The Zombie First Amendment

William & Mary Law Review William & Mary Law Review

Volume

56 (2014-2015)

Issue 4

The Contemporary First Amendment:

Freedom of Speech, Press,and Assembly

Symposium

Article 4

3-15-2015

The Zombie First Amendment The Zombie First Amendment

Julie E. Cohen

Follow this and additional works at: https://scholarship.law.wm.edu/wmlr

Part of the Constitutional Law Commons, and the First Amendment Commons

Repository Citation Repository Citation

Julie E. Cohen,

The Zombie First Amendment

, 56 Wm. & Mary L. Rev. 1119 (2015),

https://scholarship.law.wm.edu/wmlr/vol56/iss4/4

Repository.

https://scholarship.law.wm.edu/wmlr

THE ZOMBIE FIRST AMENDMENT

JULIE E. COHEN

TABLE OF CONTENTS

INTRODUCTION ...................................... 1120

ATTACK OF THE FREE SPEECH ZOMBIES ................ 1121

A. Speech Interests Follow Ownership of the Means of

Communication ................................ 1122

B. Speech Is Property .............................. 1126

C. Proprietary Information Processing Is Speech ........ 1128

D. Proprietary Information Can Be Contraband ........ 1132

II.

SUBCONSTITUTIONAL SETTLEMENTS: POWER AND PRIVILEGE

IN THE

INFORMATION ECONOMY ..................... 1139

A. Corporate Citizens in the Marketplace .............. 1140

B. Industrial Copyright ............................ 1145

C. The Biopolitical Public Domain ................... 1148

D. Circuit Breakers in the Net ....................... 1152

ONCLUSION ....................................... 1157

David Cole, Deven Desai, Mike Madison, Allegra McLeod, Neil Richards, Pierre Schlag, Mike

Seidman, Jessica Silbey, Rebecca Tushnet, Tim Zick, and participants in the Georgetown Law

Faculty Workshop for comments on an earlier version and to Aislinn Affinito, Alex Moser, and

Sean Quinn for research assistance.

1119

1120 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

NTRODUCTION

Scholarly and popular critiques of contemporary free speech juris-

prudence have noted an attitude of unquestioning deference to the

political power of money. Rather than sheltering the ability to speak

truth to power, they have lamented, the contemporary First

Amendment shelters power’s ability to make and propagate its own

truth. This Article relates developments in recent First Amendment

jurisprudence to a larger struggle now underway to shape the

distribution of information power in the era of informational capital-

ism. In particular, it argues that cases about political speech—cases

that lie at the First Amendment’s traditional core—tell only a small

part of the story. The contemporary First Amendment must be

situated within a larger story about the realignment of information

flows within circuits of power that serve emerging global interests,

and to tell that story, one must look to disputes about the speech

implications of private economic regulation. As a result of that

struggle, free speech jurisprudence about information rights and

harms is becoming what is best described as a zombie free speech

jurisprudence: a body of doctrine robbed of its animating spirit of

expressive equality and enslaved in the service of economic power.

Within the emerging zombie free speech jurisprudence, speech,

money, and information processing are equivalent, and speech

advancing economic interests receives the strongest protection of all.

Part I discusses a group of seemingly disparate cases about the

contours of the contemporary First Amendment, identifying two

common themes. First, the cases construct a broad equivalence

between speech and money that is heavily influenced by notions of

information as property or otherwise proprietary. Second, the idea

of information as property or otherwise proprietary supports actions

defining flows of unauthorized speech as contraband. Part II argues

that First Amendment decisions do not create distributional inequit-

ies in information power; they are symptoms of it. It explores the

genealogy of the contemporary crop of free speech zombies, tracing

1. See generally KYLE WILLIAM BISHOP, AMERICAN ZOMBIE GOTHIC: THE RISE AND FALL

(AND RISE) OF THE WALKING DEAD IN POPULAR CULTURE 47-59 (2010); COLIN DAYAN, THE LAW

IS A WHITE DOG: HOW LEGAL RITUALS MAKE AND UNMAKE PERSONS 21-22 (2011).

2015] THE ZOMBIE FIRST AMENDMENT 1121

their origins to deeper realignments in the legal regimes that more

directly constitute and reinforce private economic power. First

Amendment jurisprudence has yet to acknowledge these realign-

ments, and that failure of recognition is both intellectual and moral.

Even so, the First Amendment cannot serve as law’s primary tool

for rebalancing freedom of expression in the information age.

ATTACK OF THE FREE SPEECH ZOMBIES

For the last decade or so, scholars of information and technology

law have been puzzling over an unusual set of First Amendment

decisions. Those decisions include Eldred v. Ashcroft and Golan v.

Holder, both of which rejected challenges to legislative expansions

of copyright protection, and Sorrell v. IMS Health Inc., which struck

down a Vermont law restricting use of information about physicians’

prescribing behavior for marketing purposes.

Critics of Eldred and

Golan have characterized those decisions as examples of a perni-

cious “copyright exceptionalism” within free speech jurisprudence

that operates to insulate copyright legislation almost entirely from

constitutional challenge.

Meanwhile, information privacy scholars

identify a different kind of exceptionalism at work in Sorrell’s analy-

sis of the threshold conditions for strict scrutiny, and worry that

Sorrell signals trouble ahead both for efforts to strengthen privacy

protection and more generally for the regulatory state’s ability to

address information harms.

2. Golan v. Holder, 132 S. Ct. 873 (2012); Sorrell v. IMS Health Inc., 131 S. Ct. 2653

(2011); Eldred v. Ashcroft, 537 U.S. 186 (2003).

3. Christina Bohannon, Copyright Infringement and Harmless Speech, 61 H

ASTINGS L.J.

1083, 1115 (2010); see Joseph P. Bauer, Copyright and the First Amendment: Comrades,

Combatants, or Uneasy Allies?, 67 W

ASH. & LEE L. REV. 831 (2010); see also Alan E. Garfield,

The Case for First Amendment Limits on Copyright Law, 35 H

OFSTRA L. REV. 1169, 1177

(2007) (reacting similarly to Eldred from a First Amendment scholar’s perspective). But see

Neil Weinstock Netanel, First Amendment Constraints on Copyright After Golan v. Holder,

60 UCLA

L. REV. 1082, 1086-87 (2013) (arguing that the two cases “bring the First

Amendment to bear on copyright law much as courts have done in applying definitional balan-

cing to the laws of defamation, intentional infliction of emotional distress, privacy, trademark,

and other statutory and common law causes of action”).

4. See N

EIL M. RICHARDS, INTELLECTUAL PRIVACY (2015); Neil M. Richards, Why Data

Privacy Law Is (Mostly) Constitutional, 56 W

M. & MARY L. REV. 1501 (2015); see also Ashutosh

Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 V

T. L. REV.

855, 868 (2012) (reacting similarly to Sorrell from a First Amendment scholar’s perspective).

1122 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

I think that the diagnosis of the likely consequences of Eldred,

Golan, and Sorrell is right but that the charge of exceptionalism is

probably wrong. Copyright’s free speech jurisprudence and the

emerging free speech jurisprudence of targeted marketing are part

of a broader realignment in free speech jurisprudence, in which the

First Amendment’s traditional concern with political self-determina-

tion plays very little role. Instead, the decisions are infused with the

neoliberal tropes of economic liberty and consumerist participation,

and the label “speech” has become a fig leaf strategically deployed

to denote and legitimize proprietary claims over the patterns of

information flow. That process is producing a zombie free speech

jurisprudence, in which the identification of protected speech

interests conforms mindlessly to patterns of underlying entitlement,

and through which the object of protection is altered almost beyond

recognition.

A. Speech Interests Follow Ownership of the Means of

Communication

It is useful to begin in traditional First Amendment territory, by

briefly considering the Court’s cases on political speech and media

ownership as harbingers of realignment in free speech jurispru-

dence. The most prominent of the recent cases is Citizens United v.

FEC, in which a majority of the Court struck down a provision of the

Bipartisan Campaign Reform Act of 2002 that prohibited corpora-

tions and unions from using their general treasury funds for inde-

pendent expenditures supporting or opposing political candidates for

federal government office.

The Citizens United decision has been

analyzed at length by others far more expert in the intricacies of

First Amendment doctrine. For my purposes, two aspects of the

decision are worth remarking: the majority’s invocation of media

companies as stand-ins for the rights of corporations generally, and

its refusal to countenance the possibility of a constitutionally sup-

portable distinction between electioneering statements and other

types of expression.

5. 558 U.S. 310 (2010) (invalidating 2 U.S.C. § 441(b) (2002)).

2015] THE ZOMBIE FIRST AMENDMENT 1123

The aspect of the Citizens United decision that has sparked the

most popular controversy is the majority’s characterization of

corporations and other fictional persons as speakers entitled to

constitutional protection. For many scholarly commentators, how-

ever, that result was clearly presaged by earlier cases.

In particu-

lar, the Court’s decisions about media ownership and access reveal

a consistent tradition of treating owners of capital as the bearers of

First Amendment interests.

Even so, the discussion of the rights of corporate speakers is

noteworthy for its focus on the rights of media companies, which

were exempted from the independent expenditure ban. For the

majority that exemption, intended to save the independent expendi-

ture restrictions from the risk of unconstitutionality, proved too

much: media companies are in the business of using their money to

fund speech, but other companies also had a constitutional right to

do so.

At the same time, however, the majority opinion observed

that media companies are the paradigmatic corporate bearers of free

speech rights:

There is simply no support for the view that the First Amend-

ment, as originally understood, would permit the suppression of

political speech by media corporations. The Framers may not

have anticipated modern business and media corporations. Yet

television networks and major newspapers owned by media

corporations have become the most important means of mass

communications in modern times.

That way of thinking about the special status of media companies,

though, conflates two different First Amendment freedoms. If media

companies have a special place in the constitutional firmament, it

6. See, e.g., Heather K. Gerken, An Initial Take on Citizens United, BALKINIZATION (Jan.

21, 2010, 12:08 PM), http://balkin.blogspot.com/2010/01/initial-take-on-citizens-united.html

[http://perma.cc/87HT-SSU9]; Nate Persily, Citizens United: A Preview to a Post-Mortem,

ALKINIZATION (Jan. 21, 2010, 8:04 AM), http://balkin.blogspot.com/2010/01/citizens-united-

preview-to-post-mortem_21.html [http://perma.cc/5F9K-VGPA].

7. See Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 747 (1996)

(plurality opinion); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994); Miami Herald

Publ’g Co. v. Tornillo, 418 U.S. 241 (1974); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 387

(1969).

8. See Citizens United, 558 U.S. at 352-53.

9. Id. at 353 (citation omitted).

1124 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

is because as a group they operate platforms for expression that

enable a diverse variety of speakers to fulfill the First Amendment’s

promise of a robust marketplace of ideas. By performing what Neil

Netanel in a related context has called a structural function, they

operationalize the guarantee of freedom of the press.

The Court’s

misperception of this point has deep roots. In the line of cases

upholding the FCC’s imposition of rules intended to create room

within the mid-twentieth-century broadcasting ecology for opposing

viewpoints, the FCC argued that control of the means of communi-

cation would enable owners of mass media organs to determine

what sorts of speech to allow.

According to the FCC, in other

words, the problem was precisely that control of the means of

communication and capacity for constitutionally protected speech

are distinct, necessitating various corrective measures to minimize

the influence of the former on the latter.

The Court, however,

treated the media companies as speakers in their own right, subject

to limitations justified for reasons of scarcity, not for reasons of

control.

In doing so, it lumped speech and press freedoms together,

with potentially deleterious consequences for the exercise of both.

That result is old news now; what is interesting is the way that

Citizens United reaffirms it. The invocation of media companies as

the paradigmatic example of corporate freedom of speech signals

that the ultimate touchstone of expressive freedom is ownership of

the means of communication. One who owns resources has the

means to speak; one who owns the means of communication may

speak most fully and completely.

10. See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J.

283, 347-63 (1996). See generally Eugene Volokh, Freedom for the Press as an Industry, or for

the Press as a Technology? From the Framing to Today, 160 U.

PA. L. REV. 459 (2012). By this

I intend no comment on the debate about whether the press as an institution actually should

receive special First Amendment consideration. See, e.g., C. Edwin Baker, The Independent

Significance of the Press Clause Under Existing Law, 35 H

OFSTRA L. REV. 955 (2007); Sonja

R. West, The Stealth Press Clause, 48 G

A. L. REV. 729 (2014). At minimum, it seems important

to ask whether, in this age of hyperpartisanship, media companies as a group actually do

function to operationalize press freedoms or whether they function solely and more simply as

speakers in their own right.

11. See FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 799 (1978); Red Lion, 395

U.S. at 375-77; see also In re Editorializing by Broad. Licensees, 13 F.C.C. 1246 (1949).

12. See In re Editorializing by Broad. Licensees, 13 F.C.C. at 1251-55.

13. See Nat’l Citizens Comm. for Broad., 436 U.S. at 795-800; Red Lion, 395 U.S. at 375-

77.

2015] THE ZOMBIE FIRST AMENDMENT 1125

The Court had the opportunity to avoid ruling on the constitution-

ality of the independent expenditure ban on the ground that the

speech at issue, a full length documentary film available only via

video on demand, was meaningfully different than the sort of speech

with which the federal election laws are concerned.

It declined to

do so, reasoning that it would be too dangerous to involve the courts

in determining what is favored speech.

As others have noted, that

conclusion in turn rests on the more general and highly dubious

proposition that spending and speaking are so closely entwined that

regulation of one is equivalent to regulation of the other, whatever

the context.

Facially, the Citizens United majority’s adoption of

both positions exemplifies the traditional preference for avoiding

slippery slopes in free speech cases. But both the lumping of infor-

mation flows and the underlying lumping of spending with speaking

are symptoms of a deeper methodological problem in First Amend-

ment jurisprudence that demands more careful consideration. In the

information era, refusal to distinguish among kinds of information

flow and among the roles that different entities play in facilitating

it spells trouble. Digital conduct—whether by individuals or by for-

profit corporations—can cause extraordinary harm and entrench

extraordinary privilege. Such conduct is informational in character,

originating as bits and moving via information networks. If every

regulation of information flows must survive First Amendment

scrutiny, meaningful governance becomes increasingly difficult—

and, paradoxically, so does meaningful protection of expressive

liberty.

At a moment in history when information power has become

paramount, Citizens United conflated speech rights with ownership

of the means of communication and demonstrated an ordinary but

pernicious analytical reductionism about speech and speaking. As

we will see in the balance of this Section, refusal to examine the

14. See also Michael W. McConnell, Reconsidering Citizens United as a Press Clause Case,

123 Y

ALE L.J. 412 (2013) (arguing that in producing and disseminating the film, Citizens

United was exercising its constitutionally protected right to freedom of the press and that the

Court should have decided the case on that ground).

15. Citizens United v. FEC, 558 U.S. 310, 322-27 (2010).

16. See Deborah Hellman, Money Talks but It Isn’t Speech, 95 M

INN. L. REV. 953 (2011);

McConnell, supra note 14, at 447-49.

17. See generally Louis Michael Seidman, The Dale Problem: Property and Speech Under

the Regulatory State, 75 U.

CHI. L. REV. 1541 (2008).

1126 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

connections between information and power has allowed different

kinds of distinctions to creep into the case law largely unacknowl-

edged. For propertarian and statist reasons, it has suited the Court

to accept that money, information processing, and speech are all

simply interchangeable pieces in the same game.

B. Speech Is Property

If expressive freedom accrues as a function of ownership of the

means of communication, is the converse also true? Is speech

property, and if so, what consequences flow from that characteriza-

tion? Legal disputes about intellectual property supply answers to

those questions. Such disputes increasingly involve First Amend-

ment issues, and both First Amendment challenges to copyright

legislation and First Amendment defenses to copyright and para-

Golan v. Holder explain why, holding that laws retrospectively

extending copyright terms and resurrecting lapsed foreign copy-

rights from the public domain required no special free speech

scrutiny because there is no right to make other people’s speeches.

In other words, claims about the speech-restrictive effects of

speech is someone else’s property. That result is sensible, the Court

explained, because copyright itself performs a First Amendment

function, incentivizing participation in the marketplace of ideas.

Property rights are not absolute, of course, and neither are

copyrights. In particular, as the Eldred and Golan majority opinions

explained, the idea-expression distinction excludes certain subject

matters from the scope of copyright protection and the fair use

doctrine creates a privilege to use copyright-protected material in

certain circumstances.

The Court refused, however, to look beyond

18. Golan v. Holder, 132 S. Ct. 873, 890 (2012); Eldred v. Ashcroft, 537 U.S. 186, 221

(2003).

19. Golan, 132 S. Ct. at 890 (citing Eldred, 537 U.S. at 219; Harper & Row, Publishers,

Inc. v. Nation Enters., 471 U.S. 539, 546, 558 (1985)); Eldred, 537 U.S. at 219 (citing Harper

& Row, 471 U.S. at 558).

20. 17 U.S.C. §§ 102, 107 (2012); see Golan, 132 S. Ct. at 889-90; Eldred, 537 U.S. at 219-

20.

2015] THE ZOMBIE FIRST AMENDMENT 1127

effects of legislation expanding the proprietary footprint of the

that Congress has nearly unlimited leeway to legislate on copyrights

and copyright-related matters as long as it leaves copyright’s

“traditional contours” undisturbed.

And because copyright itself

performs a First Amendment function, courts considering infringe-

ment claims brought by private litigants rarely will be justified in

invoking the First Amendment to shelter conduct that fair use does

not reach.

To the contrary, because the bearer of free speech rights

has the right not to speak, rightholders are doubly justified in

blocking undesired uses of their works.

There are two problems here. First, as many have remarked, aud-

iences have speech interests too. From the perspective of copyright

policy, the fiction of a public domain of unprotected, precopyright

building blocks ignores the way people interact with culture, and

the fair use doctrine does not cure this problem because it does not

effectively counterbalance the broad control of derivative works that

From the perspective of speech

policy, copying can serve valuable expressive purposes.

Speech

interests also can be affected adversely by large structural changes,

such as the creation of paracopyright entitlements that impede user

access to creative works or changes to copyright duration designed

to slow passage into the public domain of important pieces of our

common cultural heritage.

21. Golan, 132 S. Ct. at 889-90; Eldred, 537 U.S. at 221. For an approving view of this

conclusion, see Tun-Jen Chiang, Rehabilitating the Property Theory of Copyright’s First

Amendment Exemption, 89 N

OTRE DAME L. REV. 521 (2013).

22. Harper & Row, 471 U.S. at 560; Cable/Home Commc’n Corp. v. Network Prods., Inc.,

902 F.2d 829, 849 (11th Cir. 1990); New Era Publ’ns Int’l, ApS v. Henry Holt & Co., Inc., 873

F.2d 576, 584 (2d Cir. 1989); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758 (9th Cir.

1978). But see Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1264-65 (11th Cir. 2001)

(giving separate and independent weight to First Amendment concerns militating against

grant of preliminary injunction in fair use dispute).

23. See Harper & Row, 471 U.S. at 559.

24. See J

ULIE E. COHEN, CONFIGURING THE NETWORKED SELF: LAW, CODE, AND THE PLAY

EVERYDAY PRACTICE 74-79 (2012); Julie E. Cohen, Copyright, Commodification, and

Culture: Locating the Public Domain, in T

HE FUTURE OF THE PUBLIC DOMAIN 121, 157-64

(Lucie Guibault & P. Bernt Hugenholtz eds., 2006).

25. See Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech

and How Copying Serves It, 114 Y

ALE L.J. 535 (2004).

26. See Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2863-76

(1998) (codified at 17 U.S.C. §§ 1201-1204 (2012)); Sonny Bono Copyright Term Extension Act,

1128 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

The second problem brings us back by a different route to the

lumping problem raised in the previous Section. Creative works are

the subject matter of copyright, to be sure, and if for-profit corpora-

tions are First Amendment speakers then their trademarks are the

subjects of certain proprietary or quasi-proprietary rights also, but

the speech-equals-property syllogism utterly fails to describe the

nature of an intellectual property owner’s speech interest. For an

individual author, a creative work may be a personal statement, in

which case it is not simply property, but rather a result of situated

inspiration and creative practice.

A creative work may become

simply property when the copyright is assigned to a production

intermediary such as a publisher or film production company, but

from the perspective of the intermediary, it is no longer a personal

statement to which a speech interest might attach. A trademark is

more closely analogous to a personal statement, but if so—as we will

see below—it is a reputational statement of the sort that the First

Amendment traditionally has declined to protect against critique.

If corporate intellectual property owners have speech interests,

those interests are more like those of media companies: they are

interests that flow from the ownership of capital and its provision

to fund production, cultural or otherwise. A rule privileging

less of how the regime defining ownership might expand in length

and breadth, ignores these differences.

C. Proprietary Information Processing Is Speech

If spending on information is speaking and speech is property,

what should be the fate of attempted legal restrictions on market-

place messages? For almost two centuries, the First Amendment

was considered largely irrelevant to regulation of speech advancing

Pub. L. No. 105-298, §§ 101-102, 112 Stat. 2827, 2827-28 (1998) (codified at 17 U.S.C. §§ 302-

304 (2012)). On the speech-inhibiting effects of these laws, see Jack M. Balkin, Digital Speech

and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79

N.Y.U.

L. REV. 1 (2004); Yochai Benkler, Free as the Air to Common Use: First Amendment

Constraints on Enclosure of the Public Domain, 74 N.Y.U.

L. REV. 354 (1999); and Erwin

Chemerinsky, Balancing Copyright Protections and Freedom of Speech: Why the Copyright

Extension Act Is Unconstitutional, 36 L

OY. L.A. L. REV. 83 (2002).

27. See C

OHEN, supra note 24, at 82-88; JESSICA SILBEY, THE EUREKA MYTH: CREATORS,

NNOVATORS, AND EVERYDAY INTELLECTUAL PROPERTY 26-80 (2014).

2015] THE ZOMBIE FIRST AMENDMENT 1129

commercial and professional activities because such regulation was

understood to be directed fundamentally at commerce rather than

at discourse in the public sphere. That began to change in the late

twentieth century with the emergence of a line of cases that has

become known as the Court’s commercial speech jurisprudence and

that concerned attempts to regulate more complex messages by

corporate and professional speakers.

In Central Hudson Gas &

Electric Corp. v. Public Service Commission, the Court purported to

advance a definitive test for assessing the validity of laws regulating

commercial speech: regulation of speech that is neither misleading

nor related to unlawful activity must advance a substantial

government interest, and must be appropriately tailored to that

interest.

In the ensuing years, the Court seemed concerned chiefly

with fleshing out the application of Central Hudson and policing the

boundary that defined which sorts of speech qualified as commercial

speech. It resisted juxtaposing the commercial speech inquiry, which

presumed some prior act of selection of the speech to be regulated,

with the line of cases holding that laws discriminating among

speakers based on their identity or the content of their speech must

survive strict scrutiny.

That resistance came to an end in Sorrell v. IMS Health Inc., in

which a majority of the Court ruled that a Vermont statute prohibit-

ing pharmaceutical companies’ use of prescriber-identifying infor-

mation for marketing purposes must survive strict scrutiny because

the restriction was both content- and speaker-based.

Because

regimes of commercial speech regulation typically begin with some

definition of scope that involves one or both distinctions, Sorrell sug-

gests that legislatures and agencies seeking to impose regulatory

burdens on information-era commerce must proceed with caution

when drawing lines.

That result, moreover, places regulators neat-

ly on the horns of a dilemma: broad proscriptions on information

28. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561-66

(1980); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978); Bates v. State Bar of Ariz., 433

U.S. 350 (1977); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.

748 (1976).

29. 447 U.S. at 561-66.

30. See, e.g., L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 40-41 (1999)

(declining to address the strict scrutiny question).

31. 131 S. Ct. 2653, 2663-66 (2011).

32. Id.

1130 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

processing seem likely to fail on narrow-tailoring grounds, but

narrowly targeted privacy protections risk being invalidated as

impermissibly discriminatory. Almost as an afterthought, the major-

ity opinion continued the practice of lumping kinds of information

flow, agreeing that constitutional protection for speech extended to

information-processing activities intended to improve the targeting

of likely prospects to whom commercial speech might be directed.

Opponents of information privacy regulation have attempted to

paint Sorrell as an information privacy case,

but the majority saw

it as a case about market manipulation through persuasion. The

drug detailing program at issue used information about the past

behaviors of prescribing physicians, not of patients, and the state’s

asserted interests were primarily fiscal. Because pharmaceutical

detailing is designed to increase demand for proprietary drugs, the

state feared that giving detailers carte blanche to conduct data

mining operations in the state’s prescription drug database would

drive up the cost of its Medicaid prescription drug program.

That

fear weighed importantly in the Court’s eventual conclusion that the

privacy concerns adduced in the appellate record and in the state’s

briefs were makeweights.

Instead, the majority framed the

Vermont law as an attempt to undermine the persuasiveness of

pharmaceutical marketers’ speech.

So framed, the law conflicted

with the marketplace-of-ideas philosophy that animates free speech

jurisprudence: protection for persuasion lies at the core of the zone

that the First Amendment protects.

Yet to call Sorrell a case about persuasion is to insist (again) on

both the conflation of spending and speaking and the impossibility

of making meaningful distinctions among kinds of speech-related

activities. Particularly in an era when both money and speech

33. Id. at 2666-67 (citing Bartnicki v. Vopper, 532 U.S. 514 (2001), a case about an

intercepted telephone conversation; Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), a case

about disclosures on a product label; and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985) (plurality opinion), a case about financial reports).

34. See Thomas R. Julin, Sorrell v. IMS Health May Doom Federal Do Not Track Acts, 10

Privacy & Sec. L. Rep. (BNA) No. 35 (Sept. 5, 2011), available at http://perma.cc/8LEQ-GV6G.

35. See 2007 Vt. Acts & Resolves 635; Sorrell, 131 S. Ct. at 2670-71 (discussing this aspect

of the record).

36. See Sorrell, 131 S. Ct. at 2668-2670; IMS Health Inc. v. Sorrell, 630 F.3d 263, 276-77

(2d Cir. 2010), aff’d, 131 S. Ct. 2653 (2011); Brief for Petitioner at 45-49, Sorrell, 131 S. Ct.

2653 (No. 10-779).

37. Sorrell, 131 S. Ct. at 2671.

2015] THE ZOMBIE FIRST AMENDMENT 1131

increasingly have become dematerialized, existing only as bits that

flow over the network, it may make good technical sense to classify

anything that creates meaning as speech. That result is consistent

with an understanding of information that is derived from cybernet-

ics and based on the distinction between signal and noise, but it

makes much less sense from a constitutional perspective, which is

concerned—or ought to be—with the creation of meaning.

Detail-

ing is different from persuasion along a critical dimension that has

to do with transparency and manipulation. Its operative principle

is the nudge rather than the reasoned comparison among alterna-

tives, and its point is surplus extraction, pure and simple. Its goal

is to minimize the need to persuade by targeting directly those

potential customers most strongly predisposed to buy and appealing

to everything that is known about those customers’ habits and

predilections. With the pronouncement that operations directed at

surplus extraction are privileged as speech, the zombification of

First Amendment law takes an important additional step away from

protection for information as expression and toward protection for

information as competitive advantage.

More generally, the backward-looking lawyerly exercise of evalu-

ating new commercial speech cases for their consistency with

Central Hudson and its progeny gets the commercial speech

problem precisely wrong. Central Hudson and its ilk are better

understood as forerunners of a mature jurisprudence about the First

Amendment implications of regulatory oversight of commercial

information processing activities in the information age. The First

Amendment antiregulatory agenda that began with arguments

developed in law review articles and strategy sessions at libertarian

think tanks also has matured.

What began as a trickle of cases

38. See CLAUDE E. SHANNON & WARREN WEAVER, THE MATHEMATICAL THEORY OF

COMMUNICATION 19 (1949). For two thought-provoking general critiques of the Shannon

approach and its minimalist approach to the question of meaning, see N.

KATHERINE HAYLES,

OW WE BECAME POSTHUMAN: VIRTUAL BODIES IN CYBERNETICS, LITERATURE, AND

INFORMATICS 50-83 (1999); and DAN SCHILLER, HOW TO THINK ABOUT INFORMATION 3-16

(2007).

39. See S

OLVEIG SINGLETON, PRIVACY AS CENSORSHIP: A SKEPTICAL VIEW OF PROPOSALS

REGULATE PRIVACY IN THE PRIVATE SECTOR (Cato Inst. Policy Analysis No. 295, 1998),

available at http://perma.cc/KE3A-XWKU; Adam Thierer & Berin Szoka, What Unites

Advocates of Speech Controls & Privacy Regulation?, P

ROGRESS ON POINT, Nov. 2009, available

at http://perma.cc/P2WA-3PQW; Eugene Volokh, Freedom of Speech and Information Privacy:

The Troubling Implications of a Right to Stop People from Speaking About You, 52 S

TAN. L.

1132 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

raising First Amendment challenges to regulations concerning

information-related activities in regulated markets has become a

steady stream of opinions on a wide variety of subjects—food and

drug labeling requirements, disclosure requirements for securities

issuers, permissible uses of consumer information, and so on.

From

this perspective, moreover, it is no coincidence that the Court’s

commercial speech jurisprudence has developed alongside its cases

about the free speech rights of corporations generally. Both devel-

opments reflect an economic reality in which information has

increasingly become untethered from industrial production to

become a source of value in its own right, and in which powerful

interests that profit from information-related activities have sys-

tematically resisted regulatory oversight.

The real question posed in Sorrell was one that the majority did

not recognize: how commercial speech jurisprudence for the era of

informational capitalism ought to respond to such efforts. A signal

victory for the First Amendment antiregulatory strategy, Sorrell

portends wholesale constitutionalization of entire sectors of

commercial activity and a broad and enduring marginalization of

regulatory authority.

D. Proprietary Information Can Be Contraband

The fourth important underpinning of the emerging zombie First

Amendment jurisprudence is Holder v. Humanitarian Law Project.

There, a majority of the Court rejected a First Amendment chal-

lenge to a federal law forbidding material aid and support to

organizations classified as terrorist.

The entity challenging the law

had provided human rights advocacy training to certain Kurdish

and Tamil dissident organizations, and feared prosecution.

Although Humanitarian Law Project does not seem to be a case

about private economic power at all, it too is usefully read in light

of the propertarian shift in contemporary First Amendment juris-

REV. 1049 (2000).

40. See, e.g., Nat’l Ass’n of Mfrs. v. SEC, 748 F.3d 359 (D.C. Cir. 2014); R.J. Reynolds

Tobacco Co. v. FDA, 696 F.3d 1205 (D.C. Cir. 2012); Mainstream Mktg. Servs., Inc. v. FTC,

358 F.3d 1228 (10th Cir. 2004); King v. Gen. Info. Servs., 903 F. Supp. 2d 303 (E.D. Pa. 2012).

41. 561 U.S. 1 (2010).

42. Id. at 1-2.

2015] THE ZOMBIE FIRST AMENDMENT 1133

prudence. So read, the case stands for the proposition that infor-

mation that is property or that represents proprietary knowledge

can become contraband and the target of interdiction mandates.

Within the First Amendment canon, disputes about banned

speech and prohibited associations evoke the era of the civil rights

marches, the House Un-American Activities Committee, and the

demise of broadly drafted criminal syndicalism laws. Thus, for

example, David Cole has argued that Humanitarian Law Project

represents a radical break from cases like Brandenburg v. Ohio,

which allowed punishment of speech only when sufficiently linked

to direct threats of violence.

That view seems difficult to contra-

dict, and from the perspective that Cole so ably articulates, the

decision in Humanitarian Law Project is inexplicable. And yet the

constitutional law scholar’s view of the world is sometimes preoccu-

pied with events within the stream of constitutional jurisprudence

to the exclusion of those occurring outside it. The decision in

Humanitarian Law Project reflects the influence of another, more

contemporary debate about information danger and information

contraband that one also must acknowledge.

A new phase in the debate about information contraband and the

First Amendment began in the 1990s, amid the dawning realization

that global information and communication networks and encryp-

tion technologies permitted information to spread in an uncontrolled

and radically democratic fashion. Public fears coalesced around a set

of threats that the technorati dubbed the “Four Horsemen of the

Infocalypse”: terrorism, drug dealers, pedophiles, and organized

crime.

The Four Horsemen represented existential threats to the

43. A useful treatment of the information contraband question, focusing primarily on the

question whether the general structure of First Amendment doctrine permits contraband

treatment, is Rodney A. Smolla, Information as Contraband: The First Amendment and

Liability for Trafficking in Speech, 96 N

W. U. L. REV. 1099 (2002).

44. Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969); Scales v. United States, 367 U.S.

203, 203 (1961) (enunciating analogous rule for efforts to criminalize association); see David

Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in

First Amendment Doctrine, 6 H

ARV. L. & POL’Y REV. 147, 147-48 (2012); see also Seth F.

Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries, and the

Problem of the Weakest Link, 155 U.

PA. L. REV. 11, 41-55 (2006) (arguing that efforts to

regulate speech by targeting online intermediaries should consider the mid-twentieth

century’s First Amendment lessons).

45. See Javier Bernal, Big Brother Is On-Line: Public and Private Security in the Internet,

YBERSOCIOLOGY MAG. (Aug. 6, 1999), http://www.cybersociology.com/files/6_publicandprivate

1134 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

fabric of society and the rule of law: threats in response to which

ordinary procedures might be suspended in favor of extraordinary

measures. With the articulation of these threats, the stage was set

for a shift in the legal understanding of the relationship between

speech and danger.

The first strand of the contemporary discourse about information

contraband has explored the blurring of speech and conduct in

executable computer code. In the mid-1990s, litigants in a pair of

cases challenged the attempted assertion of federal export control

regulations to restrict Internet-based distribution of encryption

technologies, and won rulings acknowledging that human-readable

source code is speech and that even machine-readable object code

has an important expressive dimension.

The federal courts have

been unwilling, however, to accept the further argument that laws

regulating code merit strict scrutiny. Instead, as the Sixth Circuit

explained, “[t]he functional capabilities of source code, and particu-

larly those of encryption source code, should be considered when

analyzing the governmental interest in regulating the exchange of

this form of speech.”

To similar effect, in Universal Studios, Inc. v.

Corley, a case about code that circumvented technical protections for

copyrighted works, the court held that circumvention tools could be

regulated as conduct, subject to the same general limitations that

apply to other laws with secondary effects on speech.

The statute challenged in Humanitarian Law Project reflects a

similar effort to define particular kinds of expertise as posing

dangers in a way that transcended the formal classification of

expert advice as speech. As the lawsuit wound its way through the

security.html [http://perma.cc/KW3Q-DNF5]. For what appears to have been the first use of

the term, see Timothy C. May, The Crypto Anarchist Manifesto, in C

RYPTO ANARCHY,

YBERSTATES, AND PIRATE UTOPIAS 61, 67 (Peter Ludlow ed., 2001).

46. Junger v. Daley, 209 F.3d 481, 484-85 (6th Cir. 2000); Bernstein v. U.S. Dep’t of State,

922 F. Supp. 1426, 1435 (N.D. Cal. 1996), aff’d sub nom. Bernstein v. U.S. Dep’t of Justice,

176 F.3d 1132 (9th Cir. 1999), withdrawn and reh’g granted, 192 F.3d 1308 (1999). In

Bernstein, the planned en banc rehearing was cancelled after the Commerce Department, to

which export authority had been transferred, announced plans to amend the challenged

regulations and notified the plaintiff that it no longer considered his code to be covered.

Bernstein v. U.S. Dep’t of Commerce, No. C 95-0582 MHP, 2004 WL 838163, at *2, *5 n.2

(N.D. Cal. Apr. 19, 2004).

47. Junger, 209 F.3d at 485 (citing United States v. O’Brien, 391 U.S. 367, 377 (1968)).

48. 273 F.3d 429, 434-35, 450-52 (2d Cir. 2001) (citing O’Brien, 391 U.S. at 377; Ward v.

Rock Against Racism, 491 U.S. 781, 791, 799 (1989)).

2015] THE ZOMBIE FIRST AMENDMENT 1135

courts, Congress amended the definition of “material support or

resources” to include “expert advice or assistance,” and then

amended the definition of “expert advice or assistance” to include

“advice or assistance derived from scientific, technical or other

specialized knowledge.”

Expert speech, Congress seemed to be

saying, has a kind of power that ordinary speech does not, and can

be restricted on that basis—which, both Congress and the courts

seemed to think, is a different proposition than making invidious

distinctions among kinds of speech or kinds of speakers.

The

appellants in Humanitarian Law Project were not scientists or

engineers, and were not providing technical training in the lay

sense of that term.

Yet in a world in which the line between speech

and computer-mediated action had become vanishingly thin, the

idea of the materiality of expert legal training could begin to seem

entirely credible.

The second strand of the contemporary discourse about speech

and existential threats concerns the copyright pirate, and the

appearance of this “fifth horseman” is in itself a development worth

remarking. Beginning in the late 1990s, members of the recording

and motion picture industries and their respective trade associa-

tions waged a systematic campaign to associate online copyright

infringement with organized crime and terrorism, and to frame

online infringement as an existential threat to society in its own

right.

The notion that copyright infringement threatens the social

fabric in a way analogous to organized crime or terrorism is, of

course, highly debatable. As we have just seen, however, if informa-

tion is property first and foremost, the speech-related reasons for

49. For discussion of the amendments, see Holder v. Humanitarian Law Project, 561 U.S.

1, 10-13 (2010).

50. See Humanitarian Law Project v. Mukasey, 552 F.3d 916, 931-32 (9th Cir. 2007)

(upholding amended statute as “not aimed at expressive conduct” and not covering “a

substantial amount of protected speech”), aff’d in part and rev’d in part sub nom. Holder v.

Humanitarian Law Project, 561 U.S. 1 (2010).

51. Humanitarian Law Project, 561 U.S. at 2.

52. For work collecting and analyzing these statements, see T

ARLETON GILLESPIE, WIRED

SHUT: COPYRIGHT AND THE SHAPE OF DIGITAL CULTURE 113-25 (2007); JOHN LOGIE, PEERS,

IRATES, AND PERSUASION: RHETORIC IN THE PEER-TO-PEER DEBATES (2006); John Logie, A

IRST MONDAY (July

2003), http://firstmonday.org/ojs/index.php/fm/article/view/1064/984 [http://perma.cc/UYD3-

LM76]. On the framing of copyright infringement as an existential threat, see Julie E. Cohen,

Pervasively Distributed Copyright Enforcement, 95 G

EO. L.J. 1, 18-19, 24-25 (2006).

1136 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

regulating with a light hand appear less salient to both Congress

and the courts. From a political perspective, moreover, the asserted

problem of “piracy” presented optics more congenial to draconian

state intervention.

While attempts during the 1990s and 2000s to expand legally

sanctioned state surveillance of electronic communications met with

determined resistance,

attempts to institute surveillance and

interdiction in the interest of copyright policing produced a series of

compromises among the private commercial interests involved.

These included a notice and takedown system for online service

providers and various private-sector initiatives for automated

enforcement and filtering of online content.

Although Congress

had not yet attempted to legislate general interdiction obliga-

tions—a move that would come two years after the decision in

Humanitarian Law Project—by 2010 both Congress and the courts

clearly recognized legal and technical interdiction of information

flows offensive to proprietary interests as important resources in the

legislative toolkit.

The final strand of the contemporary discourse about information

contraband concerns state and corporate secrets. Congress enacted

the law challenged in Humanitarian Law Project in 1997, but for a

variety of reasons, including the curative amendments noted above,

the case did not reach the Court until a decade later. The Court held

oral argument in February 2010.

In April 2010, the news broke

that WikiLeaks, a self-described open government organization, had

53. See, e.g., Sara Kehaulani Goo & Robert O’Harrow Jr., New Airline Screening System

Postponed: Controversy over Privacy Leads to CAPPS II Paring, Delay Until After Election,

ASH. POST, July 16, 2004, at A2; Steven Levy, Battle of the Clipper Chip, N.Y. TIMES MAG.,

June 12, 1994, at 44; Senate Rebuffs Domestic Spy Plan, W

IRED (Jan. 23, 2003), http://

archive.wired.com/politics/law/news/2003/01/57386 [http://perma.cc/VE24-E5N8] (describing

congressional hearings on the government’s “Total Information Awareness” initiative).

54. See Digital Millennium Copyright Act, Pub. L. No. 105-304, § 502, 112 Stat. 2860,

2905-16 (1998) (codified as amended at 17 U.S.C. § 512 (2012)); Megan Geuss, YouTube Has

Paid $1 Billion to Rights Holders via Content ID Since 2007, A

RS TECHNICA, (Oct. 13, 2014,

7:53 PM), http://arstechnica.com/tech-policy/2014/10/youtube-has-paid-1-billion-to-rights-

holders-via-content-id-since-2007/ [http://perma.cc/G278-6DAR]. On the implications of

private-sector automated enforcement initiatives in copyright and other areas, see Danny

Rosenthal, Assessing Digital Preemption (and the Future of Law Enforcement?), 14 N

EW CRIM.

REV. 576 (2011).

55. Transcript of Oral Argument at 1, Humanitarian Law Project, 561 U.S. 1 (Nos. 08-

1498, 09-89), 2010 WL 621318.

2015] THE ZOMBIE FIRST AMENDMENT 1137

published a video of a 2007 attack by a U.S. military helicopter in

Baghdad that killed a number of civilians, including children, and

two Reuters employees. The episode received extensive coverage by

U.S. newspapers of record, which noted the organization’s history of

leaking hidden information about government and corporate

operations.

WikiLeaks attracted its share of defenders, but its

critics saw a textbook case of advocacy run amok and threatening to

disrupt the orderly flows of policing and nation-building.

A New

York Times article on WikiLeaks published only a few weeks

beforehand had quoted a Pentagon report as concluding that

information of the sort routinely published by WikiLeaks “could be

used by foreign intelligence services, terrorist groups and others to

identify vulnerabilities, plan attacks and build new devices.”

The Court decided Humanitarian Law Project two months after

WikiLeaks published the video and two days after the New York

Times reported as front-page news that U.S. Army Specialist

Bradley Manning had been arrested on suspicion of having leaked

the information to WikiLeaks.

At oral argument and in its briefs,

the government had asserted that expert training in human rights

advocacy could work to legitimize dangerous organizations.

Accept-

ing that justification, the majority opinion also noted that terrorist

organizations could rely on such training to “threaten, manipulate,

and disrupt” the international legal system.

Additionally, the

Court cautioned about the risks of “straining the United States’

56. See Elisabeth Bumiller, Video Shows U.S. Killing of Reuters Employees, N.Y. TIMES,

Apr. 6, 2010, at A13; Noam Cohen & Brian Stelter, Airstrike Video Brings Attention to

Whistle-Blower Site, N.Y.

TIMES, Apr. 7, 2010, at A8; Garance Franke-Ruta, Web Site Releases

Video of Baghdad Attack That Killed 2 Journalists, W

ASH. POST (Apr. 5, 2010, 5:41 PM),

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/05/AR2010040503778.html

[http://perma.cc/RUF7-CFL8].

57. See Gabriel Schoenfeld, Warfare Through “a Soda Straw,” W

ALL ST. J., June 23, 2010,

at A17.

58. Stephanie Strom, Pentagon Sees a Threat from Online Muckrakers, N.Y.

TIMES, Mar.

18, 2010, at A18.

59. Elisabeth Bumiller, Army Leak Suspect Is Turned in, by Ex-Hacker, N.Y.

TIMES, June

8, 2010, at A1.

60. Transcript of Oral Argument, supra note 55, at 42-46; Brief for the Respondents at 56,

Humanitarian Law Project, 561 U.S. 1 (Nos. 08-1498, 09-89).

61. Humanitarian Law Project, 561 U.S. at 37.

1138 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

relationships with its allies and undermining cooperative efforts

between nations to prevent terrorist attacks.”

The exercise of situating the Justices within a larger cultural

context is inevitably speculative. Even so, the Justices live in the

same world that the rest of us do. The Humanitarian Law Project

majority opinion is a product of its time, and not only because it

expresses the deference to asserted national-security imperatives

that has become the norm in the post-9/11 environment. It also

dovetails neatly with the debates about material expertise, technical

interdiction, and the viral spread of online conduct that have come

to loom so large in the public view. So read, the case establishes the

predicate for a shift away from Brandenburg and toward a far more

flexible approach to claims of speech-related danger when certain

kinds of interests are threatened.

* * *

Taken together, the decisions just described sketch the broad

outlines of an emerging First Amendment jurisprudence that is

surprisingly coherent, and more than a little unsettling. Citizens

United and Sorrell stand for the proposition that information flows

that advance the purposes of private property accumulation and

consumer surplus extraction may move freely with little fear of

encountering regulatory obstacles. At the same time, Humanitarian

Law Project, Eldred, and Golan are proof that some types of content

and speaker distinctions will be supported by the full force of

law—will be treated, in other words, as principled and nonarbitrary.

Together these opinions establish both a generally deregulatory

stance toward proprietary, profit-motivated uses of information and

62. Id. at 32.

63. See supra note 44 and accompanying text. Some claims of speech-related danger still

receive more critical scrutiny, but they typically do not involve threats to a proprietary

interest in information. See United States v. Alvarez, 132 S. Ct. 2537, 2539 (2012) (invalida-

ting a federal law criminalizing the making of false representations about one’s own receipt

of military honors); Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2729 (2011) (enjoining

enforcement of a California law prohibiting the sale or rental of violent video games to

minors); United States v. Stevens, 559 U.S. 460 (2010) (invalidating a federal law

criminalizing the creation, possession, or sale of depictions of animal cruelty). Notably, Brown

employed strict scrutiny to invalidate a law that threatened the proprietary interests of game

developers. See 131 S. Ct. at 2738.

2015] THE ZOMBIE FIRST AMENDMENT 1139

the predicate for installing circuit breakers within the network to

intercept other kinds of uses that threaten proprietary interests.

Eldred, Golan, and Citizens United articulate and elevate to consti-

tutional significance a tight equivalence between speech and

property, making clear that anyone invoking speech arguments to

limit property claims confronts a heavy burden. Humanitarian Law

Project and Sorrell, meanwhile, invert long-established rules about

the evidentiary thresholds for constitutional scrutiny of speech

regulation, investing censorship of activism with national security

implications but encouraging First Amendment challenges to

regulation of private economic activity.

II.

SUBCONSTITUTIONAL SETTLEMENTS: POWER AND PRIVILEGE IN

THE

INFORMATION ECONOMY

So far, I have argued that First Amendment scholars should pay

more systematic attention to a set of developments that only partial-

ly overlaps the territory long conceived as the First Amendment’s

traditional core. Many of those developments involve private econ-

omic activity and proprietary claims to information. In general, the

Court has resolved First Amendment claims relating to private

economic activity in a way that ratifies emerging distributions of

information power. In this respect, contemporary First Amendment

jurisprudence aligns with what scholars in a variety of fields have

identified as a more general shift toward a neoliberal governmental-

ity that emphasizes market liberties and a market-based approach

to political participation.

Constitutional law does not itself produce the shift toward neo-

liberal governmentality. As Morton Horwitz has observed, “A

constitutional revolution can take place only when the intellectual

ground has first been prepared.”

Horwitz was describing the New

Deal revolution in constitutional law, and more particularly the

64. See Wendy Brown, Neo-Liberalism and the End of Liberal Democracy, 7 THEORY &

VENT 1 (2003); David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism,

77 L

AW & CONTEMP. PROBS. 1 (2014); David Harvey, Neoliberalism as Creative Destruction,

610 A

NNALS AM. ACAD. POL. & SOC. SCI. 22 (2007); Timothy K. Kuhner, Citizens United as

Neoliberal Jurisprudence: The Resurgence of Economic Theory, 18 V

A. J. SOC. POL’Y & L. 395

(2011); Thomas Lemke, “The Birth of Bio-Politics”: Michel Foucault’s Lecture at the Collège

de France on Neo-Liberal Governmentality, 30 E

CON. & SOC’Y 190 (2001).

65. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 3 (1992).

1140 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

need to take careful note of its prehistory. As his research showed,

the development of private and commercial law during both the

antebellum period and the post-Civil War years established the

distributive backdrop against which the constitutional disputes of

the Lochner and New Deal eras were litigated. Economic regulation

was commonplace in the nineteenth century, and initially emerged

in ways that reinforced emerging patterns of industrial power, while

judges came to understand the common law instrumentally, as a

tool for promoting commerce and economic development.

The

judicial philosophy that produced Lochner was in part a reaction to

perceived special-interest legislation that threatened property inter-

ests, but the turn toward social science methodology that progres-

sive legal thought set in motion also tended to validate existing

economic arrangements.

Similarly, the First Amendment jurispru-

dence outlined in Part I takes its shape from an antecedent pattern

of subconstitutional settlements and justifications that reflects

perceived economic, commercial, and political imperatives.

The point I want to make here is most aptly characterized as

Hohfeldian: in the emerging information economy, the balance of

rights, privileges, powers, and immunities that characterized the

industrial economy and the regulatory frameworks put in place to

constrain it is shifting.

The transformation now underway in our

political economy is engendering a corresponding shift in the

distribution of legal power and privilege that extends across

doctrinal boundaries and that is far more fundamental than the

subject-matter divisions that such boundaries attempt to impose.

A. Corporate Citizens in the Marketplace

In both Citizens United and the earlier cases about the free

speech rights of media companies on which the Citizens United ma-

jority relied, the Court took as given that corporations speak in the

66. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 47-

54, 78-97, 116-26, 186-210, 218-26 (1977).

67. See H

ORWITZ, supra note 65, at 208-12.

68. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in

Judicial Reasoning, 23 Y

ALE L.J. 16 (1913). See generally Pierre Schlag, How to Do Things

with Hohfeld (Univ. of Colo. Law Sch. Legal Studies Research Paper Series, Working Paper

No. 14-4, 2014), available at http://perma.cc/A6AV-Q8C4.

2015] THE ZOMBIE FIRST AMENDMENT 1141

same ways that people do and that money enhances communicative

power in a linear, additive way. Those assumptions are charmingly

old-fashioned. In the contemporary information economy, the

expressive power of capital is not additive but rather multiplicative

and synergistic. One of the principal vehicles for the expressive

power of capital is the corporate brand, and corporations rely on

their brands to engage in norm entrepreneurship on a wide range

of social, economic, and technical issues. The communicative impact

of brands is backed by both old and new forms of legal and market

privilege.

Brand-driven corporate messaging is both increasingly pervasive

and increasingly difficult to disentangle from the commercial and

social contexts in which it is embedded.

Logos and other indicia of

corporate sponsorship adorn bodies, billboards, theaters and arenas,

and other public spaces. In addition, corporate brand owners pursue

a wide range of other branding opportunities that might yield

bottom-line benefits: product placements in films and television

shows, displays on the uniforms and equipment of professional

athletes, and so on. The modern corporation does not simply adver-

tise its wares, however. It develops a “social media presence” on

platforms like Facebook and Twitter, streaming updates to its

followers about developments that might implicate its market or

enhance its brand cachet. In addition, it develops gamified promo-

tional strategies designed to recruit individual consumers as brand

evangelists and reward them for their successes.

These develop-

ments make the cumulative power of corporate messaging far

greater than the Court’s discussion presumed. Although speech in

the service of branding tends not to be overtly political, it reflects

69. The legal scholarship on trademark law is just beginning to grapple with this dynamic

in a more systematic way. See Mario Biagioli et al., Brand New World: Distinguishing Oneself

in the Global Flow, 47 U.C.

DAVIS L. REV. 455 (2013); Deven R. Desai, From Trademarks to

Brands, 64 F

LA. L. REV. 981 (2012).

70. See generally R

AJAT PAHARIA, LOYALTY 3.0: HOW BIG DATA AND GAMIFICATION ARE

REVOLUTIONIZING CUSTOMER AND EMPLOYEE ENGAGEMENT (2013); GABE ZICHERMANN &

OSELIN LINDER, THE GAMIFICATION REVOLUTION: HOW LEADERS LEVERAGE GAME MECHANICS

CRUSH THE COMPETITION (2013). For a discussion of gamification as a surveillance strategy,

see Julie E. Cohen, The Surveillance-Innovation Complex: The Irony of the Participatory Turn,

in T

HE PARTICIPATORY CONDITION (Darin Barney et al. eds., forthcoming 2016).

1142 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

and reinscribes the ethos of consumerist, transactionally inflected

participation that increasingly characterizes public discourse.

The principal source of federal protection for brands and branding

activities, the Lanham Act, is a creation of the industrial era.

Its

enactment in 1946 marked the emergence of a nationwide industrial

economy within which the meaning of marks of origin as signifiers

of corporate reputation was no longer only local.

Within the

framework established by the Lanham Act, the basic unit of reputa-

tion nominally remains the individual mark. Federal registration is

available only for specific marks, and causes of action for infringe-

ment must be pleaded on a mark-specific basis.

At the same time, case law interpreting the Lanham Act’s

“likelihood of confusion” standard has evolved steadily toward recog-

nition that in the information era, the currency of reputation is the

brand more generally. Thus, for example, infringement judgments

in cases involving knock-offs seem crafted to protect marks as

signifiers of luxury status; and the general cause of action for unfair

competition, originally intended as a catch-all, is routinely recruited

to cover a wide variety of situations that implicate brands rather

than marks.

In disputes about the use of trademarks as search

terms, corporate interests lost some battles but won the war; search

has been pervasively monetized.

Last but hardly least, other types

of entitlements in marks have proliferated in ways that acknowl-

71. See generally MARK ANDREJEVIC, INFOGLUT: HOW TOO MUCH INFORMATION IS

CHANGING THE WAY WE THINK AND KNOW 44-57 (2013) (describing the burgeoning field of

“sentiment analysis” and the ascendancy of the “affective fact”).

72. See Lanham Trademark Act, Pub. L. No. 489, 60 Stat. 427 (1946) (codified as amended

at 15 U.S.C. §§ 1051-1141 (2012)).

73. See also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (extending the personal

jurisdiction of the federal courts to encompass those whose activities established minimum

contacts with the forum state).

74. See 15 U.S.C. §§ 1051-1054, 1114 (2012).

75. See Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 104, 108-09 (2d Cir.

2000); Ferrari S.P.A. v. Roberts, 944 F.2d 1235, 1235, 1238-39 (6th Cir. 1991); Lois Sports-

wear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 867, 871 (2d Cir. 1986). For insightful

discussions of this trend, see Barton Beebe, Intellectual Property Law and the Sumptuary

Code, 123 H

ARV. L. REV. 809, 845-59 (2010); Rebecca Tushnet, Stolen Valor and Stolen

Luxury, in T

HE LUXURY ECONOMY AND INTELLECTUAL PROPERTY: CRITICAL REFLECTIONS

(Barton Beebe et al. eds., forthcoming).

76. See Steven Levy, Secret of Googlenomics: Data-Fueled Recipe Brews Profitability,

IRED MAG. (May 22, 2009), http://archive.wired.com/culture/culturereviews/magazine/17-

06/nep_googlenomics [http://perma.cc/8GG8-Q9H3].

2015] THE ZOMBIE FIRST AMENDMENT 1143

edge and reinforce the expressive power of capital. Both rights

against dilution and tarnishment of well-known marks and the sys-

tem of trademark-based property rights in domain names work to

protect the cognitive and affective capital that brand owners have

developed.

The widening arc of federal trademark and unfair competition law

has produced ripple effects on the breathing room for cultural com-

mentary invoking marks and brands. Unlike the Copyright Act, the

Lanham Act does not contain an open-ended fair-use provision, so

courts considering claims involving parodies and other cultural uses

have had to improvise. Clear parodies in literary and audiovisual

works predictably escape liability, but the results in other kinds of

cases involving the invocation of brands as cultural signifiers can be

quite different, and such cases can be very costly to litigate regard-

less of the ultimate outcome.

As Rebecca Tushnet and Deven Desai

have observed, these results are especially striking because they

depart so greatly from those that established First Amendment

principles would seem to require: they penalize efforts to contest the

persuasive force of branded speech and validate an asserted interest

in controlling reputation that the law generally rejects when

individual public figures are involved.

Although the Supreme

Court has not yet spoken on the application of the Lanham Act to

cultural uses of marks, its 1987 decision in the “Gay Olympics” case

allowed a proprietary claim to overcome an expressive one.

77. Federal Trademark Dilution Act, Pub. L. No. 104-98 § 3, 109 Stat. 985, 985-86 (1996)

(codified as amended at 15 U.S.C. § 1125(c) (2012)); Anticybersquatting Consumer Protection

Act, Pub. L. No. 106-113, § 3002, 113 Stat. 1501 app. I, at 1501A-545 to -552 (1999) (codified

as amended at 15 U.S.C. § 1125(d) (2012)).

78. See, e.g., Hershey Co. v. Friends of Steve Hershey, No. WDQ-14-1825, 2014 WL

3571691, at *1-5 (D. Md. July 17, 2014) (finding likelihood of confusion when politician named

Hershey used chocolate brown signs and white Impact or Helvetica Nueue font on election

signs); Louis Vuitton Malletier, S.A. v. Hyundai Motor Am., No. 10 Civ. 1611(PKC), 2012 WL

1022247 (S.D.N.Y. Mar. 22, 2012) (granting summary judgment on luggage manufacturer’s

dilution claim against car manufacturer that invoked its mark in television commercial

designed to suggest that luxury could be affordable); Caterpillar Inc. v. Walt Disney Co., 287

F. Supp. 2d 913, 913, 917 (C.D. Ill. 2003) (declining to enjoin unflattering depiction of

defendant’s bulldozers in movie scene about deforestation); Grey v. Campbell Soup Co., 650

F. Supp. 1166 (C.D. Cal. 1986) (enjoining use of “DOGIVA,” “CATIVA,” and silver foil trade

dress to market high-end pet treats), aff’d mem., 830 F.2d 197 (9th Cir. 1987).

79. Deven R. Desai, Speech, Citizenry, and the Market: A Corporate Public Figure

Doctrine, 98 M

INN. L. REV. 455 (2013); Tushnet, supra note 75.

80. S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 539-41 (1987); see

1144 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

Finally, it is worth noting that the growing expressive power of

corporate reputation comes at a time when the ability of ordinary

people to counter reputational injury is shrinking. The Communica-

tions Decency Act of 1996 (CDA) granted broad immunity from

defamation liability to online intermediaries.

Congress styled the

CDA as a speech-promoting measure, and it certainly was; early

court decisions in defamation cases against Internet access provid-

ers created a risk of significant liability for an emerging industry

that promised to create unprecedented opportunities for expres-

sion.

Yet the CDA went further than necessary to shelter that

industry, changing the contours of existing defamation law to

eliminate the risk of distributor liability for intermediaries possess-

ing knowledge of an ongoing harm.

That change benefited both

new online intermediaries and old media companies that expanded

into the market for Internet services, aligning speech interests with

property interests in a different but no less powerful way.

also United States v. Alvarez, 132 S. Ct. 2537, 2547 (2012) (distinguishing S.F. Arts &

Athletics on the ground that the statute at issue there prohibited false invocation of the

Olympic mark for unauthorized material gain); id. at 2559 (Alito, J., dissenting) (“It is well

recognized in trademark law that the proliferation of cheap imitations of luxury goods blurs

the signal given out by the purchasers of the originals.” (quoting William M. Landes &

Richard A. Posner, Trademark Law: An Economic Perspective, 30 J.L.

& ECON. 265, 308

(1987)) (internal quotation marks omitted)).

81. Communications Decency Act, Pub. L. No. 104-104 § 509, 110 Stat. 56, 138 (1996) (cod-

ified as amended at 47 U.S.C. 230(c)(1) (2012)).

82. See Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 323710 (N.Y.

Sup. Ct. Dec. 11, 1995) (holding a “family oriented” online service liable as publisher of

libelous statements because it exercised some editorial control over the content it served),

superseded by statute, Communications Decency Act of 1996, Pub. L. No. 104-104 § 509, 110

Stat. 56, 138; 141 Cong. Rec. H8468-70 (daily ed. Aug. 4, 1995) (statement of Rep. Cox); Robert

Cannon, The Legislative History of Senator Exon’s Communications Decency Act: Regulating

Barbarians on the Information Superhighway, 49 F

ED. COMM. L.J. 51 (1996). For

representative commentary on the First Amendment implications of defamation liability for

online service providers, see Floyd Abrams, First Amendment Postcards from the Edge of

Cyberspace, 11 S

T. JOHN’S J. LEGAL COMMENT. 693 (1996); and Bruce W. Sanford & Michael

J. Lorenger, Teaching an Old Dog New Tricks: The First Amendment in an Online World, 28

ONN. L. REV. 1137 (1996).

83. See David Lukmire, Note, Can the Courts Tame the Communications Decency Act? The

Reverberations of Zeran v. America Online, 66 N.Y.U.

ANN. SURV. AM. L. 371 (2010). For

discussion of the CDA’s sweeping effects on online harassment, see D

ANIELLE KEATS CITRON,

ATE CRIMES IN CYBERSPACE 170-77 (2014).

2015] THE ZOMBIE FIRST AMENDMENT 1145

B. Industrial Copyright

The Court in Eldred took the expansionist trajectory of copyright

as an inevitable response to “demographic, economic, and technolog-

ical changes.”

Authors’ increased longevity, however, might equal-

ly well reinforce the argument that postmortem protection for

copyrights is unnecessary. The purported economic imperative for

longer copyright also was illusory; as the amicus brief of Nobel

Laureate economists demonstrated, the discounted present value of

a twenty-year term extension to authors of works yet to be created

was essentially nil.

And the Court’s view of technological reality

told only half the story. Property rights may require strengthening

to counter new threats, but the specter of new threats also can be

invoked opportunistically to expand existing entitlements into

uncharted territory. Copyrights are broader and last longer than

ever before, but that result reflects historical contingency and the

assertion of power rather than the demands of materialist logic.

The one-way ratchet in the scope and duration of copyright

entitlements that has been underway since the mid-twentieth

century has served primarily corporate interests. The dramatic

expansions of copyright in the mid-twentieth century to cover the

byproducts of new recording and broadcast technologies responded

directly to the influence of newly powerful industries. As Jessica

Litman has documented, those industries actively participated in

the drafting of the Copyright Act of 1976, developing a then-novel

process that proceeded via negotiation and compromise among the

affected industries with minimal oversight by elected legislators.

By the time that process was concluded, the capture of the legisla-

tive process was essentially complete. The resulting legislation

contained broad, general rights and narrow, specific limitations,

eliminating the latitude that formerly had existed for many

nonprofit and downstream uses of copyrighted works.

84. Eldred v. Ashcroft, 537 U.S. 186, 206-07 (2003).

85. Brief of George A. Akerlof et al. as Amici Curiae in Support of Petitioners at 5-7,

Eldred, 537 U.S. 186 (No. 01-618).

86. See Jessica Litman, Copyright, Compromise and Legislative History, 72 C

ORNELL L.

EV. 857 (1987); Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L.

EV. 275 (1989).

87. For discussion of the latitude that formerly existed for nonexploitative personal uses,

see Jessica Litman, Lawful Personal Use, 85 T

EX. L. REV. 1871 (2007).

1146 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

The capture of the copyright legislative process has persisted into

the Internet era, producing both continued copyright expansion and

the enactment of new paracopyright regimes such as the Digital

Millennium Copyright Act’s prohibitions against trafficking in tools

for circumventing technical measures applied to copyrighted works.

Although not every proposal for strengthened protection has

succeeded, that result often reflects the efforts of another group of

powerful interests that includes computer equipment manufacturers

and providers of Internet services. For example, many exceptions to

the antitrafficking provisions benefit those interests, as does the

structure of the DMCA’s notice-and-takedown provisions.

So too

with copyright litigation: recent years have seen courts begin to

recognize and privilege a wide range of conduct by technology

companies and celebrity artists as fair use, but a parallel re-

calibration to carve out breathing room for creative play and routine

personal use by ordinary people has yet to occur.

Information and

88. See 17 U.S.C. § 1201(a)(2), (b) (2012).

89. See id. § 512, 1201(f) (reverse engineering); id. § 1201(g) (encryption research); id.

§ 1201(j) (security testing). The exceptions benefiting individuals and nonprofit institutions

are far more limited in scope. See id. § 512(b), (h) (immunizing service providers from suits

over mistaken takedowns and allowing suits against complainants only in cases of

“knowing[ ] material[ ] misrepresent[ation]”); id. § 1201(d) (allowing circumvention by

nonprofits, but only if they already know how); id. § 1201(i) (allowing circumvention of

personal profiling capabilities under limited circumstances).

90. See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg, L.P., 756 F.3d 73 (2d Cir. 2014)

(reproduction and dissemination by news service of audio recording discussing market

performance); Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (appropriation by celebrity artist

of documentary artist’s photographs as the basis for a series of artworks); A.V. ex rel.

Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) (reproduction of student papers

for use in automated tool to detect plagiarism); Perfect 10, Inc. v. Amazon, Inc., 508 F.3d 1146

(9th Cir. 2007) (reproduction by an Internet search engine of “thumbnail” versions of

copyrighted photos); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir.

2006) (reproduction of Grateful Dead concert posters in a book about the band); Blanch v.

Koons, 467 F.3d 244 (2d Cir. 2006) (reproduction by celebrity artist of a commercial

photographer’s work as part of a painting); Sony Computer Entm’t, Inc. v. Connectix Corp.,

203 F.3d 596, 608 (9th Cir. 2000) (copies of computer software made while reverse engineering

the plaintiff ’s game platform to create a competing platform); Sega Enters. Ltd. v. Accolade,

Inc., 977 F.2d 1510 (9th Cir. 1992) (copies of computer software made while reverse

engineering the plaintiff ’s game platform to create compatible games); Authors Guild, Inc. v.

Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013) (reproduction and digitalization of

copyrighted books to permit full-text search), appeal docketed, No. 13-4829 (2d Cir. Dec. 23,

2013). But see Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) (holding that

nonprofit libraries’ reproduction and display of digital book scans for purposes of search,

disability access, and preservation was paradigmatic fair use).

2015] THE ZOMBIE FIRST AMENDMENT 1147

entertainment industry interests also predominate in international

trade negotiations. As a result, and despite its official position to the

contrary, the United States Trade Representative regularly advan-

ces proposals in trade negotiations that go beyond what U.S. copy-

right law would require, and uses its annual Special 301 report to

name and shame countries that have resisted those proposals (or for

other, political reasons).

Meanwhile, in the legislative arena, the rhetoric has begun to

shift in a way that nakedly acknowledges the real interests at stake.

Industry associations that used to bring individual authors to testify

before Congress now send their own officials, who make arguments

about distribution incentives, trade balances, and gross national

product.

(The Golan majority cited this too as ineluctable reality.

)

Powerful and well-connected new organizations such as the Copy-

right Alliance boast membership lists consisting of entertainment,

91. For discussion on the uses and abuses of the Special 301 process, see Gabriel J.

Michael, Special 301: Is It Effective?, T

O PROMOTE THE PROGRESS? (June 5, 2014), http://

topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/ [http://perma.cc/

MCX5-FHN9]; Gabriel J. Michael, Special 301: The Politics of Listings, T

O PROMOTE THE

PROGRESS? (June 12, 2014), http://topromotetheprogress.wordpress.com/2014/ 06/12/ special-

301-the-politics-of-listings/ [http://perma.cc/3CBQ-PXXD]. For discussion of industry influence

in trade negotiations, see Margot Kaminski, The Capture of International Intellectual Property

Law Through the U.S. Trade Regime, 87 S.

CAL. L. REV. 977 (2014). For a graphical represen-

tation of the imbalance, see Christopher Ingraham & Howard Schneider, Industry Voices

Dominate the Trade Advisory System, W

ASH. POST (Feb. 27, 2014), http://www. washington

post.com/wp-srv/special/business/trade-advisory-committees/ [http://perma.cc/7H

DQ-E8D3].

92. Compare The Copyright Term Extension Act of 1995: Hearing Before the S. Comm. on

the Judiciary, 104th Cong. 55-58 (1995) (statements of Bob Dylan, Don Henley, Carlos

Santana, and Stephen Sondheim), and Pre-1978 Distribution of Recordings Containing

Musical Compositions; Copyright Term Extension; and Copyright Per Program Licenses:

Hearing Before the Subcomm. on Courts and Intellectual Prop. of the H. Comm. on the

Judiciary, 105th Cong. 27-29 (1997) (statement of Julius Epstein, screenwriter of

“Casablanca”), with The Role of Voluntary Agreements in the U.S. Intellectual Property

System: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Internet of the H.

Comm. on the Judiciary, 113th Cong. 12-25 (2013) (statement of Cary Sherman, Chairman

& CEO, Recording Industry Association of America), and Music Licensing Under Title 17:

Hearing Before the Subcomm. on Courts, Intellectual Prop. and the Internet of the H. Comm.

on the Judiciary, 113th Cong. (2014) (statement of David Israelite, President & CEO, National

Music Publishers Association), available at http://perma.cc/DCK7-V3XE.

93. Golan v. Holder, 132 S. Ct. 873, 889 (2012) (“Full compliance with Berne, Congress

had reason to believe, would expand the foreign markets available to U.S. authors and

invigorate protection against piracy of U.S. works abroad, thereby benefitting copyright-

intensive industries stateside and inducing greater investment in the creative process.”

(citation omitted)).

1148 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

software, and information industry associations.

Copyrighted

works may originate as speech by authors, but in the halls of Con-

gress and the corridors of K Street they are big business; they be-

come speech interests again only when legal briefs must be crafted.

C. The Biopolitical Public Domain

The parties in Sorrell argued vigorously about the level of

scrutiny that ought to apply to laws regulating a type of private-

sector information processing that had both privacy and price

implications. None questioned the background default rule that

absent a special reason for protection, personally identifiable

information is there for the taking. That assumption conceals a

distributive decision that is antecedent and profoundly important

to the First Amendment inquiry. Scholarly commentary on Sorrell

has cited the case as evidence of a resurgent Lochnerism because

the majority opinion reorients First Amendment standards toward

the protection of economic liberty.

The comparison is even more

apt than that reasoning suggests. The conception of economic liberty

that Lochner constitutionalized reflected a particular, contingent

relationship between the private law of contract and economic reg-

ulation that had evolved over the course of the preceding century as

the industrial economy emerged.

In similar fashion, the conception

of information freedom constitutionalized by Sorrell reflects a

purported baseline that has itself been under construction during

the decades that have witnessed the emergence of the informational

era.

In the United States, the commercial data processing market has

become a multibillion-dollar market that sits at the intersection of

a number of information-era business models. The oldest of those

models is the consumer credit reporting industry, which emerged on

a nationwide scale in the mid-twentieth century, and which has

been sheltered by a federal statutory framework that limits the

94. Members, COPYRIGHT ALLIANCE, http://www.copyrightalliance.org/members [http://

perma.cc/DQ7U-N64J] (last visited Mar. 20, 2015).

95. See, e.g., Susan Crawford, First Amendment Common Sense, 127 H

ARV. L. REV. 2343,

2389-91 (2014); Jedediah Purdy, Neoliberal Constitutionalism: Lochnerism for a New

Economy, 77 L

AW & CONTEMP. PROBS. 195 (2014); Richards, supra note 4.

96. Lochner v. New York, 198 U.S. 45, 53 (1905); see H

ORWITZ, supra note 66, at 9-31.

2015] THE ZOMBIE FIRST AMENDMENT 1149

liability of consumer reporting entities and imposes no independent

duty to verify information or reconcile discrepancies between

conflicting reports.

In the late twentieth century, as automated

reporting and data processing emerged and became commoditized,

credit reporting agencies, credit issuers, and other entities began

developing business models based on mining their databases for

sources of competitive advantage.

The emergence of the Internet

prompted explosive growth in the number and variety of businesses

that collect, process, and exchange personally identifiable informa-

tion. Today, those businesses include: search providers that seek, as

Google puts it, “to organize the world’s information and make it

universally accessible and useful”;

web-based social networking

platforms that use graphically rich, hypertext-based environments

to enable customizable member profiles and multimedia exchanges;

and operators of online massively multiplayer gaming platforms.

As companies in these industries have moved beyond the startup

stage and sought stable sources of financing, they have gravitated

toward surveillance-based business models to help them monetize

user activities more completely and effectively.

100

Other information

enterprises, including data brokers and developers of so-called

behavioral advertising tools, help to provide such capabilities to all

types of businesses.

101

Widespread ownership of networked mobile

devices has enabled real-time tracking of people’s whereabouts

and activities, enabling more precise targeting of offers and oppor-

tunities. The flows of information that support these activities move

97. See Fair Credit Reporting Act, 15 U.S.C. § 1681e(b) (2012) (requiring “reasonable

procedures to assure maximum possible accuracy”); id. § 1681h(e) (preempting actions for

defamation, invasion of privacy, and negligence except to the extent authorized by the federal

law); id. § 1681n(a) (authorizing statutory damages only for willful noncompliance); Sarver

v. Experian Info. Solutions, 390 F.3d 969, 972 (7th Cir. 2004) (holding that requirement to

investigate anomalies would be unreasonable “given the enormous volume of information

Experian processes daily”).

98. See O

SCAR H. GANDY, JR., THE PANOPTIC SORT: A POLITICAL ECONOMY OF PERSONAL

INFORMATION 95-102 (1993); ROBERT D. MANNING, CREDIT CARD NATION: THE CONSEQUENCES

AMERICA’S ADDICTION TO CREDIT 11-30 (2000).

99. Company Overview,

GOOGLE, https://www.google.com/about/company/ [http://perma.cc/

Q7H4-APSE] (last visited Mar. 20, 2015).

100. See M

ARK ANDREJEVIC, ISPY: SURVEILLANCE AND POWER IN THE INTERACTIVE ERA 93-

134 (2007).

101. For a good overview, see S

TAFF OF S. COMM. ON COMMERCE, SCI. & TRANSP., 112TH

CONG., A REVIEW OF THE DATA BROKER INDUSTRY: COLLECTION, USE, AND SALE OF CONSUMER

DATA FOR MARKETING PURPOSES (Comm. Print 2013).

1150 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

in ways that are mostly invisible to ordinary consumers, but they

are omnipresent.

These developments, like the others discussed in this Article, are

manifestations of the transformation now underway in our political

economy, and here it is important to consider some of the conceptual

work that transformation requires. Like the prior transition from

agrarianism to industrialism, the ongoing transition from industri-

alism to informationalism involves the commodification of impor-

tant resources—land, labor, and money then; attributes, prefer-

ences, and attention now.

102

The idea of resources available for

commodification in turn entails a very particular idea of the

common as unowned and available. The routine practices of

personal information processing that have become the norm in the

information economy are constituting a new type of public domain:

the biopolitical public domain, a source of presumptively raw

materials that are there for the taking and on which information-

era innovators can build.

103

Like the public domain in intellectual property, the biopolitical

public domain is a legal construct that does normative and distribu-

tive work.

104

It functions as a site of legal privilege (and of correla-

tive no-rights for individual consumers) and as a starting point for

the creation of new types of commercial entitlements that benefit

information businesses. Personal information harvested from con-

sumers is collected, processed, and exchanged in ways that become

the basis for proprietary claims based on trade secrecy, which

allegedly inheres in the databases, the algorithms and techniques

used to process the data, and the resulting correlations and

predictions.

105

The biopolitical public domain also frames an

approach to knowledge production based on techniques for pattern

102. KARL POLANYI, THE GREAT TRANSFORMATION: THE POLITICAL AND ECONOMIC ORIGINS

OUR TIME 71-75 (1957).

103. I elaborate the concept of the biopolitical public domain more fully in Cohen, supra

note 70; Julie E. Cohen, The Biopolitical Public Domain (2015) (unpublished manuscript) (on

file with author).

104. See Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92

ALIF. L. REV. 1331 (2004) (discussing the public domain as a colonial construct); Cohen,

supra note 52 (discussing the public domain as a spatial construct); Jessica Litman, The

Public Domain, 39 E

MORY L.J. 965 (1990) (discussing the public domain as an epistemological

construct).

105. See F

RANK PASQUALE, THE BLACK BOX SOCIETY: THE SECRET ALGORITHMS BEHIND

MONEY AND INFORMATION 19-25, 82-83, 191-93 (forthcoming 2015).

2015] THE ZOMBIE FIRST AMENDMENT 1151

identification within very large data sets. Information businesses

use those techniques to make human behaviors and preferences

calculable, predictable, and profitable.

106

Lost in this process of expansion and reification is the ability to

comprehend the harms that widespread collection and processing of

personal information might produce. In the lower courts, informa-

tion privacy claims challenging the commercial processing of

personal information have overwhelmingly resulted in dismissal for

failure to allege injury.

107

In policy processes and in the media, the

information industries and libertarian tech policy pundits take a

dismissive stance toward information privacy claims, ridiculing

privacy as antiprogressive and its proponents as old-fashioned and

fearful.

108

Because Sorrell was not really a case about an informa-

tion privacy regulation, it is not clear what the Court would say to

a case that squarely presented well-developed claims of information

privacy harm. At minimum, however, a more robust theory of harm

likely would support a stronger claim of government interest, which

might affect the Court’s judgment about the extent of tailoring

required for the law to survive. The patterns of legal privilege and

correlative disentitlement coalescing around the biopolitical public

domain and its constituent knowledge practices work to prevent

such recognition from occurring.

106. For descriptions of these practices, see generally ANDREJEVIC, supra note 100;

ASQUALE, supra note 105; and Julie E. Cohen, What Privacy Is For, 126 HARV. L. REV. 1904,

1915-18 (2013).

107. For a partial sampling, see In re Google Inc. Cookie Placement Consumer Privacy

Litig., 988 F. Supp. 2d 434 (D. Del. 2013); In re Google Android Consumer Privacy Litig., No.

11-MD-02264 JSW, 2013 WL 1283236 (N.D. Cal. Mar. 26, 2013); Yunker v. Pandora Media,

No. 11-CV-03113 JSW, 2013 WL 1282980 (N.D. Cal. Mar. 26, 2013); In re Linkedin User

Privacy Litig., 932 F. Supp. 2d 1089 (N.D. Cal. 2013); In re Google Inc. Privacy Policy Litig.,

No. C 12-01382 PSG, 2012 WL 6738343 (N.D. Cal. Dec. 28, 2012); In re Sony Gaming

Networks & Customer Data Sec. Breach Litig., 903 F. Supp. 2d 942 (S.D. Cal. 2012); In re

iPhone Application Litig., 844 F. Supp. 2d 1040 (N.D. Cal. 2012); Cohen v. Facebook, Inc., No.

C 10-5282 RS, 2011 WL 5117164 (N.D. Cal. Oct. 27, 2011); Cohen v. Facebook, Inc., 798 F.

Supp. 2d 1090 (N.D. Cal. 2011); and see also In re Google Inc. Gmail Litig., No. 13-MD-02430-

LHK, 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014) (dismissing on ground of insufficient

commonality among class members).

108. For representative examples, see L

ARRY DOWNES, A RATIONAL RESPONSE TO THE

PRIVACY “CRISIS” (Cato Inst. Policy Analysis No. 716, 2013), available at http://perma.cc/

DNX3-7X9K; Adam Thierer, The Problem with Obama’s “Let’s Be More Like Europe” Privacy

Plan, F

ORBES (Feb. 23, 2012, 3:37 PM), http://www.forbes.com/sites/adamthierer/2012/02/ 23/

the-problem-with-obamas -lets- be-more-like-europe-privacy-plan/ [http://perma.cc/9M8Z-

AAFM].

1152 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

D. Circuit Breakers in the Net

The Holder v. Humanitarian Law Project opinion took for granted

a conception of dangerous speech inconsistent with its mid-

twentieth-century precedent on sedition and communism but much

more consistent with late-twentieth-century conceptions of online

threats and acceptable responses. Many (though not all) recent

developments in the legal and technical construction of categories

of information contraband reflect private economic imperatives. Of

particular importance, the past two decades have witnessed a deep

and seemingly permanent shift in the nature of copyright enforce-

ment. Twenty years ago, the principal enforcement tool was the civil

infringement lawsuit. Criminal prosecution might supplement civil

litigation in particularly egregious cases, but the Department of

Justice generally preferred to devote its resources to other problems,

and criminal enforcement was relatively rare.

109

Today, criminal

enforcement is far more frequent, and both prosecutors and

tion at their disposal.

110

Over the course of the 1990s and 2000s, Congress amended the

criminal provisions of the federal intellectual property laws nine

times. The amendments expanded the categories of infringing

conduct eligible for criminal penalties, increased the penalties for

criminal copyright infringement and for importation and distribu-

tion of goods bearing counterfeit marks, and gave enforcement

authorities the power to request court orders directing ex parte

seizures of Internet domains that hosted infringing materials.

111

109. See generally Trotter Hardy, Criminal Copyright Infringement, 11 WM. & MARY BILL

RTS. J. 305 (2002).

110. See, e.g., U.S.

DEPT. OF JUSTICE, PRO IP ACT: ANNUAL REPORT FY 2012 (2012),

available at http://perma.cc/J3JH-NNUM; F

ED. BUREAU OF INVESTIGATION, PRO IP ACT

ANNUAL REPORT 2012 (2013), available at http://perma.cc/RCT9-YWNG.

111. Copyright Felony Act, Pub. L. No. 102-561, 106 Stat. 4233 (1992) (codified as amended

at 18 U.S.C. § 2319 (2012)); Violent Crime Control and Law Enforcement Act of 1994, Pub.

L. No. 103-322, § 320104, 108 Stat. 1796, 2110-2111 (1994) (codified as amended at 18 U.S.C.

§ 2320 (2012)); Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No. 104-153, §

5, 110 Stat. 1386, 1387 (codified as amended at 18 U.S.C. § 2320 (2012)); No Electronic Theft

(NET) Act, Pub. L. No. 105-147, § 2, 111 Stat. 2678, 2678-80 (1997) (codified as amended at

18 U.S.C. §§ 2319, 2319A, 2320 (2012)); Intellectual Property Protection and Courts Amend-

ments Act of 2004, Pub. L. No. 108-482, § 102, 118 Stat. 3912, 3912-15 (codified as amended

at 18 U.S.C. § 2318 (2012)); Family Entertainment and Copyright Act of 2005, Pub. L. No.

2015] THE ZOMBIE FIRST AMENDMENT 1153

addition, the Economic Espionage Act of 1996 established federal

criminal liability for theft of trade secrets.

112

On the civil enforce-

a new notice-and-takedown procedure directed at online intermedi-

aries and another, less-well-known procedure for securing interdic-

tion of infringing foreign traffic on a site-wide basis.

113

At the same

time, litigation-driven expansion in the suite of indirect infringe-

ment theories created the potential for monetary liability on a

hitherto unheard-of scale.

114

For some members of the copyright industries, these develop-

ments have not gone far enough. In particular, a litigation campaign

designed to extend indirect infringement liability to reach third-

party payment processors and venture capitalists failed to produce

the desired results.

115

In 2011, at the behest of the motion picture,

recording, and major league sports industries, several members of

Congress proposed legislation that would empower courts to cut off

the support services provided by payment processors and other

infrastructure providers upon ex parte application by an aggrieved

109-9, §§ 102-103, 119 Stat. 218, 218-21 (codified as amended at 18 U.S.C. §§ 2319, 2319B

(2012)); Stop Counterfeiting in Manufactured Goods Act, Pub. L. No. 109-181, 120 Stat. 285

(2006) (codified as amended at 18 U.S.C. § 2320 (2012)); Prioritizing Resources and Organi-

zation for Intellectual Property Act, Pub. L. No. 110-403, §§ 202-206, 122 Stat. 4256, 4260-63

(2008) (codified as amended at 18 U.S.C. §§ 2318-2320, 2323 (2012)); Food and Drug Admini-

stration Safety and Innovation Act, Pub. L. No. 112-144, § 717, 126 Stat. 993, 1076-77 (2012)

(codified as amended at 18 U.S.C. § 2320 (2012)); see also Digital Millennium Copyright Act,

Pub. L. No. 105-304, §§ 1201-1204, 112 Stat. 2860, 2863-76 (1998) (codified as amended at 17

U.S.C. § 1204 (2012)).

112. Economic Espionage Act of 1996, Pub. L. No. 104-294, § 101, 110 Stat. 3488, 3488-91

(codified as amended at 18 U.S.C. §§ 1831-1839 (2012)).

113. Digital Millennium Copyright Act, Pub. L. No. 105-304, § 202, 112 Stat. 2860, 2879-80,

2885 (1998) (codified as amended at 17 U.S.C. § 512(c)(1), (j)(1)(B)(ii) (2012)).

114. See Metro-Goldwyn-Mayer v. Grokster, 545 U.S. 913 (2005) (recognizing theory of

secondary liability based on inducing copyright infringement); Columbia Pictures Indus. v.

Fung, 710 F.3d 1020 (9th Cir. 2013) (affirming summary judgment on contributory infringe-

ment liability for torrent site operator based on finding of sufficient causal connection to

infringement by users of BitTorrent protocol); In re Aimster Copyright Litig., 334 F.3d 643

(7th Cir. 2003) (affirming finding of willful blindness sufficient to support contributory

infringement liability based on design of defendant’s file-sharing platform).

115. See UMG Recordings v. Shelter Capital Partners, LLC, 713 F.3d 1006, 1032 (9th Cir.

2013) (rejecting speculative theory of joint control over web hosting platform by venture

capital investors); Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788 (9th Cir. 2007) (hold-

ing that third-party payment processor lacked required causal connection to infringement and

that right to terminate relationships with hosting sites did not equal right and ability to

control the infringing conduct).

1154 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

rightholder.

116

The Stop Online Piracy Act (SOPA) and its compan-

ion bill, the Protect Intellectual Property Act (PIPA), sparked

vehement protests that culminated in a worldwide Internet blackout

in January 2012.

117

Partly in response to the protests and partly in

response to the objections of powerful Internet companies, Congress

tabled the legislation.

118

Notably, although the Obama Administration ultimately declined

to support passage of the SOPA/PIPA legislation, its official position

was that strong intervention in the online environment on behalf of

intellectual property owners was entirely consistent with U.S.

solicitude for freedom of speech.

119

Well before the SOPA and PIPA

legislation was introduced, however, the federal government had

begun exporting the lessons learned from copyright interdiction to

other domains far removed from intellectual property. In late 2010,

after the news broke that WikiLeaks had leaked a cache of U.S. dip-

lomatic cables that revealed contempt and disrespect for countries

116. See Stop Online Piracy Act (SOPA), H.R. 3261, 112th Cong., 1st Sess. (2011);

Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property

Act (PIPA), S. 968, 112th Cong. (as amended May 26, 2011); SOPA/PIPA: Internet

Blacklist Legislation, E

LECTRONIC FRONTIER FOUND., https://www.eff.org/issues/coica-internet-

censorship-and-copyright-bill [http://perma.cc/79HK-45UD] (last visited Mar. 20, 2015).

117. Jonathan Weisman, Web Rises Up to Deflect Bills Seen as Threat, N.Y.

TIMES, Jan. 19,

2012, at A1; David A. Fahrenthold, SOPA Protests Shut Down Web Sites, W

ASH. POST (Jan.

18, 2012), http://www.washingtonpost.com/politics/sopa-protests-to-shut-down-web-sites/2012/

01/17/gIQA4WYl6P_story.html [http://perma.cc/S4Z7-QLTE]; Timothy B. Lee, SOPA Protest

by the Numbers: 162M Pageviews, 7 Million Signatures, A

RS TECHNICA (Jan. 19, 2012, 1:45

PM), http://arstechnica.com/tech-policy/2012/01/sopa-protest-by-the-numbers-162m-pageviews-

7-million-signatures/ [http://perma.cc/V3E9-HFHB].

118. See Jennifer Martinez et al., SOPA’s Surprise Hollywood Ending, P

OLITICO (Jan. 20,

2012, 9:28 PM), http://www.politico.com/news/stories/0112/71746.html [http://perma.cc/A4N7-

7Q5L].

119. See Letter from Hillary Rodham Clinton, Sec’y of State, to Rep. Howard L. Berman,

(Oct. 25, 2011), available at http://perma.cc/K9LP-SYRA (stating that goals of advancing

Internet freedom and enforcing intellectual property rights online are consistent); Macon

Phillips, Obama Administration Responds to We the People Petition on SOPA and Online

Piracy, W

HITE HOUSE BLOG (Jan. 14, 2012, 8:09 AM), http://www.whitehouse.gov/blog/2012/

01/14/obama-administration-responds-we-people-petitions-sopa-and-online-piracy

[http://perma.cc/TRS-8Y4A] (“[T]he Administration calls on all sides to work together to pass

sound legislation this year that provides prosecutors and rights holders new legal tools to

combat online piracy originating beyond U.S. borders while staying true to the principles

outlined ... in this response.”); see also Hillary Rodham Clinton, Sec’y of State, Remarks on

Internet Freedom (Jan. 21, 2010), http://www.state.gov/secretary/20092013clinton/rm/2010/01/

135519.htm [http://perma.cc/TR2J-P8BS] (“Those who use the internet to ... distribute stolen

intellectual property cannot divorce their online actions from their real world identities.”).

2015] THE ZOMBIE FIRST AMENDMENT 1155

considered to be U.S. allies, WikiLeaks suddenly found itself with-

out Domain Name System (DNS) and web hosting providers and

without a way to process donations.

120

Although government officials

denied that official pressure on EveryDNS.net, Amazon.com, and

PayPal, which formerly had provided those services to WikiLeaks,

caused those sites to terminate their relationships, industry obser-

vers who had watched the developments closely concluded other-

wise.

121

As to the SOPA/PIPA proposal itself, subsequent developments

suggest that the story of the evolution of interdiction capabilities

remains only partly written. The American Bar Association’s Intel-

lectual Property Section recently issued a detailed report outlining

recommendations for implementing strengthened interdiction

obligations.

122

Meanwhile, observers of the push to draft new,

comprehensive regional trade agreements strengthening intellectual

property enforcement have worried that the “wall of secrecy”

surrounding the negotiations will enable the SOPA/PIPA prohibi-

tions to resurface in the language of those agreements.

123

Whether

or not interdiction obligations are extended, however, the changed

enforcement climate has catalyzed other market reactions. Every

major Internet company that hosts user-provided content uses

automated filtering technology to prevent the posting of infringing

content, and the major Internet access providers have adopted a “six

strikes” menu of graduated sanctions to be levied on customers who

120. Charles Arther & Josh Halliday, WikiLeaks Fights to Stay Online After US Company

Withdraws Domain Name, G

UARDIAN (Dec. 3, 2010, 2:54 PM), http://www.theguardian.

com/media/blog/2010/dec/03/wikileaks-knocked-off-net-dns-everydns [http://perma.cc/UM7A-

UBLD] (citing several sources suggesting that EveryDNS.net dropped WikiLeaks under

governmental pressure).

121. Id.; Ashlee Vance, WikiLeaks Struggles to Stay Online after Attacks, N.Y.

TIMES, Dec.

3, 2010, at A8 (noting that Amazon.com kicked WikiLeaks off its systems after inquiries from

an aide to Sen. Joseph I. Lieberman); Bianca Bosker, PayPal Admits State Department

Pressure Caused It to Block WikiLeaks, H

UFFINGTON POST (Dec. 8, 2010, 10:17 AM), http://

www.huffingtonpost.com/2010/12/08/paypal-admits-us-state-de_n_793708.html [http://perma.

cc/T6QV-W2QQ].

122. S

ECTION OF INTELLECTUAL PROP. LAW, AM. BAR ASS’N, A SECTION WHITE PAPER: A

ALL FOR ACTION FOR ONLINE PIRACY AND COUNTERFEITING LEGISLATION (2014), available at

http://perma.cc/9GCY-3D3D.

123. Lori Wallach & Ben Beachy, Obama’s Covert Trade Deal, N.Y.

TIMES, June 3, 2013,

at A21. For a careful analysis of the draft intellectual property provisions of the Trans-Pacific

Partnership agreement—leaked by WikiLeaks—concluding that the draft does not yet go that

far, see Jonathan Band, The SOPA-TPP Nexus, 28 A

M. U. INT’L L. REV. 31 (2012).

1156 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

they believe are trafficking in infringing materials.

124

These and

other measures create an online environment in which proprietary

circuit breakers are expected and ordinary.

* * *

This Part of the Article has attempted to bring into sharper relief

the background against which contemporary free speech litigation

is conducted. That background reflects a pattern of ongoing realign-

ment in the distribution of legal power and privilege in response to

the asserted needs of powerful actors in the emerging information

economy. Expanding protection for signifiers of corporate reputation

has bolstered the expressive power of capital, and immunity from

legal accountability for speech harms suffered by individuals and

correlative disability on the part of those subjected to such harms

have fortified that power still further. The expressive power of

capital is fortified, as well, by a robust and open-ended privilege to

harvest information from the biopolitical public domain, and by the

corresponding disentitlement of individual information subjects to

decline participation. Intellectual property rights in creative and

expressive works have continued to expand, as have correlative

duties to accommodate them. Last, though hardly least, as rights in

intellectual property and other types of assertedly proprietary

information have expanded, so has the power to demand reconfigu-

ration of the network to protect those entitlements, with correspond-

ing increases in the correlative liability of those who might stand in

the way. Each of these shifts informs the First Amendment

jurisprudence described in Part I. The great intellectual and moral

failing of the contemporary First Amendment, and the impetus for

its ongoing zombification in the service of information power, is that

it has simply accepted them.

124. For information about the graduated response initiative, see CENTER FOR COPYRIGHT

INFORMATION, http://www.copyrightinformation.org/ [http://perma.cc/YX4K-NQ4Q] (last visit-

ed Mar. 20, 2015); and see also Annemarie Bridy, Graduated Response American Style: “Six

Strikes” Measured Against Five Norms, 23 F

ORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1 (2012)

(evaluating the initiative in light of norms of fairness and due process).

2015] THE ZOMBIE FIRST AMENDMENT 1157

ONCLUSION

Constitutional law’s purposes are hotly debated and I have no

grand claims to make on that score; my aim in this Article has been

to draw attention to an emerging pattern. History suggests that

constitutional law has been invoked to reinforce the accumulation

of private economic power at least as often as to restrain it.

125

The

account presented here suggests that a transformation of the

former, reactionary sort is underway. For now, at least, First

Amendment law at the dawn of global informational capitalism

is ratifying distributive arrangements that celebrate and consoli-

date private economic power, including especially new forms of

information power that undergird the emerging information econ-

omy.

Shifting the course of constitutional transformation entails recog-

nition and reframing, and the two processes are linked. Frederick

Schauer has argued that reinvigorating free speech jurisprudence

requires more careful attention to naming and substantiating

speech-related harms.

126

That advice is well worth heeding, but in

conceptualizing harms it is also important to focus on who benefits.

It is difficult to assert a speech harm when the counterparty has an

entitlement that seems solidly rooted in the preexisting economic

and social fabric. Reinvigorating free speech jurisprudence for the

information age will entail recognition and reframing of harms, but

it also requires more careful attention to naming and demystifying

emerging patterns of legal power and privilege.

This suggests, however, that legal scholars looking to consti-

tutional law for tools to halt the seemingly inexorable march of

private power probably have been looking in the wrong place. As

many have noted, the Constitution was not designed as a vehicle for

correcting the maldistribution of resources, but rather tends to take

inequality of property as a given. If the hope of a reinvigorated First

Amendment is all that stands between us and the advancing horde

of First Amendment zombies, we are in deep trouble. Questions

about private law and private harms, in contrast, are centrally

125. For some examples, see HORWITZ, supra note 66, at 9-31.

126. Frederick Schauer, Harm(s) and the First Amendment, 2011 S

UP. CT. REV. 81, 96-97.

1158 WILLIAM & MARY LAW REVIEW [Vol. 56:1119

about access to and distribution of resources. A jurisprudence of

harms and benefits for the information economy must begin with

those questions.