Introduction: The Egalitarian Anxiety
The specter of inequality haunts the American legal imagination. For an ideologically diverse range of scholars, policymakers, and activists, growing inequality names both the deep cause and the dangerous effect of a set of overlapping conflicts—economic, racial, cultural, constitutional—that threaten the stability of contemporary U.S. society. Of course, the problem of inequality is nothing new. The nation’s constitutive ideals of economic independence and democratic self-rule have long achieved realization through practices of mastery: in particular, through the power wielded by white male property owners over the nonwhite, the nonmale, and the poor.
Given the role that material disparities have played in American political development, it is no surprise that the legal meaning of equality has proved especially contentious, or that this meaning has changed dramatically over time. Likewise, the relative priority of equality within the inventory of American constitutional values has tended to ebb and flow. In the 1860s and 1960s, for instance, the dominance of equality talk heralded the collapse of preexisting racial and (in the 1960s) sexual settlements, as well as the transformation of federalism, the separation of powers, and a host of individual constitutional rights. Today, equality talk is once again at the center of the legal conversation, challenging foundational assumptions about how numerous fields of law are organized and studied and about the social functions they are meant to serve. Why?
One proximate cause is the financial crisis of 2008 and the economic disruption that followed in its wake. Congress’s and the executive branch’s “seemingly plutocratic response to the crisis” inspired “angry attacks by protesters on both left and right,”
from Occupy Wall Street to the Tea Party. The Supreme Court’s 2010 decision in Citizens United v. FEC,
striking down statutory limits on corporate electioneering, compounded these concerns. By 2014, Americans had become alarmed enough to make a bestseller of economist Thomas Piketty’s 700-page empirical study of capitalism and inequality, Capital in the Twenty-First Century.
Two years later, the antiplutocratic politics of the early 2010s found a still broader outlet in the 2016 presidential election. For a decade now, the “anxiety that the ‘Great Recession’ . . . defines a new economic normal,”
in which the wealthiest individuals take an ever larger piece of an ever shrinking pie, has shaped American public culture.
The conditions and aftermath of President Donald Trump’s ascendancy make clear that the resurgence of antiplutocratic politics was about far more than elite mismanagement of the macroeconomy.
On the campaign trail, Trump framed his critique of postcrisis financial regulation as part of a larger and darker narrative of Wall Street capture and American decline.
revolved around the stark neo-Marxist claim that “capitalism automatically generates arbitrary and unsustainable inequalities that radically undermine the meritocratic values on which democratic societies are based.”
And from Black Lives Matter to No More Deaths to #MeToo to Medicare for All to transgender liberation to the Fight for Fifteen to the Dreamers to the Campaign to End the New Jim Crow, a wave of social movements have mobilized to reveal and redress the myriad structures of oppression confronting particular groups. It is out of this decade of struggle that what we call the “egalitarian anxiety” has emerged. This anxiety joins the unexpected traumas of national economic failure and widening economic insecurity to the all-too-predictable persistence of racial, ethnic, and gender subordination.
New evidence on the extent of American inequality comes out constantly. In 1978, the wealthiest 0.1% of American households held 7% of the nation’s wealth.
By 2012, that number had more than tripled.
Today, the richest 160,000 or so families in the United States possess as much wealth as the 144 million poorest families combined.
Between the top 0.1% and the bottom 90%, there stands what the Atlantic recently dubbed “The New American Aristocracy”: “a well-behaved, flannel-suited crowd of lawyers, doctors, dentists, mid-level investment bankers, M.B.A.s with opaque job titles, and assorted other professionals.”
These aristocrats-by-degree account for the majority of American wealth, more than the top 0.1% and the bottom 90% put together.
And while the institutions and communities that rear the new aristocracy often define themselves in terms of merit and cultural pluralism, the class they are reproducing is in fact a bastion of white power. “African Americans represent 1.9 percent of the top 10th of households in wealth; Hispanics, 2.4 percent; and all other minorities, including Asian and multiracial individuals, 8.8 percent—even though those groups together account for 35 percent of the total population.”
The median net worth of a white family in the United States is $134,000, versus $11,000 for the median black family.
In Boston, home to the greatest density of higher education institutions in the country,
the median net worth of a nonimmigrant black household is $8.
There is a certain irony to this profusion of data on inequality, in that it is mainly manufactured and read by the new aristocracy itself. Yet this privileged group has ample reason to worry as well. Competition within the 9.9% is fierce, and only the highest ranks can comfortably absorb the rising costs of education, healthcare, housing, and environmental security that intraclass competition helps to produce.
Meanwhile, every elite has something to fear from the social breakdown that such costs may precipitate when populations simply cannot pay, or are forced to pay in more gruesome currencies.
Accordingly, a solidarity of fear—however partial or impermanent—has taken hold. It is under these conditions that the egalitarian anxiety becomes an almost inescapable motivation for conscious and conscientious legal thought. To dub our moment the age of inequality would require the fabrication of too many golden ages to count. But it is indeed an age of profound positional and distributional anxiety, an age when enduring, escalating, and intersectional forms of inequality have become a central object of legal study and reform.
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In less than ten years, the egalitarian anxiety has made inroads across the legal academy. One of the most dramatic manifestations is the economic turn in constitutional theory and history, as the Great Recession stirred a number of scholars to diagnose these fields’ persistent neglect of considerations of economic justice,
and to begin to rectify that neglect. Today, the relationship between constitutional law and economic inequality—or “constitutional political economy” more broadly
—represents one of the most generative subjects of constitutional scholarship, supplanting to some extent the legal-liberal preoccupation with describing and defending variants of living constitutionalism.
While the economic turn in constitutional scholarship is particularly stark, considerations of social and material inequality have also galvanized research in fields more accustomed to thinking about the economic side of power. These include administrative law,
human rights law,
intellectual property law,
and law and technology.
And then there is the First Amendment. Following the 2008 financial crisis, the Roberts Court handed down a series of rulings that demonstrated the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court had created a “new Lochner.”
The freedoms of speech, association, and religion have long been touted as the last nonviolent weapons by which the downtrodden can contest their subordination.
But in cases such as Citizens United,
Sorrell v. IMS Health Inc.,
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,
McCutcheon v. FEC,
Harris v. Quinn,
and Burwell v. Hobby Lobby Stores, Inc.
(the latter three all decided in early to mid-2014, at the height of Pikettymania), the Court seemed to transform those weapons of the weak into one more resource that wealthy interests could deploy to preserve their advantages. From this point of view, the Roberts Court not only got the relevant civil liberties law wrong; it also displayed a reactionary commitment to using that law to entrench inequality in the face of a bruising recession.
Four years later, the Roberts Court’s “Lochnerian” application of civil liberties law continues unchecked,
leaving students of the First Amendment with more questions than answers. This introductory Essay to the Columbia Law Review’s 2018 Symposium, “A First Amendment for All? Free Expression in an Age of Inequality,” takes up three such questions:
Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Do First Amendment theory and precedent contain egalitarian elements that can be recovered? And what might a more egalitarian First Amendment look like today? The latter two questions also motivate the Symposium contributions published in the pages that follow. While a flurry of recent scholarship has helped to identify and critique the emergence of a substantively inegalitarian First Amendment, the search for a constitutionally compelling alternative has only just begun. Our aim in this Essay is to take stock of how the First Amendment arrived at this juncture and to sketch a roadmap for the legal journey ahead.
I. The Long Road to the Roberts Court
Judicial enforcement of First Amendment rights was once thought to be among the greenest pastures in the land of legal liberalism—the ideology that came to dominate the American legal academy in the 1960s and that sought to defend both the postwar welfare state and its reform by the Warren Court.
Yet as explained above, a growing number of legal liberals have begun to view this pasture as a battlefield on which the most powerful socioeconomic actors occupy the highest ground.
Scholars who share this anxious assessment disagree about the extent to which First Amendment inegalitarianism should be attributed to long-term trends in American political economy and civil liberties law or, instead, to a relatively recent doctrinal and ideological rupture with the past.
Those scholars who believe such a rupture has taken place, meanwhile, differ as to its timing. Cases decided by the Roberts Court, the Rehnquist Court, the Burger Court, and even the Stone Court have been singled out as the inflection point when First Amendment doctrine took its inegalitarian turn.
Beneath these debates about causation and chronology, however, lies a set of core propositions affirmed by nearly all participants: first, that there exists an inegalitarian tendency within First Amendment jurisprudence; second, that this tendency has become ever more pronounced during the Roberts Court era;
and third, that First Amendment inegalitarianism is particularly potent in the economic realm.
A. First Amendment Lochnerism
It is thanks to this third proposition that egalitarian anxieties about the First Amendment have come to be spelled out in the language of “Lochnerism.” By invoking the Supreme Court’s 1905 ruling in Lochner v. New York,
legal theorists and practitioners suggest that today’s First Amendment jurisprudence serves a function similar to the early twentieth century’s Fourteenth Amendment jurisprudence.
In both cases, the argument goes, we see the federal courts using a select set of individual rights to protect the privileges of the economically powerful and to resist legislative and executive efforts to advance the interests of the economically marginal. Lochnerism provides a particularly vivid trope, or heuristic, with which to criticize judicial decisions that entrench economic inequality.
While shaped by the historical analogy to a previous Gilded Age, the discourse of First Amendment Lochnerism does not focus exclusively on the economy. An aggressive, libertarian First Amendment, it is increasingly recognized, has the potential to crowd out egalitarian norms across the social field, propagating inequalities of sex, gender, race, and religion along with inequalities of fiscal and cultural capital. Proponents of the Lochner analogy thus invoke or allude to it when criticizing a wide range of deregulatory First Amendment decisions. For example, the use of civil libertarian arguments to undermine antidiscrimination law has been identified by several scholars as a particularly worrisome form of modern-day Lochnerism.
Nonetheless, the problem of economic power remains central to the discourse, a testament to the trauma of the Great Recession as well as to the growing popularity of the view that economic inequality intersects with and reinforces other forms of inequality. From the black–white wealth gap and residential segregation to the special burdens that socially conservative employers impose on their female employees’ access to reproductive health care, debates over economic inequality have become seemingly inextricable from debates over racial and sexual inequality. The use of the First Amendment to affirm or advance any combination of these inequalities is liable to earn the Lochnerian epithet among today’s legal liberals.
Some may find this epithet to be excessive. It is probably a stretch to claim that First Amendment law plays as direct a role in entrenching economic inequality today as substantive due process and equal protection law did in the Lochner era. On the other hand, there is a good deal of evidence that our conventional picture of the Lochner era is itself overdrawn: that the federal judiciary at the turn of the twentieth century was actually quite accommodating of new regulatory schemes aimed at ameliorating economic distress, upholding the vast majority of such schemes as valid uses of the states’ police powers or the federal government’s Commerce Clause authority.
This Essay is not the place to hash out this historical dispute. Suffice it to say here that perception goes a long way in the law. The egalitarian critiques that currently swirl around cases like Citizens United, Hobby Lobby, and Janus may one day be taught together with—and enjoy the same cachet as—the classic legal-realist and progressive critiques leveled against cases like Allgeyer, Adair, and Lochner.
Whatever the future may bring, it is instructive to ask where the language of First Amendment Lochnerism comes from. Why have free expression and free exercise cases come to be linked with these long-buried due process and equal protection cases? Why is First Amendment doctrine increasingly seen as our “Lochner,” our symbol of law’s complicity in plutocracy?
B. The Rise and Fall of Progressive Civil Libertarianism
The answer to these questions becomes slightly less mysterious in light of recent revisionist scholarship on early twentieth-century civil liberties law. According to the revisionists, the “traditional” model of civil liberties law as the judicial enforcement of individuals’ noneconomic rights against state interference was itself a rightward departure from the progressive civil libertarianism of the initial decades of the twentieth century. Prior to World War II, revisionists maintain, the progressive lawyers, administrators, and activists who first championed federal protection of civil libertarian rights did so in the hope of building a more economically just, culturally pluralistic society.
Such a society would be typified by a strong labor movement; by a powerful but porous administrative state, continually solicitous of and transformed by public participation; and by the privileging of collective welfare over individual interest. Federal courts—the inveterate guardians of private property and persecutors of organized labor—had little role to play in this vision. Instead, its proponents focused their energies on administrative and legislative enforcement of civil liberties, especially the liberties of workers, political dissenters, and vulnerable minorities.
Free expression and federal regulation were seen as complementary tools in the struggle for socioeconomic equality. This vision achieved its fullest embodiment in the design, staffing, and early operation of New Deal agencies such as the National Labor Relations Board (NLRB), the Federal Communications Commission (FCC), and the Civil Liberties Unit of the Department of Justice (DOJ).
By portraying early twentieth-century civil libertarianism as a relatively statist, collectivist, and labor-oriented project, revisionist scholarship helps to clarify the institutional and ideological roots of today’s First Amendment Lochnerism. For if the revisionist story is correct, then before the First Amendment could be Lochnerized, it had to be judicialized, individualized, and shorn of its prolabor bias. According to the revisionists, this is exactly what began to happen in the mid-to-late 1930s, as a coalition of conservative lawyers and businessmen took aim at those aspects of the administrative state most indebted to the progressive civil libertarian cause, such as the NLRB.
In a conscious attempt to wrest the civil libertarian banner from the New Deal’s progressive wing, this coalition argued that the administrative state, both at the national and local level, had become a threat to free expression and association, imposing ideological conformity on everyone from street preachers to corporate lobbyists.
The obvious, if hyperbolic, parallels were Nazi Germany and Soviet Russia.
To check such “administrative absolutism,” the new civil libertarians called for the reassertion of judicial power—in particular, for vigorous judicial protection of every individual’s rights to free expression and procedural due process, without regard to his or her relative economic power or substantive political goals.
Despite the anti–New Deal origins of the new civil libertarianism, several factors in the late 1930s conspired to make it attractive to a growing number of moderate lawyers and politicians as well. Particularly troubling to these on-and-off New Dealers was President Franklin Roosevelt’s 1937 campaign for judicial reorganization and executive consolidation, a campaign fatefully launched just as the American economy slipped back into recession and the New Deal’s left flank championed an unpopular strike wave in the automobile industry.
Such domestic upheaval looked even more ominous in light of the brutal programs of fascist and communist social reform then sweeping Europe.
To curtail the more “totalitarian” tendencies of administrative governance while affirming the basic legitimacy of the New Deal, the mainstream legal community engineered a sort of Solomonic compromise, in which civil libertarian rights to free expression, political participation, religious liberty, and procedural due process were both hailed as a shield against bureaucratic domination and sharply distinguished from rights to economic liberty.
The former, noneconomic rights were to be guarded jealously by the federal judiciary. The latter, economic rights were to be entrusted largely to Congress and the President, who would calibrate and recalibrate them in the interests of national prosperity and security.
Today, we associate this redistribution of individual rights and institutional responsibilities with Footnote Four of Carolene Products.
And that footnote is indeed a gnomic testament to the “liberal compromise”
(as Professor Laura Weinrib has labeled it) that, in 1938, was gradually displacing progressive civil libertarianism. The work of the most moderate Republicans on the Supreme Court, Justice Harlan Fiske Stone and Chief Justice Charles Evans Hughes, the footnote represented their effort to negotiate the extremes of irresponsible conservative antistatism and irresponsible progressive collectivism.
It may seem odd to think of the advent of bifurcated review as the first step toward First Amendment Lochnerism. Carolene Products’ hallowed distinction between civil liberty and economic liberty is precisely what First Amendment Lochnerism is said to erode.
Yet the liberal compromise of the late 1930s and early 1940s established many of the conditions, or preconditions, that would later enable First Amendment Lochnerism to thrive. It rescued the courts from decades of left-wing critique, recasting them as classless custodians of universal values. By the same token, it elevated the judiciary above the administrative state as the ultimate bulwark of republican self-government. The once reactionary framing of the administrative state as an intrinsic threat to personal freedom and private ordering—rather than the only institution capable of securing a competitive economy and fair society—was more or less accepted across the legal profession. Finally, the liberal compromise “neutralized” the theory and practice of civil libertarianism, transforming a field that had been identified, above all, with workers’ rights to organize, picket, and strike
into a set of formal limitations on what democracy could demand of any individual or group. As the liberal compromise became the new orthodoxy, admitting considerations of economic power into free speech analysis began to feel more like pollution than pragmatism to the champions of bifurcated review.
The empowerment of the federal courts, the suspicion of administrative governance, and the insistence on formal neutrality in the enforcement of civil libertarian rights all smoothed the way for the co-optation of the First Amendment by the economically powerful. If the liberal compromise did not more quickly devolve into First Amendment Lochnerism, historical contingencies account for much of the delay. For instance, the political composition of the midcentury judiciary, dominated by a decade’s worth of Roosevelt appointees, limited extensions of the First Amendment in obviously inegalitarian directions.
At the same time, a relatively bipartisan embrace of the logic of Cold War kept the most rabid critics of public spending and regulation on the constitutional margins. Antistatism, whether right wing or left wing, was difficult to square with the fiscal and institutional demands of “competing” with the Soviet Union for global hegemony.
Just as these factors slowed the drift toward First Amendment Lochnerism, they also help explain the real attractions of the liberal compromise. In a period of rapid economic growth and declining economic inequality,
that compromise offered left-leaning lawyers a principled basis for resisting racially discriminatory state and local laws while moderating two of the most threatening aspects of Cold War political culture: the repression of dissenting voices in the name of national security and the rollback of the welfare state in the name of the free market. The conditions of moderation, however, began to erode in the 1970s, as the New Deal generation dwindled, the postwar economic boom petered out, and inflation made deregulation and austerity increasingly bipartisan commitments.
Those commitments, moreover, would no longer be checked to the same degree by arguments from national security, as failure in Vietnam precipitated a leaner and less visible national security state.
All three branches of government shifted rightward.
While this shift was underway, the Burger Court’s commercial speech,
and religious funding
decisions elicited a brief flurry of scholarship warning of—or celebrating—the erosion of the distinction between civil and economic liberty.
It was at this moment that anxieties about “Lochnerization” of the First Amendment first surfaced in the law reviews.
Cases in which “individuals or groups commonly thought of as ‘conservative’ took up the First Amendment cudgels against regulatory forces supported by individuals or groups commonly thought to be ‘liberals’” began to multiply in the late 1970s and 1980s, both in the economic realm and beyond.
Yet when all was said and done, the Burger Court’s transformative First Amendment jurisprudence did surprisingly little to dislodge scholarly support for the liberal compromise. During the Rehnquist Court years, from 1986 to 2005, the legal academy generally continued to treat the distinction between civil and economic liberty as sacrosanct, a precious fragment of the crumbling New Deal constitutional order, and spoke rarely about the dangers of First Amendment Lochnerism.
Such faith would be sorely tested by the Great Recession.
II. Informational Capitalism, the Information State, and the First Amendment–Industrial Complex
If Lochnerian currents were always swirling just beneath the surface of postwar First Amendment law, over the past decade they have flooded the legal landscape. The timing of this flood may seem strange from a strategic perspective. With Americans facing high unemployment, collapsing wages, and mounting household debt in the late 2000s, considerations of institutional legitimacy presumably counseled against bold judicial experiments in deregulation. The contemporaneous “rediscovery”
of economic inequality by the mass media and mainstream policymakers cast these experiments in an especially harsh light. One does not need to read Piketty, however, to guess that equating corporations’ rights to spend money, sell data, and trim benefits with citizens’ First Amendment rights might prove controversial in a world of bank bailouts and mortgage foreclosures. Why did the Court choose such an unpropitious moment to take a wrecking ball to the already-unstable boundary between freedom of expression and freedom from economic regulation?
One answer might be that it was only shortly before the financial crisis that the Court gained the necessary votes to do so. Justice Sandra Day O’Connor and Chief Justice William Rehnquist had long resisted the expansive approach to defining and protecting commercial speech favored by their successors, Justice Samuel Alito and Chief Justice John Roberts.
When O’Connor retired in late 2005, the original vision of the liberal compromise went out the door with her. By the end of the George W. Bush Administration, the conservative legal movement had finally produced a Supreme Court majority sufficiently committed to First Amendment Lochnerism—or sufficiently indifferent to its inegalitarian effects—to risk popular backlash in the midst of a recession.
However plausible this electoral explanation may be, fixating on judicial personalities risks obscuring deeper connections between the political economic structure of the First Amendment disputes the Roberts Court has confronted and the deregulatory doctrines it has crafted. Recent scholarship on the political economy of our digital age suggests several factors that may have helped to catalyze First Amendment Lochnerism in the present period.
To begin with, transformations in the capitalist system have imbued more and more economic activity with communicative content. The Roberts Court’s tenure has coincided with an “ongoing shift from an industrial mode of development to an informational one,”
a shift that has radically reconfigured the processes, products, and personnel through which capital is accumulated and commodities are created and exchanged.
Synthesizing the insights of economists, political scientists, social theorists, and technologists, legal scholar Julie Cohen highlights two “fundamental transformations” bound up with our relatively recent passage from a predominantly industrial to a predominantly informational economy:
First is a movement away from an economy oriented principally toward manufacturing and related activities toward one oriented principally toward the production, accumulation and processing of information. In an information economy, the mass model of production that emerged in the industrial era is itself increasingly redirected toward development of intellectual and informational goods and services, production and distribution of consumer information technologies, and ownership of service-delivery enterprises. Second is a transformation in the conduct of even traditional industrial activity. In an information economy, information technology assumes an increasingly prominent role in the control of industrial production and in the management of all kinds of enterprises.
Following sociologist Manuel Castells,
Cohen identifies these developments with the rise of “informational capitalism.”
Two years into the financial crisis, political theorist Jodi Dean arrived at a similar diagnosis, warning of the rise of “communicative capitalism.”
Whatever one calls it, this emergent mode of capitalist organization is not restricted to those “new” sectors of the economy focused on the creation and exchange of data. Rather, the creation and exchange of data suffuse the manufacturing and service sectors as well.
There, the relative speed and accuracy of communication among managers, producers, and consumers become keys to maximizing return and minimizing risk.
These developments make it increasingly difficult to separate economic activity from expressive activity—and thus to maintain the distinction at the heart of the liberal compromise. A great deal of economic activity has long had some sort of communicative dimension. But as the locus of profit-making migrates from the production, accumulation, and processing of material goods to the production, accumulation, and processing of information (usually in digital form), the creation and circulation of information, as such, assumes a far more prominent role in the economy while the metaphor of information assumes a far more prominent role in the culture. Doing business in the twenty-first century means dealing with data, and because “data is expressed in alphanumeric symbols, it certainly looks a lot more like traditional speech” than, say, making steel or plowing a field.
In turn, the standard justification for affording First Amendment protection to commercial speech—that it serves the interests of listeners in making informed decisions—expands to include the interests of commercial actors in imparting, or withholding, valuable information.
An additional feature of informational capitalism extends the potential reach of First Amendment Lochnerism: the dominant role played by private owners of the platforms through which information circulates online and within which ever more data is commodified and mined for economic value. Even though they control the infrastructure of digital communication and function as the “new governors” of the digital public sphere, companies like Facebook and Google are generally assumed to not be bound by the First Amendment because they are not state actors.
Instead of empowering users to challenge their policies, the First Amendment empowers the companies themselves to challenge statutes and regulations intended to promote antidiscrimination norms or users’ speech and privacy, among other values.
First Amendment law not only fails to check the internet’s new governors and the inequalities that pervade their platforms
but also stands in the way of legislative and administrative correctives.
The old governors, meanwhile, face an additional set of civil libertarian obstacles as the “neoliberal” turn in public administration has gradually substituted the management of information for the policing of conduct. Neoliberalism, as the term is used here, refers to an ideology and mode of governance that favors “the imperatives of market economies . . . deployed to further capital accumulation” over “nonmarket values grounded in the requirements of democratic legitimacy.”
The neoliberal preference is not necessarily for “free markets” in any strict sense, but for a regulatory environment that prioritizes “familiar protections of property and contract” along with “a favorable return on investment and managerial authority.”
In our digital age, the facilitation of these preferences has fallen to the “information state,” the set of national (or international) bureaucracies that oversee the operations of informational capitalism.
Within these bureaucracies, “mandates or bans on conduct”—such as traditional labor laws, wage and price controls, or licensing regimes—are apt to be rejected as overly market-disruptive and replaced whenever possible with “‘lighter-touch’ forms of governance . . . such as disclosure requirements” and other regulatory techniques that further the production and circulation of commercially salient information.
As Professor Amanda Shanor has detailed, one effect of this trend is to make today’s regulations “more prone to appear speech-regulating” and, hence, more vulnerable to First Amendment challenge.
Whereas banning or taxing most commercial practices (for instance, the use of “conflict minerals”) is unlikely to raise any First Amendment issues under existing law, requiring firms to publish information pertaining to these practices (for instance, through regular reports on their mineral sourcing) may give rise to claims of unconstitutionally compelled speech.
At the same time that it makes economic regulation more susceptible to First Amendment scrutiny, the turn toward “lighter-touch” governance saps such regulation of much of its redistributive potential. From the standpoint of individuals lacking in market expertise or capital endowments, these new forms of governance can be perverse. Not only do they fail to produce the levelling effects of traditional regulatory mechanisms aimed at labor–capital parity, but disclosure mandates and the like also often end up “hurting the people [they] purport[ ] to help” by lulling consumers into complacency, insulating compliant companies from antifraud liability, and undercutting political will for more substantive policy measures.
In other words, the same “informational” focus that exposes neoliberal governance to civil libertarian challenges from regulated parties also tends to set internal limits on the equality-enhancing capacities of the administrative state.
Just beyond the formal boundaries of the informational state and the informational marketplace lies a final set of institutions that contributes to contemporary Lochnerism: nonprofit, nongovernmental organizations dedicated to First Amendment advocacy. As the First Amendment’s deregulatory potential has become more evident, the economic surplus enjoyed by wealthy firms and executives has increasingly fed back into such organizations. Dissenting Supreme Court Justices
and mainstream media outlets
called attention this past Term to the “weaponization” of the First Amendment by a well-funded network of advocacy groups, such as the Alliance Defending Freedom, the Becket Fund for Religious Liberty, the Institute for Justice (IJ), the Liberty Justice Center, and the National Right to Work Legal Defense Foundation (NRWLDF). The efforts of these groups follow in the mold of, and build upon, the highly effective campaign to advance commercial speech rights that business interests have been leading since the 1970s.
Over the past two decades, nonprofits dedicated to religious freedom have joined the fray, sometimes supported by the same donors who fund commercial speech advocacy as well as parallel campaigns against legal protections for organized labor.
Within the broader conservative legal movement that has arisen since the 1970s,
there now exists, then, something of a First Amendment–industrial complex. Mapping the contours of this complex is well beyond the scope of this Essay. The basic point, for present purposes, is that arguments for a deregulatory First Amendment are now promoted not only (or even primarily) by for-profit companies seeking to minimize their own labor costs or regulatory burdens, but also by a growing set of nominally depoliticized nonprofits with varying degrees of connection to the business community.
In this regard, a critic of First Amendment Lochnerism may have cause to worry about the establishment, within the past year alone, of numerous First Amendment clinics and centers at law schools around the country.
Organized as public interest law firms or as 501(c)(3) “public charities,” these centers and clinics will not engage in electioneering or do any substantial amount of legislative advocacy.
Instead, they can be expected to do what such nonprofits usually do: bring lawsuits seeking access to government records or seeking to strike down government policies under the Constitution. Even if some of these centers and clinics are staffed by liberals who aim to defend the downtrodden,
the proliferation of First Amendment–focused organizations risks further exacerbation of “First Amendment expansionism”
and further degradation of the state’s ability to regulate, to better or worse effect, on behalf of the public interest.
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Against this historical and institutional backdrop, any robust response to First Amendment Lochnerism must grapple with the many ways in which the First Amendment tends to entrench socioeconomic inequality. We have called attention to a set of economic, political, technological, and legal developments that, over the past half century, have combined to make First Amendment litigation and ideology a field of struggle that overwhelmingly favors the interests of large employers and well-educated professionals in the private sector (as well as the upper echelons of the national security bureaucracy in the public sector, a topic we lack the space to address
). Not only does the contemporary First Amendment landscape give the high ground to those already rich in financial and cultural capital, but it also places numerous obstacles in the path of wage laborers and undercapitalized social groups—groups whose free expression and association might otherwise serve as tools of collective self-protection and advancement.
As this grim appraisal makes clear, the search for an egalitarian First Amendment is well and truly a search: an inquiry, both practical and theoretical, into the very possibility of a First Amendment jurisprudence that would advance the expressive and associational interests of the socioeconomically disadvantaged.
III. The Inadequacy of First Amendment Theory
How might this inquiry proceed? A natural place to begin the search for a more socioeconomically egalitarian First Amendment—a First Amendment that alleviates, or at least does less to aggravate, the “egalitarian anxiety” sketched in this Essay’s introduction—is with normative theories of free speech.
The Free Speech Clause itself is notoriously unhelpful. Neither its text
nor its drafting history
sheds much light on contemporary controversies. In the absence of interpretive input from such sources, judges and scholars have produced a vast body of writing that seeks to justify, critique, and shape First Amendment doctrine in light of foundational principles and aspirations—above all, the pursuit of truth, the promotion of individual autonomy, and the facilitation of democratic self-government.
The canonical theories of free speech, one might assume, should help us get some purchase on the egalitarian anxiety, whether by suggesting ways in which the inegalitarian aspects of First Amendment law might be challenged and alternative doctrines developed, or by supplying reasons why this body of law’s subordination of substantive equality interests to negative liberty interests is defensible or maybe even unavoidable.
A. Truth, Autonomy, Democracy . . . and Equality?
In point of fact, however, the leading theories of the First Amendment prove indecisive when confronted by the egalitarian anxiety. Democratic theorizing about free speech may seem at first glance to offer the most hospitable terrain for egalitarian projects and autonomy theorizing the least, insofar as the former prioritizes communal goods while the latter prioritizes individualistic ideals. And indeed, First Amendment theorists who emphasize democratic deliberation and decisionmaking have been more likely, on balance, to take socioeconomic inequalities into account. Yet none of the leading theories of free speech has been able to generate clear or consistent guidance about how such inequalities ought to bear on constitutional analysis, for several reasons.
First, truth-seeking, autonomy-promoting, and democracy-facilitating accounts of free speech (as well as related accounts that focus on tolerance, dissent, and so on) tend to be formulated in highly abstract and depoliticized terms. This allows them to apply to a wide range of situations and to appeal to a wide range of groups—no one is “against” truth, self-actualization, or self-government—but also to be invoked by very different jurists in support of very different outcomes.
Alexander Meiklejohn’s democratic theory of free speech, for example, has been “embraced all along the political spectrum, from Robert Bork to William Brennan,”
and deployed to defend both exceptionally narrow conceptions of First Amendment review
and expansive proposals for the redistribution of speech rights.
Moreover, it is now widely appreciated that the pursuit of truth, the promotion of individual autonomy, and the facilitation of democratic self-government are best understood as partial and overlapping—rather than comprehensive or mutually exclusive—theories of free speech,
which creates additional play in the normative joints.
Second, the indeterminacy of abstract First Amendment theories is compounded by empirical uncertainty about the real-world effects of different speech arrangements. All the leading theories assume a certain causal relationship between speech rules and social outcomes. They posit that expressive practices, when structured appropriately, can generate more knowledge, better debate, greater self-realization, or the like. For the most part, however, these claims are not grounded in any well-worked-out social theory, and good evidence of the validity of the assumed causal relationships is sparse to nonexistent. Although it has long been asserted, for instance, that an “open marketplace of ideas” is more likely to distinguish truth from falsity than a regime based on epistemic paternalism, in which authorities categorize ideas as true or false, the existing empirical research offers little support for this assertion.
Empirical results on the impact of various antitrust and media regulations on the diversity of ideas “have been similarly mixed.”
The relevant dependent variables (truth, democratic discourse, personal autonomy) are hard to specify and to measure, and they may be influenced by countless factors apart from formal speech rules. When it comes to the central prescriptive dilemma raised by the egalitarian anxiety—the degree to which its alleviation requires government planning—the leading theories of free speech therefore have less to offer than one might expect.
Finally, truth-seeking, autonomy-promoting, and democracy-facilitating theories of free speech are ambiguously positioned vis-à-vis the egalitarian anxiety because while none of these theories foregrounds “equality” as a desideratum, none rejects it either. For example, the preeminent autonomy advocate Professor Martin Redish is happy to concede that equality is “an important element of free speech theory,” as “[t]he equality principle has a long and venerable tradition in First Amendment theory and doctrine.”
The equality principle that Redish has in mind, however, is a version of viewpoint neutrality: the proposition that “[a]ll viewpoints must have an equal opportunity to compete in the intellectual marketplace, free from selective governmental regulation.”
Explicitly rejected are other versions of an equality principle, more in tune with the concerns of this Symposium, that might entail “increasing the pre-speech resources of the economically inferior speakers or limiting the economically superior speakers’ ability to employ their resources for expressive purposes.”
As Redish’s discussion reflects, equality claims are made by free speech theorists of all stripes and on both sides of the same questions. Accordingly, debates over whether and how free speech law should respond to present inequalities are prone to take place within an already capacious, ill-defined, and internally riven egalitarian tradition of First Amendment theorizing.
B. The Example of Campaign Finance Regulation
Perhaps no area better illustrates the inadequacy of high-level First Amendment theory for negotiating the egalitarian anxiety than campaign finance law. Cases such as Citizens United v. FEC
and McCutcheon v. FEC
have been at the heart of the emerging critique of First Amendment Lochnerism. They raise the question whether the Free Speech Clause permits a legislature to limit the election-related spending of corporations, unions, or wealthy individuals in the service of antiplutocratic goals. To help answer this question in the face of mixed precedent and negligible Founding-era evidence, the Justices have adverted to each of the three major normative theories of the First Amendment.
Writing for the Court in Citizens United, Justice Anthony Kennedy contended that the restrictions on corporate “electioneering communications” imposed by the Bipartisan Campaign Reform Act of 2002
(BCRA) were simultaneously undermining the pursuit of truth, individual autonomy, and democratic deliberation, as corporate speech contributes importantly to all of these values. According to Kennedy, such restrictions “interfere[ ] with the ‘open marketplace’ of ideas protected by the First Amendment”;
impair “the freedom to think for ourselves”;
“deprive[ ] the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice”;
and distort “an essential mechanism of democracy” and “enlightened self-government.”
Various amici on the side of Citizens United appealed similarly to truth, autonomy, and democracy.
Justice Kennedy further contended that the design of BCRA reflected an impermissible government preference for certain categories of speakers (natural persons) over others (corporations and unions).
As Professor Genevieve Lakier observes in her essay for this Symposium, the majority opinion aggressively claimed the mantle of egalitarianism.
It just adopted a highly formalistic, anticlassificationist conception of expressive equality, similar to Redish’s notion of equality as freedom from “selective governmental regulation.”
Justice John Paul Stevens’s dissenting opinion in Citizens United, meanwhile, argued just as vigorously that BCRA’s restrictions on corporate electioneering enhanced the pursuit of truth, individual autonomy, and democratic deliberation. These restrictions, in Stevens’s telling, did not impinge upon anyone’s autonomy or self-expression, and on the contrary they reduced the risk that a “corporation’s electoral message” would “conflict with the[ ] personal convictions” of the individuals associated with the corporation.
At the same time, these restrictions reduced the risk that corporations would “distort public debate” and stymie the search for truth by “cow[ing]” politicians “into silence,” “drowning out . . . noncorporate voices,” and “dimish[ing] citizens’ willingness and capacity to participate in the democratic process.”
These arguments, too, were familiar from the First Amendment literature. Nearly three decades earlier, Judge Skelly Wright sought to show that “all of the leading first amendment rationales may be comfortably reconciled with campaign spending reforms,” because regulation that limits spending by wealthy interests “enhances the self-expression of individual citizens who lack wealth,” preserves “the truth-producing capacity of the marketplace of ideas,” and “prevent[s] mutilation of . . . communal thought processes.”
Like Judge Wright before him, Justice Stevens connected these claims to a substantive and, in Lakier’s terms, antisubordinating vision of expressive and political equality.
Both the majority and the dissent in Citizens United thus plausibly invoked each and every one of the three major First Amendment theories, as well as the value of equality itself, in support of their dueling positions. The result is a vivid demonstration of how the abstraction and depoliticization, lack of empirical grounding, and underspecified embrace of equality that characterize these theories sap them of the power to sharpen, let alone resolve, the most controversial questions at the intersection of free speech and political economy. Grand theorizing about truth, autonomy, and democracy fails to supply meaningful direction to those seeking a more egalitarian First Amendment. Instead, those who wish to reverse or offset First Amendment Lochnerism tend to pursue a set of midlevel conceptual and jurisprudential moves suggested by the contemporary legal landscape. We turn next to these moves and the grammar of free speech egalitarianism they have created.
IV. First Amendment Egalitarianism: A Critical Roadmap
To appreciate more fully the institutional, ideological, and doctrinal challenges that egalitarian reformers face today, it is helpful to imagine the mirror image of First Amendment Lochnerism—that is, the mirror image of judicial enforcement of negative rights against state action in an ostensibly neutral, yet materially inegalitarian, manner. The mirror image of such a regime would look something like early twentieth-century progressive civil libertarianism, updated for the information age. As discussed in section I.B, progressive civil libertarians turned to administrative agencies and sympathetic legislators, rather than courts, to protect workers, political dissenters, and vulnerable minorities from the dominance of private employers, bigoted local governments, and conservative blocs within the national government. Motivating this project was not an apolitical belief in formal equality or fair play but a partisan commitment to the creation of a more inclusive, economically just society. Newly created agencies such as the NLRB, the FCC, and the Civil Liberties Unit of DOJ saw it as an important part of their mission to redistribute expressive and associational rights to undercapitalized groups.
The regulatory approach taken by these New Deal institutions now seems “off the wall,”
and not merely because of recent First Amendment Lochnerism. When the liberal compromise displaced progressive civil libertarianism in the second half of the twentieth century,
it ruled out precisely the kind of civil libertarian activities in which agencies like the NLRB used to engage. Between its founding in 1935 and 1940, NLRB administrators openly favored the organizing efforts of those unions they thought most politically progressive and ethnically diverse (and most supportive of the New Deal); they scrutinized the speech and assembly of employees opposed to unionization for interference with the goals of federal labor law; and they vigorously investigated and sanctioned employers who expressed anti-union views or issued misleading descriptions of labor law.
Such employer speech, the NLRB reasoned, was not speech at all within the meaning of the First Amendment.
Rather, interpreted in the context of the power that employers wield over employees’ wages and work conditions, the expression of opposition to unionization by owners and managers constituted a form of coercion.
The NLRB’s suppression of employer speech in the name of the civil liberties of workers went so far as to lead the Board to subpoena local newspaper editors to determine whether their publication of anti-union—or anti-NLRB—statements had been sought by employers engaged in nearby labor disputes.
Through the lens of the liberal compromise, the early NLRB’s insistent rejection of neutrality when it came to the regulation of expression and association looks shocking, as do the sheer scope and zeal of its investigations into anti-union speech, both inside and outside the workplace. Government viewpoint (and, to a lesser extent, content) neutrality is a “bedrock principle” of modern First Amendment law.
The partisan provision of expressive and associational rights by the political branches to make up for disparities in socioeconomic power among private parties inverts the contemporary paradigm: judicial enforcement of such rights against state interference, above all when that interference seems motivated by a preference for certain classes of speakers or ideas.
While each feature of this paradigm has been the target of egalitarian critique or qualification, very few commentators have called for its wholesale abandonment. Especially now, in the midst of the Trump presidency, elements of the liberal compromise such as judicial supremacy, content and viewpoint neutrality, and the state action doctrine strike many on the left as salutary limits on the degree to which ascendant political movements can dominate civil society. Unfortunately for egalitarians, these elements also stand in the way of building a progressive civil libertarian state. Such a state would curtail judicial review, reject the ideal of formal neutrality when it comes to the regulation of certain categories of expression and association, and impose speech-redistributive obligations on particularly powerful private entities. To the extent that these modes of governance are seen by mainstream legal and political actors as incompatible with a free democratic society, the strongest historical alternative to First Amendment Lochnerism—progressive civil libertarianism—will remain off the wall and off the table.
As a result, today’s progressives generally struggle to achieve a more egalitarian First Amendment within the doctrinal and rhetorical boundaries of the liberal compromise. In this Part, we outline the basic motifs—the transsubstantive themes, tropes, and fault lines—of First Amendment egalitarian argument. Drawing on both the Symposium essays and outside writings, we identify three such motifs that recur again and again in the literature. Together, these motifs constitute something like a grammar of First Amendment egalitarianism.
We make no claim to comprehensiveness or taxonomic rigor. There may in fact be two basic motifs, or ten. The grammar will undoubtedly change over time in response to the success or failure of particular ideas; it will also likely feature a host of overlaps and other internal ambiguities, the resolution of which may prove unnecessary, impossible, or, alternatively, transformative.
The goal of this Part is not to arbitrate among competing camps but to clarify the structure of contemporary First Amendment debate and to give some sense of the argumentative resources—and the limitations of the resources—available to critics of First Amendment Lochnerism.
A. Minimalism Versus Maximalism
Before they can arrive at any particular reform proposal, the threshold question that confronts, and divides, critics of First Amendment Lochnerism is how powerful they want the judicially enforced First Amendment to be. This question itself has several dimensions. Reformers might seek to expand or contract the scope of the First Amendment’s “coverage,” or the amount of communicative activity that is subject to First Amendment scrutiny.
For any given category of covered speech, they might seek to invigorate or enervate this scrutiny and the First Amendment “protection” that the category receives.
And whatever their views on coverage and protection, reformers might seek to allocate more or less of this enforcement work to the courts. The overarching issue is whether and to what extent the project of creating a more socially and economically egalitarian public sphere should be pursued within or outside judicial enforcement of the First Amendment.
As free speech law has drifted rightward in recent years, many progressives have become less concerned to get First Amendment doctrine just right than to get it out of the way. No fewer than four contributions to this Symposium appeal to such First Amendment minimalism. After critiquing the neoliberal assumptions that animate the Roberts Court’s free speech rulings, Professor Jedediah Purdy calls for a “jurisprudence of permission” that would enable legislatures to pursue social democratic aims without running afoul of the First Amendment.
Professor Jack Balkin warns against applying the First Amendment to social media platforms, and he urges courts to reject free speech challenges brought by these platforms to “technical, regulatory, and administrative” measures that would enhance end users’ “practical freedom,” such as net neutrality rules and media concentration limits.
Both Professor Leslie Kendrick and Professor Louis Michael Seidman suggest that First Amendment law is not simply ill equipped to drive progressive change, but incapable of doing so.
For all these authors, judicial enforcement of First Amendment rights will not lead to a more egalitarian state or society; the best that can be hoped for is to contain the damage.
The slow but steady growth in judicial coverage and protection of commercial speech, computer algorithms, and campaign spending
would seem to support the view that even when First Amendment norms are crafted with the most egalitarian of intentions,
they tend to reproduce or intensify the inequalities inherent in a legal system wedded to the production, exchange, and accumulation of commodities.
Minimalist responses, accordingly, aim to limit the scope of First Amendment coverage (as with the argument that algorithms should not be considered “speech”
), to limit the degree of First Amendment protection (as with the argument that regulations of commercial speech should be subject to less demanding scrutiny
), or to avoid legal moves that could inadvertently invigorate the First Amendment in the future.
With the First Amendment thus chastened, legislators and administrators could pursue a broader set of egalitarian projects. Of course, this gain in freedom to regulate would likely come at the expense of some valuable expression. For progressive minimalists, however, that tradeoff might well seem worth it, especially to the extent that judicial enforcement of the First Amendment fails to protect truly transformative or transgressive speech, as opposed to speech that poses little threat to legal elites or the socioeconomic status quo.
This tradeoff will seem especially worthwhile in periods when the legislative and executive branches are led by progressives. The United States is, to put it mildly, not in such a period right now. Yet First Amendment minimalism need not entail a belief that the legislative and executive branches, simply as a matter of constitutional structure, are more likely than courts to produce egalitarian outcomes under all social conditions. Progressive civil libertarians in the first half of the twentieth century not only sought to free the political branches from the negative constraint of judicial supervision; they also sought to impose on the political branches both new institutional forms and a specific ideological mission—oriented around values such as democratic pluralism and individual self-determination—through the operation of a mass political party committed to that mission and capable of sustaining institutional innovation.
Similarly, nothing prevents contemporary First Amendment minimalists from seeking to coordinate their civil libertarian vision with the practical pursuit of political power.
Despite the appeals of minimalism, achieving any significant rollback of First Amendment doctrine looks like an uphill battle given the rise of informational capitalism in the marketplace, the First Amendment–industrial complex in civil society, and First Amendment Lochnerism in the courts.
Whether out of conviction or in capitulation, many contemporary progressives have offered more maximalist arguments that seek to extend First Amendment coverage to, or enhance First Amendment protection of, equality-promoting expressive and associational activities that are slighted by existing doctrine. In this spirit, Professor Bertrall Ross argues in his contribution to this Symposium that courts should not only embrace First Amendment claims against partisan gerrymandering—claims that have been rapidly gaining traction, especially on the left
—but also do so in a manner that prioritizes the associational interests of “political outsiders.”
Going more against the grain of current case law, Professor Catherine Fisk argues in her Symposium essay for substantially greater First Amendment protection for labor picketing and boycotts.
Not represented in this Symposium are a host of other maximalist arguments put forward in recent years that seek to enhance social or economic equality in parts of the expressive landscape. Examples include proposals for recognizing or strengthening First Amendment rights:
- to register to vote and to cast a ballot;
- to access government information and facilities (a “right to know”);
- to record the police and other officials performing public duties (a “right to record”),
as well as private parties engaged in matters of public concern;
- to exercise expressive and religious liberties outside the borders of the United States;
- to feed homeless people;
- to engage in panhandling;
- to access, use, reproduce, and exchange copyrighted or otherwise privately owned information;
- to speak and associate about lawful subjects with organizations designated as terroristic;
- for journalists to withhold confidential information from or about their sources;
- for executive branch employees to “leak” classified information suggesting government error or abuse;
- to assemble peaceably in public spaces;
- to be free from state surveillance.
This is by no means a complete list. If they were to succeed (or succeed to a greater extent than they already have) in the courts, these sorts of arguments would not dispel the specter of First Amendment Lochnerism; past trends suggest that the First Amendment’s deregulatory potential would only grow. But the political valence of First Amendment case law might begin to tack back toward the left.
Conscious of such tradeoffs, progressive maximalists generally advance arguments for careful, and highly selective, expansion of the First Amendment’s reach. The risk of libertarian co-optation and ideological drift hangs over these efforts.
If a present inequality could actually be rectified through maximalist litigation, however, the normative cost of allowing it to persist may seem too steep.
The arguments just reviewed generally take as a given the existing state action doctrine, pursuant to which the First Amendment, like other provisions of the Bill of Rights and the Fourteenth Amendment, applies almost exclusively to government actors.
As nongovernmental entities such as Facebook and Google have come to dominate the online expressive environment, some have proposed the further maximalist move of directly applying the First Amendment to these companies (or, more modestly, to certain uses of their digital platforms by government officials).
The resurrection and expansion of Marsh v. Alabama,
a 1946 case in which the Court treated a “company town” as a state actor for First Amendment purposes, is an idée fixe of this literature.
Yet while these proposals are often motivated by a concern about the amount of power that a small number of technology firms wield, it is far from clear that their adoption would serve egalitarian ends. As Balkin explains, to hold Facebook, Google, and their ilk to the same First Amendment standards to which we hold public regulators “would quickly make these spaces far less valuable to end users, if not wholly ungovernable,” and would significantly impair the firms’ ability to tamp down on hate speech, harassment, and other forms of antisocial expression that disproportionately target women and racial minorities.
First Amendment doctrine would have to be made much more internally proregulatory before its direct application to these platforms could become a net plus for egalitarians.
B. Speech on Both Sides
First Amendment minimalist and maximalist arguments confine themselves to the traditional image of Anglo-American public law adjudication, pitting private right against public authority in a politically independent court of law.
Their underlying premise is that egalitarian ends can be achieved by recalibrating the distribution of constitutional authority between a private party’s expressive interests and the state’s legitimate public interests—interests ranging from social welfare to national security to antidiscrimination. In any given case, minimalist arguments tend to value the state’s public interests more highly than the private party’s expressive interests, and accordingly call for narrower First Amendment coverage or weaker First Amendment protection of the latter. Conversely, maximalist arguments tend to value certain expressive interests more highly than the state’s public interests, and accordingly call for broader First Amendment coverage or stronger First Amendment protection of the former.
A second genre of egalitarian argument complicates this framework by introducing a set of interests that neither the private litigant nor the state necessarily represents. These interests are the expressive interests of third parties. Whereas minimalist and maximalist arguments focus on the degree to which the First Amendment should shield a particular party’s expressive activity from state interference, arguments involving speech on both sides focus on the degree to which one party’s expressive activity compromises the ability of other private parties to exercise their own First Amendment rights.
The generic speech-on-both-sides argument begins by identifying expressive interests distinct from, and downstream of, the expressive interests asserted by Speaker X in a First Amendment challenge to state regulation. The next two steps of the argument are to claim, first, that in the absence of appropriate regulation, the expression of X threatens the expressive interests of Speakers Y and Z, for example by “chilling” or “drowning out” the speech of Y and Z; and next, that these threatened interests are themselves entitled to some degree of First Amendment solicitude. The final step of the speech-on-both-sides argument is to contend that, when adjudicating X’s constitutional claim, courts should take into account the threat that X’s expression poses to the expressive interests of Y and Z. This might lead a court to devalue speech by X that tends to silence Y and Z—to accord X’s speech less First Amendment protection than it might otherwise enjoy.
Alternatively, judicial consideration of the immanent conflict between the expressive freedom of X and the expressive freedoms of Y and Z might lead a court to accord greater weight to the state’s public interests in regulating X. Those public interests would now include preservation of the First Amendment rights of Y and Z.
Whatever the precise form that it takes, the egalitarian goal of the speech-on-both-sides approach is to promote the positive liberty of those disempowered speakers who find it difficult to vindicate their expressive interests as First Amendment plaintiffs. Such speakers may suffer legally not only from a comparative lack of financial or cultural capital, but also from the adversarial, state-versus-society character of public law litigation. Judicial enforcement of the First Amendment focuses on private parties with grievances against the state for interfering with (rather than for failing to enable) their expression.
Speech-on-both-sides arguments seek to ameliorate this structural bias by opening the courthouse windows, so that the struggle for expressive freedom within society can be heard in the midst of adjudications formally framed as struggles between regulated speakers and their regulators.
Described in this way, speech-on-both-sides arguments have an impressive, if controversial, pedigree within contemporary First Amendment theory.
Speech-on-both-sides arguments have featured prominently, for instance, in egalitarian defenses of regulations of pornography on the ground that pornography silences women and suffocates antipatriarchal speech;
in egalitarian defenses of regulations of campaign spending on the ground that unlimited spending by wealthy interests impedes “the kind of open public political discussion that the First Amendment seeks to sustain”;
and in egalitarian defenses of (and proposals to expand) copyright law doctrines such as fair use on the ground that overly broad copyright protections jeopardize the free speech rights of third parties.
Speech-on-both-sides arguments have also made cameos in recent scholarship defending restrictions on employers’ anti-union speech as a safeguard of employee expression and association.
“Behind almost every restriction on speech,” Professor Erica Goldberg observes in a new article cataloguing additional examples, “lurks a potential argument that the lack of a speech regulation may be as deleterious to free speech values as a proposed speech regulation.”
The paradigm case of speech-on-both-sides argument concerns hate speech
—speech that vilifies, denigrates, or dehumanizes individuals or groups on the basis of ascriptive characteristics “such as race, ethnicity, religion, gender, or sexual orientation.”
The traditional legal term for such speech is group defamation or group libel, and these categories still animate hate speech jurisprudence across the globe. In the United States, however, hate speech regulations have fallen out of favor in response to a growing judicial consensus that they violate the First Amendment.
Existing First Amendment doctrine does permit the prohibition of speech used to commit a criminal or civil infraction, as long as the infraction is not itself defined in terms of the expression of a particular topic or viewpoint.
It also permits the prohibition of speech that, in a given context, is so inflammatory as to have the force and effect of otherwise sanctionable physical conduct.
But typical hate speech laws do not fit well into either of these categories: They do define infractions in terms of the expression of a particular message, and they self-consciously do not confine their sanctions to speech that causes immediate physical disruption. On the contrary, the harms that hate speech laws would most specifically redress are often those that implicate psychological, dignitary, and expressive interests.
Proponents of such laws have long argued that one of the most significant costs of hate speech is its tendency to suppress the expressive and associational activity of vilified individuals and groups.
As Professor Mari Matsuda writes: “In order to avoid receiving hate messages, victims have had to quit jobs, forgo education, leave their homes, avoid certain public places, curtail their own exercise of speech rights, and otherwise modify their behavior and demeanor.”
Not only can hate speech silence individuals in the short term, but both hate speech and the failure to police it can also lead to the longer-term “disassociation” of minority groups from the ostensibly democratic political community and the communicative action essential to its maintenance.
It is for this reason that legal philosopher Jeremy Waldron views hate speech regulation as supporting the public good of “assurance,” or “conveying to people a sense of security in the enjoyment of their most fundamental rights.”
Beyond its immediate targets, hate speech may also impose expressive and associational costs on “non-target-group members,” costs that may be of “constitutional dimension” insofar as they fracture or stultify democratic dialogue.
More recently, the power of hate speech to drive vulnerable individuals and groups from the public square seems to have been magnified by the rise of the platform economy. The anonymity afforded by digital communications technologies, together with the speed and scale at which content spreads across the internet, have combined to create an “unforgiving ecology” of online abuse for women and other historically subordinated groups.
As the example of hate speech regulation shows, the failure of speech-on-both-sides arguments to make more headway in the courts
has not been for lack of theory or evidence that certain forms of speech can degrade various other forms of speech. That premise is not much in dispute. Rather, the failure of such arguments reflects both the substantively libertarian orientation of First Amendment doctrine and the arguments’ awkward fit with the structure of public law litigation—a structure that disinclines judges to acknowledge and balance the competing constitutional interests of private parties.
Some formulations of speech-on-both-sides arguments may also run afoul of the Court’s doctrines regarding content and viewpoint neutrality, which strongly disfavor laws that appear on their face to prefer one sort of speech over another (say, nonhateful speech over hateful speech). These doctrines, as Lakier explains in her essay for this Symposium, have come to embody a formalistic conception of “expressive equality” that “limit[s] the effectiveness of the First Amendment as a tool for protecting the expressive freedom of those at the bottom of the economic and social hierarchies.”
According to these doctrines, the important thing is not that everyone’s speech interests are recognized and respected; the important thing is that every person, natural and artificial, is subject to the same governmental speech rules.
Lakier herself embraces the proposition that the First Amendment contains a principle of expressive equality, but she observes, crucially, that the meaning of expressive equality may be construed in a more or less context-sensitive manner. This observation echoes the classic debate between anticlassification and antisubordination readings of the Equal Protection Clause.
Speech-on-both-sides arguments tend to be deeply concerned with the expressive environment’s egalitarian character, only they conceptualize equality in more functionalist, materialist, and dignitarian terms than is typical in First Amendment law.
From this perspective, expressive equality is not about treating all speakers the same. It is about ensuring that all speakers have a more or less equal opportunity to participate in the public sphere. Lakier’s essay can be read as a call for a kind of symmetry across the First and Fourteenth Amendments: Legal liberals who support an antisubordination approach to equal protection, she suggests, should want judges to incorporate antisubordination norms into free speech law as well. One way judges might do this is by giving closer consideration to the expressive interests of third parties when those interests are directly implicated by the First Amendment case at hand.
C. From Speaker to System
Speech-on-both-sides arguments aspire to make First Amendment law more egalitarian, and less Lochnerian, by acknowledging a wider range of expressive interests. Compared to the standard method of First Amendment analysis, these arguments take a relatively broad and dynamic view as to which speakers matter and which forms of interference with their speech raise constitutional concerns—looking not only at speakers whose expression is constrained by state regulation but also at third parties whose expression may be liberated by such regulation. Yet once one begins to move away from the dyadic, speaker-versus-regulator focus of current doctrine, why stop there? Why limit the analysis to the claims of competing speakers, rather than ask which sorts of regulation would best serve the expressive environment as a whole? A final set of egalitarian strategies resists the lure of the vexing individual case and emphasizes instead the importance of examining the system of free expression at the macro level—attending to the perspective of listeners as well as speakers, and taking into account the informational and expressive interests of as many listeners and speakers as practicable.
The First Amendment literature in support of campaign finance regulation illustrates how easily speech-on-both-sides arguments can bleed into systemic arguments of this sort. As noted above, liberal jurists such as Justice Stephen Breyer, Justice Stevens, and Judge Wright have sought to sustain statutory limits on electioneering expenditures against First Amendment attack partly on the ground that such limits may “enhance[ ] the self-expression of individual citizens who lack wealth.”
While this argument works in part by identifying the “speech on both sides” of campaign finance laws, it does so with reference to a practically uncountable number of nonwealthy third-party speakers. Furthermore, these jurists pivot almost immediately to a broader set of claims about how expenditure limits may also enhance “the truth-producing capacity of the marketplace of ideas”
and “the integrity, competitiveness, and democratic responsiveness of the electoral process.”
If anything, the standard legal-liberal defense of the constitutionality of campaign finance regulation places greater weight on the interests of listener-voters than it does on the interests of speaker-campaigners. The fundamental concern is not that big-money spending will result in the suppression of ordinary people’s political speech (a difficult-to-prove empirical proposition). The fundamental concern is that such spending will skew political discourse, and politics itself, in antidemocratic ways.
Speech-on-both-sides arguments, it turns out, cannot easily be confined to the courthouse. Their proponents want judges to give greater weight to the expressive, informational, and dignitarian interests of third parties who may be negatively affected by a litigant’s First Amendment victory and therefore to uphold regulations designed to protect those interests. At least in principle, however, there is little reason why someone advocating this approach should not also want judges to give greater weight to the interests of speakers and listeners one step further removed from any given case.
More than that, there is little reason why someone who supports judicially enforced redistribution of speech rights in the name of the First Amendment should not also want legislative and executive officials to pursue policies that advance the expressive, informational, and dignitarian interests of the polity. Compared to courts, legislatures and agencies are likely to be in a better position to advance such interests at a wholesale level.
Several strains of anti-Lochnerian First Amendment argument make just this move from speaker to system—from asking how to define and defend specific types of speech by specific types of persons to asking how to engineer a fairer, fuller, “freer” expressive environment for everyone. Some systemic arguments remain fairly far off the wall, such as those that militate for a First Amendment right to an adequate education
or to “a formal, transparent platform for individual—and, in particular, minority—voices to participate in the lawmaking process.”
Systemic arguments in favor of campaign finance regulation are comparatively mainstream. Outside of the campaign finance context, the systemic perspective has proven especially popular in the First Amendment literature on media regulation in its widest sense, what Marvin Ammori has called the “structure of American communication.”
Ammori’s portrayal of this structure relies heavily on physical metaphor, charting a landscape of “speech spaces” and the legal “architecture” that shapes them.
But the broader import of his doctrinal and scholarly overview is more abstract: A venerable tradition of constitutional theorists has found the First Amendment to permit or even require the state to take affirmative steps to secure the expressive and informational interests of “all Americans,”
population by population and medium by medium, from internet to television to telephone to print publishing to city streets.
As Ammori emphasizes, his “architectural” approach builds on the work of leading First Amendment theorists of media regulation, including Professors C. Edwin Baker, Jack Balkin, Jerome Barron, Yochai Benkler, Owen Fiss, and Cass Sunstein.
All of these theorists share a commitment to affirmative government intervention across a range of media, whether through financial subsidies for the press, a “fairness doctrine” requiring broadcasters to present opposing views on a controversial issue, “must-carry” rules for cable providers,
“net neutrality” and “open access” rules for internet carriers,
or any number of other regulatory strategies aimed at creating a more democratic and egalitarian structure of communication. In this spirit, Professor Tim Wu has recently proposed “[n]ew laws or regulations requiring that major speech platforms behave as public trustees, with general duties to police fake users, remove propaganda robots, and promote a robust speech environment surrounding matters of public concern.”
However exactly they are framed, these proposals reflect a conviction that a well-functioning “system of free speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression.”
The Constitution must not stand in the way of building this infrastructure; on the contrary, it may need to be recruited as an ally in the effort. “When the state acts to enhance the quality of public debate,” Fiss writes in a representative passage, “we should recognize its actions as consistent with the First Amendment.”
“What is more, when on occasions it fails to, we can with confidence demand that the state so act.”
Brought together by these basic commitments, egalitarian theorists of the “system of free speech” nevertheless vary in their normative and institutional emphases. For instance, some systemic theorists seek to establish a constitutional pedigree for their policy prescriptions, insisting that the First Amendment itself demands or at least motivates their proposals. Most others, however, ground their prescriptions in the subconstitutional or extraconstitutional demands of democracy, social justice, or prudence, seeking to establish only that the First Amendment does not forbid them.
Likewise, some systemic theorists foreground the expressive interests of marginalized speakers, whereas most others appear to prioritize the informational interests of listeners.
And some systemic theorists envision a key role for the courts in developing robust speech architectures, whereas most others downplay the judicial function and focus on the incentives, responsibilities, and authorities that do or should lead legislators and administrators to enact their preferred reforms.
In the language of this Essay,
systemic theorists of the First Amendment tend to be more minimalist than maximalist in their visions of judicial review, asking the courts largely to step aside as the political branches experiment with measures to enhance the quality, diversity, and accessibility of public debate.
As explained above, the position that the political branches, and only the political branches, should aggressively promote egalitarian First Amendment rights fell into disrepute when the liberal compromise supplanted progressive civil libertarianism in the mid-twentieth century.
Few if any of today’s systemic theorists openly repudiate the resulting constitutional settlement. Even as he urges state intervention to enhance public debate, for example, Fiss is careful to clarify that “[j]udges are the ultimate guardians of constitutional values” and bear a heavy “burden of guarding against the danger of First Amendment counterproductivity.”
Yet by placing so much stock in legislative and administrative action and so little stock in judicial protection of negative rights against government infringement of speech, some of the stronger versions of the move from speaker to system may have quite disruptive implications. Indeed, the very aspiration to engineer a “better” system of free expression through the political process represents a challenge to the prevailing “negative-liberty model” of the First Amendment and its premise that “the central First Amendment purpose . . . is to keep government out of speech.”
As Professor Burt Neuborne has observed, “[c]urrent Supreme Court doctrine is relentlessly speaker-centered” and inattentive to the interests of “the hearer,”
much less to the interests of the expressive environment writ large. This state of affairs is partly attributable to the structure of First Amendment litigation and partly to the Court’s “uncompromising refusal to trust government speech regulators with any significant power.”
In short, to ask judges to review free speech cases through a systemic lens, or otherwise to defer to legislative and administrative judgments about the speech system, is to imagine a very different First Amendment regime from the one we have now. Insofar as the logic of egalitarian critique pushes toward a systemic perspective, the question therefore arises whether First Amendment Lochnerism could ever truly be dispelled without a radical rethinking of existing doctrine, including the limits imposed by the liberal compromise. The move from speaker to system is the most powerful move in the contemporary grammar of egalitarian First Amendment argument; its underlying account of free speech does not merely complicate or chisel away at the deregulatory Lochnerian paradigm but supplies a comprehensive alternative. It does so, however, by putting pressure on First Amendment norms ranging from content and viewpoint neutrality to the primacy of judicial enforcement to the baseline opposition to redistribution of expressive and informational resources. In threatening to displace such norms, the pursuit of systemic egalitarianism may end up looking a good deal like a revival of progressive civil libertarianism.
Conclusion: The Egalitarian First Amendment in Exile?
The search for an egalitarian First Amendment has never looked harder. As this Essay has tried to show, it is not just the current composition of the Supreme Court or its most controversial free speech decisions that account for the rise of First Amendment Lochnerism—a First Amendment jurisprudence that disables redistributive regulation and exacerbates socioeconomic inequality. Beyond the recent upsurge in conservative judicial appointees, a series of more fundamental developments in American law and political economy has facilitated, and seems likely to continue to facilitate, the spread of First Amendment Lochnerism. Three in particular stand out: first, the long-term growth of numerous overlapping forms of inequality from the 1970s through the present;
second, the rise of informational capitalism in the marketplace and a First Amendment–industrial complex in civil society;
and third, the surprising degree to which the midcentury liberal compromise between progressive and reactionary understandings of the First Amendment has delegitimated efforts to redistribute expressive and informational resources while legitimating an increasingly inegalitarian socioeconomic structure.
In terms of both knowledge and power, legal egalitarians are best equipped to interrogate and to challenge the third development: the tendency of the liberal compromise, and the presumptively benign First Amendment jurisprudence it has produced, to favor First Amendment Lochnerism. Yet legal egalitarians cannot simply renounce the liberal compromise. Or, at least, they cannot do so without committing to a practically difficult and normatively fraught renovation of American constitutionalism writ large. This is because the features of the liberal compromise that allow First Amendment Lochnerism to thrive are intrinsic to the broader constitutional settlement that emerged from the New Deal. These include the primacy of judicial enforcement of civil libertarian rights and the reconceptualization of such rights as limitations on the state’s regulatory role, irrespective of the regulated parties’ relative socioeconomic power. Although the renunciation of these features might well forestall the spread of First Amendment Lochnerism, it would also undermine the very constitutional settlement that legal egalitarians currently seek to defend from conservative attack on multiple fronts.
Faced with this conundrum, this Essay has canvassed First Amendment scholarship in search of ways around it, paths that may have gone unnoticed because theorists and historians were seeking solutions to a different problem. We find that traditional First Amendment theorizing in the grand style—a style motivated by justificatory ideals such as truth, autonomy, and democracy—is too empirically thin and politically inert to be of much use in this search.
Elsewhere, however, in scholarship more focused on concrete policy matters and persistent doctrinal ambiguities, we identify two relatively coherent and consistent strategies that remain available to legal egalitarians opposed to First Amendment Lochnerism. These strategies parallel familiar dichotomies from the social sciences: voice and exit,
reform and revolution.
The first strategy (voice, reform) is to remain within the world of the liberal compromise and to test its institutional and doctrinal boundaries. Might these boundaries extend farther, or prove less fixed, than previously thought? Notwithstanding the current composition of the federal judiciary, might new territory be found along the margins where a more egalitarian speech environment could flourish? As discussed in Part IV, contemporary First Amendment scholars, including participants in this Symposium, have not only asked these questions but also developed a grammar with which to answer them—a set of midlevel doctrinal and empirical arguments that seek to justify special judicial solicitude for the expressive and informational interests of the socioeconomically disadvantaged. Such solicitude may take the form of either stronger or weaker enforcement of preexisting First Amendment principles, found scattered across the precedential landscape.
This egalitarian grammar is highly suggestive of new ways to practice and to theorize First Amendment law. In their very generativity, however, the most powerful egalitarian arguments tend to move rapidly toward the frontier, to the edge of the liberal compromise if not beyond it altogether. Here we find the other means of evading First Amendment Lochnerism that our overview of free speech theory and historiography has identified. What lies beyond the liberal compromise? We suspect that the answer will resemble the approach that the liberal compromise itself displaced: the progressive civil libertarianism of the early-to-mid-twentieth century.
This exiled alternative to the liberal compromise is in some respects reminiscent of the “Constitution in Exile” of the conservative legal imagination.
Both the Constitution in Exile and progressive civil libertarianism seek to forge a new constitutional political economy—one that is more libertarian or egalitarian, respectively—by using civil libertarian argument. Both trace their origins to the far side of the New Deal settlement, a settlement that putatively committed the zealous protection of noneconomic rights to the federal judiciary while entrusting the rational management of economic rights to Congress and the executive branch. At the same time, if the conservative Constitution in Exile or progressive civil libertarianism were ever to return, each would undoubtedly look quite different from what the actual legal culture of the early twentieth century allowed. While progressive civil libertarianism does not claim an originalist pedigree, hardly anyone is a thoroughgoing originalist when it comes to free speech.
Perhaps the most striking divide between these two exiled legal regimes is that progressive civil libertarianism—even in an updated and domesticated form—does not claim at this time any significant constituency within the legal academy.
Yet as this Symposium reflects, the sheer ambition of today’s First Amendment Lochnerism may be creating an opening for equally ambitious progressive projects. For instance, mainstream legal liberals seem more willing to question the “negative-liberty model” of the First Amendment
than they have been in decades. The ACLU is reportedly debating whether to reorient its free speech practice around “standing up for the marginalized.”
Might the disruptive nature of the Roberts Court’s First Amendment jurisprudence generate a countervailing movement of real consequence? The answer to this question will depend, in part, on whether progressive civil libertarianism can be reimagined for the digital age in ways that make good on its egalitarian promise while limiting possibilities for government censorship and abuse. Those scholars and practitioners who take up this challenge will inevitably disagree on many matters of normative priority and institutional detail. But the challenge must first be seen with clear eyes. Before any meaningful progress can be made toward overcoming First Amendment Lochnerism, its critics may need to affirm a more basic theoretical and practical point, a point that we hope this Essay has helped to establish: Progressive civil libertarianism is not a contradiction in terms.