Over the years on these pages I have described a shift in views towards the First Amendment and free speech–liberals moving away from it, and conservatives trending towards it. I will be presenting a paper on this topic in May at the Yale Law School Free Expression Conference, titled “Collective Liberty.” In the Times, Adam Liptak has an insightful piece that puts some empirical bite behind this thesis.
Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters.
These days, a provocative new study says, there has been a “corporate takeover of the First Amendment.” The assertion is backed by data, and it comes from an unlikely source: John C. Coates IV, who teaches business law at Harvard and used to be a partner at Wachtell, Lipton, Rosen & Katz, the prominent corporate law firm.
“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.”
Liptak also looks to the works of Tim Wu and Burt Neuborne who exhibit the new left-wing skepticism of the First Amendment.
“Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint,” Professor Wu wrote.
“Madison’s Music,” a new book by Burt Neuborne, a law professor at New York University, gives a detailed history of the transformation of First Amendment law. In his account, “the American right discovered the First Amendment” in the early 1970s.
“An expansive conception of free speech became attractive to Republican justices,” he wrote, “both because robust free-speech protections fit neatly into the right’s skeptical, deregulatory approach to government generally, and because it energized vigorous transmission by powerful speakers of the right’s newly energized collection of ideas.”
Those conservative justices, Professor Neuborne wrote, found willing allies in liberal justices long committed to free speech.
During a discussion with Justice Sotomayor at NYU, Neuborne seemed to embrace Justice Breyer’s notion of “collective” liberty, protecting speech only so long as it promotes democracy:
Sotomayor pressed Neuborne particularly on the adjudication of democracy. “You say that the focus of the First Amendment is democracy,” she said. “You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”
“I’m sort of shocked that you asked that, because it’s clear that I define it,” said Neuborne jokingly, to audience laughter. But Sotomayor prevailed with the wry rejoinder, “No, no, no, you forget, I do,” prompting an eruption of mirth and applause.
Turning to the justice’s question, Neuborne referred to an exchange between Chief Justice John Roberts and Justice Stephen Breyer in McCutcheon v. Federal Election Commission, which invalidated federal campaign contribution limits for individual donors on First Amendment grounds. In Breyer’s dissent, he argued the ruling was a blow to democracy, while Roberts responded that the Court’s business was merely to enforce the First Amendment, and better democracy could be obtained through amending the Constitution.
“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” said Neuborne. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean—‘Congress shall make no law abridging speech’—and having it be sort of automatic, without even thinking about the consequences for democracy.”
Liptak closes with the conflicting view of the liberal old guard–Larry Tribe and Floyd Abrams–who now stand increasingly alone on the left in defense of free speech.
“It is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism,” he wrote, “in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”
Professor Tribe gave examples of the sorts of people whose First Amendment arguments have not fared well in the Roberts court: students, prisoners, pacifists and whistle-blowers.
Floyd Abrams, a leading First Amendment lawyer who has defended The New York Times and was on the winning side in Citizens United, reflected on the trend toward protecting the powerful in a speech last week at Temple University.
“There is truth in the proposition that a number of recent First Amendment victories in recent years have been on behalf of the ‘haves’ — some of them corporations, some individuals,” he said. “But that is no basis for concluding that the decisions were wrongly analyzed or wrongly decided.”
Ron Collins and Howard Wasserman have also chronicled this issue at some length. Stay tuned for more.