Expanding the periphery and threatening the core: the ascendant libertarian speech tradition.

Author:Weiland, Morgan N.
 
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Table of Contents Introduction I. Two Traditions in Speech Jurisprudence A. The Liberal Tradition B. The Republican Tradition C. A Note on the Press Right II. The Libertarian Tradition: Theoretical Contours and Critique A. A Sketch of the Causes of the Libertarian Tradition 1. The ACLU and articulating the individual speech right 2. Corporate resistance to regulation in the 1940s 3. Corporate resistance to regulation in the 1970s B. Evidence of the Libertarian Tradition in the Supreme Court's Speech Jurisprudence 1. Case selection 2. Case analysis a. "Commercial speech" moment b. "Corporate political spending as speech" moment C. Theoretical Contours of the Libertarian Tradition 1. Breaking with the republican tradition: transforming listeners' rights a. From listeners-as-public to listeners-as-individuals b. From the quality to quantity of information 2. Subordinating listeners' rights to corporate speech rights 3. Breaking with the liberal tradition: the libertarian tradition's new "thin autonomy" approach a. Autonomy in comparison b. How to identify "thin autonomy" III. The Pure Libertarian Tradition: Abandoning Listeners' Rights and Embracing Corporate Rights A. Three Examples of the Pure Libertarian Tradition in Action 1. The Supreme Court in Sorrell v. IMS Health Inc. overturns as a speech violation a ban on the use of prescriber-identifying data 2. ISPs oppose net neutrality as infringing their speech rights 3. ExxonMobil uses speech as a weapon in fraud investigations B. Normative Implications Conclusion Introduction

For decades, the First Amendment has been claiming new doctrinal territory. (1) Scholars have described this phenomenon as "First Amendment expansionism" (2) and "imperialism," (3) and a consensus has emerged that the doctrinal areas brought within the First Amendment's boundaries are distorted in the process. That is the thesis of academics who document and lament what they understand as a neo-Lochner moment (4): just as Lochner exalted the constitutional claim to liberty of contract over protective labor regulations, (5) today litigants--often corporate litigants--increasingly use the First Amendment to prioritize new applications of the freedom of speech over regulations designed to protect consumers and citizens. (6) Put differently, corporations use the First Amendment as a deregulatory weapon, urging courts to strike down structural and economic regulations as violations of their speech rights. And they have enjoyed considerable success. (7)

This widespread critique is correct but incomplete. Not only does the outward creep of the First Amendment exact a price from the areas of law that its boundaries newly cover--one of the central points of the Lochner analogy--but this boundary shifting also risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners' rights and individual autonomy. The theoretical point is one that scholars have largely overlooked. (8) By reorienting the focus away from the external doctrinal impact of the First Amendment's "expansionism" or "imperialism," terms that themselves evince an outward focus, and attending instead to the overlooked but significant effects that the doctrine's outward movement has within the First Amendment, this Article makes two central contributions.

First, and most significantly, this Article uncovers a new theoretical tradition that has been developing within First Amendment jurisprudence as the doctrine has expanded. This new tradition draws on but departs from the two longstanding traditions in speech doctrine: the liberal and republican traditions. The liberal tradition understands the purpose of the First Amendment as protecting innate individual rights by ensuring individuals are free from the state. (9) Its goal is to fulfill a vision of ascribed or a priori individual autonomy: the individual's right of self-expression and self-realization. (10) Casting the individual right as instrumental, the republican tradition focuses instead on the rights of the public, figured as listeners, to accomplish achieved or socially constructed autonomy: the right to engage in self-determination and self-government. (11) The republican tradition emphasizes ensuring access to a robust speech environment to meet its autonomy goal. (12)

However, the Supreme Court developed a new approach to speech doctrine to justify the expansion of First Amendment protections to commercial speech and corporate political spending beginning in the 1970s. (13) As scholars have documented, (14) the Court seemingly grounded its doctrinal innovation in the primary goal of protecting listeners' rights, apparently in line with the republican tradition. (15) When it struck down economic and structural regulations of commerce or corporations, it did so to benefit listeners by increasing the "free flow of information." (16) That corporate political and commercial speech rights were also vindicated was merely incidental, serving as an instrumental means to the end of upholding listeners' rights.

But, as this Article shows, the speech tradition developed by the Court ended up doing the opposite: using listeners' rights as an instrumental means to the end of vindicating corporate speech rights. The Court accomplished this inversion by radically transforming its understanding of listeners, abandoning the republican tradition on which it purported to draw. In the republican tradition, listeners are a stand-in for the public, whose interest in free expression is to achieve collective self-determination and self-government. This interest is vindicated through structures created by the state or through civil society. Leaving this tradition behind, the Court's new approach narrowly conceived of listeners as individual consumers or voters whose interest in free expression is to make informed choices in the market for goods or candidates. The Court vindicated this interest by increasing the quantity of information available to listeners, often described in terms of facilitating the "free flow of information."1 The method the Court used to increase the free flow of information was deregulation, specifically striking down regulations on corporate speech. By understanding listeners as individuals whose interests are vindicated through deregulation, the same mechanism operates to uphold both listeners' rights and corporate speech rights. As a result, these rights are aligned.

The Court's transformation of listeners has made possible two related developments that undermine listeners' rights. First, as the Court's opinions show, listeners' rights are subordinated to corporate speech rights. It is deeply ambiguous whether the Court's deregulatory holdings actually benefit listeners, though corporate interests are always served. In some instances, deregulation may benefit listeners as understood in the new tradition. But in those cases where such a benefit is either highly contested, as where the Court split 5-4 in First National Bank of Boston v. Bellotti (18) and Citizens United v. FEC, (19) or where the Court's deregulatory holding actually decreases the free flow of information, as in Pacific Gas & Electric Co. v. Public Utilities Commission (20)--violating its own definition of benefitting listeners--this tradition is vulnerable to the charge that listeners' rights are subordinated to corporate rights. Thus, rather than achieving the Court's purported goal of upholding listeners' rights by instrumentally favoring corporate speech rights, the new speech tradition instrumentalizes listeners' rights in the service of consistently vindicating corporate speech rights. (21)

This development has important theoretical consequences. Because the Court's new speech tradition effectively asserts the freedom of corporations from the state, this tradition cannot be rooted in the same notions of autonomy that animate the liberal or republican traditions, which focus on the autonomy of individuals and the public. Rather, corporate speech rights are rooted in a radical new conception of autonomy: "thin autonomy." Like autonomy in the liberal tradition, "thin autonomy" advances the idea that autonomy exists in a natural, a priori condition. But it importantly breaks from the liberal tradition's conception of autonomy because, instead of being understood in relation to natural persons who have an innate capacity for self-expression and self-realization, it is understood as a feature of corporations and other nonnatural legal persons, which do not. Thus, "thin autonomy" undermines traditional notions of autonomy, stripping away the hallmarks of individual autonomy as figured in the liberal tradition and leaving only a naked right against the state. (22)

Second, the Court's transformation of listeners' rights has made possible an even more extreme development than the first. The transformation of listeners' rights makes possible not only their subordination to corporate rights but also their complete abandonment. If listeners' rights are merely instrumental in practice--functioning as a means to the end of vindicating corporate rights, even if listeners' rights are sometimes upheld along the way--it is unsurprising that the new tradition would eventually develop to abandon listeners' rights as a justification for removing restrictions on corporate speech. In recent years, that is precisely what has happened: listeners' rights have disappeared as a goal or justification, and litigants instead directly embrace the corporate speech right as an end in and of itself. (23)

By tracing the theoretical contours of this new speech tradition, it becomes possible to name it: the libertarian tradition. This tradition represents a radical break from the republican and liberal traditions on which it draws. To recap, the libertarian tradition co-opts the republican tradition's notion of listeners' rights, subordinating them to corporate speech rights and...

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