There’s a Massive First Amendment Threat (and It’s Not Donald Trump)

Editor’s note: This post previews my forthcoming Stanford Law Review article, “Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition.”

Much ink has been spilled about the Trump administration’s specious First Amendment claims. Last week, Politico reported that the President’s “lawyers argued in a Thursday court filing that protesters ‘have no right’ to ‘express dissenting views’ at his campaign rallies because such protests infringed on his First Amendment rights.” As with many of this administration’s controversies, focusing on the inflammatory issue can distract from more fundamental ones. As University of Maryland Professor of Law Frank Pasquale rightly suggested in a tweet about the Politico story: “Next up: internet behemoths will claim that a law requiring respect for adblocking requests infringes on their free speech rights #Sorrell.”

In other words, in terms of existential threats to the First Amendment, the real problem isn’t President Trump; it’s the weaponization of the speech right, often by corporations. The outward creep of First Amendment coverage has been widely criticized by scholars—variously described as expansionism, imperialism, opportunism, and neo-Lochnerism—who understand the problems the First Amendment can create when applied to new areas of law, often for deregulatory purposes. (Hence the comparison to Lochner v. New York, the discredited 1905 Supreme Court opinion that elevated the constitutional liberty of contract over worker-protective labor regulations.)

How did we get to this point, where corporations are able to directly and credibly claim First Amendment rights and speech creep seems inexorable? Answering that question is the goal of my Stanford Law Review article coming out next month, “Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition.” The article makes two central contributions.

First, I show that the speech theory underlying the corporate speech doctrine, both in commercial speech and campaign finance opinions, is radically different than and poses a threat to the two longstanding speech traditions, one focused on individual speech rights (liberal tradition) and the other on public speech interests (republican tradition). When creating the commercial speech doctrine in the 1970s, beginning with Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court justified its speech expansionism by drawing on the republican tradition and purporting to vindicate listeners’ rights when striking down regulations. The argument goes like this: listeners will have more information if we get rid of regulation X, so it’s really listeners’ interests that are vindicated, while corporations incidentally benefit. But what happened through that and later opinions was the opposite: the Court ended up using listeners’ rights as an instrumental means to the end of vindicating corporate speech rights. This trend has continued in recent years, including in Citizens United v. FEC.

Not only did the Court’s new corporate speech doctrine break from the republican tradition, but it also departed from the liberal tradition. The liberal tradition understands the First Amendment as protecting individuals’ innate rights against the state and fulfilling individual autonomy through self-expression. But corporations cannot claim the same type of autonomy interests as natural persons. Rather, a new type of autonomy emerged to support corporate speech rights, which I name “thin autonomy.” Unlike autonomy in the liberal tradition, “thin autonomy” is unmoored from the purposes of self-expression and self-realization, leaving only a naked right against the state.

This new speech theory, which breaks from and is hostile to both the liberal and republican traditions, is the libertarian tradition.

In addition to excavating the libertarian tradition, the theoretical transformation undergirding the First Amendment’s outward creep, the article’s second major contribution is showing that this new tradition helps to generate increasingly diverse and dissonant applications of the speech right in line with its logic. Today, corporate litigants no longer bother justifying the application of corporate speech rights through listeners’ rights; rather, corporate speech rights are directly embraced. This is the libertarian tradition on steroids, and it’s increasingly pervasive. Consider some examples. It’s the theory underlying the argument that drug manufacturers and data miners successfully made before the Supreme Court in 2011, striking down a state statute prohibiting drug reps from using doctors’ prescription records for marketing purposes as a First Amendment violation (that’s Sorrell v. IMS Health, Inc., which Pasquale referenced). And it’s the same theory supporting other seemingly far-fetched speech claims, like Internet service providers’ argument that they are speaking when transmitting data packets so net neutrality regulations are unconstitutional, or ExxonMobil’s claim that the application of fraud statutes to their potentially misleading claims about climate change amounts to impermissible viewpoint discrimination.

Understanding how these corporate speech claims are possible matters, and excavating the theoretical work in the Court’s opinions helps uncover what’s been going on beneath the doctrinal surface. It reveals the theoretical infrastructure that has developed over the past several decades to support a radical departure from the two longstanding free speech theories. It demonstrates that this new theory is hostile to our traditional understanding of speech rights. And it suggests to civil libertarians and free speech advocates that, contrary to popular belief, they do not need to tolerate this expansion of the First Amendment—but rather they can and should oppose it.

The stakes couldn’t be higher. Given his past opinions (as helpfully analyzed by SCOTUSblog), Justice Gorsuch, President Trump’s newly confirmed Supreme Court pick, is poised to give continued credibility to corporate speech claims. And if Trump has the opportunity to nominate additional Justices to the bench, the libertarian tradition likely will find an even more receptive audience.