Abstract
The current term of the United States Supreme Court, which began this past October, is notable for its concentration of cases testing the permissible scope of federal regulation of business. But if this term’s docket reflects the pressure faced by the American economic model – a model marked by lax regulation, faith in private choices and market outcomes, and toleration of large inequalities in results – then this term will likely also mark a reaffirmation of that model in the context of free expression. In September the Court held a rare off-schedule oral argument in Citizens United v. Federal Election Commission , a case that may result in significant changes in the constitutional status of American campaign finance law. Citizens United presents the Court’s emerging conservative majority with an opportunity to deregulate corporations’ campaign speech by finding restrictions on that speech to violate the First Amendment. Depending on the breadth of the Court’s holding, Citizens United may well result in the triumph of the American economic model in the context of the political marketplace exactly when that model is coming under severe strain on other fronts.
Highlights
Several characteristics of the American economic model influence American free speech law
While the Chief Justice stopped short of embracing the idea that corporations enjoy self-fulfillment from speaking, this slight movement toward anthropomorphising them would allow the Court to paint them as another participant in democratic debate, possessing all the motives other speakers possess, rather than as entities whose political speech is motivated by a single instrumental concern for profit maximisation
One can discern a clear link between that skepticism and a more generalised rejection of government regulation of the market aimed at protecting shareholders and other participants
Summary
Several characteristics of the American economic model influence American free speech law. At oral argument in Citizens United Chief Justice Roberts, among others, questioned the argument that corporations were single-mindedly devoted to profit-making He suggested instead that such entities, motivated by their shareholders, might have opinions about a diverse array of topics and a desire to express views on them. The fact that, as of this writing, the Court is on the edge of deregulating corporate political speech illustrates the extent of this turnabout and the Court’s skepticism about market distortion. Following from this faith in unlimited expression is deep skepticism about government attempts to regulate speech in the name of equality. One can discern a clear link between that skepticism and a more generalised rejection of government regulation of the market aimed at protecting shareholders and other participants
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