Did Expressions Hair Design v. Schneiderman Reconstitute the Bygone Lochner Era: How a New Case About Free Speech is Like an Old Case About the Right to Contract
26 Pages Posted: 20 Nov 2017 Last revised: 17 Jul 2019
Date Written: November 16, 2017
In Expressions Hair Design v. Schneiderman, a seemingly innocuous eleven-page slip opinion, Chief Justice John G. Roberts Jr. made manifest that the communicative effects of any law are considered speech subject to some level of scrutiny under the First Amendment. In a different era, and under a different constitutional provision, the Supreme Court scrutinized, and often ruled as unconstitutional, many governmental laws and regulations. In 1905, Lochner v. United States recognized a potent weapon against business regulation: the right to contract under the Fourteenth Amendment. Not until 1937 did the Court revisit and decline to continue recognizing such a right as a bulwark against democratically enacted laws. The Lochner era is often a term of opprobrium; yet the case still has its champions. Is Schneiderman the new Lochner?
In three parts, this paper reviews Lochner and its atmospherics, delineates the Court’s first speech jurisprudence through Schneiderman, and discusses how Schneiderman presents a renewed opportunity to challenge any law or regulation. This paper does not take a position on whether the Court was correct in Lochner, and this paper does not weigh in on whether principles emanating from Lochner could or should salve modern dilemmas. This paper, at bottom, addresses the litigation-tactic consequences of Schneiderman and the implications that arise from the decision.
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