Last week the Arizona Supreme Court ruled in the Goldwater Institute’s favor that the First Amendment protected a tattoo business from being shut down by the City of Mesa, Arizona. The Court held that tattooing is a form of protected communication, just like painting or writing. Just as booksellers and art dealers are protected by the First Amendment, so too are tattoo businesses. The decision illustrates that there is often no real distinction between economic liberty and free speech.
But that hasn’t stopped taxi regulators in New York City from trying to ban a smart phone app that hails cabs. Although the app simply allows passengers and taxi drivers to communicate with each other, regulators don’t like how the app bypasses laws that force passengers to call a service company’s dispatch center to arrange a ride. It is okay for a would-be passenger to stand in the rain on a street corner and wave their hand or whistle, but it is forbidden to sit at a table in Starbucks and press a button on a smart phone that communicates the same information directly to a taxi driver. Regulators want to stop taxi drivers and passengers from more conveniently communicating with each other—in practice, they want to ban a form of speech.
This is not just absurd regulation; like Mesa’s effort to close down a tattoo business, New York City’s action highlights the artificial divide between economic liberty and free speech that still drives much of constitutional law. In footnote 4 of a case called United States v. Carolene Products, the Supreme Court famously declared that economic liberty deserved less constitutional protection from the judiciary than so-called fundamental rights, like free speech. Most conservatives and libertarians have long denounced this decision, arguing that there is no principled way to justify treating free speech as more fundamental than economic liberty. This is because, in reality, neither right can be exercised freely without the other.
Modern technology is making this point ever more clear. Communication is increasingly the most important and dominant element of economic activity. Economic activities that previously required vast investments in physical and human capital, such as dispatched taxi service, now only need a couple of smartphones and the willingness to communicate through them. It is becoming easier and easier to see that the regulation of most economic activities is, in substance, equally the regulation of speech—if not more so.
These trends will eventually swamp the artificial constitutional divide between free speech and economic liberty. And courts will have to decide whether to protect all forms of liberty equally. Let’s hope they follow the Arizona Supreme Court’s lead and choose to robustly protect both economic liberty and free speech, recognizing that freedom is freedom.
U.S. Supreme Court: United States v. Carolene Products