government as vindicat-ing or interfering with rights depending on the issue and perspective rather than following a general principle).
101. See Stacey L. Dogan & Mark A. Lemley, Parody as Brand 10-11 (Stanford Law Sch. Pub. Law and Legal Theory Research Paper Series, Working Paper No. 2,170,498, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract- id=2170498##. A tradition of clearing rights and aggressive suits against those who use intellectual property in ways rights holders dislike undermines First Amendment protection for many creators.
102. See Jennifer E. Rothman, The Questionable Use of Custom in Intellectual Property, 93 VA. L. REV. 1899, 1911-16 (2007). Even major studios pay high fees to identify and clear rights and to obtain expensive errors and omissions insurance, regard-less of First Amendment defenses. Id. at 1915-16. Documentarians and indi-vidual filmmakers face the same costs and often forego use of and references to famous people (because of the right of publicity), copyrighted material, and trademarks, because otherwise the film cannot be made. Id. The culture forces requesting permission, which is the opposite of what should happen when pub-lic figures and concerns are at hand.
103. This point has greater force today, but the Supreme Court has acknowledged the issue for First Amendment analysis since at least 1967. See Curtis Publ'g Co. v. Butts, 388 U.S. 130, 163-64 (1967).
104. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).
105. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 564 (1980).
106. Rebecca Tushnet, Trademark Law as Commercial Speech Regulation, 58 S.C. L. REV. 737, 738 (2007) [hereinafter Tushnet, Trademark Law].
107. accord Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163-64 (1995) ("[T]rademark law. . 'reduce[s] the customer's costs of shopping and making purchasing decisions,'. . for it quickly and easily assures a potential customer that this item-the item with this mark-is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past." (alteration in original)
108. (quoting 1 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 2:01[2] (3d ed. 1994));
109. William M. Landes & Richard A. Posner, Trade-mark Law: An Economic Perspective, 30 J.L. & ECON. 265, 265-66 (1987) (ar-guing that trademarks are justified as promoting economic efficiency).
110. Corporations are sensitive to speech protection imbalances when they hinder corporate ability to advance a message. One understanding of the re-cently decided Kasky v. Nike, Inc. case, 45 P.3d 243 (Cal. 2002)
111. cert. dismissed, 539 U.S. 654 (2003), is a claim that "it was unfair that Nike's critics could say almost anything, subject only to the lax constraints of defamation law, while Nike's responses were subject to strict liability for falsehood."
112. Rebecca Tushnet, Fighting Freestyle: The First Amendment, Fairness, and Cor-porate Reputation, 50 B.C. L. REV. 1457, 1465 (2009) [hereinafter Tushnet, Fighting Freestyle].
113. See Deven R. Desai, From Trademarks to Brands, 64 FLA. L. REV. 981, 1039-40 (2012) (discussing anti-branding and political actions based on corpo-rate policies).
114. Cf. United States v. Alvarez, 132 S. Ct. 2537, 2544-45 (2012) (plurali-ty opinion) (discussing distinctions in false statement of fact cases and their value to society).
115. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 (1976);
116. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563 (1980) (emphasis added).
117. See Mark A. Lemley & Mark McKenna, Irrelevant Confusion, 62 STAN. L. REV. 413, 414 (2010) ("When it works well, trademark law facilitates the workings of modern markets by permitting producers to accurately communi-cate information about the quality of their products to buyers. . . If competi-tors can falsely mimic that information, they will confuse consumers, who won't know whether they are in fact getting a high quality product. Indeed, some consumers will be stuck with lemons."). For some, the claim is that when it comes to passing off in trademark, the consumer is ill-equipped to protect herself.
118. See Lillian R. BeVier, Competitor Suits for False Advertising Under Section 43(a) of the Lanham Act: A Puzzle in the Law of Deception, 78 VA. L. REV. 1, 20 (1992).
119. Cf. Rebecca Tushnet, Truth and Advertising: The Lanham Act and Commercial Speech Doctrine, in TRADEMARK LAW AND THEORY: A HANDBOOK OF CONTEMPORARY RESEARCH 294, 312 (Graeme B. Dinwoodie & Mark D. Jan-is eds., 2008) (noting that with political speech we "presume a fully rational citizen," but those opposed to regulation "presume a careful and competent consumer," whose conduct is "plainly inconsistent with the behavior of idealized speech-evaluators");
120. Richard H. Weisberg, The First Amendment Degraded: Milkovich v. Lorain and a Continuing Sense of Loss on Its 20th Birthday, 62 S.C. L. REV. 157, 179-80 (2010) (arguing a proper reading of Sullivan ac-cepts a thinking, deliberating audience).
121. See Rebecca Tushnet, Gone in Sixty Milliseconds: Trademark Law and Cognitive Science, 86 TEX. L. REV. 507, 564 (2008) [hereinafter Tushnet, Gone in Sixty Milliseconds].
122. See Barton Beebe, A Defense of the New Federal Trademark Antidilution Law, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J., 1143, 1157-58 (2006).
123. See Sandra L. Rierson, The Myth and Reality of Dilution, 11 DUKE L. & TECH. REV. 212, 214 (2012) ("Properly viewed, the federal dilution statute is a legislative precursor to the type of corporate personification underlying the Supreme Court's analogous treatment of corporate speech under the First Amendment in Citizens United and is equally misplaced." (footnote omitted)).
124. Tavoulareas v. Piro, 817 F.2d 762, 772 (1987) (en banc)
125. (quoting Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1293 (D.C. Cir. 1980)) (in-ternal quotation marks omitted).
126. See, e.g., Mark P. McKenna, Testing Modern Trademark Law's Theory of Harm, 95 IOWA L. REV. 63, 117 (2009).
127. See William McGeveran, Rethinking Trademark Fair Use, 94 IOWA L. REV. 49, 106-07 (2008).
128. Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (4th Cir. 2007).
129. Louis Vuitton Malletier, S.A. v. Hyundai Motor America, No. 10 Civ. 1611 (PKC), slip op. at 1 (S.D.N.Y. Mar. 22, 2012).
130. Cf. Stewart v. Rolling Stone LLC, 181 Cal. Rptr. 3d 98, 119 (2010) ("[T]here was no evidence of any intentional collusion to misappropriate plain-tiffs' identities.").
131. McGeveran, supra note 156, at 109; accord Rierson, supra note 149, at 267-68 (noting that even where parody is found, "courts must engage in a fact-specific weighing of factors in these types of cases to determine whether the use will 'impair the distinctiveness' of the famous trademark or harm its repu-tation," and finding parody is "not a foregone conclusion" (footnote omitted) (quoting Louis Vuitton, 507 F.3d at 265)).
132. Robert G. Bone, Hunting Goodwill: A History of the Concept of Good-will in Trademark Law, 86 B.U. L. REV. 547, 548 (2006) (emphasis added).
133. See, e.g., Deven R. Desai, Response, An Information Approach to Trademarks, 100 GEO. L.J. 2119, 2130 (2012);
134. Ariel Katz, Beyond Search Costs: The Linguistic and Trust Functions of Trademarks, 2010 BYU L. REV. 1555, 1570-71. But see McGeveran, supra note 156, at 68 ("The test has ex-panded far beyond its roots in cases involving direct commercial competi-tors.").
135. See, e.g., Graeme W. Austin, Trademarks and the Burdened Imagina-tion, 69 BROOK. L. REV. 827, 887 (2004)
136. ("[O]rdinarily prudent consumers have also been characterized as 'credulous,' 'inexperienced,' and 'gullible.'" (footnote omitted) (quoting J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:93 (4th ed. 1996))).
137. Rebecca Tushnet, Running the Gamut from A to B: Federal Trade-mark and False Advertising Law, 159 U. PA. L. REV. 1305, 1313 (2011) [here-inafter Tushnet, Running the Gamut]
138. See also Kasky v. Nike, Inc., 45 P.3d 243, 248 (Cal. 2002)
139. cert. dismissed, 539 U.S. 654 (2003);
140. accord Erwin Chemerinsky & Catherine Fisk, What Is Commercial Speech? The Issue Not Decided in Nike v. Kasky, 54 CASE W. RES. L. REV. 1143, 1148 (2004).
141. Nike, 539 U.S. at 656.
142. Chemerinsky & Fisk, supra note 177, at 1149 (footnote omitted) (quot-ing Brief for the Petitioners at 22, Nike, 539 U.S. 654 (No. 02-575)) (internal quotation marks omitted).
143. Chemerinsky & Fisk, supra note 177, at 1147-48 (citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983)).
144. Nike, 539 U.S. at 677 (Breyer, J., dissenting).
145. Id. (quoting Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988)).
146. Nike, 539 U.S. at 681 (Breyer, J., dissenting).
147. Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., con-curring).
148. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 348 (2010)
149. (quoting Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990)).
150. See New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) ("If nei-ther factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.").
151. Citizens United, 558 U.S. at 313
152. (quoting Austin, 494 U.S. at 659);
153. see also Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670 (2011).
154. Citizens United, 558 U.S. at 349-52 ("The First Amendment's protec-tions do not depend on the speaker's 'financial ability to engage in public dis-cussion.'"
155. (quoting Buckley v. Valeo, 424 U.S. 1, 49 (1976))).
156. See United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012) (plurality opinion) (rejecting "enforced silence" in favor of more speech to counter false statements);
157. Citizens United, 558 U.S. at 354 ("The censorship we now con-front is vast in its reach. The Government has 'muffle[d] the voices that best represent the most significant segments of the economy.' And 'the electorate [has been] deprived of information, knowledge and opinion vital to its function.'" (emphasis added) (citations omitted)).
158. Citizens United, 558 U.S. at 354-55
159. (quoting THE FEDERALIST NO. 10, at 130 (James Madison) (B. Wright ed., 1961)).
160. See supra note 34 (discussing the facts of New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).
161. Sullivan, 376 U.S. at 271.
162. Id. at 282 (recognizing "the utterance of a federal official to be abso-lutely privileged if made 'within the outer perimeter' of his duties" (quoting Barr v. Mateo, 360 U.S. 564, 575 (1959))).
163. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011);
164. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 353-54 (2010).
165. See Citizens United, 558 U.S. at 350-52, 364 ("There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not.").
166. Both the opinion by Justice Kennedy, which three Justices joined, and the concurring opinion by Justice Breyer, which one Justice joined, look to more information and corrective speech as better ways to solve inaccurate statements than bans on false speech. United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (plurality opinion); id. at 2556 (Breyer, J., concurring).
167. See, e.g., Sandra L. Rierson, IP Remedies After eBay: Assessing the Impact on Trademark Law, 2 AKRON INTELL. PROP. J. 163, 164 (2008) ("In trademark law, like patent law (at least prior to the eBay decision), the case law reflects a strong presumption that injunctive relief goes hand-in-hand with a finding of liability-either in the form of trademark infringement or, more recently, dilution.").
168. Alvarez, 132 S. Ct. at 2545 (plurality opinion).
169. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 354 (2010)
170. (quoting McConnell v. Fed. Election Comm'n, 540 U.S. 93, 257-58 (2003)).
171. Id. (quoting United States v. Congress of Indus. Orgs., 335 U.S. 106, 144 (1948)).
172. See, e.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503-04 (1984) ("The First Amendment presupposes that the freedom to speak one's mind is not only an aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole.")
173. See, e.g., St. Amant v. Thompson, 390 U.S. 727, 732 (1968) ("But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.")
174. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
175. Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 666 (1989).
176. Id. (citations omitted) (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964);
177. St. Amant, 390 U.S. at 730).
178. Alvarez, however, points to a preference for corrective speech rather than a ban, even when an outright lie is the issue. United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (plurality opinion). Lyrissa Lidsky has argued that the standard undermines actual malice's power when applied to non-media defendants and offers the opinion that privilege is an alternative de-fense for non-media speakers.
179. See 2 ROBERT D. SACK, SACK ON DEFAMATION § 13:1.1 (4th ed. 2011).
180. See, e.g., Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990) (trade libel);
181. SCO Group, Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1296 (D. Utah 2010) (slander of title);
182. see also Brief of Professors Eugene Volokh and James Weinstein as Amici Curiae in Support of Petitioner at 5, United States v. Alvarez, 132 S. Ct. 2537 (2012) (No. 11-210).
183. See Rebecca Tushnet, It Depends on What the Meaning of "False" Is: Falsity and Misleadingness in Commercial Speech Doctrine, 41 LOY. L.A. L. REV. 227, 257 (2007) ("[T]he consequence of turning false advertising law into a subtopic of First Amendment law would be a substantial, possibly near-total, contraction of its scope.").
184. Cf., e.g., Code of Conduct: Environment and Sustainability, CATERPILLAR, http://www.caterpillar.com/company/strategy/code-of-conduct/commitment/ environment-and-sustainability (last visited Nov. 2, 2013) ("We strive to create stockholder value by providing customers with solutions that improve the sustainability of their operations.").
185. See, e.g., Blake Sobczak, Caterpillar Pulled from Social Indexes, ASSOCIATED PRESS, June 27, 2012, available at http://bigstory.ap.org/article/ caterpillar-pulled-social-indexes (describing Israeli military's use of "armor-plated Caterpillar bulldozers to raze Palestinian houses").
186. See, e.g., Simone Brummelhuis, Career Barbie (Now 50) Is on a Mis-sion and Advocates Girl Power, THE NEXT WOMEN (March 29, 2009), http://www. thenextwomen.com/2009/03/29/career-barbie-now-50-is-on-a-mission-and-advocates- girl-power;
187. I Can Be. . ., BARBIE, http://icanbe.barbie.com/en-us/index.html (last visited Nov. 2, 2013) (offering a range of Barbies with differ-ent careers and promoting the idea that "Barbie lets you be anything you want to be").
188. See, e.g., Life in Plastic, ECONOMIST, Dec. 21, 2002, at 20;
189. Teen Talk Barbie Turns Silent on Math, N.Y. TIMES, Oct. 21, 1992, at D4.
190. See, e.g., Douglas H. Boucher, Cocaine and the Coca Plant, 41 BIOSCI-ENCE 72, 75 (1991) (noting Coca-Cola "contained a minute amount of cocaine" in its original formula).
191. See, e.g., The Coca-Cola Company Releases Sustainability Report, CSRWIRE (Feb. 4, 2011, 3:00 PM), http://www.csrwire.com/press-releases/31545-The-Coca- Cola-Company-Releases-Sustainability-Report.
192. Cf., e.g., Sonia K. Katyal, Stealth Marketing and Antibranding: The Love That Dare Not Speak Its Name, 58 BUFF. L. REV. 795, 807-09 (2010) (giv-ing examples of trademarks parodied in campaigns against major corpora-tions).
193. See Duane D. Stanford, SodaStream Takes Marketing Tactic to Coca-Cola's Hometown, BLOOMBERG (June 20, 2012, 4:12 PM), http://www .bloomberg.com/news/ 2012-06-20/sodastream-takes-marketing-tactic-to-coca-cola-s-hometown.html.
194. See 1 RODNEY A. SMOLLA, LAW OF DEFAMATION § 2:121, at 2-150 (2d ed. 2005).
195. See Time, Inc. v. Firestone, 424 U.S. 448, 453 (1976)
196. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)).
197. See Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987) (en banc);
198. see also Rosenblatt v. Baer, 383 U.S. 75, 88 (1966) ("[I]t is for the trial judge in the first instance to determine whether the proofs show respondent to be a 'public official.'")
199. Piro, 817 F.2d at 772 (citations omitted) (internal quotation marks omitted).
200. See, e.g., Piro, 817 F.2d at 772-73;
201. Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1296-98 (D.C. Cir. 1980);
202. see also Trotter v. Jack Ander-son Enters., 818 F.2d 431, 433-34 (5th Cir. 1987) (adopting the test).
203. Id. (quoting Waldbaum, 627 F.2d at 1297).
204. Id. at 773 (quoting Waldbaum, 627 F.2d at 1297).
205. See supra notes 249-50 and accompanying text; cf., e.g., Global Issues: Engaging with Government, CATERPILLAR, http://www.caterpillar.com/cda/ components/fullArticle?m=484235&x=7&id=3449560 (last visited Nov. 2, 2013) (stating Caterpillar's commitment to political advocacy on its own be-half).
206. See supra notes 251-52 and accompanying text; cf., e.g., MATTEL, PLAYING RESPONSIBLY: 2009 GLOBAL CITIZENSHIP REPORT 40 (2009), available at http://corporate.mattel.com/about-us/2009GCReport.pdf (listing learning, health, girl empowerment, and joy as Mattel's publicly advocated philanthrop-ic priorities).
207. See supra notes 255-56 and accompanying text; cf., e.g., 2011/2012 Sustainability Report, COCA-COLA (Nov. 7, 2012), http://www.coca-colacompany. com/sustainabilityreport/(providing links to, among other things, pages detailing Coca-Cola's public commitments to fighting obesity, increasing nutrition education, and more).
208. See, e.g., Chafoulias v. Peterson, 668 N.W.2d 642, 654 (Minn. 2003)
209. reh'g granted, 668 N.W.2d 642, 666-67 (Minn. 2003) ("By seeking public and government support for development projects that have a significant impact on Rochester, [defendant] has assumed a position that invites attention and comment about the manner in which he conducts his business affairs.").
210. Tavoulareas v. Piro, 817 F.2d 762, 773 (D.C. Cir. 1987) (en banc)
211. (quoting Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1298 (D.C. Cir. 1980)).
212. See Waldbaum, 627 F.2d at 1298 (holding that the statements made must be related to "plaintiff's participation in the controversy").
213. See Jennifer Frankel, The Legal and Regulatory Climate for Invest-ment in Post-apartheid South Africa: An Historical Overview, 6 CARDOZO J. INT'L & COMP. L. 183, 189-90 n.40, 191-94 (1998) (describing a "code of con-duct" for American companies operating in South Africa that required equal treatment for and desegregation of black employees and included the general exhortation to "[w]ork to eliminate laws and customs which impeded social and political justice [and] [s]upport the ending of all apartheid laws").
214. See Mark Oppenheimer, Few Resist the Temptation to Opine on Chick-fil-A, N.Y. TIMES, Aug. 4, 2012, at A15.
215. See Bill Barrow, More Than Gay Marriage Driving Chick-fil-A Flap, SAN JOSE MERCURY NEWS, Aug. 4, 2012, http://www.mercurynews.com/top-stories/ci- 21233680/more-than-gay-marriage-driving-chick-fil-flap.
216. See, e.g., American Family Association Calls for Boycott of Google over Company's Support of LGBT Rights, HUFFINGTON POST (July 12, 2012, 1:45 AM), http://www.huffingtonpost.com/2012/07/11/american-family-association-google- video-n-1666218.html;
217. Kevin Burra & Curtis M. Wong, Oreo Cookies' Gay Pride Backlash: 25 Companies and Products Boycotted for Supporting LGBT Rights, HUFFINGTON POST (June 28, 2012, 3:00 PM), http://www.huffingtonpost.com/2012/06/28/oreo- backlash-companies-anti-gay-boycott-n-1634767.html;
218. Heba Hasan, Anti-Gay Group Slams JCPenney over Father's Day Ad, TIME, June 3, 2012, http://newsfeed.time.com/2012/06/03/anti-gay-group-slams- jcpenneys-over-fathers-day-ad/
219. See Tiffany Hsu, Chick-fil-A Vows to Stop Donating to Anti-Gay Groups, L.A. TIMES, Sept. 19, 2012, http://articles.latimes.com/2012/sep/19/business/la- fi-chick-fil-a-gay-20120920.
220. An inquiry into public officials' fitness for office makes comments about dishonesty, malfeasance, or improper motivation germane. See Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1298 n.33 (D.C. Cir. 1980);
221. Moniter Patriot Co. v. Roy, 401 U.S. 265, 273 (1971);
222. cf. Tavoulareas v. Piro, 817 F.2d 762, 774 (D.C. Cir. 1987) (en banc) (holding that issues of nepo-tism at the corporate management level are germane).
223. See, e.g., Jeanine Poggi, CBS and Time Warner Cable's Smear Cam-paigns Could Backfire, ADVERTISING AGE (July 29, 2013), http://adage.com/article/media/ cbs-time-warner-cable-smear-campaigns-backfire/243341/.
224. Cf., e.g., Matt DeLong, Google: 'Legalize Love' Campaign Isn't About Gay Marriage, WASH. POST, July 8, 2012, http://www.washingtonpost.com/blogs/ innovations/post/google-legalize-love-campaign-isnt-about-gay-marriage/2012/07/ 08/gJQAN3PQWW-blog.html (describing the misinterpretation of Google's Legalize Love campaign, which is not intended to support gay mar-riage, but rather to "support[] workers in countries that criminalize homosex-uality").
225. See BRUCE BIMBER, INFORMATION AND AMERICAN DEMOCRACY 21-23 (2003) (arguing that the United States is in a fourth information revolution, one characterized by information abundance, where decentralized actors make political decisions, rather than one where the government and a few large or-ganizations drive the process from a central point).