Free-Speech Formalism and Social Injustice

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history.

Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy over the poor, whites over people of color, men over women, straights over LGBTQ. In a formalist legal regime, the government must efface, deny, or ignore all of the structures of power embedded in the private sphere, including racism, sexism, antisemitism, and homophobia. Thus, formalism matters, but does not determine outcomes in free-speech cases.

Ultimately, what animates most of the Court’s free-expression decisions, whether formalist or not, is a conservative (neoliberal) commitment to protecting the private sphere, especially the economic marketplace and wealthy economic actors, while simultaneously denigrating and weakening government.