{"id":1577,"date":"2012-07-16T20:00:59","date_gmt":"2012-07-17T00:00:59","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1577"},"modified":"2015-10-02T15:23:09","modified_gmt":"2015-10-02T15:23:09","slug":"some-realism-about-the-first-amendment-how-the-government-enables-corporate-speech","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/07\/16\/some-realism-about-the-first-amendment-how-the-government-enables-corporate-speech\/","title":{"rendered":"Some Realism about the First Amendment: How the Government Enables Corporate Speech"},"content":{"rendered":"<p><em>By\u00a0Anthony Kammer<\/p>\n<p><\/em>Tim Wu had an op-ed in the NY Times a few weeks back asking\u00a0whether computer search processes like search should be recognized as \u201cspeech\u201d 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, \u201cif we call computerized decisions \u2018speech,\u2019 the judiciary must consider these laws as potential censorship, making the First Amendment, for these companies, a formidable anti-regulatory tool.\u201d<br \/>\n<!--more--><br \/>\nThe problem Wu identifies here has something in common with First Amendment decisions like\u00a0<em>Citizens United<\/em>\u00a0that currently prevent any significant campaign finance regulation in the United States. And it\u2019s a problem that\u2019s also emerged with respect to the constitutionality of product labels and other corporate activities that have been re-categorized as \u201ccommercial speech.\u201d This trend\u2014the repackaging of corporate behavior as speech\u2014prompted Duke law professor Jedediah Purdy to observe in\u00a0Democracy\u00a0Journal\u00a0this past winter that the First Amendment under the Roberts Court is quickly becoming an \u201canti-regulatory hammer.\u201d<\/p>\n<p>As more of our activities become automated and reshaped by computerized interfaces, it\u2019s a frightening possibility that those interfaces could be placed beyond democratic control simply by re-categorizing any online company\u2019s algoritms as \u201cspeech.\u201d We\u2019ve already seen what happened when money became \u201cspeech\u201d 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 \u201ccommercial speech\u201d and immune to regulation.<\/p>\n<p>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 \u201cspeech\u201d or they are not, whereas in\u00a0reality many activities\u2014including those conducted by machines and corporations\u2014do not map easily onto this binary. Computer algorithms or political contributions, of course, are not \u201cspeech\u201d in any common sense of the term, but they can be important for facilitating or enabling speech under some circumstances.<\/p>\n<p>It\u2019s 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 \u201cspeech.\u201d\u00a0But what we have gotten instead is a technique ripe for political exploitation. \u201cSpeech\u201d has become a way to invalidate the regulations conservative and civil libertarian jurists find unappealing.<\/p>\n<p>This jurisprudential move prevents any consequentialist discussion of the competing costs and benefits of our laws.\u00a0Rather than defer to the legislative branch to sort out the advantages and disadvantages of some policy, calling some activity \u201cspeech\u201d 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 \u201cspeech\u201d 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\u2019s First Amendment jurisprudence is rapidly reproducing the ideologically tinged anti-regulatory fights of the Lochner Era.<\/p>\n<p>While the outcry against the Roberts Court\u2019s libertarian sympathies has abated somewhat since the ACA ruling was handed down, analogies to\u00a0the\u00a0Lochner\u00a0Era\u00a0and the\u00a0<a href=\"https:\/\/web.archive.org\/web\/20120724080056\/http:\/\/www.huffingtonpost.com\/jamie-raskin\/the-ghost-of-lochner-sits_b_1398073.html\">R<\/a>oberts\u00a0Court\u2019s\u00a0pre-New\u00a0Deal\u00a0jurisprudencehave grown increasingly commonplace over the past year. The Lochner Court\u2019s use of the Fourteenth Amendment \u201cliberty to contract\u201d to invalidate progressive workplace regulations offer a eerie parallel to how the First Amendment is being used today. Cases like\u00a0<em><span style=\"text-decoration: underline\">Citizens\u00a0United<\/span><\/em>, internet search cases like<em><span style=\"text-decoration: underline\">SearchKing\u00a0v.<\/span><\/em><em>\u00a0<\/em><em><span style=\"text-decoration: underline\">Google<\/span><\/em>\u00a0and\u00a0<em><span style=\"text-decoration: underline\">Langdon\u00a0v.<\/span><\/em><em>\u00a0<\/em><em><span style=\"text-decoration: underline\">Google<\/span><\/em>, and commercial speech cases like\u00a0<em><span style=\"text-decoration: underline\">Sorrell\u00a0v.<\/span><\/em><em>\u00a0<\/em><em><span style=\"text-decoration: underline\">IMS\u00a0Health<\/span><\/em>\u00a0and<em><span style=\"text-decoration: underline\">R.J.<\/span><\/em><em>\u00a0<\/em><em><span style=\"text-decoration: underline\">Reynolds\u00a0Tobacco\u00a0Co\u00a0v.<\/span><\/em><em>\u00a0<\/em><em><span style=\"text-decoration: underline\">FDA<\/span><\/em>, all show what a powerful counter-majoritarian tool the First Amendment can be.<\/p>\n<p><strong><span style=\"text-decoration: underline\">Legal Realism versus \u201cFree Markets\u201d<\/p>\n<p><\/span><\/strong>Given the similarities between our current First Amendment jurisprudence and the \u201cliberty to contract\u201d from the Lochner Era, the legal realists\u2019 critique of\u00a0<em>laissez faire<\/em>\u00a0jurisprudence can help clarify what exactly is wrong with expansive libertarian readings of the First Amendment.<\/p>\n<p>The early twentieth century legal academy responded to the anti-regulatory jurisprudence of the Lochner Era by developing a critique of the Lochner Court\u2019s \u201cliberty of contract\u201d 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.<\/p>\n<p>One of the leading figures in the legal realists\u2019 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.<\/p>\n<p>\u201cIn 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.\u201d<\/p>\n<p>Given the pervasiveness of property rights in the private sector,\u00a0Hale concluded that treating progressive workplace laws as \u201cstate interference\u201d while treating contract and property laws as part of the \u201cfree market\u201d 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\u00a0that because this idea of the \u201cfree market\u201d had been exposed as contradictory and incoherent, the concept should not have been imported into our constitutional jurisprudence by the Lochner Court.<\/p>\n<p>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.<\/p>\n<p>Hale\u2019s 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\u2019 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\u2019t 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.<\/p>\n<p>Unfortunately, contemporary First Amendment jurisprudence has relied on illusion of a stateless \u201cfree market\u201d in the realm of speech and is reproducing many of these same mistakes.<\/p>\n<p><strong><span style=\"text-decoration: underline\">The Fallacy of the \u201cFree Market\u201d in Speech<\/p>\n<p><\/span><\/strong>It is only possible to imagine corporate political spending or computerized decision-making as \u201cspeech\u201d that happens in a \u201cfree market\u201d if we ignore the role the state played in creating the corporate form, in enforcing corporate law, in protecting businesses\u2019 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\u2019s senseless to think we can draw any bright lines beyond which the state should not cross.<\/p>\n<p>In the context of campaign finance laws, for instance, it\u2019s 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\u00a0<em>Citizens United<\/em>\u00a0do not open up access to a free \u201cmarketplace of ideas\u201d but rather actively create an artificial space populated primarily with artificial legal entities like corporations and Super PACs. To reiterate the legal realists\u2019 point: It is logically incoherent to claim that corporate political spending is \u201cprivate\u201d 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.<\/p>\n<p>The same \u201csubmerged\u00a0state\u201d 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\u2014successfully I should add\u2014to 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\u00a0<a href=\"https:\/\/web.archive.org\/web\/20120724080056\/http:\/\/www.cepr.net\/index.php\/blogs\/beat-the-press\/microsoft-and-apple-the-history-casey-mulligan-doesnt-know\">DOJ\u2019s antitrust actions against Microsoft in the 1990s<\/a>. Without noting the irony, Google\u2019s 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\u2019s 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.<\/p>\n<p>In both instances, as is the case of \u201ccommercial speech,\u201d 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\u00a0<em>laissez faire<\/em>\u00a0logic has helped strike down laws that would impose reasonable restrictions on powerful private actors for the benefit of the broader public.<\/p>\n<p><strong><span style=\"text-decoration: underline\">Toward a More Democratic First Amendment<\/p>\n<p><\/span><\/strong>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?\u00a0A first step has to be acknowledging that \u201cprivate\u201d 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 \u201cmarketplace of ideas\u201d: 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 \u201cmoney equals speech\u201d 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.<\/p>\n<p>Perhaps, like the legal realists who concluded that false binaries like \u201cpublic\u201d and \u201cprivate\u201d were too illusory to serve as constitutional foundations, we should stop asking judges to decide what is \u201cspeech\u201d and what is \u201cnot speech\u201d when it comes to deeply\u00a0indeterminate\u00a0and 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.<\/p>\n<p>As Barbara Fried describes in\u00a0<em>The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement<\/em>, 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 \u201cspeech\u201d and \u201cliberty to contract\u201d 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.<\/p>\n<p>In the end, asking whether political expenditures or computer algorithms are \u201cspeech\u201d is a question without a single answer, and it\u2019s 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\u00a0<a href=\"https:\/\/web.archive.org\/web\/20120724080056\/http:\/\/crookedtimber.org\/2012\/05\/23\/cognitive-democracy\/\">complex, multifarious voices that democracy is able to process<\/a>\u00a0rather 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 \u201cliberty to contract,\u201d \u201cprivate property,\u201d and \u201cfree speech\u201d as final answers and instead demand that they confront the actual costs and benefits at stake in our collective decisions.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>By\u00a0Anthony Kammer Tim Wu had an op-ed in the NY Times a few weeks back asking\u00a0whether computer search processes like 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