The First Amendment's Real Lochner Problem

Abstract

One of the most common criticisms of contemporary free speech law is that it is too Lochnerian. What critics usually mean by this is that First Amendment doctrine, by extending significant constitutional protection to advertising and other kinds of commercially-oriented speech, makes the same mistake as the Supreme Court made in Lochner v. New York, and other early late nineteenth and early twentieth century Due Process Clause cases: namely, it grants judges too much power to second-guess the economic policy decisions of democratically-elected legislatures.

This Article challenges that argument — not to reject the idea that contemporary free speech law resurrects Lochner, but instead to reconceive what that means. It argues that contemporary free speech law is not Lochner-like in failing to defer to the legislature’s economic policy decisions. Instead, it repeats the errors of the Lochner Court by relying upon an almost wholly negative and anti-redistributive notion of freedom of speech. The result is a body of law that, not just in its commercial and corporate speech cases, but in many other cases as well, replicates Lochner Era due process jurisprudence in both its doctrinal structure and its political economic effects.

By reconceiving the Lochner analogy, this Article illuminates fundamental problems with the contemporary First Amendment. By examining the ways in which the First Amendment once fit into the New Deal Settlement, but does so no longer, it also suggests a far more satisfying solution to the First Amendment’s Lochner problem than the conventional account allows. Rather than narrowing the scope of the First Amendment or weakening the constitutional protection afforded commercially-oriented speech, it argues that courts should embrace a more positive conception of the free speech guarantee and one that can more effectively protect expressive freedom from the threats posed to it by private as well as public power. Doing so, it acknowledges, may make what are today relatively easy free speech disputes much more difficult. But there is ultimately no other way to vindicate First Amendment values — including, the core democratic value of ensuring a diverse and inclusive public debate.