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Toward a Democratic Political Economy for the First Amendment


Nelson Tebbe (@nelsontebbe) is Jane M.G. Foster Professor of Law at Cornell Law School.

An important literature argues that First Amendment freedoms are being deployed in a manner that exacerbates inequality of wealth, income, and other primary goods. Contributors to this literature include LPE thought leaders such as Amy Kapczynski, Jed Britton-Purdy, and Sabeel Rahman, as well as many others. While there is diversity of views among contributors, there is also a common sense that freedoms of speech and religion are constitutionalizing a libertarian or neoliberal political economy that works to worsen distributive injustice by unwinding redistributive government programs. This is a critical insight.

In a new Article, A Democratic Political Economy for the First Amendment, I build on that literature by asking: Is it possible to imagine a constructive relationship between the First Amendment and distributive justice in a democratic society? I answer by building up a more inclusive conception of freedom of speech and freedom of religion, one that responds in specific ways to material disparity and deprivation.

In making that argument, I accept, for now, the priority of “basic” social and political rights over “ordinary” economic policy. For purposes of this project, I also assume the traditional negative conception of rights, while acknowledging the power and relevance of the alternative constitutional tradition of positive socio-economic guarantees. And finally, I do not try to reinvigorate the idea of economic rights to liberty and property. Given these constraints, is it still possible to articulate a conception of the First Amendment that incorporates concern for the fair distribution of primary goods?

Yes. The key to understanding the connection between rights and material conditions is a conception of democracy. In fact, I assume that an account of democracy is necessary to give content to the meaning of rights. In the project, I describe one such conception and its entailments—in brief, people who are suffering from certain basic forms of deprivation and disadvantage will find it impossible to exercise fundamental rights and they will be unable to participate meaningfully in the project of cooperative government. Liberties may become impossible to realize without sufficient primary goods, while membership status within the political community may be degraded by structural inequality of economic wherewithal. Such problems can be avoided, at least partially, if freedom of speech and religion are construed in ways that are sensitive to the material conditions for their meaningful exercise. Otherwise, the conditions for the cooperative project of self-government will be absent.

I identify three specific ways in which distributive justice is relevant to rights interpretation, though there doubtless are more. First, democracy is characterized not just by rights but also by duties—it features a social division of responsibility, where government has an obligation to provide a just social framework, but then individuals must do their part to support that framework and must exercise any choices within it. So for example, people have a duty to pay taxes even where that makes it more difficult to engage in religious practices. Virtually no one thinks that adherents of religions that require expensive pilgrimages or heavy tithing therefore have a reason to not pay taxes (that are otherwise just).

The Court’s decision in Hobby Lobby can be critiqued from this perspective, as both Kent Greenawalt and Alan Patten have done. What the government did in the Affordable Care Act was to reconfigure the framework of benefits and burdens surrounding health care in the United States. In particular, it required all employers that provided health insurance for employees to include preventative care, including contraception coverage for women. Let’s assume that the government had good and even compelling reasons to do that, as the Court itself assumed in Hobby Lobby. What the company was asking for was to be freed from the responsibility to do its fair share to support that program, but religious freedom does not normally the ability to exempt oneself from the social division of responsibility.

Or consider Janus. That case concerned a requirement that workers in a unionized workplace who declined to be members of the union nevertheless would be require to contribute an “agency fee” that was equivalent to a certain percentage of union dues. Without such a requirement, the government reasoned, workers would be incentivized to quit the union since they would still receive the benefits of collective bargaining without having to pay union dues. Regardless, the Supreme Court invalidated the agency fee on the ground that it coerced worker support of union speech, namely collective bargaining and associated expression.

If the agency fee is part of the social division of responsibility, however, then that decision was wrongheaded. “Citizens commonly are taxed to support ideologies to which they are opposed,” as Steve Shiffrin has put it. More generally, basic liberties do not entitle their holders to shirk their obligations to the very society that creates the fair framework that makes those liberties possible.

A second way in which distributional concerns inform rights interpretation is this: below a social minimum, people will enjoy freedoms in principle that are worthless in practice. No one should be so destitute that they are unable to exercise basic liberties, or are relegated to a subordinate caste. Democracy cannot function under conditions in which some people in the polity are rendered incapable or inferior. Government’s obligation to provide the conditions for meaningful exercise of individual rights and for meaningful participation in cooperative governance properly informs the interpretation of guarantees that otherwise could prevent it from maintaining those conditions.

Interest in the social minimum can affect constitutional interpretation in a wide variety of contexts. Labor law is one mechanism for ensuring that workers can support themselves by earning a reasonable wage. When courts or regulators undermine its provisions in the name of the First Amendment, they can discount or ignore the imperative of ensuring the material conditions for meaningful participation in the democratic project. Examples of this are sadly common. To take just one, think of National Association of Manufacturers v. National Labor Relations Board, where the D.C. Circuit invalidated the notice posting rule, which had required employers to notify workers of certain statutory rights, reasoning that being required to post the information was compelled speech. This frame of analysis fails to consider that the posting rule is part of a government framework designed to ensure that employees had the bargaining power to extract a living wage from employers—a wage necessary to support the exercise of their individual rights as well as their participation in the political process. It does not just organize the production process; it also protects interests that even a negative liberty conception of free speech properly cognizes.

Third, rights that are competitive in nature—such as those that ensure right to influence the political process—must have fair value, not weighted by economic or social power. Political rights are the classic example, insofar as they enable political contests. If some voices have greater impact than others because of disparate resources, or because of cultural domination, then the democratic process ceases to work well for any but a dominant few. And that means people cannot effectively safeguard their other interests against government incursion. Rights cannot be merely formal, in other words, but must be meaningful in practice.  Ideally, all people have an equal chance to inform themselves about the workings of government, they are able to deliberate and discuss what they learn with others, and they have realistic opportunities to formulate and convey their views. Notice that while the imperative of a social minimum is sufficientarian, this modality of interpretation in light of distribution is egalitarian, insofar as it means that everyone’s political rights must have fair value.

Citizens United is, of course, the central example. There, the Court invalidates a campaign finance rule that regulated corporate speech by looking only to the categories that the statute deployed to find government unfairness in the form of content discrimination. But to view the speech right in that way is to disregard the broader political economy, in which legislation that uses content categories may promote rather than impede the fair value of political liberties—i.e., the realistic ability of all people to participate in the political process that, in turn, is responsible for regulating the economic inequalities that produce political unfairness in the first place. An alternative approach would recognize the ability of Congress to counteract the tendency of wealth and other forms of economic capital to translate into political capital in American electoral practice. In other words, there are expressive interests on both sides in campaign finance cases like Citizens United. Both the scope and the strength of the First Amendment must be understood in terms of a robust conception of democracy that recognizes the actually existing connection between corporate power and political influence.

My examples so far have drawn on judicial decisions, but many additional examples could be drawn from legislation and regulation. In the Article, I emphasize constitutional interpretation that has influenced economic policymaking in domains such as the FCC’s abolition of net neutrality, statutory immunity given to digital platforms by Section 230 of the Communications Decency Act, regulatory exemptions from the contraception mandate, and HHS waivers from nondiscrimination requirements for child placement agencies.

Wherever First Amendment rights are enforced, the danger exists that neoliberalism and libertarianism will be constitutionalized. Indeed, this is more than a danger nowadays. However, the opportunity for the opposite is also present—an interpretive approach that construes basic guarantees in ways that are sensitive to their practical material conditions. A democratic urgency can show how rights interpretation can and must be sensitive in certain ways to the extreme inequalities of the Second Gilded Age.