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THE FIRST AMENDMENT has long been celebrated as the guardian of our democracy, a protector of the robust public discourse essential to self-determination. Today, however, the First Amendment is being shaped into something very different: a guardian of the interests of private companies that resist democratic regulation.

Many are familiar with Supreme Court cases such as Citizens United v. Federal Election Commission (2010) that use the First Amendment as a weapon against campaign finance restrictions. Others may also have heard of the 2018 decision Janus v. AFSCME, which struck a grave blow to public sector unions. In that case, a 5–4 majority flatly reversed more than 40 years of precedent, barring certain dues (so-called “fair-share fees”) on the grounds that they conflict with union members’ speech rights. What has largely escaped public notice, though, is that the Supreme Court has also begun reshaping the First Amendment into a tool to broadly undermine the regulatory state. Today, most Americans are clamoring for more robust regulation of markets. But whatcompanies cannot win through democratic politics, they are hoping to win from increasingly conservative courts, with First Amendment speech protections as an increasingly powerful weapon in their arsenal.

In a 2017 case, for example, five merchants challenged a New York law preventing businesses from adding a surcharge on credit card purchases. They did not argue that it was bad for business, or bad for consumers, or bad public policy, or a restriction on contractual liberty. Instead, they argued it violated their speech rights by regulating how they communicated with customers about prices. The Supreme Court agreed, sending it back to the lower court for review.

Consider, as well, laws requiring companies to disclose whether they are trading in conflict diamonds, or mandating graphic warning labels on cigarettes. They, too, have been overturned for violating companies’ speech rights. As Justice Stephen Breyer wrote in a case last term, “Because much, perhaps most, human behavior takes place through speech”, the Supreme Court’s new approach to free speech law threatens a wave of new lawsuits “over the constitutional validity of much, perhaps most, government regulation.”

Particularly troubling are new First Amendment cases that chip away at the power of the U.S. Food and Drug Administration (FDA). Do drug companies have to provide scientifically reliable evidence for their claims to the agency before marketing a medicine? Do e-cigarette companies have to show that their products have health benefits before marketing them that way? For as long as we have had a regulatory state, these kinds of questions have been the domain of Congress and regulators. Today, courts are increasingly treating them as constitutional questions, answering them through a First Amendment doctrine that treats many forms of regulation as the illegitimate coercion of speech, rather than as the democratic prerogative of a public seeking to protect itself from the risks of deception and harm inherent to market society.

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Find the complete article and many more in this issue of Boston Review - Economics After Neoliberalism (Summer 2019)
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Economics After Neoliberalism offers a powerful case for a new brand of economics—one focused on power and inequality and aimed at a more inclusive society. Three prominent economists—Suresh Naidu, Dani Rodrik, and Gabriel Zucman—lead off with a vision “for economic policy that stands as a genuine alternative to market fundamentalism.” Expanding on “the state of creative ferment” they describe, Boston Review has commissioned responses to their essay from economists, philosophers, political scientists, and policymakers across the political spectrum as well as new essays that challenge the current shape of markets and suggest more democratic alternatives. Lenore Palladino explores the misguided logic of shareholder primacy and points to more equitable approaches to corporate governance—such as employee ownership funds. Amy Kapczynski examines how the courts have developed a new, anti-democratic First Amendment that protects corporate speech at the expense of regulation designed to protect public health and safety. And Robert Manduca explores the importance of public discussion about economics by revisiting Chester Bowles's remarkable book, Tomorrow Without Fear, which explained Keynesian ideas to the public after World War II.