The Deregulatory First Amendment at Work
40 Pages Posted: 13 Mar 2018
Date Written: November 9, 2016
It has been more than seventy years since Justice Hugo Black wrote that First Amendment rights were “essential to the poorly financed causes of little people.” Since then, the well-financed causes of the powerful have discovered the First Amendment as well, deploying it to crowd out the little people in electoral politics and undo their legislative successes in the courts. The seeds for this project were planted in the 1970s — the decade in which Justice Lewis Powell joined the Court, and in which the Court decided both Buckley v. Valeo and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. — and they are now in full bloom.
In this Article, I discuss a new generation of deregulatory First Amendment theories, and their potentially calamitous effects on workers if courts accept them. This is not to suggest deregulatory First Amendment cases are missing from other areas of life; to the contrary, consumer protection, public health, securities regulation, and election law are also targets. But it is illuminating to examine challenges arising in the workplace context for two reasons: first, the great (or terrible) variety of forms that the challenges take; and second, the close analogy to the Lochner-era substantive due process cases that struck down workplace regulations in the name of freedom of contract. However, there is also at least one key difference between these emerging First Amendment theories and Lochner — only the former are linked to an enumerated part of the Constitution, which may be important in marshaling the support of some conservative judges and justices for the greater deregulatory project.
Keywords: Labor law, employment law, unions, agency fees, deregulation, Lochner, First Amendment
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