Imagining an Antisubordinating First Amendment
44 Pages Posted: 13 Oct 2018 Last revised: 31 Jan 2019
Date Written: September 20, 2018
Over the past four decades, the political economy of the First Amendment has undergone a significant shift. If in the early twentieth century winners in First Amendment cases tended to be representatives of the marginalized and the disenfranchised, these days, they are much more likely to be corporations and other powerful actors. This Essay excavates the causes of that change and suggests how it might be remedied. It argues that the shift in First Amendment political economy is not primarily a consequence of the overly expansive scope of current free speech law—as some have argued. Nor is it a product of the Court’s free speech libertarianism. 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. If the Court once interpreted the First Amendment to require, or at least permit, substantive equality of expressive opportunity, today the Court insists that the First Amendment guarantees—and guarantees only—formally equal treatment at the government’s hands. It is this shift, this Essay argues, that has produced a free speech jurisprudence that tends to favor the powerful and the propertied. By examining its causes and excavating areas of free speech law in which the Court has attempted to vindicate a more substantive conception of expressive equality, this Essay begins the work of charting out an alternative, more antisubordinating First Amendment.
Keywords: First Amendment, antisubordinating, equality, libertarianism
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