Masters of Manipulation

The muzzling of a chiropractor shows the First Amendment is no match for the Federal Trade Commission.

Brian Doherty from the March 1998 issue

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In seeking to censor Koren, the FTC is asserting that his pamphlets amount to "commercial speech." The Supreme Court has repeatedly said that such speech--defined in one case as communication that does "no more than propose a commercial transaction"--is not fully protected by the First Amendment. But as federal appeals court judge Alex Kozinski and attorney Stuart Banner pointed out in a 1990 Virginia Law Review article, the whole notion that "commercial speech" can be clearly distinguished from other kinds of speech was created out of whole cloth in the 1942 case Valentine v. Chrestensen. Kozinski and Banner argue convincingly that the standard distinctions between "pure" and "commercial" speech --profit motive, objectivity, durability--don't hold up to close analysis. They warn that the commercial speech doctrine "gives government a powerful weapon to suppress speech by classifying it as merely commercial."

Koren's pamphlets, which clearly do more than "propose a commercial transaction," illustrate that point. Dr. William Jarvis, president of the National Council Against Health Fraud and an enemy of chiropractic for anything but back pain, acknowledges that conflicts between chiropractic and a standard medical/regulatory mindset hinge on differences that are "highly philosophical, metaphysical." Chiropractors have a different view of health, one that presumably appeals to their clients (or at least to those who are open to the possibility that spinal manipulation is good for more than back pain). Koren's pamphlets, even if they don't rigorously prove their case, are part of a scientific debate over the nature of healing. Under commercial speech doctrine, is anything a doctor says that can be linked to the prospect of buying a service from him thus open to lesser constitutional protection?

Thus, a strong case could be made that Koren's literature is not commercial speech. Even if the FTC's judgment on that point withstood a legal challenge, the commission's censorship might still be overturned, given the Supreme Court's recent tendency to closely scrutinize restrictions on commercial speech. But we will probably never find out. Koren can't afford the enormous cost of grappling with the FTC.

When a federal regulatory agency presents you with a consent order, no matter how unhappy you might be with the proposed settlement, the only way to ensure your business can live is to give in. If you choose to fight, you go before an administrative law judge, and if you are unhappy with his decision your first appeal goes to the agency itself. Your court battle could drag on for years and would likely cost hundreds of thousands of dollars. Offering a consent order generally is a quick and easy way for the government to get what it wants. Then, the legal issue is no longer whether you broke the law but whether you violated the consent order. Microsoft has recently learned that lesson.

Washington lawyer Jonathan Emord is engaged in a legal battle with the Food and Drug Administration over an issue similar to the one raised by Koren's case: whether manufacturers of nutritional supplements can use their labels to cite scientific articles indicating a product's potential for reducing the risk of disease. Because the FTC's reach over commerce is much broader than the FDA's, Emord considers it a more formidable opponent. "The FDA is in some ways a paper tiger," he says, "but the FTC is a dragon with big teeth and a huge intestinal tract. It can eat all day and night. And it does."