Of the many dispiriting developments of the early twenty-first century, corporate use of the First Amendment has seemed a particularly cruel barb. Throughout the second half of the twentieth century, liberals and progressives had fought hard for a robust First Amendment. Although their dreams for a more regulated economy may have come to little, liberals could comfort themselves by noting the rapid expansion of individual liberties, victories won in the teeth of conservative opposition that had been committed to policing morality, radicalism, and national security. And yet, in the early twenty-first century, the First Amendment turned out to be something of a Trojan horse. Liberals who had defended a free marketplace of ideas have realized that that their victories helped to prepare the way for Citizens United, as well as the expanding use of the First Amendment to challenge all kinds of economic regulation on the grounds that it interferes with the free exchange of information.

As always, the crises of the present have changed the stories we tell about the past, and scholars have searched for the origins of this laissez-faire, anti-regulatory First Amendment. Broadly speaking, two approaches have emerged. In popular and legal commentary, most scholars have assumed that the First Amendment was “captured” by conservatives at some point in the 1970s, that it was one more victim of the neoliberal movement that eviscerated the New Deal state.Footnote ¹ Meanwhile, legal historians Jeremy Kessler and Laura Weinrib have argued that the anti-regulatory First Amendment has a much deeper history, one that stretches back to the interwar years, when Americans first began to embrace robust protections for speech rights. In detailed case studies, they trace the emergence of a procedurally neutral vision of speech rights that benefited economic elites. (Weinrib, in particular, shows how this displaced a progressive vision of civil liberties focused on the rights of labor to agitate for broader social and economic justice.)Footnote ² This dispute about periodization has serious normative implications. If the anti-regulatory First Amendment had its origins in the 1970s, then it is possible to think of it as a late deformation: a rotten limb that needs to be pruned to allow the healthy flourishing of free speech rights. But if it dates back to the interwar rise of the free speech tradition, if the rot is in the roots, then it may require a more wholesale reconsideration of the value of judicially enforced speech rights in democratic life.

This article intervenes in these debates by providing a new history of the interwar origins of the conservative First Amendment. Like the work of Kessler and Weinrib, it favors a longer periodization, and finds many anti-regulatory First Amendment claims in the 1930s. But whereas Kessler and Weinrib focus, respectively, on the American Bar Association (ABA) and an American Civil Liberties Union (ACLU) in retreat from more progressive commitments, this article focuses instead on a different fragment of the conservative coalition that hit on the First Amendment as an anti-regulatory tool during these years: the newspaper industry.

Putting the newspaper industry at the center of the story of First Amendment Lochnerism is important for two reasons. First, as this article will show, there is reason to think that the conservative newspaper industry was, in fact, the leading wedge of the formation. Whereas other corporations needed to find a way to translate their interests into issues of “speech” to invoke the First Amendment, the newspaper industry could easily invoke the press clause to protect its economic interests from government regulation, and did so from as early as 1933. Both Kessler and Weinrib, in fact, mention the important role of the newspaper industry in allying with the ABA and the ACLU, although their analytical and narrative focus on these other parts of the coalition means that they do not map the full range of newspaper advocacy in the field.Footnote ³ Reconstructing the role of the newspaper industry in the interwar politics of civil liberties therefore provides a more complete understanding of the period, and helps flesh out the centrality of the press clause to the development of the modern First Amendment.

Second, recovering the centrality of the newspaper industry to the process of First Amendment Lochnerization helps us rethink the dynamics of this history. Legal scholars have focused primarily on a handful of judicial decisions in which anti-regulatory First Amendment claims were made successfully. But when the full range of newspaper industry efforts to deploy the First Amendment against New Deal regulation is examined, we can better appreciate the decidedly uneven efficacy of this strategy. Time and again the newspaper industry claimed that the First Amendment protected it from economic regulations, from labor law, from taxes, from truth-in-advertising regulations, from anti-trust law, and from answering government subpoenas. Any economic regulation of the press, the newspaper industry argued, would open the door to statist interference in the content of the press. Yet these arguments were surprisingly unsuccessful in court, where judges repeatedly distinguished economic regulations from content regulations, and argued that the First Amendment provided no bar to the regulation of press economics.

Although they may have failed in court, these anti-regulatory arguments proved more successful in the political culture. The newspaper industry convinced many liberal politicians and intellectuals that any state regulation of the newspaper industry would, in fact, open the door to statist tyranny. The interwar newspaper industry, in short, was successful in creating an ideological formulation that dressed its economic interests in the language of civil liberties. It convinced politicians and intellectuals of the liberal bona fides of that formulation, which it presented as the heir to a civil libertarian tradition with deep roots in the past rather than as as the recent, self-interested invention that it really was. This helped preserve a respect for one form of laissez-faire economics at the heart of the New Deal order: the “marketplace of ideas” remained a bastion of idealized unregulated economics, especially in the newspaper market. Eventually, conservatives would succeed in extending this vision of laissez-faire speech rights out beyond its newspaper heartland, producing the laissez-faire, anti-regulatory First Amendment of the post-1970s. It is significant that all of this causal work happened in the political culture, not the courts. The key legacy of the interwar newspaper industry's First Amendment struggles was not judicial precedent, but the legitimacy of an ideology, an ideology that became more legitimate over time.

This article provides a longer history of the anti-regulatory First Amendment to remind us that courts in the past were successful in distinguishing economic regulations from censorship, and that it took a long process of ideological and cultural struggle to change these attitudes.Footnote ⁴ It begins by focusing on Elisha Hanson, the right-wing attorney for the American Newspaper Publishers Association (ANPA) who pioneered anti-regulatory civil liberties arguments, and shows how Hanson's arguments generally failed in the courts. But Hanson's vision of press freedom had greater success in the political culture, particularly as conservative newspaper publishers helped to invent a liberal tradition in which the First Amendment was seen as a way to protect a “free market of ideas” from statist over-reach. The legitimacy of that ideology, even among liberals, ultimately provided the seedbed for the conservative deployment of the First Amendment beginning in the 1970s. A clearer understanding of the rhythms and dynamics of this long-running effort to deploy civil liberties claims for conservative purposes, the article concludes, will help us better navigate the contemporary crises of the First Amendment.

***

The 1930s witnessed widespread clashes between the newspaper industry and the New Deal. Conservative newspaper publishers were larger-than-life political figures and vociferous critics of reformist state policies. William Randolph Hearst complained that the government was “wasting the people's money in futile and fantastic experiments”; Robert McCormick thought that the goal of the New Deal was the “extension of government controls which would give the U.S. a planned society no different from that attempted in Russia.” They focused particularly on the threats of statist over-reach to what they took to be America's constitutional norms. McCormick complained that “business cannot prosper when the President of the United States embarks upon a campaign to destroy the constitution;” Frank Gannett funded a Committee to Uphold Constitutional Government to attack Franklin Delano Roosevelt's plans to pack the Supreme Court and reorganize the executive. And the press barons deployed their newspaper holdings to criticize the New Deal, and to campaign for the defeat of Roosevelt at the polls. Only 37% of newspapers endorsed Roosevelt in the 1936 election and only 25% did so in 1940. In response, New Dealers and Popular Fronters identified the conservative newspaper barons as important impediments to their political project, and mobilized against them. Consumer boycotts of Hearst papers were organized; Harold Ickes published books and made speeches attacking the “Lords of the Press;” Senator Sherman Minton declared that “the dictatorship we have to fear in this country is that of a purse-proud, insolent, arrogant, bull-dozing newspaper publisher like William Randolph Hearst.” On the night of the 1936 election, pro-Roosevelt crowds in Chicago celebrated their victory by setting fire to a Chicago Tribune truck and egging its building.Footnote ⁵

At the center of these confrontations were New Deal efforts to regulate the economics of the newspaper industry. These efforts were motivated in part by a desire to democratize the organs of public opinion, by dislodging the control of a handful of conservative newspaper publishers over the flow of information to the public. Minton complained that “the administration can't get a headline in the newspapers.” And they were equally motivated by the desire to apply general economic regulations to what was, after all, a major industry, suffering from the same exploitative labor conditions, unfair trade practices, and problems of economic concentration that plagued the broader economy.Footnote ⁶ Therefore, the 1930s witnessed a number of efforts to deploy general economic regulations to reform and diversify the newspaper industry. Under the National Recovery Administration (NRA), a newspaper industry code was proposed to deal with unfair trade practices. The Food and Drug Administration (FDA) proposed new truth-in-advertising legislation intended to protect consumers from fraudulent medical advertisements, many of which ran in, and provided valued revenue to, the nation's press. Seeking to take advantage of newly protective labor laws, journalists in the nation's newsrooms formed the Newspaper Guild to improve their job security and economic well-being. And to diversify the media, the Federal Communications Commission (FCC) held hearings in which they considered introducing a ban on newspaper ownership of radio stations and the Department of Justice brought an anti-trust action against the Associated Press (AP) wire service.Footnote ⁷

When seen alongside contemporaneous clashes over the regulation of the new medium of the radio, which also witnessed industry claims that regulatory policy threatened civil liberties, the New Deal years thus witnessed wide-ranging political contestation over the structure of the modern public sphere, and deep debates about the relationships among economic liberty, state regulation, and expressive freedom in modern American democracy.Footnote ⁸ The conservative titans of the newspaper industry staked out a maximalist, anti-regulatory First Amendment position in these debates, arguing that any effort to regulate the industry of the press threatened an assault on civil liberties as a whole. Robert McCormick, for example, thought that the New Deal administration was “dropping parachute troops upon press freedom, under the guise of regulating labor conditions, preserving business competition, and superintending accuracy in advertising.”Footnote ⁹ Therefore, the press mobilized to defeat these reform efforts.

Leading the charge was Elisha Hanson, General Counsel for the American Newspaper Publisher's Association (ANPA). The “chubby, suave [and] immensely clever” Hanson was a prime example of the sort of anonymous corporate First Amendment activist who rarely made it into the history books. Apart from his work for the newspaper industry, Hanson's only other claim to fame was that he was elected president of the National Capital Pigeon Fanciers Association in 1947. (He had “long been considered one of the world's most noted experts on breeding fancy pigeons.”) Born in Missouri, Hanson had worked as reporter for the Peoria Journal and the Chicago Tribune, and then as secretary to Senator Joseph Medill McCormick, Robert's older brother, before he was admitted to the bar in 1924. In the early 1930s, he became ANPA's general counsel. He held the position until 1962, when he turned it over to his son, just months before his death.Footnote ¹⁰

It would difficult to overstate either Hanson's conservatism or his hyperbolic fears of totalitarianism. In 1935, he compared the Agricultural Adjustment Act to Soviet collectivization. In 1938, he compared the court-packing plan to the Anschluss: the former an unsuccessful grab for power, the latter a successful one.Footnote ¹¹ He thought that government regulation of business was “an octopus that is constantly stretching out its tentacles in an effort to completely enmesh us.”Footnote ¹² When new investigative powers were proposed for the Federal Trade Commission in 1936, Hanson thought they were “nothing more nor less than an attempt to set up an American OGPU for the harassment of business.”Footnote ¹³ By 1940, in a speech to the New York Advertising Club, he complained that “there is not a single activity of life, whether business or of pleasure, in which the government does not play a part and an increasing part” and worried that “it will not be long before the women of the country will have little choice as to their hats, frocks, hose or shoes. Men will wear blue, black or brown shirts according to government prescription….lipstick, rouge and nail polish will be taboo for the housewife and office worker as well as the debutante. I am not joking.”Footnote ¹⁴

Unsurprisingly, Hanson believed that the First Amendment was a key tool to defend liberty from what he saw as statist domination. As Hanson put it in 1935

Crucially, his vision of the First Amendment fused older notions of economic liberty with modern notions of expressive liberties. “Freedom of the press,” Hanson proclaimed to the New York Advertising Club in 1940, “is just as essential to the preservation of our economic liberty as it is to the safeguarding of our political freedom, for the two go hand in hand.”Footnote ¹⁶ For the newspaper industry that he was paid to represent, this was a powerful and appealing formulation.

Therefore, in the 1930s Hanson took a still nascent respect for First Amendment rights—it was only in the mid-1920s, after all, that the Supreme Court had begun to meaningfully enforce the right to free speech—and sought to stretch the press clause to completely exempt the newspaper industry from economic regulation. When the NRA proposed a code to regulate the newspaper industry, Hanson testified to Congress that such a code would violate the First Amendment. (An ANPA pamphlet, which Hanson presumably helped to write, elaborated: “the publishing of newspapers is not an industry but an enterprise of such peculiar importance as to be especially provided for in the constitution of the U.S. and of the several states whose independence must be jealously guarded from any interference which can lead to or approximate censorship.”Footnote ¹⁷) Forty years before the Supreme Court recognized advertising as protected speech under the First Amendment, Hanson was already making that argument to ward off truth-in-advertising legislation, telling Congress that giving the FDA power to enjoin newspapers from printing fraudulent advertisements interfered with press freedom: “the advertisement being an integral part of the newspaper printing it, this power of injunction, as this sentence is written, gives an unlimited power of suppression. Of course, insofar as newspapers are concerned, the section is in direct conflict with the First Amendment of the Constitution.”Footnote ¹⁸ In an amicus brief filed in support of an AP challenge to the Wagner Act, he made the same case against labor law, arguing that insofar as the Wagner Act interfered with the right to hire and fire employees, it interfered with publishers’ right to determine which journalists were fit to work on their papers, and thus violated the First Amendment. When the Wages and Hours Division of the Department of Labor asked to inspect the books of some newspapers to see if they were complying with the Fair Labor Standards Act, Hanson sought to have the practice barred, arguing that it was a “direct restraint upon the newspaper business” and hence a violation of the First Amendment. Worrying about “a horde of inspectors” engaged in “fishing” expeditions, Hanson deployed his favored mode of slippery-slope, anti-totalitarian rhetoric: “if it is held that Congress can regulate newspapers, it is possible it can say who may or may not engage in the publication of papers and magazines; it could limit the extent of the activities of newspapers; say when and where newspapers could be circulated, who could write for them, how much they could charge not only their readers but their advertisers, specify the conditions under which they may receive their news reports.”Footnote ¹⁹

Hanson had, in other words, a maximalist vision of the press clause, one that saw no difference between the censorship of newspaper content and the application of general economic regulations to newspapers. In Hanson's mind, the founders had decreed “that freedom of the press should not be infringed through governmental regulation of any kind, sort or description.”Footnote ²⁰ Hanson thus tried to stretch the press clause to exempt newspapers from complying with even the most basic functions of government: taxation and investigation. He argued that taxation could violate the First Amendment, and attempted to exempt Arizona newspapers from a neutral 1% sales tax in the state.Footnote ²¹ And when Congress was investigating lobbying and sought to subpoena some telegrams from Hearst, Hanson argued that “if government agencies are permitted to have access to the communications which pass between publishers and their editors, between newspapers and their correspondents, the freedom of the press, as it has been known in America and as it has been upheld by our highest court, will be destroyed.”Footnote ²² When the FCC called newspaper publishers to testify in hearings on whether newspapers should be banned from owning radio stations, Hanson argued that such a summons was itself an unconstitutional interference with freedom of the press. Four newspaper publishers, including James Stahlman, publisher of the Nashville Banner, refused to even recognize the subpoena calling them to testify to the hearing.Footnote ²³

The courts, however, were not swayed by these maximalist arguments. The Supreme Court of the District of Columbia ruled that congressional subpoena of Hearst's telegrams did not involve freedom of the press; Stahlman was ultimately ordered to abide by his subpoena and appear before the FCC.Footnote ²⁴ In 1937, in AP v NLRB, the Supreme Court rejected the AP's First Amendment challenge to labor law, ruling that “the business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws.” Although four judges, influenced by Hanson's arguments, dissented, it was one of five decisions handed down simultaneously that upheld the constitutionality of the Wagner Act.Footnote ²⁵

In fact, the courts proved quite adept at distinguishing between those forms of economic regulation that were legitimate and those that were veiled forms of political censorship. In 1934, for example, Louisiana Governor Huey Long imposed a 2% tax on the advertising revenues of newspapers with a weekly circulation above 20,000, a cutoff that exempted the smaller rural papers that had favored Long's administration, but not the large urban papers, which had been far more critical. (Long called it a “tax on lying, two cents per lie.”) Elisha Hanson represented the newspapers challenging the law before the Supreme Court in Grosjean v American Press Co. He argued both that the tax discriminated against newspapers on the basis of their political content and that the tax was an interference with the economic liberties of the press, because it was a statist disruption of the natural political economy of revenue, advertising, and circulation. The four conservative judges on the Supreme Court were intrigued by Hanson's arguments that the law was unconstitutional because it interfered with the economic liberty of newspapers; Justice George Sutherland's first draft of the decision focused on the unequal burden that differential tax rates applied to the conduct of business. But in the end, to maintain the support of liberal justices who believed both in the legitimacy of uneven taxation and the importance of protecting the press from political censorship, Sutherland redrafted the opinion to emphasize the ways that the law interfered with the free expression of the newspapers.Footnote ²⁶

The line between the economic liberty and political liberty of the press was a fine one, made even finer by the efforts of Hanson to blur the distinction altogether. Economic liberty claims haunted civil liberties victories; astute commentators saw how difficult it was becoming to disentangle expressive and economic liberties in matters such as Grosjean. “The decision itself is excellent,” observed the Nation, “… it is well to have on the record for future use in a fascist emergency.” But the “context of the case is more doubtful. The freedom involved is indicated by the fact that Elisha Hanson was its advocate [and] his presence also foreshadows the uses to which the decision may be put.” Observing the many ways that Hanson was attacking New Deal economic reforms, the Nation worried that Grosjean might be used to support attacks on union drives in newsrooms, on advertising regulations, on the 30 hour a week bill, and even on Social Security, which Hanson had recently instructed newspaper publishers to oppose. “Mr. Hanson seems to suggest,” the Nation concluded, “that when an old lady in Dubuque accepts a government pension—if she gets a chance—she too will be endangering our free press.”Footnote ²⁷

And yet, because it had been reoriented away from economic liberties claims, Grosjean did not establish a precedent for a broader judicial assault on economic regulation, even in the case of the newspapers. Two years later, a federal court rejected Hanson's claim that the Arizona sales tax violated the First Amendment because it was, in fact, neutrally applied. (A Chicago Tribune headline complained: “Arizona's Right to Rule Press by Tax Upheld: Way Opened for Control by Politicians.”Footnote ²⁸) In a per curiam decision 4 months later, the Supreme Court upheld the validity of the tax, citing its decisions in Grosjean and AP v. NLRB.Footnote ²⁹ The court had successfully maintained a distinction between economic and expressive liberty. It was possible to protect the freedom of the press’ content from government censorship without protecting the freedom of the press's counting room from government regulation.

Where Hanson's arguments had greater effect was in the political culture. Alongside its efforts to block economic regulation in the courts, the newspaper industry was simultaneously deploying its considerable political clout to convince politicians and reformers that any effort to regulate the press threatened the political futures of both liberal democracy in general and of any particular liberal democrat who fell afoul of the press; such a person would be bereft of favorable newspaper coverage. These were successful strategies. Private lobbying produced an NRA newspaper code that explicitly clarified that it had been written to protect freedom of the press. In practice, that meant that it was a uniquely weak code, which contained no fair-trade practices regulations and even included a large exemption from the NRA's usual ban on child labor, desired so as to allow the ongoing use of newsboys. (By way of contrast, a decade later the Supreme Court upheld a state child labor law when Jehovah's Witnesses claimed that it interfered with their First Amendment right to involve children in the sale of religious literature).Footnote ³⁰ Similar lobbying both in public and behind closed doors led to the watering down of truth-in-advertising measures: Business Week observed that editors with “immense political weight” were united in opposition to the bill; 4 in 10 Washington correspondents though that “most papers printed unfair or distorted stories” about the proposed law.Footnote ³¹ And in the face of the considerable opposition that the FCC's proposed cross-media ownership laws encountered from the press and from red-baiting conservative congressmen, the FCC declined to institute a ban on cross-media ownership. Because of the “grave legal and policy questions involved” it decided to approach the issue in an ad-hoc manner moving forward.Footnote ³² Faced with political opposition, expressed simultaneously in the highly principled language of anti-totalitarian libertarianism and earthier promises to cut off the political oxygen of favorable publicity, reformers flinched, and began to retreat from their plans to take on the newspaper industry. Economic regulation of the press, even when the courts upheld its constitutionality, was coming to seem politically undesirable.

The uneven success of Hanson's laissez-faire vision of the press clause was captured best in the last great clash over New Deal press reform. In 1942, the Justice Department charged the AP with anti-trust violations. At the time, subscribers to the wire service could prevent rivals in their cities from also purchasing a subscription. Reformers charged, fairly, that this suppressed competition in local newspaper markets; when the Chicago Tribune blocked a new pro-Roosevelt daily paper from subscribing to the AP, the administration was happy to take the matter to court. McCormick and ANPA supported the AP's current laws with their now familiar mix of classically liberal arguments and anti-totalitarian rhetoric. (If the anti-trust action against the AP succeeded, warned Hanson, then the “people of the US will be confronted just as the people of Germany today are confronted, with a government-controlled press.”) But the Supreme Court rejected such arguments. In the majority opinion, Hugo Black made it plain that “freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.” Certainly the arguments of the newspaper industry had had some impact on the justices. It was a complex, fractious 6–3 decision, and out of concerns about interference with press freedom, the majority decided the matter on narrow, technical grounds that were a retreat from the Justice Department's more robust lower court victory. But the judiciary had nevertheless rejected the newspaper industry's argument that the First Amendment prohibited anti-trust action in the newspaper field.Footnote ³³

In the broader political culture, however, the newspaper industry's notion that anti-trust action against the press threatened to undermine press freedom was becoming viewed as common sense. This process can be seen happening in the deliberations of the Hutchins Commission on Press Freedom, an august group of liberal intellectuals that met between 1944 and 1946 to clarify the philosophical and policy disputes that had roiled the press over the previous decade. At first, the group had simply assumed that some forms of economic regulation of the press were necessary. “We can dismiss without serious discussion the too simple concept that freedom for the press is complete absence of government control,” read one memorandum. “We are all agreed in essence that laissez-faire no longer does the work,” read another. Early drafts of the commission's report favored robust anti-trust action to create a more diverse media market. But over the course of its deliberations, the commission retreated from this vision out of fear that it would interfere with First Amendment speech rights and open the door to domestic dictatorship. “Government ownership, government control or government action to break up the greater agencies of mass communication might cure the ills of freedom of the press,” the final report of the commission confessed in 1947, “but only at the risk of killing the freedom in the process.” In casually conflating government “regulation” and “control,” the commission reproduced Hanson's slippery-slope, anti-regulatory First Amendment maximalism. Newspapers could not be regulated by the state “because if they are controlled by government we lose our chief safeguard against totalitarianism—and at the same time take a long step toward it.”Footnote ³⁴ The Commission thus encapsulated and helped to consolidate a broader resignation to unregulated economics in the newspaper industry: in Cold War America, there would be little effort to arrest the ongoing trend to corporate consolidation in the newspaper industry.

And the commission captured an important development in the political culture. Even reform-minded liberals had come to embrace Hanson's argument. Crucially, they saw this not as capitulation to a self-interested political agenda pushed by an industrial lobby, but rather as the outgrowth of their liberal commitments to a consistent free speech tradition with roots stretching deep into the past. During deliberations, the commission had referred, matter-of-factly, to a “Milton-Mill-Holmes First Amendment formula.”Footnote ³⁵

***

To a surprising extent, it was conservative newspaper publishers who helped to invent this tradition for liberal speech rights extending far back into history. And they did so as part of their effort to delegitimize New Deal efforts to regulate them.

The laissez-faire conception of free speech as a “marketplace of ideas” was, as Vincent Blasi and John Durham Peters have shown, a twentieth-century invention, one that emerged in the interwar years; Blasi and Peters both date its first use to 1935, although one can find occasional earlier examples in the 1920s. (As the corpus of fully searchable works expands, the date will probably move back further still.) Still, use of the phrase would not expand until the late 1940s; it is telling that Elisha Hanson seems never to have used it. It was not used in a Supreme Court decision until 1953, when its use in a dissent was its sole appearance during the decade. Supreme Court justices then used the phrase five times in the 1960s, fifteen times in the 1970s, and twenty-two times in the 1980s.Footnote ³⁶ The Hutchins Commission may have referred to a “Milton-Mill-Holmes” formula as a known entity; in truth a formulaic belief in the “marketplace of ideas” was only just coming into being.

The modern origins of the concept of a “marketplace of ideas” date to Holmes's famous dissent in Abrams v. United States in 1919, in which he outlined the modern theory of free speech without using the precise phrase: “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”Footnote ³⁷ Holmes seems to have been influenced by both Adam Smith and John Stuart Mill in framing the issue in this manner. But although there is an understandable tendency to treat Holmes's 1919 decision as the efflorescence of a longer liberal tradition, it is worth remembering that it was novel.

Earlier defenses of free speech, it was true, had occasionally drawn on concepts from capitalism to justify their claims. But the metaphors were much looser and more ambivalent than the “marketplace of ideas” concept in the twentieth century: there was a long-standing affinity between capitalist exchange and the exchange of ideas, but not a clear analogy, and free exchange was not always conceptualized via the metaphor of a market. John Milton, for example, spoke of markets only twice in the Areopagitica in 1644. The first time was to distinguish the free exchange of ideas from the regulated marketplace of the seventeenth century: “Truth and understanding are not such wares as to be monopolized and traded in by tickets and statutes and standards,” Milton argued. “We must not think to make a staple commodity of all the knowledge in the land, to mark and license it like our broadcloth and our woolpacks.” The second time was to complain that censorship was like the blocking of “havens and ports and creeks, it hinders and retards the importation of our richest merchandise, truth.”Footnote ³⁸ Both references imply an analogy between the free trade in goods and the free trade in ideas, but rather obliquely, and as John Durham Peters has emphasized, the more famous metaphor from Milton, about the clash of truth and falsehood, is a martial metaphor, not a market one.

And as all legal historians know, early United States defenders of free speech had always presumed that there were clear limits to the right to free speech. Thomas Jefferson, for example, wrote to Madison to suggest that the First Amendment should be redrafted to exclude any right to publish “false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” Throughout the nineteenth century, Americans such as Jefferson also understood that the states had broad powers to police the “abuse” of the right to free speech. In 1804, Thomas Jefferson wrote to Abigail Adams to explain that “while we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the states, and their exclusive right to do so,”Footnote ³⁹ hence the censorship of abolitionist material, blasphemy, “obscene” birth control information, and anarchist literature. Even when metaphors of capitalist exchange were made, they were embedded firmly in a cocoon of republican values: the “market” was to be regulated for the common good.Footnote ⁴⁰

But as the newspaper publishers began assaulting New Deal economic regulations in the 1930s, they began to develop a new account of what they understood to be a long and consistent tradition of laissez-faire speech rights that were embedded in unregulated economic exchange. They claimed to be its natural heirs. In 1933, for example, McCormick gathered publishers at Mt. Vernon in New York in a trumped-up celebration of the 200th anniversary of the Zenger trial, which received a good deal of favorable press coverage. McCormick used the opportunity to tell a long history of the struggle for press freedom “from the time of Henry VII,” a history that culminated with a depiction of the threat that New Deal fair trade regulations posed to press freedom.Footnote ⁴¹ Two years earlier, McCormick had celebrated his victory in Near v. Minnesota—his ANPA Committee on Freedom of the Press had funded the successful challenge to the Minnesota gag law—with a similar production of history, organizing a party at Monticello at which 200 editors and journalists gathered to dedicate Jefferson's study as a “perpetual shrine to freedom of the press.” (McCormick seemed oblivious to the irony that Jefferson had been more than comfortable with state, as opposed to federal, regulation of the press). McCormick subsequently had a portion of the Near decision chiseled into the marble of the Tribune building lobby, alongside similar free-press aphorisms from Milton, Benjamin Franklin, and Thomas Jefferson.Footnote ⁴²

McCormick's knowledge of the history of press freedom was a product of his relationship with a young journalism professor at the University of Illinois, Frederick Siebert. McCormick had sought out Siebert in 1928, asking him to prepare a history of press freedom from British common law through to the minority opinions of Holmes and Brandeis. This historical material would pepper McCormick's arguments against the New Deal. And the collaboration also seems to have provided an important impetus to Siebert's influential historical scholarship, particularly Freedom of the Press in England, 1476-1776: The Rise and Decline of Government Control, first published in 1952.Footnote ⁴³ At the same time, Siebert was intervening publicly in the debates on press regulation: in 1941, he testified at the FCC, alongside newspaper publishers, to oppose cross-media ownership laws; in 1943, he attacked the anti-trust action against the AP, seeing it as a potential return to “fifteenth century mercantilism” and part of a rising tide of press restriction. “More government restrictions of speech and of the press have been imposed and declared unconstitutional by the courts in the period 1920 to 1940 than in all the previous years of our history as a nation.”Footnote ⁴⁴

Because these clashes over newspaper regulation were so visible and so controversial—the newspapers, unsurprisingly, devoted considerable attention to them—they produced something like a national referendum on the meaning of freedom of the press. “In the last six months of 1933,” observed University of Wisconsin Journalism Professor Willard Bleyer, “there was more discussion of the freedom of the press in this country than in the 135 years since the violent debate about the Sedition Act of 1798.”Footnote ⁴⁵ “In these past few years,” observed Roosevelt in a 1938 open letter to the St Louis Post-Dispatch, “there has been so much resounding thunder about freedom of the press that one sometimes wonders what it is all about.”Footnote ⁴⁶ That letter produced 120 responses from intellectuals, journalists, and politicians, which were published as a pamphlet later that year.Footnote ⁴⁷

Out of the ructions, a new attitude to press freedom began to crystallize in the political culture, one that was much closer to Hanson and McCormick's understanding of the need to protect the press's economic liberty than it was to the newly clarified legal precedent that held that neutral economic regulations could be applied to the press. “It must be frankly recognized,” observed Felix Morley, editor of the Washington Post, “that the free newspaper is inevitably a commercial enterprise”; press freedom could only be grounded in commercial competition in a free market.Footnote ⁴⁸ Even those who identified real problems in the literal marketplace of ideas, the newspaper market, had trouble identifying anything that could be done about it, out of fear of statist interference with the marketplace of ideas. William Allen White, who had been very critical of the newspaper industry, now backed himself into support for a laissez-faire marketplace, albeit without much enthusiasm: “woe betide this land, sorry the day for this world, when the man who comes into the marketplace peddling information, even though it is badly damaged goods, even though it smells to high heaven, is held on leash by any hand except the common sense of fairness.”Footnote ⁴⁹ “Freedom of the press today has one practical meaning,” concluded journalist Richard Wilson. “Whatever else the press may be subservient to, it is not subservient to the government.”Footnote ⁵⁰

These attitudes came to define American common sense to the press in the post-war period. (As was so pithily skewered by A.J. Liebling in the early 1960s when he declared that “freedom of the press belongs only to those who own one.”Footnote ⁵¹) Siebert, from his position in the field-defining University of Illinois Communications Department, had perhaps done more than anyone to help present such an understanding of press freedom as the simple, inevitable legacy of long-standing liberal commitments. In 1956, he wrote the essay on the liberal tradition of press freedom in the highly ideological text that would become a standard journalism and communications school text for generations: Four Theories of the Press: The Authoritarian, Libertarian, Social Responsibility, and Soviet Communist Concepts of What the Press Should Be and Do. His essay, suggestively dubbing the history of Anglo-American press freedom a “libertarian theory,” argued that this theory was defined by the “slogan” of the “free market place of ideas” from “Milton to Holmes.”Footnote ⁵²

***

The result was that press freedom became a sanctuary for the valorization of laissez-faire economic philosophy at the height of the New Deal order. Not only was the actual newspaper industry—increasingly monopolistic, increasingly profitable—uniquely free from economic regulations in these years; also, the idea of a “marketplace of ideas” became a liberal cause, and a foundational commitment of American political life.

This was not, of course, entirely the work of conservative newspaper publishers. Radical minorities and centrist liberals alike picked up on the idea of a “marketplace of ideas” as a way to protect their politics from the censorious attacks of conservatives. In 1948, the United States Communist Party, of all parties, took out a newspaper advertisement calling for a “real marketplace of ideas” as it squared off against Cold War censorship.Footnote ⁵³ In 1952, Adlai Stevenson sought to defuse American Legion attacks on what was seen to be his inadequate efforts to root subversives out of his Illinois government by explaining that “most of us favor free enterprise for business, let us also favor free enterprise for the mind.”Footnote ⁵⁴ In censorious Cold War America, the idea of a pre-political marketplace of ideas was useful, and, therefore, it became entrenched across the political spectrum.

And, in some landmark First Amendment decisions in the 1960s and 1970s, the interests of the newspaper industry in protecting their autonomy brought them into alignment with some important progressive forces, and helped win some important victories for progressive causes. When Southern states, for example, began aggressively deploying libel law to chill newspaper coverage of the struggle for civil rights, the Supreme Court issued a sweeping defense of the right to “uninhibited, robust and wide-open” debate in its unanimous opinion in New York Times v Sullivan, and offered the press unprecedented protections from libel charges. Similarly, in the Pentagon Papers case of 1971, the Supreme Court ruled that the press could not be enjoined from publishing secret government documents. Such decisions represented the public benefits that flowed from a robust defense of the free-market of ideas; procedurally, both served to protect the realm of democratic debate and discourse from censorious interests in the government, and substantively, they were boons to the cause of civil rights and the anti-war effort. Although newspaper advocacy was not primarily motivated by economic interest in either instance, it should be noted that the outcomes in both cases hardly hurt the newspaper industry's bottom line. Publishing confidential government documents was quite a scoop, after all, and expanded libel protections saved the press the cost of libel insurance and lawyers and immunized the papers against the risks of libel payouts. And it was significant that the newspaper content at stake in Sullivan was not an editorial but a paid advertisement, a detail that would not have been missed by newspaper industry executives keen to sell advertising space. Nevertheless, decisions such as these helped to build the liberal, democratic bona fides of a robust vision of a free market of ideas that had to be protected from government over-reach.Footnote ⁵⁵

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But the idea of a laissez-faire First Amendment was also useful to those who sought a broader return to laissez-faire economics. As early as the late 1930s, conservative lawyers such as Grenville Clark began to argue that civil liberties were an important tool against government regulation, and formed the American Bar Association's Committee on the Bill of Rights. Tellingly, some of Clark's earliest meetings in this effort were with ANPA and Hanson, who had pioneered the conservative use of the First Amendment. And newspaper publishers saw the ABA Bill of Rights Committee as the continuation of their broader political commitments. Zechariah Chafee, an early committee member, joked in one letter that “some newspapers evidently expect us to oppose all the policies of the New Deal on the ground that they deprive American citizens of all their rights, the most important of which appears to be the right to be taxed low.” These conservative interests soon began promoting more broadly civil libertarian issues. In 1943, ANPA and the ABA supported Jehovah's Witness claims that taxes on their sale of religious literature violated their First Amendment rights. Noticing these developments, legal realist and Yale law professor Walton Hamilton was worried that the Supreme Court had “read ‘liberty of contract’ out of the due process clause and promptly read freedom of speech into its place.”Footnote ⁵⁶

In fact, it would take decades for legal conservatives to effectively turn the First Amendment into a deregulatory tool. Lacking precedent in the courts, they needed to first produce a revolution in the political culture. Their earliest efforts therefore sought to capitalize on the political and cultural legitimacy of the marketplace of ideas, to use the broad acceptance of civil liberties to rehabilitate the reputation of economic liberties. In a 1953 address at a conference on freedom and the law held at the University of Chicago Law School, Aaron Director ironically observed what he called a “marked divergence between the attachment to liberty as participation in government and the repudiation of liberty as restraint from government direction of economic life. In the former I include the attachment to free speech, the only area where laissez faire is still respectable.”Footnote ⁵⁷ (The Journal of Law and Economics re-published the address in 1964.) In 1959, in The Constitution of Liberty, Friedrich Hayek made a similar effort to stretch the arguments for liberty of speech and press to legitimate a broader vision of economic liberty. Hayek argued that liberal intellectuals had been focused only the “uses of liberty closest to their hearts.” A footnote led to a passage from Alfred North Whitehead: “the concept of freedom has been narrowed to the picture of contemplative people shocking their generation. When we think of freedom, we are apt to confine ourselves to freedom of thought, freedom of the press, freedom of religious opinion….this is a thorough mistake…in fact, freedom of action is the primary need.”Footnote ⁵⁸ In 1974, explicitly riffing on Director's 1953 speech and mirroring the moves of Hayek's work, Ronald Coase argued that the relative respect for the free marketplace of ideas over the free marketplace for goods was a function of the “self-interest and self-esteem” of intellectuals. “Intellectuals,” he concluded, “have shown a tendency to exalt the market for ideas and to depreciate the market for goods. Such an attitude seems to me unjustified….there is no fundamental difference between these two markets and, in deciding on public policy with regard to them, we need to take into account the same considerations.”Footnote ⁵⁹ In 1976 and 1979, the Liberty Fund hosted two conferences on the use of rights as deregulatory tools. In the same years, new conservative legal advocacy groups worked to extend the free market from the press to the broader economy.Footnote ⁶⁰ It was all an echo of Hanson's earlier efforts to blur the line between economic and civil liberties, and to use the latter as a stalking horse for the former.

Still, it is noteworthy that even at this late date, the courts continued to hold that general economic regulations could be applied to the press. In 1973, in a 5–4 decision, the Supreme Court rejected newspaper industry claims that an anti-discrimination law that banned gender-specific job advertisements violated the First Amendment.Footnote ⁶¹ In 1978, when newspapers claimed that a new FCC rule preventing them from owning broadcasting stations was a statist interference with their First Amendment rights to free economic behavior, the Supreme Court unanimously upheld the authority of the FCC to issue the rules.Footnote ⁶² The courts were still able to distinguish between legitimate economic regulation and illegitimate political censorship, however much the newspaper industry tried to blur the line.

But soon the conservative legal movement began to win court victories against economic regulations. In 1976, the First Amendment was used to strike down advertising regulations and limits on campaign expenditures. There is no doubt that those victories relied on the First Amendment jurisprudence that lionized the “free marketplace of ideas.” But it was not a judicial coup wrought out of thin air. It was the culmination of a long-running ideological campaign that had sought to change minds and the broader political culture by stacking law schools, universities, think tanks, and the bench, and which had argued that economic regulation was out of date, paternalistic, and harmful.Footnote ⁶³ To do so had required stretching respect for laissez-faire rights beyond its civil libertarian redoubt; First Amendment rights had to be actively turned into tools with wider reach.

The legitimacy of the laissez-faire vision of press freedom that had emerged out of New Deal clashes was crucial to that effort. Genevieve Lakier, for example, has argued that a key turning point in the emergence of Lochnerian speech jurisprudence in the 1970s was the Supreme Court's decision in Tornillo v Miami in 1974, in which the court ruled that a statute that provided political candidates a right to reply to critical stories was an unconstitutional interference with the editorial autonomy of the newspaper, and thus a violation of the First Amendment. For Lakier, the decision foreshadowed the highly abstract vision of expressive freedom that would lay the ground for a broader anti-regulatory First Amendment politics, one rooted in an ideal of autonomous speakers unencumbered by considerations of the actual capacities for speech and expression in a highly uneven, capitalist media market. That vision should be familiar: it was the direct heir of newspaper industry arguments during the interwar period. In fact, Tornillo can also be seen as a coda to New Deal ructions over the regulation of a newspaper industry increasingly dominated by a small handful of publishers. Like New Deal reform efforts, the right of reply law was seen as a way to diversify the voices in an increasingly consolidated press; a lower court had upheld its constitutionality by drawing on the precedent of the AP anti-trust case. But the Supreme Court disagreed, citing Zechariah Chafee's work from the Hutchins Commission as it unanimously ruled that press freedom required autonomy from government regulation.Footnote ⁶⁴

One way to narrate the Lochnerization of the First Amendment since the 1970s is to trace this anti-regulatory, laissez-faire vision of a free marketplace of ideas out from its New Deal redoubt in the press clause. The key decisions first came in the field of advertising, which was closely related to the core interests of the newspaper industry. New York Times v Sullivan, for example, was cited to fortify attacks on both campaign spending and advertising regulations. In both instances, the rights of corporations to place advertisements were seen as essential communicative activity no different to that of the National Association for the Advancement of Colored People (NAACP) or the newspaper itself (to the considerable economic benefit, we might add, of advertising-funded newspaper companies).

In the First National Bank of Boston v Bellotti case, for example, First National Bank of Boston challenged a state law that regulated corporate political spending by directly comparing itself to the press: “a voter in Massachusetts concerned with such economic issues as the tax rate, employment opportunities, the ability to attract new business into the state, might be just as interested in hearing this bank's views on a proposed graduated income tax as, say, the views of Playboy magazine, Sports Illustrated, or even the editorial staff of the Boston Globe.” Why, asked the bank, should those “media corporations” have more speech rights than other corporations?Footnote ⁶⁵

The Supreme Court split in answering that question. A dissenting minority of four judges believed that it was perfectly reasonable to place some limits on political expenditures of corporations, because the law was narrowly drawn to allow political expenditure on matters of direct relevance to the corporation, and did nothing to bar the corporation from expressing its opinion on even general political matters in other ways. But in his majority opinion, which ruled that such laws did violate the First Amendment rights of the corporation, Lewis Powell deployed the bank's analogical reasoning (in fact, in footnote 18, he reproduced the language of the bank's brief almost verbatim.) He was worried that the minority's view that corporate speech rights could be limited “would seem to apply to newspaper editorials,” that the “potential impact of this argument, especially on the news media, is unsettling.” In his concurring opinion, Warren Burger found it “disquieting” that a regulation on corporate spending “may carry the risk of impinging on the First Amendment rights of those who employ the corporate form as most do—to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case.” To further break down any distinction between the press and the general corporation, Burger relied on the economic “evolution of traditional newspapers into modern corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise,” a fact that “suggests the need for caution in limiting the First Amendment rights of corporations as such.” Moreover, Burger added, there was no reason to think that media managers were “more virtuous, wise, or restrained” than the managers of any other corporation.Footnote ⁶⁶ So explicit was this effort to stretch the press clause beyond the newspaper field that one early commentator in the newspaper industry trade journal Editor and Publisher worried that it revealed a “desire to strip the press of any special status.” In the beginning, the expansion of press clause jurisprudence could be felt to be loss for the industry that had long enjoyed it as a unique monopoly.Footnote ⁶⁷ But very soon, corporations and the press closed ranks. In 1980, the vice president of the United States Chamber of Commerce was invited to speak to a media industry conference on the First Amendment. Citing First National Bank of Boston v Bellotti, he reminded the audience members that they were also a “business” and asked the press to “work to insure business' right to comment” and “never to allow either group (business or press) to deny the other's right to speak.”Footnote ⁶⁸

The history of broadcast media deregulation in the 1970s and 1980s provides another example of the deregulatory power of the press analogy, and suggests the way its logic began to snowball. In 1980, Mobil took an ad out in Editor and Publisher that called for the overthrow of the fairness doctrine. Citing Bellotti, it pointed out the hypocrisy produced by the limited reach of the press clause: “for the print media, at least, the law is on the side of advocacy advertising. But the three major television networks continue to deny advertisers the opportunity to express their views over the airwaves.”Footnote ⁶⁹ Broadcast regulations such as the Fairness Doctrine had emerged from the same ructions over New Deal media policy that had produced Elisha Hanson's press philosophy. But whereas Hanson's arguments had helped establish a presumption that press freedom required an unregulated newspaper market, a different settlement had been reached in the broadcast industry, where it was broadly presumed that the scarcity of the spectrum rendered regulation necessary. As Lee Bollinger has argued, this was, of itself, a political judgment about the public good more than it was a necessity imposed by technology, however much its advocates rested on technologically determinist claims to buttress their arguments.Footnote ⁷⁰ But by the late 1970s, it was increasingly common to treat broadcast regulation—ownership caps, content regulations, license hearings—as nothing more than an unfortunate and temporary deviation from the laissez-faire norms that should govern media policy, as the freedom of the press exemplified. In a 1978 symposium on media concentration, First Amendment scholar Thomas Emerson summed up an emerging consensus: “technological change is coming along pretty fast and the coming problem will really be quite different with the advent of cable tv. When we have cablecasting and other increases in facilities, the electronic media should be treated, and will have to be treated under the First Amendment, almost the same as the press.”Footnote ⁷¹ President Ronald Reagan's appointees to the FCC embraced these arguments, which accorded well with their broader governing philosophy. In 1982, Mark Fowler promised a “Marketplace Approach to Broadcast Regulation;” his successor, Dennis Patrick, made plain the ways that laissez-faire attitudes to media regulation were migrating over from a newspaper industry where they had enjoyed, in a formulation that echoed Hanson and McCormick, a long history: “We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country's inception.”Footnote ⁷²

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Amid the neoliberal dynamics of the late twentieth century as well as the rise of the information economy, it was a relatively short step from there to the broader Lochnerization of the First Amendment. Today, all manner of businesses are deploying Hanson's old trick, blurring the distinction between their economic activity and their expressive activity to claim, once again, that the First Amendment exempts them from state regulation. Search engines and social media companies, in particular, have proven highly adept at claiming First Amendment protections for the advertising economics at the heart of their business model. Google, for example, claims that its search engine algorithm is indistinguishable from the editorial function of a newsroom; in a significant speech in October 2019, Mark Zuckerberg presented Facebook as heir to the “American free speech tradition.”Footnote ⁷³ (Big Tech, just like the mid-century newspaper industry, also relies on private lobbying and influence in the political culture to press for a favorable regulatory environment.Footnote ⁷⁴) Given the successes of this strategy, those committed to more robust regulation are searching for a way to contain the sprawl of the First Amendment. Some seek to sketch its boundaries to develop a new account of the issues that the First Amendment should cover and those that it should not.Footnote ⁷⁵ Others fear that the First Amendment has become a “black-hole” that exerts a devastating gravitational pull on the regulatory landscape.Footnote ⁷⁶

Remembering the interwar history of the press clause helps us navigate these debates. The history of Hanson and McCormick reminds us that maximalist, anti-regulatory First Amendment claims are not new, and that media industries with conservative political philosophies have long dressed up their partisan and economic interests as paladins of civil liberties. To an unacknowledged extent, the conservative newspaper industry seeded the long libertarian crusade against New Deal regulation; their successes in presenting a laissez-faire marketplace of ideas as a part of a consistent liberal tradition helped to create dynamics that have defined American political culture into the present. As Frederick Schauer points out, part of the reason that the First Amendment has such power in the contemporary political culture is that invoking it provides a “good way of attracting the attention and sympathy of the press.” The media companies remain, just as they were during the New Deal, self-interested advocates for a laissez-faire first amendment.Footnote ⁷⁷

But the uneven success of Hanson's legal strategy in the interwar period offers a more hopeful lesson, too. Acknowledging just how long corporations have been trying to use the First Amendment for their own purposes does not mean that their success in doing so was inevitable. At mid-century, the courts were dismissive of claims that the First Amendment provided any protection from economic regulations. And although it was a time when expressive rights were only beginning to earn their favored status in the law, the courts did prove capable of distinguishing between neutral economic regulations and veiled forms of political censorship. They thus protected expressive rights and economic regulation simultaneously, providing a model for progressive politics in the contemporary moment, which seeks bulwarks against the corrosive expansion of First Amendment claims.

Of course, distinguishing economic regulations from the First Amendment will not provide a panacea for the problems of free speech in the neoliberal era. There still remain deeply contentious questions about content regulations: about whether or how to regulate hate speech, “fake news,” or the right to privacy. And we need to remain aware of the fact that it will, as always, be the wealthy and the powerful who will be best poised to take advantage of judicially enforced minority rights protections. Free speech rights, alone, are clearly insufficient to create a more egalitarian political culture, let alone a more egalitarian political economy. And in a capitalist economy, expressive rights will always, at some level, be entangled with, and shaped by, economic inequality. But disentangling these issues from the maximalist claims of anti-regulatory corporations may help us more carefully balance the competing interests at play within the expressive sphere, and to experiment, as do other democratic nations, with a variety of regulatory and laissez-faire approaches to these problems.Footnote ⁷⁸

As the history of the last half-century shows, the First Amendment is open to capture by conservative, anti-regulatory forces when it becomes isolated from broader considerations of economic and democratic justice. But as a longer history of the press clause reveals, there was nothing inevitable about the Lochnerization of the First Amendment: it was a product of political struggle, waged over many decades and in the face of initial defeat in the courts. It matters that this capture was first accomplished, at mid-century, not by judicial coup, but in the political culture.

Those hoping to reclaim the First Amendment as a progressive cause should learn from this history. Rather than swallowing conservative claims that seek to eradicate the line between expressive and economic liberty, and to thus question the place of civil liberties in their political philosophy, progressives would do well to insist on more precise delineations between those domains. The drawing of such distinctions and the policing of such borders will, of course, always be political, but that is not necessarily a problem, and this article has suggested that the New Deal courts had, amid broader political contestation over the structure of the public sphere, the capacity to uphold a vision of civil liberties that drew the line differently to later courts influenced by a rising neoliberal political coalition. It would, in short, be a mistake to believe spurious claims by corporations that they are champions of long-settled philosophical principle and deeply entrenched judicial precedent; there is no need to cede civil liberties as a cause to modern-day Elisha Hansons. The challenge, as it was in the 1930s, is to make the case for a more realistic and more democratic vision of the First Amendment.