William & Mary Law Review


Julie E. Cohen


Scholarly and popular critiques of contemporary free speech jurisprudence 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 capitalism. 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.