Imagining an Antisubordinating First Amendment
35 Pages Posted: 13 Oct 2018
Date Written: September 20, 2018
Over the past forty years, the political economy of the First Amendment has undergone a significant shift. If in the early and mid-twentieth century, litigants that won First Amendment cases tended to be civil right groups like the NAACP, proponents of minority religions, and other representatives of the marginalized and the disenfranchised, these days, the winners in First Amendment cases are much more likely to be corporations and other economically and politically powerful actors. Scholars have provided two explanations for the change. Some have argued that it is a consequence of the decision to extend constitutional protection to commercial speech and to corporate speakers. By interpreting the guarantee of freedom of speech too expansively, they argue, the Court has allowed the First Amendment to be “hijacked” by corporations and other business groups and turned into a tool of economic deregulation and corporate power. Others attribute the shift in the demographics of the First Amendment’s beneficiaries to the excessive libertarianism of the contemporary Court. They argue that it is the Court’s tendency to treat free speech interests as more important than almost any other competing interest that has produced a First Amendment jurisprudence that is so good for corporations, relative to everyone else. In this Essay, I suggest a third explanation. I argue that the shift in the First Amendment’s political economy is not entirely—or even primarily—a consequence of an excessively expansive interpretation of the Speech Clause’s scope. Nor is it a result of the Court’s free speech libertarianism. Indeed, in what follows I challenge the idea that the contemporary Court is particularly libertarian when it comes to freedom of speech. What it reflects instead is the Court’s embrace over the past several decades of a highly formal conception of the First Amendment equality guarantee.
Taking stock of the present state of contemporary free speech jurisprudence thus requires taking stock of this change in the Court’s understanding of expressive equality. It also has normative implications. If the problem posed by the contemporary free speech doctrine is simply that it renders too much ordinary economic activity subject to judicial scrutiny, and that it makes that judicial scrutiny too demanding when it applies, then the obvious response is to narrow the scope of the First Amendment and to weaken the intensity of its protections. But if the problem with contemporary free speech doctrine is an egalitarianism that tends to favor both government and private power, what we need is not a weaker and a narrower First Amendment but a different First Amendment: one that functions better to protect the expressive freedom of the powerless. What we need to change, in other words, is not the strength of the speech right but its meaning. This Essay begins the work of charting out that alternative, what I call, “antisubordinating,” First Amendment by pointing to the areas of case law in which the Court has attempted to vindicate a more substantive conception of expressive equality. It looks to the Speech Clause’s past in an effort to think more creatively about its future.
Keywords: First Amendment, antisubordinating, equality, libertarianism
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