The zombie First Amendment.

AuthorCohen, Julie E.

TABLE OF CONTENTS INTRODUCTION I. ATTACK OF THE FREE SPEECH ZOMBIES A. Speech Interests Follow Ownership of the Means of Communication B. Speech Is Property C. Proprietary Information Processing Is Speech D. Proprietary Information Can Be Contraband II. SUBCONSTITUTIONAL SETTLEMENTS: POWER AND PRIVILEGE IN THE INFORMATION ECONOMY A. Corporate Citizens in the Marketplace B. Industrial Copyright C. The Biopolitical Public Domain D. Circuit Breakers in the Net CONCLUSION INTRODUCTION

Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary First Amendment shelters power's ability to make and propagate its own truth. This Article relates developments in recent First Amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech--cases that lie at the First Amendment's traditional core--tell only a small part of the story. The contemporary First Amendment must be situated within a larger story about the realignment of information flows within circuits of power that serve emerging global interests, and to tell that story, one must look to disputes about the speech implications of private economic regulation. As a result of that struggle, free speech jurisprudence about information rights and harms is becoming what is best described as a zombie free speech jurisprudence: a body of doctrine robbed of its animating spirit of expressive equality and enslaved in the service of economic power. (1) Within the emerging zombie free speech jurisprudence, speech, money, and information processing are equivalent, and speech advancing economic interests receives the strongest protection of all.

Part I discusses a group of seemingly disparate cases about the contours of the contemporary First Amendment, identifying two common themes. First, the cases construct a broad equivalence between speech and money that is heavily influenced by notions of information as property or otherwise proprietary. Second, the idea of information as property or otherwise proprietary supports actions defining flows of unauthorized speech as contraband. Part II argues that First Amendment decisions do not create distributional inequities in information power; they are symptoms of it. It explores the genealogy of the contemporary crop of free speech zombies, tracing their origins to deeper realignments in the legal regimes that more directly constitute and reinforce private economic power. First Amendment jurisprudence has yet to acknowledge these realignments, and that failure of recognition is both intellectual and moral. Even so, the First Amendment cannot serve as law's primary tool for rebalancing freedom of expression in the information age.


    For the last decade or so, scholars of information and technology law have been puzzling over an unusual set of First Amendment decisions. Those decisions include Eldred v. Ashcroft and Golan u. Holder, both of which rejected challenges to legislative expansions of copyright protection, and Sorrell v. IMS Health Inc., which struck down a Vermont law restricting use of information about physicians' prescribing behavior for marketing purposes. (2) Critics of Eldred and Golan have characterized those decisions as examples of a pernicious "copyright exceptionalism" within free speech jurisprudence that operates to insulate copyright legislation almost entirely from constitutional challenge. (3) Meanwhile, information privacy scholars identify a different kind of exceptionalism at work in Sorrell's analysis of the threshold conditions for strict scrutiny, and worry that Sorrell signals trouble ahead both for efforts to strengthen privacy protection and more generally for the regulatory state's ability to address information harms. (4)

    I think that the diagnosis of the likely consequences of Eldred, Golan, and Sorrell is right but that the charge of exceptionalism is probably wrong. Copyright's free speech jurisprudence and the emerging free speech jurisprudence of targeted marketing are part of a broader realignment in free speech jurisprudence, in which the First Amendment's traditional concern with political self-determination plays very little role. Instead, the decisions are infused with the neoliberal tropes of economic liberty and consumerist participation, and the label "speech" has become a fig leaf strategically deployed to denote and legitimize proprietary claims over the patterns of information flow. That process is producing a zombie free speech jurisprudence, in which the identification of protected speech interests conforms mindlessly to patterns of underlying entitlement, and through which the object of protection is altered almost beyond recognition.

    1. Speech Interests Follow Ownership of the Means of Communication

      It is useful to begin in traditional First Amendment territory, by briefly considering the Court's cases on political speech and media ownership as harbingers of realignment in free speech jurisprudence. The most prominent of the recent cases is Citizens United v. FEC, in which a majority of the Court struck down a provision of the Bipartisan Campaign Reform Act of 2002 that prohibited corporations and unions from using their general treasury funds for independent expenditures supporting or opposing political candidates for federal government office. (5) The Citizens United decision has been analyzed at length by others far more expert in the intricacies of First Amendment doctrine. For my purposes, two aspects of the decision are worth remarking: the majority's invocation of media companies as stand-ins for the rights of corporations generally, and its refusal to countenance the possibility of a constitutionally supportable distinction between electioneering statements and other types of expression.

      The aspect of the Citizens United decision that has sparked the most popular controversy is the majority's characterization of corporations and other fictional persons as speakers entitled to constitutional protection. For many scholarly commentators, however, that result was clearly presaged by earlier cases. (6) In particular, the Court's decisions about media ownership and access reveal a consistent tradition of treating owners of capital as the bearers of First Amendment interests. (7)

      Even so, the discussion of the rights of corporate speakers is noteworthy for its focus on the rights of media companies, which were exempted from the independent expenditure ban. For the majority that exemption, intended to save the independent expenditure restrictions from the risk of unconstitutionality, proved too much: media companies are in the business of using their money to fund speech, but other companies also had a constitutional right to do so. (8) At the same time, however, the majority opinion observed that media companies are the paradigmatic corporate bearers of free speech rights:

      There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. Yet television networks and major newspapers owned by media corporations have become the most important means of mass communications in modern times. (9) That way of thinking about the special status of media companies, though, conflates two different First Amendment freedoms. If media companies have a special place in the constitutional firmament, it is because as a group they operate platforms for expression that enable a diverse variety of speakers to fulfill the First Amendment's promise of a robust marketplace of ideas. By performing what Neil Netanel in a related context has called a structural function, they operationalize the guarantee of freedom of the press. (10) The Court's misperception of this point has deep roots. In the line of cases upholding the FCC's imposition of rules intended to create room within the mid-twentieth-century broadcasting ecology for opposing viewpoints, the FCC argued that control of the means of communication would enable owners of mass media organs to determine what sorts of speech to allow. (11) According to the FCC, in other words, the problem was precisely that control of the means of communication and capacity for constitutionally protected speech are distinct, necessitating various corrective measures to minimize the influence of the former on the latter. (12) The Court, however, treated the media companies as speakers in their own right, subject to limitations justified for reasons of scarcity, not for reasons of control. (13) In doing so, it lumped speech and press freedoms together, with potentially deleterious consequences for the exercise of both. That result is old news now; what is interesting is the way that Citizens United reaffirms it. The invocation of media companies as the paradigmatic example of corporate freedom of speech signals that the ultimate touchstone of expressive freedom is ownership of the means of communication. One who owns resources has the means to speak; one who owns the means of communication may speak most fully and completely.

      The Court had the opportunity to avoid ruling on the constitutionality of the independent expenditure ban on the ground that the speech at issue, a full length documentary film available only via video on demand, was meaningfully different than the sort of speech with which the federal election laws are concerned. (14) It declined to do so, reasoning that it would be too dangerous to involve the courts in determining what is favored speech. (15) As others have noted, that conclusion in turn rests...

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