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Bartnicki as Lochner: Some Thoughts on First Amendment Lochnerism

Howard M. Wasserman

Florida International University (FIU) - College of Law

Northern Kentucky Law Review, Vol. 33, 2006

First Amendment Lochnerism sounds like a constitutional oxymoron, merging the much-despised Lochner v. New York and the much-revered freedom of speech. But recent scholarly commentary has suggested that courts may, and often do, use particular First Amendment rules and doctrines much as Lochner-era courts used economic substantive due process.

Identifying the Lochneresque characteristics of the freedom of speech requires that we first understand what exactly we mean by Lochnerism, a term on which there is no consensus, beyond its use as a pejorative conversation-stopper. But we can point to five elements, five concerns that emerge (individually or in combination) in most discussions of the concept. The Lochnerism label reflects some or all of: 1) objections to judicial protection of non-textual rights; 2) objections to individual-rights-centered judicial review generally; 3) objections to the substitution of judicial for legislative judgment as to wisdom and efficacy of policy choices; 4) objections to rigorous judicial scrutiny aimed at ordinary commercial and economic regulation; or 5) objections to old-guard constitutional doctrine standing in the way of progressive legislative and political change. And we can see each of these elements at play in aspects of First Amendment doctrine and theory.

With these five elements in mind, one recent decision emerges with so-called Lochnerian tendencies: Bartnicki v. Vopper (2000), in which the Supreme Court rejected a damages claim against two individuals who disclosed the contents of an intercepted cell phone conversation, in violation of the federal wiretap statute. The Court held that the First Amendment protected the disseminators, who were not involved in the illegal interception of the conversation, and who merely were publishing truthful information on a matter of public concern. Whatever interest government had in promoting and protecting individual privacy interests could not overcome the right to publish this information.

Ultimately, the Lochnerism tag is inappropriate in discussing a case such as Bartnicki. One could disagree with the decision (although I argue it was rightly decided) and one could disagree with the balance the courts have struck between free expression and privacy. But slapping the Lochner label on the decision merely freezes the conversation and does not allow for meaningful discussion of what that proper doctrinal and normative balance should be.

This paper was part of a symposium entitled First Amendment Lochnerism? Constitutional Limitations on Economic Regulation of Communications, Information, and Technology Industries, at Northern Kentucky University, Salmon P. Chase College of Law, in March 2006.

Number of Pages in PDF File: 40

Keywords: First Amendment, freedom of speech, Lochner, constitutional, privacy

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Date posted: August 8, 2006  

Suggested Citation

Wasserman, Howard M., Bartnicki as Lochner: Some Thoughts on First Amendment Lochnerism. Northern Kentucky Law Review, Vol. 33, 2006. Available at SSRN: http://ssrn.com/abstract=922761

Contact Information

Howard M. Wasserman (Contact Author)
Florida International University (FIU) - College of Law ( email )
University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)
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