Shiffrin tribute: philosophy

Philosophical Underpinnings of First Amendment Principles

Moderator: Lawrence Solum, University of Illinois College of Law

Seana Shiffrin, UCLA School of Law: Shiffrin’s prior defense of the right to voluntary association includes rationales for allowing associations to exclude people for any or no reason. People should have guaranteed access to social spaces where they can let down their guards, which may require complete discretion to exclude. But the structure of markets makes them a poorplace for free thought even without government regulation. Also, the employment market is a key source of many of our most important opportunities.

Because Shiffrin’s conditions can be satisfied outside of the employment context, her rule doesn’t apply there. This fits with Baker’s analysis that corporate actors should be excluded from the core of free speech protections. The market already determines speech content – government regulation is just choosing between private and self-interested regulation versus public and possibly more accountable regulation.

Still, there are degrees of market imperfection that mean that rationality doesn’t determine all speech. Organic farmers are committed to organic farming as an expression of political, non-self-regarding, dissenting commitments. Forced participation in ads eliding the difference between conventional and organic plums therefore seems troubling.

Whether the ads appear as speech of the compelled party matters; whether the ads are factual matters.

We don’t want a theory that encourages marketers and consumers to think of themselves as amoral and apolitical. We should recognize attempts to moralize the market from within. Some on the left are trying to do this, as are various religious groups. Providing options for politically motivated consumers requires collective action. Organic farmers are not best understood as amoral profit maximizers. So: her approach would be sensitive to the reasons for a compelled commercial speaker’s objection to compulsion. Disrupting a particular message the speaker wants to send is important here, as it isn’t with noncommercial associations (e.g., Hurley).

C. Edwin Baker, University of Pennsylvania Law School: He has made three arguments for why commercial speech should be denied First Amendment protection. For him, free speech is libertarian. Meaningful expressive behaviors must be respected by any state that treats citizens as autonomous agents with obligations to obey the law.

(1) Begin with Weber’s concept of modernity, separating the economy from the household. The market dictates to all that they must act efficiently or fail. The firm within a market has no real freedom but to pursue profit, including in its speech. Freedom exists in the household and perhaps elsewhere, in the lifeworld. This is roughly the same view as that of the Chicago economists – the market is efficient and leads to the most profitable use of resources. It is also the same view as Marx had. Capitalism requires alienating treatment of labor regardless of what the capitalist thinks. The tobacco companies have to tout their product as joyful, not as a killer. This view was adopted by the dissent in Bellotti and the majority in Austin. Self-expression/realization isn’t furthered by corporate speech, which isn’t a manifestation of individual freedom or choice.

(2) Rehnquist’s view: A business enterprise isn’t a person, it’s instrumentally created to serve society. Society should be able to limit it to serve social interests. Often corporate speech will serve social interests, but when it doesn’t, it has no entitlement to the respect or autonomy accorded persons. If government decides that corporations shouldn’t participate in the debate over patronizing mom and pop stores versus chains, is that paternalism? Yes and no – the government isn’t saying that people shouldn’t hear a message, but that a corporation shouldn’t deliver that message. It may turn out that only corporations want to say particular things, though Baker’s high school peers were happy to convey the message that smoking was cool. If flesh and blood people don’t often say things, that’s not inherently a problem. Not many people want to deny the Holocaust either. Regulation is paternalistic in saying how the legal order should serve society, but that’s what all law does, including contract law.

(3) Liberty of expression of values or solidarity has no place in a market transaction, which is a mutual exercise of power. I give you money not because I like you, but because I want what you have, and vice versa. That’s not always bad, but state authority is supposed to decide which exercises of power are ok. Lochner was wrongly decided. Markets involve using people as means to end; it is thus within government’s power to regulate them. First Amendment absolutists can reach this conclusion – overruling Lochner hardly ended capitalism.

Charles Fried, Harvard Law School: He couldn’t disagree with Baker more. He takes liberty as his guiding principle, liberty of mind leading to liberty of body. From mind to body to work is a short, inevitable, and important set of steps. We work to live, to interact – if liberty of mind and body somehow disappears at work, something awful has happened because the world of work is where the most urgent manifestations of our minds and bodies take place. (In my experience, we usually call that the boss, not the government.) Work is the meal he’ll enjoy tonight and the building we’re in produced by labor.

Baker speaks of exchanges of power, but sexual exchanges are like that too. Are we all dominated by power in our professional lives? Compelled to make the most money? Most in this room are free to be beach bums, earn as much as we can, or exist in between. (Yes, we’re quite the representative bunch.) Thus, Fried doesn’t see the market as a radical discontinuity from life. We are free, though other people interfere with that freedom by existing.

Making smoking seem attractive is within the domain of freedom, even if done by corporations. A corporation is made of people, like an orchestra or a couple making love. He would not reify it as anything else. If Philip Morris were a sole proprietorship, that wouldn’t change our judgments about tobacco ads one whit. (And, as they say, if my grandmother had wheels she’d be a wagon. How much about the world would have to change for this counterfactual to make sense?)