By Morgan Weiland on May 23, 2017 at 11:11 pm
Today, the Stanford Law Review published my very first single-authored publication, “Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition.” This article contributes to the legal scholarly literature about the rise in the mid-to-late twentieth century of increasingly diverse and dissonant First Amendment claims, especially by corporations, specifically showing that there is a theoretical component at work both justifying and generating this expansion. This descriptive element is coupled with a normative argument (more on that later); essentially, I explain that the doctrine’s outward creep is really, really harmful to the core principles of free expression theory.
But this article also speaks directly to concerns of those working in the academic and policy fields of media, culture, and communication. As the first JD/PhD between Stanford Law School and Stanford’s Communication Department, the point of my scholarship and policy work is to speak to both worlds, to show how they are intertwined, and to argue that solutions to some of our most pressing social problems are best solved by leveraging tools from both disciplines. Let me explain how this article matters to the community of scholars and policymakers in media, culture, and communication.
At first cut, the article shows how, at the level of free expression theory, expanding the scope of the speech and press doctrines to encompass commercial speech and corporate political spending as speech (e.g. Citizens United) was undergirded by a new and heretofore unidentified speech theory, which I call the “libertarian tradition.” The libertarian tradition threatens to undermine free expression theory’s core commitments and purposes. Those are twofold. First, the republican tradition emphasizes free expression as a social good and underscores the “public” in our conception of public communication (think Alexander Meiklejohn). Second, the liberal tradition focuses on individual liberty, emphasizing our autonomy interests in expression (think John Stuart Mill). Though these two traditions are sometimes in tension, they can co-exist.
But the libertarian tradition – which I show not only justifies the Supreme Court’s expansion of the speech and press doctrines to include corporate speech, but also is generative of its outward creep – perverts both longstanding traditions. It undermines the republican tradition by purporting to vindicate listeners’ rights in the free flow of information (i.e. they have a right to receive advertising, so we should strike down laws restricting that). Corporate benefit was supposed to be incidental. But by narrowly conceptualizing listeners as individuals whose interests are aligned with corporate speech interests, the Court ended up instrumentalizing listeners’ rights in the service of corporate speech rights. Ultimately, listeners’ rights as a justification for corporate speech has been abandoned entirely (as in the case of Internet service providers or ISPs claiming a speech interest in the transmission of data to argue that net neutrality is unconstitutional; no bother with listeners’ rights there). This perversion of listeners’ rights should concern anyone who has a stake in an audience-centered (as opposed to speaker-centered) theory of expression or is otherwise concerned with the public purposes of private speech. Additionally, the libertarian tradition undermines the liberal tradition by focusing on vindicating corporate speech rights, stripping away the hallmarks of individual autonomy. The result is a naked speech right against the state, which I call “thin autonomy.”
Understanding how the theory of speech and press expansionism operates matters for two reasons relevant to media, culture, and communication scholars. First, the fact that these types of arguments have become even more potent and unbridled today should be a cautionary tale to anyone who’s interested in the possibility of regulating speech-y or press-like entities, like Facebook or Twitter. (As I mentioned in the context of ISPs arguing against net neutrality, corporations more broadly have dropped the listeners’ rights justification, and courts are going along with it.) In this constitutional law landscape, it’s going to be *much* easier for these companies to make increasingly compelling First Amendment arguments – the output of our algorithm is protected speech, our search engine’s search results are protected First Amendment activity (yes, Eugene Volokh and Donald M. Falk have already argued that one for Google), and so forth – thereby potentially evading publicly interested regulations.
Second, my paper offers a path to resist this trend. It has seemed necessary, nearly inevitable to civil libertarians that we must protect speech with which we disagree, perhaps especially if we disagree with it. Isn’t that evidence of how resilient our First Amendment is and how well our democracy is working? At some point, I argue, the answer is no. But it’s no precisely because we care about the core commitments of the theory of free expression, which limitless expansion will dilute beyond recognition.
So, for those folks doing great work trying to understand the responsibilities of huge private companies and platforms that dominate our public sphere, and who care about the integrity of listeners’ rights, this article is for you. My work shows how listeners’ rights have been diluted in the Court’s doctrine (something you might want to fix). My work should help you see the risks of certain arguments for regulating these companies (watch out for constitutional landmines) and suggests strategies for counterargument (preserving the integrity of free expression theory). These are the problems I’ll be tackling next, but they’re going to take an army of scholars – especially those willing to engage both communities of law and communication.
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