Left Standing at the Courthouse


Do receivers of information enjoy the same First Amendment protections as senders? A recent decision by the D.C. Circuit Court of Appeals seems to suggest they do not.

In September, the court dismissed a case brought by the Competitive Enterprise Institute and a California travel agent against the Department of Transportation. DOT restricts what data may be communicated over airline computer reservation systems. CEI argued that the restrictions infringe on the First Amendment rights of information users, such as the travel agent and her clients. But the court ruled that since no airline had indicated an interest in supplying the prohibited information, CEI lacked standing to challenge the DOT restrictions.

Sam Kazman, general counsel at CEI, argues that such a standard ignores the rights of consumers by predicating their ability to sue on the public stance of the airlines. "If industry rolls over, this decision leaves consumers out in the cold in challenging regulations," says Kazman, who plans to appeal the ruling.

Kazman contends that some airlines would indeed want to provide information once restrictions were lifted. "If a governmental agency gags a speaker then it's common sense to assume that the speaker wanted to speak," he says. More importantly, he says, since consumers are the ultimate beneficiaries of free markets—and the ultimate victims of government intervention—they have as much right as businesses to demand unrestricted trade.

Sometimes the interest of consumers and industry may clash. For instance, when tobacco advertisements were banned from broadcast, the tobacco companies did not challenge the ban—stations did. Why? Because the companies "made out like bandits," Kazman says, as none of them had to worry about another's one-upmanship in advertising. The restriction did for companies what they, governed by antitrust laws and competitive pressures, could not. But stations lost revenue and consumers lost their right to product information.

The CEI case may be caught up in a D.C. Circuit reexamination of the standing of public interest groups in general, Kazman says. In that case, an effort to keep Naderite groups from calling for all sorts of statist measures in spurious suits could also restrict consumers' ability to demand their rights in the marketplace.