Markets and Speech: Where Does the Public Reside?

If you were to do an informal poll of conventional progressive opinion—asking where is the public to be found, in acts of speech or in the marketplace—I suspect most liberals, and probably not a few leftists, would say: in acts of speech.

Since the eighteenth century, speech has been firmly associated with the public sphere or the public square. “The people’s darling privilege”: that’s how freedom of speech was understood, as the instrument of the people, assembled in their sovereign and public capacity. There’s a long history behind the notion, stretching back to Aristotle, whose justification for the claim that man is a political animal rests upon the fact that human beings, unlike other animals, have the capacity for speech. In his essay on liars, Montaigne wrote that human beings “have relations with one another only by speech.” In the twentieth century, Hannah Arendt argued that our politicalness was to be found in our capacity for word and deed. Speech and politics, speech and the public, speech and the people: Long before constitutional lawyers thought of rights as primarily individual claims, they thought of freedom of speech as something that belonged to, and required, a public square. Freedom of speech was less something that belonged to the individual than it was a property of good public life.

Markets, on the other hand, have a more checkered status in the contemporary progressive imagination. Returning, again, to our hypothetical poll of liberal and left opinion, I suspect many progressives associate the market, first and foremost, with private acts of possession: the ownership of property, ownership of the means of production, personal possession of money, and so forth. Though all of these elements—property, money, production—involve the state, indeed are inconceivable without some public entity of acknowledgment and enforcement, they are not thought to be public, of the people, in the same way as speech. In fact, we often think of the market as involving individuals, and even when we think of social classes or groups in the market, the idea is that they are pursuing their own particular, non-public, interests. From the point of view of some parts of the left, that is one of the problems of the market: its privatizing or individualizing effect.

Which leads me to 303 Creative LLC v. Elenis, yesterday’s Supreme Court case that pitted the First Amendment rights of a graphic designer against the anti-discrimination claims of LGBTQ individuals. Contrary to popular myth, the rights at stake here do not involve religion. Lorie Smith, the designer looking to go into the website business for weddings, was claiming that her free speech rights were threatened by Colorado’s anti-discrimination law, which prohibits public accommodations, including public-facing private businesses, from denying goods and services to individuals on the basis of those individuals’ sexual orientation (and race, creed, religion, etc.)

How was Smith’s freedom of speech at stake, you ask? Smith claimed that because she doesn’t believe in gay marriage, the state’s requirement forces her, compels her, to utter words that she does not believe. A website is a combination of text and graphics. It would be, in this case, custom-designed for the individual couple in question. To design a website celebrating a gay couple’s union would be the equivalent of forcing a Muslim filmmaker—the Court kept returning to this analogy—to make a movie with a Zionist viewpoint. (I’m just the messenger here; not endorsing the claim. Or the assumption about Muslims behind the analogy.)

What’s interesting about the case is how it reverses the left’s usual assumptions about speech and markets. If you read Sonia Sotomayor’s dissent, which was joined by the Court’s liberals, it’s clear that while she does not deny that Smith’s website design involves speech, that it is expressive and communicative, she nevertheless insists upon putting Smith’s actions in the context of the market. Not because Smith would make money from her web design but because, by virtue of entering the market, she has opened her business—including her business’s expressive activities—to the public. By entering the market, she has to accept the rules of the market, one of which is to provide access to any and all members of the public. One might say that the market is a kind of public.

Sotomayor traces this principle back to a 1701 case in English common law, but it also animates much of the Enlightenment’s thinking about commerce and markets. Adam Smith, like David Hume and many other theorists of commercial society, thought that an increasingly widened commerce would draw us all out of our local and parochial attachments, connecting us to ever broader and more distant parts of the world. One can easily find the trace of his and other eighteenth-century thinkers’ positions in the Interstate Commerce Clause of the Constitution and in some of the great civil rights cases of the twentieth century, which involve institutions like inns and hotels and restaurants—not just places of commerce and the market, but places of commerce that are connected with travel, with encounters between strangers, with the growing relationships between peoples from distant places and lands. The market connects us, in this tradition, so if we enter the market, we have to connect.

Now we come to Neil Gorsuch, who wrote the opinion for the Court’s conservative majority. For Gorsuch, and for his fellow conservatives, the market barely makes an appearance in this case. Instead, he and the conservatives take the side of Smith, not Adam Smith, but Lorie Smith, the anti-gay marriage website designer. What is at stake are not her rights in the market, which, as Sotomayor relentlessly observers, would open, even force, Smith the designer, into the hands of the public. Instead, says Gorsuch, it is her rights of speech, which Gorsuch and the conservatives see as belonging to the sphere of conscience, of Smith’s inner beliefs. In the same way that the state cannot force me to take an oath to avow a belief I do not hold, to utter words that I do not think, so should the state not force Smith’s business to avow beliefs that she does not hold. That she has entered the market to express herself is neither here nor there, to Gorsuch. Her beliefs, her words, are hers. She may be in the market, but that doesn’t mean she has to connect. Her speech protects her from connecting. It protects her from the public.

So there we have it. Obviously there are all kinds of politics and interests going on here, which have little to do with the formal statements that are being articulated in these warring Court opinions. But the statements matter, and should get us to think some more about our own assumptions regarding where the public lies: in our speech acts or in our market life.

Additionally, there’s an assumption, particularly on the left, that what the right has pursued, through neoliberalism, is the relentlessly economistic organization of society. Everything should be subjected to the rule of the market. Yet as 303 Creative LLC v. Elenis demonstrates, that’s not quite true. It’s not simply that the right wishes to uphold the right to discriminate against LGBTQ people, though that is true. It’s also that the neoliberal right does its work not simply by economizing the public sphere but also by refusing to see, sometimes, the economic dimensions of the public sphere, preferring to see those dimensions as speech acts, expressive, communicative rather than commercial. Conversely, the left, sometimes, can do its best work not by denying the economic dimensions of the public sphere, not by relegating market relations to a second-order sphere of private property and possession, but by seeing the public dimension of market relations and insisting on their connective tissue, the ways in which the market brings us together and creates a public, however imperfect and deformed.

If you want to read more about these issues, take a look at my article on Adam Smith and chapter six of my book on Clarence Thomas. I’ll also be pursuing these issues in my next book, King Capital.


  1. LFC July 1, 2023 at 11:02 pm | #

    “The market connects us, in this tradition, so if we enter the market, we have to connect.”

    I think “the market” may need to be unpacked or differentiated here. Certain manifestations of “the market” probably do connect people. The medieval Champagne fairs, for example, which some merchants traveled very long distances to reach, likely performed that function (among others). The open-air bazaars that doubtless still exist in various parts of the world may do that too. A small-town or neighborhood farmers market where, at least in its idealized form, neighbors meet and spend time gossiping or chatting might fit under this umbrella as well.

    However, most commercial sites in a contemporary capitalist economy and society don’t seem to involve much connection. They seem rather to take the characteristics of an anomic or atomized society and reflect them back at the market participants. Unless one bumps into someone one knows at the grocery store (which has occasionally happened to me but not very often), going there doesn’t involve connecting in any significant way with anyone. In the very worst-case scenario, a grocery store becomes a site of a mass shooting, as when that young white man in Buffalo (I think it was) walked into a store in a mostly African-American neighborhood and opened fire.

    “The public dimension of market relations” will, arguably, reflect the broader characteristics of public life in the society or polity in question. Warped and polarized politics will infect market relations. A public sphere in the Arendtian sense that has been damaged and warped by demagoguery will affect and damage everything else. So instead of the doux commerce of the theorists of commercial society, where parochial attachments yield to more cosmopolitan sentiments, you get the reverse: a “public dimension of market relations” that accentuates and celebrates the nastiest, most zero-sum, most inegalitarian, most dysfunctional features of markets, or “the market,” and reflects the pathological features of a somewhat damaged society back on itself.

  2. Benjamin David Steele July 2, 2023 at 7:03 am | #

    Just as everything is political, everything is also economical. I’d agree with the point made by LFC. Through a lens of lived experience and concrete relations, we need to think about what makes a market public. and hence what public means and should mean. But one could argue that everything is public.

    Even private ownership is a public act, as a social construction. Not only markets but also monetary systems, corporate charters, etc are products of the public by way of the government. Even the land a business stands upon was taken from the public commons, and in reality never leaves the public commons.

    Speech, markets, and the public can never be separated except in reified abstractions. Furthermore, we should keep in mind that not all markets are capitalist and that capitalism as we know it (i.e., neoliberal corporatist realism) is not inevitable. What would a democratic market (of, by, and for the people) be like?

    • Tony July 2, 2023 at 9:36 am | #

      Like a social democracy?

      • Benjamin David Steele July 2, 2023 at 11:52 am | #

        Yeah. A social democracy would be central to this discussion. But also would be democratic socialism. Think of the municipal socialists or sewer socialists who governed Milwaukee for the first half of the 20th century, and who were nationally praised for their success. Or consider the worker-owned and democratically-operated anarchosyndicalism of the Mondragon Corporation.

  3. Jonnybutter July 2, 2023 at 12:38 pm | #

    A fascinating post. Both sides seem to have themselves tangled up in their own fantasies about themselves. For the right, the cost is negligible: some intellectual consistency, which they don’t care, and don’t need to care, so much about. The points about the left and liberals are so true and important.

    “Additionally, there’s an assumption, particularly on the left, that what the right has pursued, through neoliberalism, is the relentlessly economistic organization of society…[yet this case shows that] that’s not quite true..”

    Strikes me as slightly strawmanish?

    The crucial work of neoliberalism is largely already done when the terms we use to think about things have been changed; when neoliberal ideas already have, as it were, devalued, or revalued, those things which were once seen as beyond money-value – the public square, Motherhood, etc. So much else takes care of itself after that shift in terms. The process is relentless, but not necessarily a relentless *effort*, because the implications just take a while to unfold.

    For the RW, only religion (theirs) is beyond money-value (so maybe kind of a reset of values?). The RW can afford to be intellectually incoherent because a.) they don’t care, because b.) they have largely won the game. As long as they get Salazar back, whatever. Make some surprising rulings here and there, like about Native Americans. Switch out Adam for Lorie. Have fun!

    The liberal and leftish side has a different, bigger, problem. The liberal coyness about the market is only theoretical. Sanctimonious. Nostalgic. Anyway, aspirational: no liberal really thinks the world works the old ways anymore, but it’s seen as somehow virtuous to pretend it does – like thinking you’re going to get rid of car culture by riding your bicycle on the highway (or recycling, and so many other things). Individualist as hell. You can hear the Hollywood trailer voiceover: “ONE MAN…decided to take matters…” Symbolic acts – not as byproducts of a program, but *as* the program.

    Liberals have accepted both the early 18th c view cited, and the 20th c Value addendum. So both sides have utterly valorized the Market, which is such scared space for the RW that it’s like Church. In the liberal/progressive CW, the Market is actually the Real World too. So, for the latter, the obstacle is just their own pretense – a problem conservatives don’t have. Any US liberal knows, deep down, that to do radical things, including in politics, requires being really good at *marketing*.

    US culture changed in a fundamental way in the late 70s and esp 1980s. It affected everyone and everything. For liberals to pretend otherwise is not just foolish – it’s pastiche.

  4. Karen July 3, 2023 at 7:11 pm | #

    Here’s my problem with Ms. Smith’s assertion and the majority opinion: nobody (I hope) really believes that the content of a website represents the views of the website designer. The professional designer’s role is simply as an assistant who, for money, helps the website owners express THEIR views. No agreement with those views should be assumed or implied.

    And I am worried that the majority might extend this reasoning to service providers whose ill-timed refusal of service can wreck – or take – people’s lives. A pharmacist who refuses to fill a prescription is attempting to force someone else – the patient – to live by his or her morals. That is anathema in a country where everyone is supposed to have free choice about how to live their own lives. Within the law, of course!

Leave a Reply