States as Speakers

I do not teach the First Amendment, and when I started thinking about my paper for this conference, I realized the first thing I needed to do was to figure out just what the "new First Amendment" was. Reassuringly, it turned out, as best I can tell, to be the same First Amendment that was new a decade or so ago. The new First Amendment, as I will be using the term in this paper, is essentially what Chris Eisgruber refers to in his paper as the "optimal flourishing" conception of free speech. This conception is not the starting point of the model, but rather its conclusion, and it is worth spending a little time discussing how that conclusion is reached.

In terms of legal theory, the new First Amendment is perhaps best described as the product of a Legal Realist perspective, and it has essentially three related themes. The model against which it reacts starts by assuming a baseline of governmental nonintervention. It sees individual speakers as the appropriate objects of First Amendment solicitude, and it seeks to protect them from governmental attempts to interfere with their ability to speak.

The realist critique challenges each element of this model. Its starting point is the assertion that neither speech nor anything else occurs in a pre-legal state of nature. The modern world is subject to pervasive governmental regulation. This regulation sets up the conditions under which individuals speak, and those conditions are properly seen as the product of governmental action.¹

Two related themes follow. Once the background of governmental regulation is brought into focus, the line between state action and inaction becomes considerably harder to maintain as a conceptual matter. In consequence, the idea that individuals are to be protected against governmental interference loses coherence, and the apparent neutrality of the baseline of government "inaction" is called into question.²

Having undermined the libertarian conception of free speech as a matter of individuals' rights against government, the realist critique requires a replacement focus. It offers the claim that the First Amendment should be understood as protecting speech, with the protection of individual speakers only a means to that end. First Amendment concerns can exist even when the government does not seem to be regulating speakers directly, and conversely, not all government attempts to redistribute speech rights should be viewed with suspicion. The focus of analysis, in short, should be the quality of the discursive environment rather than the rights of individuals. The bête noire for the realists is thus the Supreme Court's statement in Buckley v. Valeo that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."³

This brief statement of the theory obviously does not do it justice; fortunately, the literature contains many excellent expositions.⁴ My purpose here is neither to restate nor to evaluate the realist approach, though I admit I find its intellectual power undeniable. Instead, I want to consider the future of this vision — in particular, the prospects that the "new" First Amendment has for shedding its marginalizing qualifier and winning judicial acceptance.

There are two basic means by which doctrinal transformation may occur, and they mirror the two standard approaches in new First Amendment scholarship. First, there is the frontal assault: the attempt to explicitly revise existing doctrine in light of new theoretical insights. The scholarship advocating doctrinal revision in various areas is, of course, voluminous.⁵ In the courts, the most notable current battlegrounds for this approach are copyright and campaign finance, and the results have been mixed.⁶

The second method of transformation is incremental creep, which lacks the ambition and drama of the frontal assault but may offer greater chances of success.⁷ The academic counterpart to the incremental approach, which is my focus in this paper, attempts to identify what we might call promising entry points — doctrinal areas in which the new First Amendment is already recognized by courts — and to build out laterally from there. Thus Rebecca Tushnet, for example, suggests that copyright withstands First Amendment...