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The Journal of Contemporary Legal Issues

Abstract

John Stuart Mill’s On Liberty—a fundamental text for political liberalism—not only defended the importance of freedom of expression and debate, but suggested that social pressure from private persons and institutions can be as much, or more, of a threat to freedom, including freedom of expression, as any legal sanction or act of government. Mill feared “a social tyranny more formidable than many kinds of political oppression” which “leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul to itself”.

Recent decades in America have seen efforts to suppress free expression by colleges and universities—many of them private and not answerable to the First Amendment—and by corporate and other private institutions as well. These are private pressures of a kind that Mill might have anticipated and feared.

A development that Mill did not clearly foresee was widespread collaboration of government and private institutions to suppress opinions, ideas, or facts that challenge the would-be orthodoxy. Extensive collaboration of government and private bodies to achieve social unity and to suppress dissent was a feature—and an explicit principle, known as “corporatism”—of Mussolini’s fascist government in 20th century Italy.

To what extent have there been quasi-corporatist efforts to restrict freedom of expression, inquiry, and debate in the US in recent years? To what extent is there an imminent danger of such corporatism in the US, despite First Amendment constraints on government?

This article explores the degree to which corporatism actually or potentially threatens free expression and debate. Recent decisions by the Supreme Court have had mixed implications for efforts to challenge or rein in such government and corporate collaboration. What are the constitutional, statutory, and cultural resources that might tame corporatist threats to free speech and to freedom of debate in a broadly free society?

This article is part of a Symposium on “Free Speech Beyond The Constitution” published in 27 Journal of Contemporary Legal Issues (2025).

Volume

27

Issue

1

Start Page

143

Faculty Editor

Maimon Schwarzschild & Larry Alexander

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