Returning to the true Spirit of the First Amendment
My article about the Spirit Airlines case is in the new issue of Regulation, published today. Spirit Airlines is the case in which the Department of Transportation is forbidding airlines from publishing the amount of taxes per ticket in a “more prominent” way than the total price—thus blocking the airlines from drawing the public’s attention to the excessive amount of taxes. As we point out in our brief, such a restriction would forbid one of the archetypical examples of political expression in American history—this famous protest against the Stamp Act:
But another aspect of this case is whether the government can force a business to disclose information the government considers relevant, in the way the government thinks proper. The Department’s argument in this case is that the advertising rule is the sort of “disclosure” requirement that Supreme Court precedent has said receives only the most minute degree of judicial scrutiny. That, we argue, is also wrong. And the real source of the conflict over the free speech rights of businesses—whether to protest taxes or to remain silent on other subjects—comes down to the change in constitutional law wrought by the Progressive age:
The authors of the Constitution viewed freedom of expression as one of the natural rights with which all individuals are endowed and which government exists to preserve. But…early 20th century intellectuals came to see rights as “privileges” that are “created not for the good of individuals, but for the good of society.” They accordingly refocused the First Amendment’s protections away from individuals and toward the collective…. Fortunately, on a practical level this “marketplace of ideas” model of free speech usually differs little from the individual rights model that the Founding Fathers intended. But one crucial difference is in the right to refuse to speak. If protections for free speech exist solely to ensure a robust social exchange of ideas, then there is little reason to safeguard a person’s choice not to take part in that debate. But if, as the Framers believed, the First Amendment is part of an overall protection of individual autonomy, then the right not to speak—or to subsidize speaking by others—deserves at least equal solicitude. And if the Constitution safeguards speech only insofar as political leaders deem that speech socially useful, then there is little to prevent those leaders from subdividing speech into different categories based on their perceived usefulness, and to protect some expression while abandoning other types to government censorship.
The Court is scheduled to announce on April 1 whether it will take the Spirit Airlines case.
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