The Fraying Fabric of Freedom: Crisis and Criminal Law in Struggles for Democracy and Freedom of Expression

Abstract

The democratic ideal is one of the strongest justifications for robust protection of freedom of expression in America. In its English and early American origins, freedom of expression was anti-hierarchical. Far-flung commentary on the management of public affairs reinforces the conception of government officials as agents or trustees with a fiduciary duty to “the people.” Yet the democratic function of free speech is being eclipsed by a “market” for speech, in which wealth is increasingly concentrated in fewer hands, and speech in the most crucial political media of television and radio belongs predominantly to those who buy it. (The Internet, for now, remains an exception.)

A historical review of struggles for free expression demonstrates the original anti-hierarchical nature of freedom of expression, which technological advances initially galvanized. Earlier Supreme Court cases contain eloquent tributes to the values of free expression, the importance of diverse information from multiple perspectives, and of avenues for expression for the less wealthy. These ideals are being challenged by the modern reality of ever more concentrated economic power and Supreme Court decisions that further empower the powerful. Davis v. FEC, Citizens United v. FEC, and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett are landmarks of our new Gilded Age Court.

In short, great combinations of power (including private combinations) can threaten practical democracy and freedom of expression. All levels of government have abridged civil liberties, but the view that government power is oppressive and private or corporate power is benign has served to undermine freedom of expression for the non-wealthy. The anti-hierarchical purpose historically served by freedom of expression is fraying under a sustained and multi-pronged assault.