First Amendment Law is distorting public debate. We need the Supreme Court to do better.
Public political debate in the United States seems to have run off the rails. The gulf between Republicans and Democrats in political opinions, views of the other party, and even factual beliefs keeps growing. Big money dominates the electoral process. Journalists and political dissenters face relentless hostility. In response, public intellectuals lament our political culture’s descent into chaos and yearn for corrective discipline.
From a broader perspective, though, our problem isn’t too much chaos. It’s too much stability.
US political debate circa 2017 is tracking the US economy circa 1974. Before that time, slow growth alternated with high inflation. We learned in the 1970s, though, that economic forces could produce at once the worst of both worlds: slow growth along with high inflation. That economic purgatory spawned a new term: stagflation.
Our political discourse works like that now. Yeats diagnosed our condition a century ago: a state of “[m]ere anarchy” where “[t]he best lack all conviction, while the worst [a]re full of passionate intensity.” Powerful institutions stunt the development of new ideas, even as cheap provocateurs spit bile at each other. Few fresh, useful policy proposals gain any traction. The Republicans obsess over negating Obamacare, while the Democrats implore “Have you seen the other guys?”
Our political stagflation has many causes, but a big chunk of the blame lies with the US Supreme Court. Why? Because the Court has the last word in how First Amendment law structures our political discourse. The First Amendment doesn’t guarantee a robust or productive public debate; it doesn’t provide any content. Even so, First Amendment law largely dictates whose ideas will reach large audiences and which constraints will stifle different speakers and arguments.
The Supreme Court’s First Amendment decisions make a system of canals for the flow of public discussion. The Court under Chief Justice John Roberts has spent the past decade letting big expressive tankers clog up those canals. The Roberts Court’s First Amendment has strengthened powerful institutions’ dominance of public debate while letting the government squelch dissenters who might challenge dominant ideas. We can trace many aspects of political stagflation right to the Court’s marble steps.
Partisan polarization? The Roberts Court has made it harder for insurgent candidates to challenge the power of party machines. This follows older decisions that helped the major parties squelch voters’ options to cross party lines in primaries, limited minor parties’ electoral strategies, and eased constraints on how the major parties can fund their candidates.
Big money in elections? You know Citizens United, but that’s just the beginning. The Roberts Court has also shredded federal limits on the money rich individuals can contribute to campaigns and blocked both federal and state efforts to make more funds available to candidates with deep-pocketed opponents.
Weakening of serious dissent? The Roberts Court has let the government, in the name of national security, ban peace activists from pushing foreign terrorist groups toward peaceful conflict resolution. This Court also nurses a singular obsession with stopping labor unions from challenging the corporate power that Citizens United promotes.
There’s more. The Roberts Court has entirely ignored the First Amendment problems of the free press, emboldening official attacks on democracy’s watchdogs; has left street protesters (except anti-abortion “counsellors”) to the mercy of aggressive law enforcement and hostile legislators; and has slapped down public employees who try to expose government wrongdoing.
Healthy democratic debate requires both a broad range of ideas and opportunities for everyone to speak. Call that combination dynamic diversity. You might think the Internet would take care of ensuring dynamic diversity. Even online communication, though, operates under the sway of big institutions: Google, the tech powers, Amazon, the social media giants, the big providers of Internet access and content. The Roberts Court hasn’t lifted a finger to promote open communication online. In contrast, the Court has aggressively protected corporate data mining and toughened copyright protections.
We’re experiencing the wrong kind of chaos, sound and fury bound by rigid order: political stagflation. We need the right kind of chaos, a freewheeling discussion of big ideas: dynamic diversity. The Supreme Court, by boosting powerful speakers and weakening dissent, has greased our slide into political stagflation. Just as surely, however, the Court has the power to broaden expressive opportunities, protect dissent, and fuel dynamic diversity. As the Court begins another Term, we can only hope it will shift its First Amendment priorities.
Featured Image Credit: “Supreme Court Building” by Free-Photos. CC0 Public Domain via Pixabay.