The Disembodied First Amendment

Authors

Nathan Cortez, Southern Methodist University, Dedman School of LawFollow
William M. Sage, Texas A&M University School of LawFollow

ORCID (Links to author’s additional scholarship at ORCID.org)

Nathan Cortez: https://orcid.org/0000-0002-2536-1297

Abstract

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - dubious precedents, doctrines, assumptions, and theoretical grounds that have elevated corporate and commercial speech rights over the last century. This Article offers several ways to deconstruct these artifices, re-tether the First Amendment to natural speakers and listeners, and thus reclaim the individual, political, and social objectives of the First Amendment.

Publication Title

Washington University Law Review

Document Type

Article

Keywords

First Amendment, Free speech, Corporations, First Amendment doctrine, Protected speech, Corporate commercial speech, Artificial Intelligence, Corporate personhood, AI, Natural persons, Civil rights, Constitutional law

Recommended Citation

Nathan Cortez & William Sage, The Disembodied First Amendment, 100 Wash. U. L. REV. 707 (2023)