The question exemplified the Court majority’s dessicated, brain-in-a-bottle approach to practical questions. In the abstract, anything you have—whether a new Gran Torino, or a right under a statute or the Constitution—is property. And if you reach an agreement with someone else (for example, not to criticize him or her publicly), some green-eye-shade Gradgrind in accounting can slap a dollar value on it.
In the vulgar economics that dominates most legal discourse, that means the thumb goes to the productive, the rich, the “job creators.” As Justice Antonin Scalia explained in his Citizens United concurrence, “to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.” At oral argument in that case, Justice Anthony Kennedy suggested that corporate speech was in a certain way more important than individual speech, citing “the phenomenon of television ads where we get information about scientific discovery and environment and transportation issues from corporations who, after all, have patents because they know something.”
They run things; they know more than we do; we need to hear their instructions.
In case after case, the Supreme Court, and some of the lower courts, have looked at speech cases solely from the point of view of the asset holder. Arizona’s public-finance system, the majority held, had to go because it “imposes a substantial burden on the speech of privately financed candidates and independent expenditure groups.” That “burden” was the prospect that publicly financed candidates might be able to answer privately financed advertisements: “an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted.”
There are two candidates—and two sets of speech rights—in that hypothetical. The Court did not undervalue the publicly financed candidate’s rights. It did not value them at all.
In R.J. Reynolds Tobacco Co. v. Food and Drug Administration, the D.C. Circuit found that graphic warning labels on cigarettes were “ideological” burdens on the free speech rights of the tobacco giant. These warnings were designed to protect consumers—many of them children—from the most important single cause of preventable death in the country, and perhaps the world. But to the panel majority, those health interests literally do not exist: “We are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences.”
At the outset of the American experiment, speech was an aspect of civic personhood. Free exercise—what Madison called “the rights of conscience”—belonged to the spirit. They were “inalienable rights.” The phrase has an antique sound; we live today in what philosopher Michael Sandel called “the era of market triumphalism,” the universe of Gradgrind. Something that can’t be “alienated”—sold or given away—can’t be monetized, and has no value in the new world of markets.
By the rights-are-assets logic, then, government should entrust their employees’ reproductive and religious rights to the Greens, who have demonstrated they will use them for maximum return. The employees have no right to complain; they sold their rights on the free market.