The New Age of "Self"

The Enlightenment was not only the age of reason, but also the era of selfhood. Faith in the individual, the autonomous self, was essential to the eighteenth century credo. The political and moral philosophies of David Hume, Charles Louis Montesquieu, and John Locke portrayed the person as a free, rational, and self­governing agent who was both the source of political authority and the ultimate justification for its exercise. These philosophers established the intellectual constructs that support the current liberal theory of free speech. Grounded in the eighteenth century concept of selfhood, First Amendment theory holds that the preservation of conditions for individual self­ realization is an integral objective of, if not the primary purpose for, free speech rights. ¹⁸⁸ At its core, the First Amendment exalts the liberty of individual action through self­expression.

In 1886, the same year in which the Statue of Liberty was dedicated in New York Harbor, American liberty was given a new face. Almost a century after the close of the Enlightenment, the liberty that was once accorded only to individuals was handed over to corporations as well. A unanimous Supreme Court declared that corporations were "persons" under the Fourteenth Amendment and were entitled to the blessings of liberty. ¹⁸⁹ "Thus, the Court converted an amendment primarily designed to protect the rights of blacks into an amendment whose major effect, for the next seventy years, was to protect the rights of corporations." ¹⁹⁰ Remarkably, historian Howard Zinn reports: "Of the Fourteenth Amendment cases brought before the Supreme Court between 1890 and 1910, nineteen dealt with the Negro, 288 dealt with corporations." ¹⁹¹ Once the self had thus been transformed, it was entirely predictable that corporations would eventually seize First Amendment liberties for their own expression as well.

This constitutional transformation of the individual­self to the corporate­ self has drawn sharp dissent from traditionalists ¹⁹² and progressives ¹⁹³ alike, most recently in the commercial speech context. The defenders of the old self cannot tolerate the idea that the free speech values associated with individual autonomy and self­realization should now be affiliated with corporate communication for profit. Similarly, Edwin Baker argues that, unlike other forms of protected communication, corporate speech for profit does not "create or affect the world in a way that has any logical or intrinsic connection to anyone's substantive values or personal wishes.... It lacks the crucial connections with individual liberty and self­realization that are central to justifications for the constitutional protection of speech ...." ¹⁹⁴ So viewed, since corporate expression does not and cannot further the intrinsic values of individual selfhood, it cannot lay claim to First Amendment security.