First Amendment Expansionism

24 Pages Posted: 26 Jun 2015 Last revised: 28 Aug 2015

See all articles by Leslie Kendrick

Leslie Kendrick

University of Virginia School of Law

Date Written: June 24, 2015

Abstract

In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims, and nearly all have met with some level of success.

These claims are examples of First Amendment opportunism, where litigants repackage other types of legal arguments as speech claims. To the extent that many have succeeded, they are also examples of First Amendment expansionism, where the First Amendment’s territory pushes outward to encompass ever more areas of law. In many instances, it has expanded to include anti-regulatory claims that are difficult to distinguish from those of the Lochner era.

Here, I will consider one recent case that epitomizes both First Amendment opportunism and First Amendment expansionism. What explains them, however, is another matter. Although many forces are at work, the two phenomena may say something about the nature of speech and the nature of rules.

Keywords: First Amendment, freedom of speech, legal theory, Lochner

Suggested Citation

Kendrick, Leslie, First Amendment Expansionism (June 24, 2015). William & Mary Law Review, Vol. 56, No. 4, 2015, Virginia Public Law and Legal Theory Research Paper No. 44, Available at SSRN: https://ssrn.com/abstract=2622528

Leslie Kendrick (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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