Document Type
Article
Publication Date
2-2023
Journal Title
Washington University Law Review
ISSN
0043-0862
Abstract
First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - dubious precedents, doctrines, assumptions, and theoretical grounds that have elevated corporate and commercial speech rights over the last century. This Article offers several ways to deconstruct these artifices, re-tether the First Amendment to natural speakers and listeners, and thus reclaim the individual, political, and social objectives of the First Amendment.
First Page
707
Last Page
764
Num Pages
58
Volume Number
100
Issue Number
3
Publisher
Washington University School of Law
Recommended Citation
Nathan Cortez & William M. Sage,
The Disembodied First Amendment,
100
Wash. U. L. Rev.
707
(2023).
Available at:
https://scholarship.law.tamu.edu/facscholar/1775