The First Amendment stands as the crown jewel of the U.S. Constitution. Although it often has been ignored and violated throughout U.S. history, the First Amendment is the republic's shining commitment to individual freedom of expression and to the protection of this institutional requirements for an informed electorate and a participatory democracy. Yet what exactly the First Amendment signifies and does has been the subject of considerable debate over the years. Currently or in the near future, any number of cases are and will be working their way through the court system that would seek to prohibit any government regulation of political campaign spending, broadcasting, and commercial speech (e.g. advertising or food labeling) on the grounds that such regulation would violate citizens' and corporations' First Amendment rights to free speech or free press. Each case raises quite distinct constitutional issues concerning the First Amendment, but they share the common effect of protecting the ability of the wealthy and powerful few to act in their self-interest without fear of public examination, debate and action.
It is no surprise that the political right and the business community approve of this extension of First Amendment protection to these activities. To the extent commercial activities are given First Amendment protection, it makes the rule of capital increasingly off-limits to political debate and government regulation. And if political campaign contributions cannot be regulated, it puts the entire political process ever more firmly under the thumbs of the wealthy. What is striking, however, is that the venerable American Civil Liberties Union (ACLU) has lined up, more often than not, as an advocate of these "extensions" of the First Amendment. Wrapped in the most flowery jargon imaginable, the ACLU promotes the notion that this interpretation of the First Amendment is the truly democratic one.
I argue in this article that the ACLU and progressives who might be persuaded by the ACLU's logic are making a terrible mistake, and one that cannot be justified if one maintains a commitment to political democracy. This error is part and parcel of a broader process whereby the First Amendment has become more a mechanism for protecting class privilege than for protecting and promoting freedom and democracy. In my view, progressives need to stake out a democratic interpretation of the First Amendment and do direct battle with the Orwellian implications of the ACLU's commercialized First Amendment. And, as should be clear, this is far more than an academic battle: the manner in which the First Amendment is interpreted has a direct bearing on our politics, media, and culture. That is why the political right and business community have devoted so much attention to converting it into their own possession.
The Utopian Case for a Commercialized First Amendment
Beginning in the 1970s, the U.S. Supreme Court has rendered a number of decisions which have increasingly extended First Amendment protection to corporations and commercial activities. As for political contributions, the Supreme Court first considered whether the government could constitutionally regulate campaign contributions in 1976, in Buckley v. Valeo. It upheld that right on balance, but the Court also stated that individuals had a First Amendment right to contribute as much of their own money as they wished to their own political campaigns, a la Ross Perot. The ACLU is among those who want not only to maintain this aspect of Buckley v. Valeo, but also to grant First Amendment protection to nearly all other forms of campaign contributions. As an ACLU counsel notes, government limitations on campaign spending "would trammel the First Amendment rights of political parties and their supporters."
This claim is made despite the chilling effect that the current cash-driven electoral system has on the nature and caliber of U.S. …