The Zombie First Amendment

Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary first amendment shelters power’s ability to make and propagate its own truth. This essay relates developments in recent first amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech — cases that lie at the first amendment’s traditional core — tell only a small part of the story. The contemporary first amendment must be situated within a larger story about the realignment of information flows within circuits of power that serve emerging global interests, and to tell that story one must look to disputes about the speech implications of private economic regulation. As a result of that struggle, free speech jurisprudence about information rights and harms is becoming what is best described as a zombie free speech jurisprudence, within which speech, money, and information processing are equivalent, and speech advancing economic interests receives the strongest protection of all. Part II discusses a group of seemingly disparate cases about the contours of the contemporary first amendment, identifying two common themes. First, the cases construct a broad equivalence between speech and money that is heavily influenced by notions of information as property. Second, the idea of information as proprietary supports actions defining flows of unauthorized speech as contraband. Part III argues that first amendment decisions don’t create distributional inequities in information power; they are symptoms of it. It explores the genealogy of the contemporary crop of free speech zombies, tracing their origins to deeper realignments in the legal regimes that more directly constitute and reinforce private economic power. First amendment jurisprudence has yet to acknowledge these realignments, and that failure of recognition is both intellectual and moral. Even so, the first amendment cannot serve as law’s primary tool for rebalancing freedom of expression in the information age