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Does Humana Have A Free Speech Right To Mislead The Elderly?

Publication Date: 
September 23, 2009
Source: 
The Huffington Post
Author: 
Dawn Teo

Lecturer Joe "Chip" Pitts, co-author of the book "Corporate Social Responsibility – A Legal Analysis," discusses corporate personhood and responsibility:

Late last week, Medicare officials admonished Humana for using Medicare customer lists to engage in political advocacy and lobbying. Monday, Medicare officials sent a memorandum to all Medicare insurance companies explicitly prohibiting them from doing the same. This action by the Center for Medicare and Medicaid Services (CMS) represents a major policy shift from one administration to another and could lead to a legal case with the potential to establish new legal principles within a contested area of First Amendment (free speech) law.

Political Or Commercial Speech?

Tuesday, Senate Minority Leader Mitch McConnell (R-KY) took to the floor of the Senate to argue, "This is American -- citizens, either as individuals or grouped together in companies, have a fundamental right -- a fundamental right -- to talk about legislation they favor or oppose in this country. This is the core of the First Amendment’s protection of speech."

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Stanford Law School Lecturer Chip Pitts notes, "The power of companies and the possibility of commercially oriented powerful communications unfairly distorting the public debate and obstructing the best (or better) policy outcomes has been the rationale underlying regulation in this area for more than a century."

For more than 100 years, explains Pitts, many have regarded concentrations of power (e.g., corporations, unions) with a high degree of suspicion, which harkens back to the question of corporate personhood. Some legal theorists and political scientists contend that powerful actors can disrupt the political process and crowd out discuss and debate in the marketplace of ideas.

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In his book, Corporate Social Reponsibility - A Legal Analysis, Pitts points to a landmark Supreme Court ruling that said, "there is no constitutional value in false statements of fact."

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Pitts, who is currently teaching a course in corporate social responsibility at Stanford, says, "Notwithstanding the law in this case, corporations especially if granted 'rights' and 'privileges' similar to those of individual citizens, have ethical duties of good citizenship that include communicating openly and truthfully, not actively interfering with regulation that’s truly in the public interest, and affirmatively trying to promote the authentic public interest of the societies of which they are part."