Some Realism about the First Amendment: How the Government Enables Corporate Speech

By Anthony Kammer

Tim Wu had an op-ed in the NY Times a few weeks back asking whether computer search processes like search should be recognized as “speech” for purposes of the First Amendment. The problem with giving computer programs rights, as Wu notes, is that many antitrust, privacy, and consumer protection laws against all kinds of computer algorithms could be categorically rendered unconstitutional. As Wu states, “if we call computerized decisions ‘speech,’ the judiciary must consider these laws as potential censorship, making the First Amendment, for these companies, a formidable anti-regulatory tool.”

The problem Wu identifies here has something in common with First Amendment decisions like Citizens United that currently prevent any significant campaign finance regulation in the United States. And it’s a problem that’s also emerged with respect to the constitutionality of product labels and other corporate activities that have been re-categorized as “commercial speech.” This trend—the repackaging of corporate behavior as speech—prompted Duke law professor Jedediah Purdy to observe in Democracy Journal this past winter that the First Amendment under the Roberts Court is quickly becoming an “anti-regulatory hammer.”

As more of our activities become automated and reshaped by computerized interfaces, it’s a frightening possibility that those interfaces could be placed beyond democratic control simply by re-categorizing any online company’s algoritms as “speech.” We’ve already seen what happened when money became “speech” and was placed beyond the reach of campaign finance laws, and increasingly courts are telling the states and the FDA that that food and cigarette labels are “commercial speech” and immune to regulation.

Like with many issues in law, the difficulty here is that Courts are pressed into treating a gray issue like it must be either black or white. As a constitutional matter, things are either “speech” or they are not, whereas in reality many activities—including those conducted by machines and corporations—do not map easily onto this binary. Computer algorithms or political contributions, of course, are not “speech” in any common sense of the term, but they can be important for facilitating or enabling speech under some circumstances.

It’s understandable then that courts have been unable to locate any non-contested definitions. It is not as though there are any ideologically-neutral criteria for determining when and where things like money, computers, and tents in parks are “speech.” But what we have gotten instead is a technique ripe for political exploitation. “Speech” has become a way to invalidate the regulations conservative and civil libertarian jurists find unappealing.

This jurisprudential move prevents any consequentialist discussion of the competing costs and benefits of our laws. Rather than defer to the legislative branch to sort out the advantages and disadvantages of some policy, calling some activity “speech” ends the conversation. It assumes away whatever problem that prompted a need for regulation, and it leaves the market as the only mechanism for deciding what the democracy has to live with. The expansion of “speech” in this manner makes any democratic response short of a constitutional amendment impossible. It is for this reason Purdy is right in noting that the Roberts Court’s First Amendment jurisprudence is rapidly reproducing the ideologically tinged anti-regulatory fights of the Lochner Era.

While the outcry against the Roberts Court’s libertarian sympathies has abated somewhat since the ACA ruling was handed down, analogies to the Lochner Era and the Roberts Court’s pre-New Deal jurisprudencehave grown increasingly commonplace over the past year. The Lochner Court’s use of the Fourteenth Amendment “liberty to contract” to invalidate progressive workplace regulations offer a eerie parallel to how the First Amendment is being used today. Cases like Citizens United, internet search cases likeSearchKing v. Google and Langdon v. Google, and commercial speech cases like Sorrell v. IMS Health andR.J. Reynolds Tobacco Co v. FDA, all show what a powerful counter-majoritarian tool the First Amendment can be.

Legal Realism versus “Free Markets”

Given the similarities between our current First Amendment jurisprudence and the “liberty to contract” from the Lochner Era, the legal realists’ critique of laissez faire jurisprudence can help clarify what exactly is wrong with expansive libertarian readings of the First Amendment.

The early twentieth century legal academy responded to the anti-regulatory jurisprudence of the Lochner Era by developing a critique of the Lochner Court’s “liberty of contract” essentialism. These progressive era legal realists, as they came to be called, ripped through the public-private distinction that underpinned conservative arguments that the state should not intervene in the private sector. The realists helped expose the hypocrisy of courts that would enforce property and contract law on behalf of employers while simultaneously insisting that wage or labor laws that benefited employees should be treated as unconstitutional governmental interference.

One of the leading figures in the legal realists’ reformulation was Robert Hale, whose works demonstrated rather comprehensively how the state already acted everywhere in the private sector given that the state enforced property rights on behalf of owners.

“In protecting property the government is doing something quite apart from merely keeping the peace. It is exerting coercion wherever that is necessary to protect each owner, not merely from violence, but also from peaceful infringement of his sole right to enjoy the thing owned.”

Given the pervasiveness of property rights in the private sector, Hale concluded that treating progressive workplace laws as “state interference” while treating contract and property laws as part of the “free market” was disingenuous, contradictory, and, at bottom, politically motivated. So-called free markets depended heavily on the state and power delegated from the state. Hale maintained that because this idea of the “free market” had been exposed as contradictory and incoherent, the concept should not have been imported into our constitutional jurisprudence by the Lochner Court.

It is for this insight that Hale and the other legal realists can help inform our legal predicament with respect to the First Amendment today. Despite the fact that a different constitutional amendment was being invoked (the Fourteenth rather than the First), the legal realists have been through this fight against a libertarian, anti-regulatory amendment before.

Hale’s insights regarding the universality of coercion and the background level of government activity underlying seemingly individual liberties are as relevant now as they were in the 1930s. The legal realists’ recognition that all private power is often a kind of delegated state power reveals that the government often causes the very power imbalances that other regulations seek to correct. The point, of course, isn’t that government is bad for enabling private actors, but rather that it is therefore arbitrary for courts to invalidate progressive and egalitarian policies as interventionist while treating background property, contract, and corporate laws as natural.

Unfortunately, contemporary First Amendment jurisprudence has relied on illusion of a stateless “free market” in the realm of speech and is reproducing many of these same mistakes.

The Fallacy of the “Free Market” in Speech

It is only possible to imagine corporate political spending or computerized decision-making as “speech” that happens in a “free market” if we ignore the role the state played in creating the corporate form, in enforcing corporate law, in protecting businesses’ patents, and in all of the other ways the government acts in and through the private sector. The Roberts Court has done precisely this. They have largely ignored, for purposes of the First Amendment, many of the background laws that make up our communications infrastructure and structure the marketplace in political spending. Instead they have viewed this infrastructure as natural and recast all efforts to reform it as unconstitutional interference. Until we confront the role the state has in enabling private actors, it’s senseless to think we can draw any bright lines beyond which the state should not cross.

In the context of campaign finance laws, for instance, it’s clear that the corporate form is itself a product of state laws that allow for limited liability, unlimited duration, and all the benefits of property, contract, and corporate laws. To treat political spending originating in such an artificial, state created environment as irregulable free speech is to ignore the enormous role the government plays in enabling corporations to exist. The kinds of political spending enabled by Citizens United do not open up access to a free “marketplace of ideas” but rather actively create an artificial space populated primarily with artificial legal entities like corporations and Super PACs. To reiterate the legal realists’ point: It is logically incoherent to claim that corporate political spending is “private” and beyond the reach of the government, because without the government there to define and protect the corporate form, corporate political spending would not exist in the first place.

The same “submerged state” problem exists when we look at the regulation of computer algorithms. This is another market the government helped create but may not enter. Take Google, for instance. Google has recently invoked the First Amendment—successfully I should add—to resist privacy regulation and antitrust suits relating to its seach function, even as it depends heavily on intellectual property law and other areas of law in order to operate its search feature competitively. The Center for Economic and Policy Research also noted recently that Google would have likely never risen to its current stature if not for the DOJ’s antitrust actions against Microsoft in the 1990s. Without noting the irony, Google’s legal position looks a lot like: Let the government subsidize our search feature but fight any conditions the government puts on that assistance in the form of regulations. It’s a troubling feature of our law that the government was able help Google become competitive but is seemingly prevented by the First Amendment from ensuring thereafter that Google itself is not behaving monopolistically.

In both instances, as is the case of “commercial speech,” the illusion of a free market in speech prevents the government from regulating that which it already regulates and enables by other means. In case after case, this faulty laissez faire logic has helped strike down laws that would impose reasonable restrictions on powerful private actors for the benefit of the broader public.

Toward a More Democratic First Amendment

So where does an injection of legal realism into our understanding of the First Amendment suggest the constitutional boundaries be drawn for things like political spending and computer algorithms? A first step has to be acknowledging that “private” spaces free from government involvement are far fewer than is generally realized. Markets are not natural, of course, but a product of our laws and institutions, and we need to recognize that the same is true of the “marketplace of ideas”: It depends not just on our individual freedom to speak our minds, but also on a technical and legal infrastructure that the government helps secure. To make a blanket assertion that the government may not act in these marketplaces is to overlook the countless ways in which it already does. Rather than depend on metaphors like “money equals speech” to structure our institutions, the democracy needs to be able to make consequentialist decisions about how much political and economic inequality it is realistically able to tolerate.

Perhaps, like the legal realists who concluded that false binaries like “public” and “private” were too illusory to serve as constitutional foundations, we should stop asking judges to decide what is “speech” and what is “not speech” when it comes to deeply indeterminate and politically loaded issues. Instead, we should start demanding greater restraint from judges eager to invalidate the outputs of elected bodies, particularly when the laws at issue relate to other core constitutional values like privacy and protecting the democratic process.

As Barbara Fried describes in The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement, Hale and the realists favored a thoroughly utilitarian, consequentialist approach to law-making and jurisprudence. Like Holmes, they resisted the kind of categorical binaries like “speech” and “liberty to contract” that often served to benefit existing power structures at the expense of everyone else. This is precisely the sort of realism we should apply to our understanding of the First Amendment, so we can stop letting philosophical dreams of liberty in a stateless world prevent us from addressing the problems that are confronting our democracy.

In the end, asking whether political expenditures or computer algorithms are “speech” is a question without a single answer, and it’s one that the population is deeply split over. When dealing with eminently gray issues such as this, perhaps it is more appropriate to take advantage of the complex, multifarious voices that democracy is able to process rather than give judges a false binary and ask them to provide one answer for all time. If we have to rely on judges making these kinds of decisions, however, at the very least we need to stop treating conceptually indeterminate metaphors like “liberty to contract,” “private property,” and “free speech” as final answers and instead demand that they confront the actual costs and benefits at stake in our collective decisions.

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