This Isn't Lochner, It's the First Amendment: Reorienting the Right to Contract and Commercial Speech

By French, William | Northwestern University Law Review, January 1, 2019 | Go to article overview

This Isn't Lochner, It's the First Amendment: Reorienting the Right to Contract and Commercial Speech


French, William, Northwestern University Law Review


Introduction

Advertisements pervade the modern world. Few forums, from mobile games,1 to rivers in bustling cities,2 to NBA stars' jerseys,3 have been left untouched by commercial speakers' efforts to sell more products and services. The First Amendment addresses these forms of speech through what is known as the commercial speech doctrine. Broadly viewed by the Supreme Court as "expression advocating purchase,"4 commercial speech has seen an explosion in its constitutional pedigree over the past fifty years: during that time it has gone from no coverage,5 to limited coverage,6 to ostensibly complete coverage under the First Amendment.7 Supporters of the commercial speech doctrine have long championed the importance of providing the public with information that might affect their decisionmaking in the commercial world.8 Thus, to them, the recent expansions of the commercial speech doctrine are consistent with the values inherent in the First Amendment.9

But that doctrine is under fire. Its critics-Supreme Court Justices and contemporary scholars alike-believe that as soon as the First Amendment wholly protects commercial speech, economic legislation as the country knows it will crumble.10 Indeed, so profound are their concerns that they bring out one of legal scholarship's most potent weapons: the infamous case of Lochner v. New York}1 Lochner, decided in 1905, is widely criticized today.12 The case grew out of a desire in the early twentieth century to promote laissez-faire economics; however, nothing in the Constitution explicitly says the market must be free of governmental interference.13 During the so-called Lochner Era, the Court thus turned toward the Due Process Clause, ultimately concluding that its provision guaranteeing "liberty" implicitly includes the right-the liberty-to contract.14 This constitutional theory was dubbed "economic substantive due process," and it allowed the Court to strike down a substantial number of regulations aimed at reining in the free market.15

Since the late 1930s, however, the Court has recognized that economic substantive due process results in a blatant usurpation of the legislature's law-making role.16 In truth, the doctrine ignores the clear procedural drive of the Due Process Clause since it invalidates any and all laws relating to contractual relationships, even if they were passed in accordance with proper procedure.17 As a result, economic substantive due process improperly aggrandizes the Court's interpretation of "liberty"; once the Court abandons its procedural cabining, it can freely create substantive constitutional rights where none existed before.18 That self-empowerment by the Court undermines the countermajoritarian role imposed by the Constitution's deliberate separation of powers: the judiciary is designed to check the legislature, not replace the legislature.19 Nowadays, Lochner generally serves as a scholarly shorthand to condemn cases where the Court goes too far in imposing its own ideology upon the nation.20

Even after the demise of economic substantive due process, Lochner found a new role to play in First Amendment jurisprudence. Namely, the ghost of Lochnerism has lingered in the Court's consideration of commercial speech from the start-the fact that Lochner is so universally derided has proved irresistible for Justices seeking to condemn the expanding protections for commercial speech on similar grounds.21 Those Justices argue that the Court's commercial speech doctrine has warped the First Amendment to permit the Court's freewheeling imposition of its preferred economic policies, just as Lochnerism did.22 And because the label of "Lochner" sparks such a visceral reaction, these comparisons have taken hold in the corresponding scholarship as well.23

Indeed, the specter of Lochner has come to dominate scholarship that seeks to limit the First Amendment's protection of commercial speech. Some scholars today contend that the Court's First Amendment jurisprudence may soon wholly replicate the expansive commercial protections provided by Lochner's right to contract. …

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