Amy Kapczynski
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.
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Economics After Neoliberalism (Summer 2019)
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