UC Davis

This paper is an invited response to Deven Desai’s excellent article, Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine. Desai argues that modern law has created an asymmetry in the treatment of corporations. The source of the problem, Desai argues, is that cases like Citizens United v. Federal Election Commission provide robust protection for corporate speech. At the same time, however, trademark law and (to a lesser extent) the commercial speech doctrine permit corporations to silence the speech of others criticizing them. The result is an uneven playing field, where corporations have robust rights to strengthen their reputations, while critics are hamstrung. The solution Desai proposes is a “corporate public figure doctrine.” Drawing on Supreme Court’s landmark decision in New York Times v. Sullivan regarding defamation law and the First Amendment, Desai argues that in order to bring legal claims for infringement or dilution of their trademarks, corporations should be required to prove falsehood and “actual malice,” meaning knowledge or reckless disregard of the truth. This, Desai concludes, will provide the robust protection for speech criticizing corporations that the First Amendment demands.I agree with many of Desai’s arguments, including the increasingly important political role of corporations, and fact that trademark law unfairly restricts criticism of corporations. My primary critique of Desai’s paper focuses on the appropriateness of importing the falsehood requirement from defamation into trademark dilution law. I argue that there is a disconnect here, just as there was a fundamental disconnect in the Supreme Court’s importation of falsehood and actual malice into the intentional infliction of emotional distress tort. The problem is that neither trademark dilution or IIED turn in any way on falsehood or the harms caused by falsehood. I conclude by exploring the implications of this insight for Desai’s analysis, and for trademark dilution law.