The New Lochner

Abstract

Commercial interests are increasingly laying claim, often successfully, to First Amendment protections. Once the mainstay of political liberty, the First Amendment has emerged as a powerful deregulatory engine — and one with great implications for modern governance. This Article identifies that development as a growing constitutional conflict between the First Amendment and the modern administrative state and analyzes its origins and implications.

The Article traces two opposing trends that have led to that constitutional conflict. A business-led social movement has mobilized to embed libertarian-leaning understandings of the First Amendment in constitutional jurisprudence. At the same time, administrative regimes have moved away from command-and-control regulation towards lighter-touch forms of governance that appear more speech-regulating.

The stakes of this conflict are high. Because nearly all human action operates through communication or expression, the First Amendment possesses near total deregulatory potential. For that reason, I argue that the First Amendment operates as the fullest boundary line of constitutional state action.

I identify the unique features of this modern form of constitutional deregulation — which I call the new Lochner — by interrogating the parallel drawn by a growing number of scholars and judges between recent First Amendment jurisprudence and Lochner v. New York’s liberty of contract.

The Article explores linkages between theories of the First Amendment and administrative law, and it analyzes the implications of the First Amendment’s deregulatory turn for understandings of democratic legitimacy, choice, and constitutional change. I argue that the new Lochner must be rejected because advocates of its deregulatory vision are forwarding a concept of liberty that has no limiting principle and, if taken to its analytical conclusion, would render self-government impossible.

Keywords: First Amendment, Constitutional Law, Administrative Law, free speech, commercial speech, regulatory state, commercial regulation, information regulation, Lochner, economic rights, behavioral law and economics, separation of powers, popular constitutionalism, social movements