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Shinar, Adam. “Democratic Backsliding, Subsidized Speech, and the New Majoritarian Entrenchment.” The American Journal of Comparative Law 69, no. 2 (April 9, 2021): 335–385.
Abstract
This Article argues that democratic backsliding is operationalized through selective government funding of private speech. Subsidized speech can leverage the government’s voice while silencing or diminishing voices that seek to challenge the government’s message or create the background conditions for critical faculties. This leveraging, in turn, serves to entrench the power of the political majority, further insulating it from the processes of democratic change.
Despite the voluminous literature on free speech, few discuss the problem of subsidized speech, even though it plays an ever-growing role in the formation of public discourse and public opinion. Accordingly, the Article makes three contributions. First, the Article examines three jurisdictions (Israel, Hungary, and Poland), arguing that the strategic use of subsidized speech is particularly prevalent in countries that are experiencing some version of “democratic backsliding.” The commonalities between these countries are no accident, for the motivation is the same: increasing governmental domination of civil society.
Second, the Article departs from the extant approaches that identify subsidized speech as a problem for free speech or equality, by situating subsidized speech as a structural problem for democracy: majoritarian entrenchment. Although democracies have mechanisms to prevent entrenchment of the current political majority, those focus on elections and related aspects. Entrenchment, however, is not confined to these contexts. The Article thus extends the problem of entrenchment to the speech context.
Third, the Article introduces and develops the “anti-entrenchment” principle. When the government seeks to entrench its power through funding decisions, the anti-entrenchment principle is triggered. Applying the anti-entrenchment principle can have far-reaching consequences, for it may require the government to subsidize precisely the speech it rejects.
