The Disembodied First Amendment

100 Washington University Law Review 707 (2023)

SMU Dedman School of Law Legal Studies Research Paper No. 593

58 Pages Posted: 3 Apr 2023 Last revised: 8 Aug 2023

See all articles by Nathan Cortez

Nathan Cortez

Southern Methodist University - Dedman School of Law

William M. Sage

Texas A&M University School of Law

Date Written: 2023

Abstract

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - dubious precedents, doctrines, assumptions, and theoretical grounds that have elevated corporate and commercial speech rights over the last century. This Article offers several ways to deconstruct these artifices, re-tether the First Amendment to natural speakers and listeners, and thus reclaim the individual, political, and social objectives of the First Amendment.

Keywords: First Amendment, Free speech, Corporations, First Amendment doctrine, Protected speech, Corporate commercial speech, Artificial Intelligence, Corporate personhood, AI, Natural persons, Civil rights, Constitutional law

Suggested Citation

Cortez, Nathan and Sage, William Matthew, The Disembodied First Amendment ( 2023). 100 Washington University Law Review 707 (2023) , SMU Dedman School of Law Legal Studies Research Paper No. 593, Available at SSRN: https://ssrn.com/abstract=4406190

Nathan Cortez (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-1002 (Phone)

William Matthew Sage

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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