Consider television ads that oil companies produced in the 1990s to assure us that they were environmentally “green.” The ads didn’t present propositions about the environment or political culture that might be answered in a fair public forum. They marketed an image to generate “good will” and deflect citizen pressure to regulate the companies’ most profitable pursuit. Similarly, auto manufacturers’ car ads inexorably promote oil consumption and road-building, even without mentioning them.
So what, one might ask? Why not let sovereign consumers make up their minds in “the marketplace of ideas”? The problem with the “consumer sovereignty” argument is that commercial speech on behalf of cars and oil is the real sovereign. It’s so overwhelmingly omnipresent that we don’t stop to wonder why no ads feature public mass transit as more environmentally friendly, physically safe, and civilizing. I enjoy my car and the “independence” it brings me, but I’d prefer to live in a society that balances its options better than hollow commercial speech pressures us to do.
Consider also the Calvin Klein ads depicting barely pubescent youths in come-hither poses that showed up on the sides of public buses in the mid-1990s. Such ads don’t bring us important artwork that, however outrageous, should be protected by the First Amendment. Their only public message is: “Our company can go for your erogenous and other viscera on its way to your wallet. Nothing personal, by the way.”
Nothing liberating, either, and my authority on that is D. H. Lawrence, the author of Lady Chatterley’s Lover, who called pornography “a sign of a diseased condition of the body politic.” He wasn’t ducking indictment or an inquest when he wrote in 1929 that “even I would censor genuine pornography,” because of “the insult it offers, invariably, to sex, and to the human spirit […] There is no reciprocity […] only deadening.” Lawrence exalted sexual love, but he would have detested the commercial porn that the First Amendment has been misinterpreted to protect. He distinguished “personal, superficial, temporary desires” from “impersonal great desires” that can be stimulated by visionary cultural works, even when they’re dark and unsettling. “It is the business of our Chief Thinkers to tell us of our own deeper desires, not to keep shrilling our little desires in our ears,” he wrote.
By “little desires,” he surely meant what former Senator Bill Bradley condemned as “violence without context and sex without attachment.” But who’s to judge those contexts and attachments? Classical, free-market liberals are learning only slowly that the turbo-marketed shrilling of our little desires into our ears is a cost-effective way for powerful entities to profit by seducing, exploiting, and eventually dispossessing people. Their hollow speech is destructive not because it’s intentionally malevolent but because it’s civically mindless. It’s not intentionally ideological, it’s simply idiotic in treating its listeners and viewers as impulse buyers, not as thinking citizens.
As hollow, market-driven speech continues to drown out mindful speech, malevolence becomes all but inevitable. An uninformed, deranged citizenry is easily manipulated for ill. You needn’t be a capital-loathing Marxist to see that the First Amendment, which was once “a shield for radicals, artists, and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians […] and corporations buying elections,” as University of Michigan Law professor Catharine MacKinnon puts it.
When water is polluted, fish can’t assess or alter it; they can only swim to cleaner waters or, if overtaken and trapped, they sicken and die. But since we humans generate the pollution we swim in, we needn’t accustom ourselves to it or succumb to it unless quasi-libertarian misunderstandings of the First Amendment’s intent and living potential short-circuit our assessments of what hollow speech is doing to us.
Liberal and conservative judges and civil liberties advocates assume that most such pollution should be constitutionally protected because any attempts to impose “purity” would be worse. It’s a legitimate worry, amply justified by past regulatory efforts as varied as the Inquisition, the Salem witch trials, and the United States’s so-called Comstock Laws of the early 20th century. But it doesn’t justify the Supreme Court’s ruling, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), that corporate advertising deserves protection because “the free flow of commercial information” enhances transparency in public deliberations by conveying information that consumers have a “right” to receive.
The ruling was wrong to champion what it called “the proper allocation of resources in a free-enterprise system” because, as Yale Law professor Robert Post argues,
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 equate it with a specific economic perspective.
But this is precisely what has happened. As his colleague Amanda Shanor notes, “[a] business-led social movement has mobilized to embed libertarian-leaning understandings of the First Amendment in constitutional jurisprudence.” Since “nearly all human action operates through communication or expression, the First Amendment possesses near total [i.e., libertarian] deregulatory potential.” Shanor warns that proponents of such deregulation “are forwarding a concept of liberty that has no limiting principle and, if taken to its analytical conclusion, would render self-government impossible.”
A sovereign public shouldn’t regulate speech by real, angry people speaking with conviction, however warped. But speech by hired announcers and image makers that’s delivered, often algorithmically, to bypass our brains and hearts on its way to our lower viscera and wallets generates the vacuum into which hostile speech has been sweeping for decades. American society won’t engage effectively with Donald Trump and other casualties of our civic derangement until it recognizes them as carriers of the plague of hollow speech protected by civically mindless jurisprudence and civil liberties advocacy.
Conservatives who profess deference to the First Amendment’s “original meaning” know that its authors wanted it to protect citizens’ challenges to powerful establishments. But, precisely because they know this, they camouflaged their big suit to strengthen those powerful entities by using a nonprofit “Citizens United” corporation that keeps its actual citizen-members secret. They used this Trojan Horse to advance for-profit corporations’ hollow speech, which is determined by their overriding goal of boosting their profits. Equating spending money with speaking in order to justify First Amendment protection, they use hollow speech to finance public officials’ own elections, corrupting democratic deliberation and regulation.
Only where “the people” retain some of their former power — as Paul Manafort’s jury did — and make consequential decisions by reasoning together substantively and reciprocally about the facts, can they remain free. For all the paeans to “the marketplace of ideas” and le doux commerce (“sweet commerce”) and the old saw that “free markets make free men,” today’s politicized commercial speech isn’t sweet or liberating but degrading of freedom.
How Playground Games Lose to “Platform” Gains
In 2007, under a column I’d written about the disinformation and vitriol rising against the presidential candidacy of Barack Obama, an anonymous commenter wrote:
Back in the playground days, we used to play basketball with whoever was on hand: 2-on-2, 3-on-2, 3-on-3, 7-on-6, whatever. […] We were quite competitive and loved to win, but we were playing against our neighbors and schoolmates who were not necessarily our friends but with whom we knew we needed to maintain at least non-destructive relationships for 7 or 8 more years.
Obama plays basketball that way, too, believing that, as the commenter wrote, “it requires that all parties have a fundamental allegiance to getting along, and specifically to handling losses without developing longstanding brutal grudges.” But, he continued,
If a small group had ever gotten together and made an agreement to subvert the system and behave destructively in a coordinated manner, they could have done a lot of damage before the rest of us figured out what was happening […] If trust had been destroyed, it could not have been replaced. Strong as our Constitutional system is, I don’t think it was ever intended to resist a large-scale, long-term, tightly-organized effort to subvert it from within.
A constitutional republic is more sprawling and diverse than a neighborhood playground, but both the local game and the national polity depend not only on the rules (or the laws) but also on extra-legal, widely shared commitments to sustain trust, comity, and, with them, the game’s very legitimacy, even amid harsh rivalries. This civic balance of formal, legal integrity and subjective legitimacy is essential to democracy itself. And as Timothy Garton Ash warns in his book Free Speech, “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.” The late writer Jonathan Schell’s The Unconquerable World shows vividly and historically that a regime that floods its streets with militarized police and its citizens’ lives with surveillance is only displaying its illegitimacy and, inevitably, its impotence.
Democratic legitimacy is inherently fragile and elusive. “Obama thinks he can wave a magic wand of charisma and everyone […] will fall under the spell and agree to play nice again. I don’t see it happening,” my commenter warned in 2007. It certainly hasn’t happened. Looking back on that comment, I can’t help but see Donald Trump, Steve Bannon, Paul Manafort, and Michael Cohen as “the small group” that “got together and made an agreement to subvert the system and behave destructively in a coordinated manner,” with backing from a “large-scale, long-term, tightly organized effort” to impose a compliant judiciary and weaken agencies so that they can’t regulate intelligently. Trump’s demagoguery, so shocking at first, is dissolving what were already hollowed-out political establishments within a depleted, threadbare democracy.
Elegant “Resistance” galas staged by liberal elites in Hollywood and the marbled, beaux arts Stephen A. Schwarzman Building of the New York Public Library are useless when their participants interpret the First Amendment to protect almost every imaginable speaker and kind of speech. They’re as mistaken as conservatives who think that the Amendment was intended to protect the disembodied speech of shareholder-driven ads and the “speech” platforms that depend on them.
Legal Doctrines that Left and Right Should Rethink
In a useful analysis of liberals’ and conservatives’ shifting arguments about the First Amendment, The New York Times Supreme Court correspondent Adam Liptak shows how dramatically and opportunistically both sides have changed their positions in response to fluctuations in their power. Liptak notes that in 1971, the conservative Judge Robert Bork wrote that “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic.” Bork sidestepped the question of whether corporate financing of election campaigns deserves First Amendment protection as “political” speech.
Conservatives need to rediscover their own forgotten insight that what the United States Constitution rightly protects in freedom of speech, a healthy civil society rightly modulates with grounded, republican understandings of speech. As Garton Ash warns, “A right to say it does not mean that it is right to say it.” Beyond regretting Trump’s and his backers’ excesses and hypocrisies, and beyond chasing after eruptions of hate speech itself, we need to concentrate more intently on the disease that’s generating them. To do that, both right and left need to reckon more rigorously with how the constitutional system that Trump and his band are subverting has been subverting itself since long before his candidacy seemed plausible. His decade-long reality TV show The Apprentice, rightly protected by the First Amendment, prepared an increasingly stressed public to submit to his authoritarian inclinations. But so did torrents of seductive but hollow commercial speech generated by speakers whose speech the Amendment should not be understood to protect.
If conservatives can no longer reconcile their claim to cherish “ordered liberty” with their obedience to nearly every whim and riptide of casino-like financing, predatory lending, and consumer bamboozling, progressives can no longer deny that conglomerates’ “right” to spend money to “speak” politically has all but asphyxiated others’ right to speak effectively. As Harvard Law professor Frank Michelman contends in his classic 1988 essay “Law’s Republic,” liberal and conservative judges alike should allow strict scrutiny of legal constraints on “free speech” to leave room for those constraints when speech subverts the republic’s compelling interest in protecting fair, discursive democratic give-and-take.
Some Justices on both sides failed at this in the Brown v. Entertainment Merchants Association case of 2011. The liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan sided with the conservatives John Roberts, Samuel Alito, and Antonin Scalia (who wrote the majority opinion) to overrule a California law that barred sales of egregiously violent video games to children under 18.
The bankruptcy of the ruling’s overly strict scrutiny of restraints on speech was highlighted in notable dissents. The conservative Justice Clarence Thomas argued that the decision “does not comport with the original public understanding of the First Amendment,” and the liberal Justice Stephen Breyer invoked the “living” Constitution to ask, “[W]hat sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”
Such overly strict judicial scrutiny of justifiable restraints on what I’m calling hollow speech may not have caused the cascade of massacres in public places since 1998. But for every consumer like Adam Lanza, who reenacted in Sandy Hook what he’d experienced virtually and relentlessly in video games such as Call of Duty, many more young citizens are demoralized, as Breyer suggested, by horrifying representations of social relations, sexual power, and militaristic overkill. Canada regulates such “speech” intelligently because it has a civil society strong enough to resist market calculations that reduce speech to the spending of money.
That should be a “conservative” argument, as Justice Thomas seems to have understood. While progressives should have understood Georgetown Law professor Louis Michael Seidman’s criticisms of US legal doctrine’s unnecessary deference to “an intrinsic relationship between the right to speak and the ownership of places and things.” As Seidman explains, “Speech must occur somewhere and, under modern conditions, must use some things or purposes of amplification. In any capitalist economy, most of these places and things are privately owned, and in our capitalist economy, they are distributed in dramatically inegalitarian fashion.” By reinforcing this imbalance, the Court has doomed “the effort to break the […] link between wealth and the means of speech amplification.” Given such premises, rulings in cases such as Brown v. Entertainment Merchants are “not the result of conservative distortion of free speech theory that might easily be remedied if progressives controlled the Supreme Court.” They are the result of misinterpretation on the left and the right.
Progressives are laudably committed to the First Amendment’s ban on government interference in freedom of the press. But does “the press” include “media” conglomerates and speech platforms such as Facebook and Google, which assemble and discard audiences on whatever pretext — spectacular, bigoted, nihilistic, titillating, or intimidating — with the intent of stupefying or stampeding them toward ads? Why is the First Amendment construed to protect this?
And, why, Seidman asks, should progressives, who “in every other sphere […] reject the idea that markets and willingness to pay necessarily produce just distributions of assets,” insist on “the immunity of newspapers and book publishers from government control” as “a bedrock free-speech principle”? Progressives seem to have forgotten that “that immunity favors people who are wealthy enough to acquire these assets.” They’ve settled for a “‘trickle down’ theory of civil liberties,” in which “the big victors are the rich and powerful, but the rather pathetic hope is that just enough protection will trickle down to prevent the government from entirely annihilating the left.” Owing partly to the new technologies, Seidman notes, “[t]he real control is […] exercised not by speech producers, but by speech aggregators and amplifiers, who are themselves protected by the First Amendment” because they present their “platforms” as “the press.”
Lenin is said to have quipped that a capitalist will sell you even the rope to hang him with. Too much of today’s American capital has been invested in deranging public life — Undoing the Demos, as Wendy Brown describes it in her book by that title. Against all this, a republic has to rely on most of its citizens to uphold voluntarily the public arts and disciplines that sustain non-destructive relationships like those of the neighborhood basketball court, where participants give the other player a shot instead of monopolizing the action and where they listen to one another in interpreting the rules.
Neither the liberal state’s judges and police nor global marketers can nourish or defend such civic arts and disciplines. The liberal state can’t, because its over-commitment to understanding liberty as little more than freedom from coercion keeps it from judging well between good citizens and free-riders. Markets can’t either, because they maximize efficiency and profit by approaching us as narrowly self-interested investors and consumers, not as citizens. Paul Manafort’s jury, on the other hand, exercised a more positive liberty, thanks to their freely given commitments to one another as equals in deliberation.
“Talk of freedom is empty when it neglects unequal power,” writes Garton Ash. Citizens must constitute themselves as a countervailing power that keeps governments and corporations from becoming tyrannical. Yet the American Civil Liberties Union’s national legal director David Cole insists that courts shouldn’t impose campaign spending limits on corporations because that would limit what the ACLU believes is their freedom of speech. Instead, he writes, citizens should level the playing field by demanding a robust public campaign finance system. But although the Court has never overruled such a system, it has hastened its decay by protecting big corporations’ campaign contributions as political speech.
Columbia Law professor Tim Wu calls for “an act of will on the part of the individual” to spend “blocks of time […] beyond the reach of the attention merchants.” He advises consumers who want better information and conversation to “[s]uck it up and pay. A lot of people say, ‘I hate ads, I’m sick of clickbait…’ If you say that, you have to put your money where your mouth is […] We can’t expect everything to be free and to be good.”
True enough, but the engines that are scrambling public discourse to get inside our heads are debasing our wages, benefits, and labor rights, thereby depriving citizens of the adequate incomes and the good, low-cost public education and health care that other liberal democracies subsidize. Democratic citizens need such resources to unite against powers that are otherwise irresistibly destructive of social stability and trust.
Ultimately we may need to break up conglomerates that control so much news production and public conversation. “One could imagine the Court holding that extraordinarily powerful internet sites like Facebook, Twitter, and Google, are so powerful that they are in effect governmental actors and must therefore be deemed the equivalent of public forums,” writes University of Chicago Law professor Geoffrey R. Stone. Restoring net neutrality might be a step in that direction.
It’s too easy to sigh that while technology and the economy have changed, human nature hasn’t, and that it will always be susceptible to pressures and seductions such as those I’ve sketched here. The First Amendment’s authors understood those weaknesses well: when the Constitution was being debated in 1787, Alexander Hamilton wrote that history
seems to have been reserved to the people of this country, by their conduct and example, to decide […] whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.
Judging it a gamble whose outcome wasn’t certain, Hamilton opened paths to plutocracy and even flirted with calling for an American monarchy. Many Americans have come close to doing so again, and First Amendment jurisprudence and advocacy have allowed and encouraged the representatives of disembodied investors to buy up and repurpose our great cultural narratives into “little desires” for short-term gain. Tightly organized, plutocratic “small groups,” like the one that created Citizens United, are accelerating democracy’s degradation. Justices and civil liberties advocates who keep facilitating this may soon find themselves clinging to shards of legal doctrine in oceans of “free speech” that submerge the rule of law itself.
I made some of these arguments in the July issue of The Baffler, citing Hofstra University Law School professor Daniel Greenwood and other scholars and writers also cited above. I also reprise some these arguments in a podcast interview conducted by Yale Law School student Jacob Schriner-Briggs. I'm also grateful to my former Yale College students Aseem Mehta and Jacob Wolf-Sorokin, who, along with legal scholars quoted in this essay, have challenged and helped me to clarify my arguments.
Jim Sleeper, a writer and teacher on American civic culture and politics, is a lecturer in political science at Yale and the author of The Closest of Strangers: Liberalism and the Politics of Race in New York (W.W. Norton, 1990) and Liberal Racism (Viking, 1997; Rowman & Littlefield, 2002).
Feature image by Mike Mozart.