The late Supreme Court Justice Antonin Scalia considered himself a great defender of free speech. But he was also the court’s leading apostle of deciding cases according to the “original meaning” of the Constitution’s framers. So imagine the difficult spot he was in on September 9, 2009, as the court heard oral arguments in Citizens United v. Federal Election Commission. The case tested the FEC’s efforts to uphold laws that restricted corporate expenditures and contributions in election campaigns. It arose when a secretive nonprofit front corporation called Citizens United sued in advance of the 2008 presidential primaries, contending that any attempts by the FEC to block its advertising and distribution of a documentary called Hillary: The Movie would violate its First Amendment rights.
Yet when the framers put that amendment into the Bill of Rights, writing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” they plainly intended to protect living, breathing citizens’ freedom of speech and their other democratic prerogatives in their exercise of self-government. By no reasonable stretch—certainly not from inspecting the plain text of the document, as conservatives often insist on doing—could that be interpreted to apply to the spending and speech of business corporations, which as Chief Justice John Marshall wrote in 1819 were best understood as “artificial being[s], invisible, intangible, and existing only in contemplation of law.” While a corporation’s actions could be defined by state charters, Marshall wrote, “this being does not share in the civil government of the country.”[*]
The court’s conservatives ducked all such understandings during oral arguments in Citizens United that day in September, 2009, posing mostly rhetorical questions, sometimes almost comically ill-informed, to then-Solicitor General Elena Kagan, their future colleague. Scalia clung to latter-day court rulings that found a sort of “corporate personhood” in the law—the view that corporations “are people, too, my friend,” as Mitt Romney would put it during his 2012 presidential campaign. Scalia also bought into the argument by Citizens United’s counsel (and former solicitor general) Theodore Olson that 97 percent of business corporations are single-shareholder outfits and hence are just folks, like owners of mom-and-pop hair salons and car dealerships. These small entrepreneurs, Olson contended, were being silenced by campaign finance laws that barred corporations from directly funding candidates and campaign messages.
Never mind that the Citizens United corporation itself is anything but a small business or a normal independent nonprofit. Kagan had to remind Scalia that mom and pop were not being silenced by limits on campaign expenditures because they can readily transfer their “corporate” resources to support their personal advocacy as citizens without misrepresenting shareholders or anyone else. She added that if the existing restrictions on corporate financing of campaigns were removed, the 3 percent of corporations that are “owned” by swirling whorls of shareholders could overwhelm public debate and elections without consulting those shareholders, most of whom care only about the size of their dividends. How democratic is that?
Earlier, Scalia had asked impishly if he was being too cynical to suggest that the real reason members of Congress had enacted curbs on corporate contributions was to shield their own incumbency against insurgents funded by legitimate interests trying unseat them. Kagan had to inform Scalia that corporations contribute ten times as much to incumbents’ campaigns as to those of insurgents. Apparently, Antonin the Innocent had no idea.
And so it went, with several other justices proving to be as clueless or disingenuous as Scalia. And when the 5-4 ruling came down, in January of 2010, the name “Citizens United” became synonymous with citizens defeated; corporate money and billionaire funding soon flooded into the election system, with predictable results. In the background of the Citizens United case, though, is a story about how American conservatives have willfully propagated a distorted view of free speech—empowering corporations and wealthy donors not just to “speak” but to use their influence to dominate the elections of officials who will then be in a position to regulate (or deregulate) those same corporations.
The Corporations for Anti-Public Broadcasting
The conservative campaign’s essential deception begins with a zeal to equate “free markets” with “free speech”—not only in election campaigns but also on campuses, in the news media, and in so-called right-to-work laws that weaken union representation. This deception is one of the factors accelerating swift currents of dispossession and desperate behavior in public life and, riding those currents, the demagoguery that deranges free speech itself and dissolves conservatives’ own professed devotion to “ordered liberty.”
It hasn’t helped that many civil liberties advocates and activists have abetted the conservative movement’s misreadings of the First Amendment’s clear intent. The consequent plague of advertising-driven disinformation makes Trump-enabled “fake news” seem almost weak by comparison. Instead of promoting a free press that helps citizens to redress public grievances, petition elected representatives, or hold officials accountable, the attention-scrambling cacophony of the so-called marketplace of ideas (the metaphor beloved by conservatives) rewards perpetual nerve stimulation, not the reasoned debate and mutual respect that deliberative democracy needs. So long as we mistake a Pavlovian stable of programmed outrage for democratic discourse, impulse-driven consumers will lose their capacity to absorb information and think clearly about their freedoms and obligations as citizens.
Treating corporate speech as de facto free speech intensifies that whirlwind of civic derangement, prompting cries for a strongman to replace a degraded civil society with an authoritarian one. That robs us of the centuries-old hope—shared by both classical liberals and the best exponents of the conservative tradition—that ever-freer speech by ever-freer individuals can help to civilize humanity. With authoritarian rulers and their pseudo-populist mobs suppressing free speech with propaganda in Russia, China, and formerly viable democracies such as Turkey, Hungary, Poland, and other polities, our own self-avowed defenders of “ordered liberty” need to face the equally dangerous consequences of legitimating business-corporate speech, driven solely or mainly for profit, as if it were one of the kinds of public speech that the First Amendment was written to protect.
The Reign of the Privateers
Democratic speech is chilled or distorted not only by official repression but also by ranting radio and cable talk-show hosts; deceptive troll-armies and robotic posts on social-media platforms; “politically correct” militants and their right-wing provocateurs and stalkers; opposition-research and psychological-operations (“psy-ops”) campaign consultants; and tweets and lies from the White House. New technologies, driven by market incentives, not only drown out speech that distinguishes the public interest from commercial profit; they are also diminishing almost every other realm of American freedom. Consequently, we have consumer-
titillating journalism instead of real reporting; we have gladiatorial sports, epidemic addictions, mass shootings, and, in reaction to all this, ever-more ubiquitous surveillance, militarized policing, mass incarceration—and, yes, censorious, sometimes hysterical outbreaks of “political correctness.” Most such assaults on democracy aren’t driven by the fanatical conviction, malevolence, or mental illness that do sometimes color them. More often, they’re reactions to stresses and resentments driven by uncivil investment and marketing strategies.
But if those are the consequences, what’s their main cause? It isn’t Donald Trump, although he’s the most prominent carrier and casualty of the disease. Nor is it just “human nature,” although cracks in the foundations of America’s civic-republican ethos and neoliberalism’s imagined global village are opening onto abysses as ancient and murky as the human heart itself, driving many of us back to existential first questions. Pre-liberal traditions that plumbed such depths and nourished the deeper registers of human speech no longer anchor our public reckonings as they did even in living memory.
Short of that, though, we still need to reassess long-standing assumptions, shared among today’s liberals and conservatives alike, about what kinds of speech and speakers a liberal democracy requires and what kinds it doesn’t. We need to rescue speech not only from government censorship but also from market sensor-ship—the exploitation of speech by virtually private governments that monitor and impose consumer “choices,” market-driven social discipline, and dissolute escapism.
In the background of the Citizens United case is a story about how American conservatives have willfully propagated a distorted view of free speech.
Liberal democrats who would curb omnivorous marketing face two interlocking obstacles. First, as I’ve suggested, are the pro–business-
corporate legal doctrines. For decades now, the Supreme Court has interpreted “freedom of speech” to protect corporate ads and data transfers, driven by companies that are still the penumbral, civic nonentities that Chief Justice Marshall said they were. Now empowered with ever-expanding First Amendment prerogatives as protected “speakers,” they’ve become more influential than citizens.
Civil libertarians have abetted this expansion because of their understandable preoccupation with avoiding the “slippery slope” of government censorship. They’re stumbling onto an equally treacherous slope at the bottom of which a market-driven “free-speech” free-for-all becomes a spectacle of shouting and posturing that liberates no one except entities that promote and profit from it. What good is such a noise-making spectacle if it is not modulated by a strong civil society and democratic politics? How does today’s cacophony promote reasoned inquiry and deliberation as the standard for a public life in which the force of the better argument outweighs the force of propaganda and raw coercion?
With a demagogic presidency poised to “revisit” libel law and determined to discredit adverse reporting as “fake news,” this challenge has become a crisis. If the American constitutional order can’t draw its legitimacy from a vibrant, vigilant civil society, it can’t distinguish effectively between, on the one hand, freedoms of expression that come from living citizens who have the right to challenge social conventions, and, on the other hand, simulacra of speech that’s designed solely to bypass our brains and hearts on the way to our lower viscera and wallets. Judges and legal activists who cling reflexively to interpretations of free speech that protect Justice Marshall’s “artificial beings”—including the engines of democratic dissolution now firmly ensconced everywhere from the White House to Silicon Valley—will find themselves clinging to shards of liberal legal doctrine in seas of “free speech” that overwhelm the rule of law itself.
The second, still more formidable obstacle facing liberal democracies seeking to bolster open inquiry is their own civic amnesia. In America this reflects the gradual exhaustion of civic-republican and even pre-liberal wellsprings of “good” speech that’s not mainly market-driven or libertarian but is self-disciplined in the service of self-government. Law alone can’t revive the lapsed civic frameworks for such democratic speech if a polity has no civic rituals, mythic narratives, and standards of conduct potent enough to inspire citizens to stop private interests from usurping their rights. So let me make a few observations about what the development of language and free speech requires—and then sketch the crisis of free speech in a polity whose judges and “free speech” zealots have unleashed the market currents that are atomizing and re-tribalizing the public.
For most of human history, speech has been anchored in illiberal, tribal, theocratic, ethno-national, and authoritarian orders that still shape billions of people’s languages and identities. Even a cosmopolitan liberal parent knows that society must ground and channel children’s speech, not only within the family but in a civic culture whose language is resourceful enough even to reshape that culture’s own conventions. “Free speech is not a free-standing independent value, and its limits have to be decided by what, as a society, we deem to be our most important values,” writes the political philosopher David van Mill. The literary and legal scholar Stanley Fish encapsulates a similar idea in the title of his 1994 book, There’s No Such Thing as Free Speech: And It’s a Good Thing, Too. Fish contends that the indeterminacy in formal guarantees of free speech is good because it forces us to fight robustly for our understandings of what the provisions of the First Amendment should protect and reject.
It hasn’t helped that many civil liberties advocates and activists have abetted the conservative movement’s misreadings of the First Amendment’s clear intent.
Those understandings will vary according to their social and moral context. But what if, when we weren’t looking, the context was reset for us by powerful, artful strategists whose work escaped democratic revision? And what if such efforts were contrived to diminish public transparency and discourage civic virtues such as forbearance, fairness, and mutual respect? What if courts have protected from reasonable regulation the “speech” of the context-setters, whose messages corrupt regulation itself?
Law is a poor tool for civic education, warns Timothy Garton Ash, whose reporting on the democratic revolutions of 1989 in Eastern Europe showed that people speak more freely and effectively when they do so with a “robust civility” that asserts itself against power. Like earlier reporting on the American civil rights movement, Garton Ash’s encounter with democratizing regimes emphasizes that such civility must be capable of restraining itself to keep disputes from lurching into frozen enmity or violence. “A right to say it does not mean that it is right to say it,” as he puts it in his 2016 book Free Speech. He urges citizens who’ve been driven into mazes of intrusive, degrading advertising to join in creating “a republic of norms”—understanding that markets and liberal states fail to nourish, and sometimes subvert, the kinds of rules and behaviors that active citizens need.
A republic of norms sounds utopian if you’re struggling to survive in what Garton Ash calls “turbo-capitalist” conditions. But although liberalism’s odyssey has often been disrupted by other dystopian forces, it has resumed its journey in unlikely times and places—in British Imperial India, the segregated American South, apartheid South Africa, and Soviet Eastern Europe—whenever millions of people recognized how empty and frightening their lives had become without democracy’s rigors and rewards.
The Contingent Code
A viable liberal-democratic politics acknowledges the indeterminacy of public truths as part of its animating mission. That’s one of its defining strengths. The challenge it faces is to keep deliberations going well enough to forestall lofty or thuggish prejudgments about which truths will prove out in debate and which will be exposed as serpentine lies. Liberal democracy understands that politics is a power struggle, but it diffuses the distribution of power in order to keep the struggle from becoming unreasoned and violent. It understands that laws work best when enacted on the cusp of consensus among a critical mass of citizens who rely on reasoned persuasion. Otherwise, “the less we manage to achieve by our own, voluntary, sovereign shaping of the ways we interact, the more call there will be for the police and courts to do the job for us,” Garton Ash warns.
The political philosopher Hannah Arendt admired progenitors of the American Revolution for their deliberative politics even as they moved toward military struggle. For all its serious flaws, the founders’ republic of norms enabled them to oppose their own culture’s pre-liberal, divine-right monarchy through committees of correspondence, a Continental Congress, and the Declaration of Independence. Recognizing that every movement toward deliberative democracy is only provisional, the founders tried to ensure its continued survival by writing the First Amendment into the Constitution itself.
The First Amendment doesn’t actually define “freedom of speech” but merely lists it as one of the rights of “the people” against government. Michigan State University College of Law professor Kevin W. Saunders finds “no historical evidence that the Framers had in mind the protection of hate speech, corporate contributions to campaigns, deliberate lies, or any of a number of other areas of harmful speech.” Rochelle Gurstein, author of The Repeal of Reticence, notes that liberal jurisprudence “lacks the conceptual resources to take account of [the] public, aesthetic, and moral dimensions” of obscenity and other possibly harmful public expressions. Or, as David van Mill puts it: “We began with a statement that says, ‘Congress shall make no law . . .’ and we end up with lots of speech being regulated because it has been retitled as unprotected, or as something that is no longer speech.” In other words, he notes, “a lot of hoop-jumping is required to make the First Amendment workable.”
From Red Scares to Troll Scares
This is hardly the first time that a liberal democracy hasn’t nourished a republic of norms strong enough to shore up basic guarantees of speech itself. President Woodrow Wilson’s war to make the world “safe for democracy” all but suspended democracy at home with censorship and “Red Scare” surveillance and imprisonments. Only after World War I did the Supreme Court begin to interpret the First Amendment to protect speech from abridgement by government (and even then government restrictions on “dangerous” speech persisted). In the private sphere at that time and until recently, “Freedom of the press is guaranteed only to those who own one,” as the mid-twentieth-century American journalist A.J. Liebling quipped.
After the victory over fascism in 1945, freedoms of speech seemed to advance, against Cold War paranoia, anti-Communist witch-hunts, and segregationist violence. By 1989, speech freedoms seemed to have advanced irreversibly with the fall of Iron Curtain and, a decade later, with global technological breakthroughs that enabled multi-directional, interactive communication. These developments raised hopes for democratic politics and individual autonomy in a free market economy. Instead, we have the civic derangement and bad jurisprudence that gave us Donald Trump’s way of campaigning and governing in the name of “speaking one’s mind.”
For some chastened liberals, the specter of such demagoguery at home has made state-capitalist regimes abroad, such as Singapore, alluring because they appear to sustain order and prosperity by subordinating democratic freedoms to the prerogatives of investors and managers. Meanwhile, extensive surveillance and selective arrests spur widespread self-censorship by people who fear punishment. Courts and parliaments are muzzled under patinas of legalism; news media and universities are honeycombed with ruling-party operatives. Some regimes now also practice “reverse censorship” via what Columbia law professor Tim Wu calls “‘flooding’ tactics . . . that distort or drown out disfavored speech . . . [with] fake news . . . and the deployment of propaganda robots,” as well as “‘troll armies’ to abuse the press and other critics.”
Shutting Up for the Boss’s Sake
But even in the United States and other still-functioning liberal democracies, courts and business interests have drained free speech’s democratic potential not by suppressing it outright but by extending it to what the philosopher Elizabeth Anderson calls “private government” in her 2017 book by that title. Conglomerates envelop their employees’ (and, indirectly, their customers’) lives, dictating their labor rights and increasingly even the circumscribed range of permitted inquiry and expression—off the job as well as on. This isn’t entirely new: Henry Ford’s motor company used to monitor workers’ home lives, and mining towns were “company towns” from top to bottom, as recalled in the bitter refrain of Merle Travis’s 1947 mining ballad, “Sixteen Tons”: “Saint Peter don’t you call me, ‘cause I can’t go; I owe my soul to the company store.”
But the expansive range of employer prerogatives in our increasingly contingent gig economy is equally discouraging. Anderson reports that many companies now require non-compete clauses in contracts barring employees from moving to work for rival companies if they leave their present job. (This wage-depressing regime of employer collusion has often prevailed in the labor cartel known as Silicon Valley, although California laws push against it.) Other speech-chilling provisions bar workers from bringing class-action suits against their bosses—as well as similar legal actions from customers alleging systematic fraud in user agreements and financial contracts. In their efforts to secure Singapore-style oligarchical power within their workplaces, some employers have gone so far as to invoke a First Amendment right not to speak in order to avoid posting government notices of employees’ legal rights, as the Washington Monthly reported in 2014.
Needless to say, conservative “free speech” zealots never contest these provisions, whose supposed “freedom of contract” Anderson likens to long-discredited understandings of the “freedom to marry” that honored a woman’s right to accept or reject a proposal but, once she accepted, enjoined her by law and custom to submit to her husband’s direction. “The vast majority [of workers] are subject to private, authoritarian government, not through their own choice, but through laws that have handed nearly all authority to their employers,” Anderson notes.
The Shouting Shareholder
Better regulation of commercial “speech” is needed also because “visions of the good life articulated within commercial advertisements . . . deeply influence our sense of ourselves as a nation,” writes Robert Post, former dean of the Yale Law School. He explains that commercial speakers are understood as “seeking to advance their commercial interests, rather than as participating in the public life of the nation. We do not characterize them as inviting reciprocal dialogue or discussion.” Hofstra University law professor Daniel Greenwood likewise describes how “advertising for cars . . . implicitly promotes other aspects of an automobile-based culture, including . . . highway-based transportation, and suburbanization and its ramifications.” There are no comparable ads for public transit, but a car manufacturer can devote millions of customers’ dollars to advertise cars—and, after Citizens United, can use virtually unlimited free speech to continue bankrolling the campaigns of public officials who’ll spend more on roads than on mass transit.
Theodore Roosevelt said in 1905 that “all contributions by corporations to any political committee or for any political purpose should be forbidden by law.”
Greenwood explains that “corporate speech is . . . not the result of anyone’s autonomous behavior” but reflects only “the hypothetical interests of a creature given reality by the market and the law: the fictional shareholder.” He challenges courts’ “implicit theory of the corporation as an individual citizen with a mind and will of its own, entitled to a deference due to an autonomous, self-governing individual . . .” Rulings determining that “the people” have a right to the information in commercial speech have, in Greenwood’s judgment, “trivialized the important issue at stake, which is not the neutral distribution of information but rather a political power struggle in which rhetorical volume is extremely important.”
This argument isn’t necessarily anti-capitalist; it’s also an argument within capitalism, as Young & Rubicam Chairman Emeritus Peter Georgescu made clear in his 2017 book Capitalists Arise! He urged corporate managers to stop prioritizing “shareholder value” and to give higher priority to customers, employees, host communities, and substantive reinvestments in their own operations.
Regulation from Nowhere
Yet the only coherent standard emerging from the Supreme Court’s varied rulings on freedom of speech since the 1970s—Buckley v. Valeo (1976), Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), First National Bank of Boston v. Bellotti (1978), Citizens United v. Federal Election Commission (2010), and Sorrell v. IMS Health (2011)—is “the end of regulation of [business-corporate] campaign spending, virtually complete constitutional protection for advertising, and aggressive review of regulation in data markets or nearly any industry whose inputs or products are information,” as Duke University law professor Jedediah Purdy has shown. In particular, the rulings issued by the court under Chief Justice John Roberts “call into question whether government can regulate the basic engines of the new economy,” he writes.
In the Bellotti ruling, the Supreme Court stunningly redefined freedom of speech under the First Amendment to protect corporations in the ways Greenwood describes—as if they were citizens with minds and wills of their own. The Virginia Pharmacy ruling of 1976 held that corporate advertising deserves protection because the process that Justice Harry Blackmun called “the free flow of commercial information” in ads for drug prices conveys information to consumers—however distorted and/or venally self-interested such information might be. The court thus dodged explaining what kind of speaker it’s protecting by protecting the “rights” of the spoken-to.
In 2011, it decided in Sorrell v. IMS Health that protected “speech” may even include transfers of data mined from physicians’ prescription records and sold to pharmaceutical manufacturers eager to pitch their drugs to doctors. The court ruled that this serves, according to Robert Post, “the First Amendment value of market efficiency.” That reasoning is wrong, Post explains, because “The First Amendment cannot be understood as . . . the champion of a particular (and contested) view of proper market functioning. To the contrary, [it] creates the very space in which all potential theories of marketplace functioning can be debated and evaluated. Nothing could be more damaging . . . than to . . . transform it into a mere ‘basis for reviewing economic regulations.’”
With the Citizens United ruling, such blinkered legal thinking launched the present reign of dark money in American politics. Although direct corporate contributions to Donald Trump’s campaign weren’t the main reason why he won in 2016, media companies’ hunger to maximize profits and shareholder returns made them willing amplifiers of the civic derangement that “dark money” was funding. Yet in the oral arguments for Citizens United, Justice Anthony Kennedy worried piously that campaign finance laws were silencing corporations, the most knowledgeable entities about the industries and practices that Congress regulates. Scalia’s opinion was that to “impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”
Solicitor General Kagan had to remind the court that nothing in campaign finance laws had ever silenced corporate lobbyists, who swarm all over Capitol Hill and commonly provide the draft-legislative language of bills before Congress. By barring direct contributions to legislators’ campaigns, Kagan said, existing law was attempting “to make sure that lobbying is just persuasion, and it’s not coercion.”
In the Citizens United arguments, Chief Justice Roberts fretted that it would be “extraordinarily paternalistic” of government to prevent corporations from using shareholders’ investments for electoral purposes on the grounds that those shareholders hadn’t been consulted. I’m not sure that Kagan succeeded in explaining to Roberts that we shareholders can’t possibly keep track of dozens of corporations’ activities when our “ownership” of them is shifted constantly by managers of mutual funds, pension funds, and retirement plans. But, as Greenwood writes, Citizens United was not really a case about freedom of speech. It certainly was not about censorship. In the Roberts Court, it was always about five judicial radicals’ determination to give corporations rights to sway elections that a free people shouldn’t give them.
The Monster Roused
Among its other fallacies, Citizens United failed to deliver a plausible depiction of corporate power in politics. The majority opinion lumped expressive nonprofit corporations—including labor unions—together with publicly held corporations into an indistinguishable cohort of paper entities reanimated as flesh-and-blood citizens. In practical terms, the ruling is a Trojan Horse for corporate political actors posing as what the justices characterized as voluntary associations of citizens joined in “a common cause” when they’re really an oligarchy carrying out a hostile takeover of First Amendment protections.
The only “common cause” among shareholders is the quest for larger dividends. Free speech is a prize won in political struggle, as Greenwood, van Mill, Fish, and others have made clear. The Roberts Court has just as clearly positioned itself on one side of that struggle, allowing corporate speech to transform public life beyond anything envisioned by the republic’s framers. Justice John Paul Stevens noted as much in his dissenting opinion, quoting Theodore Roosevelt’s admonition of 1905 that “All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be . . . an effective method of stopping the evils aimed at in corrupt practices acts.”
As David van Mill puts it, “a lot of hoop-jumping is required to make the First Amendment workable.”
“The apparent flurry of First Amendment activity masks the fact that the Amendment has become increasingly irrelevant in its area of historic concern: the coercive control of political speech,” notes Columbia’s Tim Wu, author of a 2016 book The Attention Merchants: The Epic Scramble to Get Inside Our Heads. Recent rulings proffering First Amendment protections to the corporate elite focus “exclusively on the protection of speakers from government, as if they were rare and delicate butterflies threatened by one terrible monster,” Wu writes. No rulings curb the monster that’s scrambling to get inside our heads while assiduously subverting the mechanisms of public deliberation outside of our private spheres.
Whistling in the Digital Dark
Civil liberties lawyers aren’t clueless about this. But because they’re focused on the potentially all-powerful government monster, they downplay the dangers that critics such as Wu, Garton Ash, Purdy, and others have warned us about. Even as the American Civil Liberties Union’s legal director David Cole deplored some effects of the Citizens United ruling in an article for The New York Review of Books, he tiptoed around the fact that the ACLU didn’t oppose the ruling. Like the justices, Cole seemed to accept at face value the notion that corporations have a right to use campaign contributions as protected speech. On the one hand, he insisted, “a Court that took more seriously the impact of various rules on our democracy would almost certainly be more open to reasonable limits on campaign spending.” On the other hand, Cole argued in another NYRB essay, in many now-common venues of political persuasion money is all but identical with speech:
It costs money to speak, so if government could freely regulate the expenditure of money on various topics, it could for all practical purposes censor speech on those topics. No one would question, for example, that a rule limiting how much money one could spend debating climate change implicates First Amendment rights. So, too, does a rule limiting how much one can contribute to, or spend supporting the election of, a candidate who would pursue one’s favored environmental policies.
Like the Roberts Court, Cole here drew no meaningful distinction among corporations. Corporations, he wrote, are simply “a form of association, and people often speak most effectively through associations. The NAACP Legal Defense and Education Fund, for example, is a corporation, as is the ACLU, and as was Citizens United itself.” That isn’t a credible analysis. “First Amendment theorists tend to be astonishingly unwilling to make distinctions; something in the field seems to demand simplistic overarching claims,” Greenwood wrote, in correspondence with me last year. He differentiated the NAACP from the Apple corporation, which “has no members and represents no one. It is, rather, an institution that frees itself from us. . . . Its power comes from its sales, not supporters of its opinions. . . . That should be a difference that matters.”
As Haley Edwards notes in a devastating Washington Monthly analysis of business-corporate invocations of the First Amendment,
Many of the traditionally liberal First Amendment lawyers, like Floyd Abrams [who represented Senate Majority Leader Mitch McConnell’s amicus brief in the Citizens United oral arguments], Laurence Tribe, and Walter Dellinger, who made their names in the ’70s as defenders of the oppressed, have in . . . recent years dedicated themselves to advancing and defending this idea—that the identity, even the corporate identity, of a speaker cannot be a determining factor of whether or not speech is regulated. As a result, they have, along with organizations like the ACLU, lent their talents, as well as their credibility and respectability, to corporations’ First Amendment attacks, often finding themselves among unlikely allies, like the National Rifle Association, Monsanto, and Exxon.
Mayhem for Money’s Sake
When powerful corporate initiatives masquerade as free expression, the consequences in entertainment and journalism are perverse. In 2011, in Brown v. Entertainment Merchants Association, the Supreme Court overruled a California law barring sales of egregiously violent video games to children under eighteen. That prompted Justice Stephen Breyer to ask, in dissent, “[W]hat sense does it make to forbid selling to a thirteen-year-old boy a magazine with an image of a nude woman, while protecting a sale to that thirteen-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” Pondering the “effect on education” for “future generations committed cooperatively to making our system of government work,” Breyer cited a joint statement by American psychiatric and medical associations asserting “a causal connection between media violence and aggressive behavior in some children.”
Many strong democracies regulate commercial speech more strictly without courting the specter of runaway censorship. Canada, for example, restricts to late-night hours any TV programming with sexual content or extreme violence. For that matter, our own culture has accepted a ban (signed into law by President Richard Nixon in 1970) on TV and radio advertising for cigarettes, a harmful (but legal) product. How does it make sense that the state of California can not make a law preventing the sale of interactive and extremely violent video games to young teens?
The ruling dismissed such precedents—and, I would argue, the cultural preconditions of reasonable inquiry, expression, and self-government—and, in the name of freedom of speech, protected a conglomerate’s civically mindless drive to boost profits by delivering whatever is alluring to whatever part of the body politic it has already helped to deprave. Such movies and violent videogames may not have “caused” the cascade of gruesome single-shooter massacres in public places since 1998. But for every viewer like Adam Lanza, who did reenact in Sandy Hook something like what he’d experienced virtually in video games such as Call of Duty, which he played constantly, many other young viewers are surely demoralized by such depictions of social relations, sexual power, and militaristic overkill. A democracy can stop this market-driven plague without endangering citizens’ freedom of inquiry and expression. On the contrary, it can enhance them.
Journalism, too, is in crisis amid the economic and technological riptides and judicial rulings that treat information as another commodity. The First Amendment rightly bars government from abridging “freedom of the press” because, as New York University journalism professor Jay Rosen notes, good journalism brings reportage and commentary to public decision-making. Increasingly, though, journalists are employed by shareholder-driven media corporations that bypass the civic-minded “public” to assemble audiences on any pretext—sensationalistic, erotic, bigoted, nihilistic—that will keep them watching. “Democracy dies in darkness,” proclaims the motto of the Washington Post, now that it’s owned by Amazon proprietor Jeff Bezos, but democracy dies also in a deluge of blindingly bright messages treating citizens as impulse-driven consumers or worse.
Official censorship and reverse censorship matter less in the United States than does what the media critic John Keane calls “market censorship”: the profit-driven distortion of news that has updated the market dictum to “give the people what they want.” It operates under a perversely uncivil model of what the citizen should know and be entertained by—even when, as in Facebook’s case, the category of “knowledge” is effectively effaced to promote feedback loops of conspiracy-mongering, bigotry, and worse.
The relevant model here isn’t public deliberation but platform addiction: the political weaponization of Facebook demonstrates that much of what was once called “journalism” has become a subspecies of operant conditioning—peddling whatever a proprietary algorithm suggests will keep us glued to its screens. Allowing such deranging platforms to operate under libertarian protections of the First Amendment enables media managers to transform their platforms into Foucauldian panopticons that monitor customers’ patterns of behavior in ways that harm user privacy and benefit spinners of political falsehoods such as Cambridge Analytica.
Such market sensor-ship intensifies market censorship in a global communications system where, as Keane notes in Democracy and Media Decadence, “ten or so vertically integrated media conglomerates—most of them based in the United States —dominate the world market.” These cartelized media leviathans now serve, as Keane has elsewhere observed, as “pace-setters in a new species of private enterprise driven by the desire for emancipation from social custom, territorial state interference, taxation restrictions, trade union intransigence, and all other external restrictions upon the free movement of capital in search of profit.” Not surprisingly, Keane concludes, their journalism “gives priority to advertising-driven . . . ventures” and “‘news-breaking’ . . . stories that concentrate upon accidents, disasters, political crises and the histrionics and cruelties of war.”
Malefactors of Great Data
Liberal democrats can’t replace market censorship (and sensor-ship) with authoritarian regulation, as in China, Singapore, Turkey, or Hungary. But they can provide better public subsidies and tax breaks to civically beneficial entertainment, journalism, and higher education through boards independent of politicians, on the model of the American Federal Reserve or the European Central Bank. But just as politicians must be kept at arm’s length, so must unelected private warlords.
At the same time, political conservatives should be challenged to acknowledge that they can no longer reconcile their claim to cherish civic virtues with their knee-jerk obedience to whims and riptides of capital that are dissolving the foundational values they extol. “You can’t build a clear conservatism out of capitalism, because capitalism disrupts culture,” as Sam Tanenhaus, biographer of the American conservative icon Whittaker Chambers, told a less-than-receptive audience at the conservative American Enterprise Institute in 2007.
The relevant model today isn’t public deliberation but platform addiction: as companies like Facebook promote whatever a proprietary algorithm suggests will keep us glued to its screens.
Public governments will have to break up private ones that control news production and speech platforms. “One could imagine the Court holding that extraordinary powerful internet sites like Facebook, Twitter, and Google, are so powerful that they are in effect governmental action and must therefore be deemed the equivalent of public forums,” writes University of Chicago professor Geoffrey R. Stone. In the meantime, restoring net neutrality would help.
To know what liberal democracies have lost by failing to strike a better balance, you needn’t be a capital-loathing Marxist; you need only open your civic-republican heart to sense the damage being done. “The limiting, distorting, and corrupting power of money is the biggest single cause for concern around free speech,” writes Garton Ash. “The pursuit of profit is a turbo-driver of innovation . . . but, like the power of the state, it always has to be checked and balanced.” Americans who want freedom as citizens, not just consumers, have a lot of work to do—with one another, with elected officials, and, most urgently, with all who’ve forgotten the First Amendment’s original meaning and intent.
[*] Although the Citizens United corporation is not a business but a non-profit, the case itself challenged public regulation of big-business “speech” that’s subverting citizens’ self-government. And thereby hangs our tale.