The Once and Future Property-Based Vision of the First Amendment John 0. McGinnist INTRODUCTION: THE FIRST AMENDMENT AND CHANGING SOCIAL THOUGHT The growth of the information superhighway depends not only on technological developments, but also on our society's commitment to the free flow of information. Paradoxically, how- ever, as the digital revolution in telecommunications is bringing the information superhighway into sharp focus, the justifications for contemporary First Amendment jurisprudence are becoming blurred. For about the last fifty years, free speech has been the pre- eminent constitutional right, continually expanded by Supreme Court justices of varying jurisprudential views to protect ever more varied and vigorous expression. With few exceptions, this development has been welcomed by jurists and academics across the political spectrum. Given this consensus, the concept of free- dom of speech has also taken deep roots in our popular and polit- ical culture.' Now, however, the social paradigm that was the source of the expansion is being challenged, and with it the foun- t Professor of Law, Benjamin N. Cardozo Law School <[email protected]>. © 1996 John 0. McGinnis. My thanks to John Beckerman, David Bernstein, David Gray Carlson, Benedict Cohen, Edward deGrazia, Robert Delahunty, Richard Epstein, John Harrison, Marci Hamilton, Michael Herz, Owen Jones, Mark Lemley, Nelson Lund, John Manning, Mark Movsesian, Burt Neuborne, Bill Patry, Monroe Price, Michel Rosenfeld, Paul Shupack, Stewart Sterk, Daniel Troy and Eugene Volokh for helpful comments on various drafts. I also am grateful to colleagues at faculty workshops at Cardozo and Seton Hall. The variety of their questions and critiques provided yet more support for a theory of the First Amendment that puts the individual first. Jason Lief supplied splendid research and editing assistance. Thanks too to Daniel Goldfisher and Dara Norman for assistance with the terminology of cyberspace. I should note that as an attorney in the Reagan and Bush administrations I was involved in formulating their position on the fairness doctrine-an issue briefly discussed in this Article. ' See Steven Shiffrin, The Politics of the Mass Media and the Free Speech Principle, 69 Ind L J 689, 716 (1994) (concluding that the free speech principle is more "solidly an- chored" in our culture than ever before). In this paper, unless otherwise indicated, I use the term "First Amendment" as a shorthand for the Free Speech and Free Press Clauses. The University of Chicago Law Review [63:49 dations of the First Amendment theory that protected so much expression. Much of the impetus for the First Amendment's ascension to the apex of constitutional law lies in the New Deal's ideal of social democracy and the subsequent transformation of the feder- al government into a vigorous instrument of social reform. To gain the centralized authority necessary for large scale social reform, the federal government had to liberate itself from the features of the original design that had been intended to limit its power.2 Thus, the structural checks of federalism and separation of powers were substantially weakened.' Moreover, substantive restraints on governmental programs imposed by constitutionally protected property rights all but disappeared.4 With the dissolu- tion of these venerable checks on the power of the state, the Court had to look elsewhere for a mechanism for restraining such power, and located it in the reasoned deliberations of citizens in the democratic process.5 Under this new model, the citizens' abil- ity to engage in sustained social criticism and vote their rulers out would prevent a powerful state from becoming a tyrannical one. If the ability of citizens to criticize and ultimately replace the government was to contain the power of the state, the First Amendment naturally had to take center stage as the principal means of guaranteeing "open political dialogue and process."6 If 2 As discussed below, the original Constitution envisaged a limited government whose primary purpose was to protect individual rights, rather than to reform society through collective processes. See notes 84-86, 125 and accompanying text. ' For a discussion of the collapse of federalism, see Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va L Rev 1387 (1987). For a discussion of the collapse of separation-of-powers restraints, see Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv L Rev 1231, 1248-49 (1994). ' See, for example, West Coast Hotel Co. v Parrish,300 US 379 (1937) (rejecting the notion that existing property distributions deserve special protection). The transformation of social thought that led to the declining willingness of the courts to enforce economic liberties is detailed in G. Edward White, From Sociological Jurisprudence to Realism: Jurisprudenceand Social Change in Early Twentieth-Century America, 58 Va L Rev 999 (1972). ' See David Yassky, Eras of the First Amendment, 91 Colum L Rev 1699, 1734-37 (1991) (understanding increased First Amendment protections after the New Deal as a way of preserving majority control of the newly empowered state). The theory of the First Amendment developed in the post-New Deal era to promote democratic deliberation was not entirely novel; it had roots in the progressive era and in the theories of Zechariah Chafee, Jr. See Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism125 (California 1991) ("In [Chafee's] writings, free speech was ... a procedural prerequisite of any democratic society."). See also id at 122-26, 140-64 (de- scribing Chafee's theory of free speech). ' See John Hart Ely, Democracy and Distrust: A Theory of JudicialReview 112 (Har- 1996] Property-BasedVision of the First Amendment the government were to engineer fundamental social change, free speech had to encourage the widest possible dissemination of social ideas and political programs. Moreover, free speech was needed so that constant criticism of the results of past reform could be used to improve future schemes.7 On this view, al- though the First Amendment protected all sorts of political ex- pression, it was no longer understood as a right of the individual, like a right of property.8 It was instead understood as an essen- tial social instrument through which citizens could be assured of a continual ability to rationally and collectively plan for a better world.9 Although the perfection of collective democratic processes was the most important rationale for the expansion of free speech during this period, it was not the only one. The architects of the new consensus believed that the economic arrangements of civil society-the order created by the exercise of property rights-should be subject to perpetual revision and control through the central government.'0 They also recognized, howev- yard 1980) (stating that the "central function" of the First Amendment is to "assur[e] an open political dialogue and process"). ' See, for example, Roth v United States, 354 US 476, 484 (1957) (The First Amend- ment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes .. "). This new theory replaced a more self-consciously libertarian theory of the First Amendment, now all but forgotten, that was popular in the late nineteenth and early twentieth centuries. The previous view had protected speech rights by equating them with property rights; both were natural rights of the individual that the government had only a limited power to regulate. See Graber, Transforming Free Speech at 18 (cited in note 5) (listing a host of theorists and judges who believed that "a legislature had no more busi- ness regulating expression than it had regulating property"). See also id at 17-49 (de- scribing views of conservative libertarians who equated speech and property rights). Some of the judicial decisions from that era presage the theory of the First Amendment offered in this Article. See note 187. ' Indeed, by the 1960s this transformation had gone so far that the leading theorist of the First Amendment expressly cast the First Amendment entirely as a right of gover- nance, not as a right of the individual: The First Amendment does not protect a "freedom to speak." It protects the freedom of those activities of thought and communication by which we "govern." It is con- cerned, not with a private right, but with a public power, a governmental responsibil- ity. Alexander Meiklejohn, The FirstAmendment is an Absolute, 1961 S Ct Rev 245, 255. John Hart Ely also interpreted the Warren Court's First Amendment jurisprudence, and indeed its civil rights jurisprudence generally, as an attempt to perfect the democratic process. See Ely, Democracy and Distrust at 105-25 (cited in note 6). " For a discussion of this aspect of the New Deal consensus, see Cass R. Sunstein, The PartialConstitution 40-67 (Harvard 1993). The University of Chicago Law Review [63:49 er, the need for a personal sphere beyond the reach of centralized authority, within which individuals could work to achieve self- realization. Indeed, it was the existence of this personal sphere that they felt was one of the most important demarcations sepa- rating the modern welfare states of the West, including the United States, from the communist states of the East." Once again, the First Amendment stepped to the fore because it seemed a perfect instrument for protecting this personal sphere.' Nonpolitical speech was understood as a means to self- realization that could be distinguished from market processes. 3 Although, in a social democracy, economic enterprise was viewed as an engine of exploitation and inequality necessarily subject to strict government supervision, expressive activity was seen as merely personal and thus beyond the need for government con- trol. Hence, in the model of social democracy, the First Amend- ment as a right of self-expression thrived in symbiosis with the First Amendment as an instrument of self-governance to provide substantial safeguards for both political and nonpolitical speech.