Article

The First Amendment’s Real Lochner Problem

Genevieve Lakier

Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, The University of Chicago Law School

Thanks to Monica Bell, Rabia Belt, Amy J. Cohen, Andrew Crespo, Aziz Huq, Elizabeth Kamali, Michael Kang, Andy Koppelman, Anna Lvovsky, Richard McAdams, Robert Post, John Rappaport, Daphna Renan, Geoffrey Stone, Nelson Tebbe, and participants at the University of Virginia and Northwestern University Law School Public Law Workshops, the University of Chicago and Vanderbilt Law School Work-in-Progress Workshops, and the Freedom of Expression Scholars Conference for thoughtful feedback, and to Graham Haviland and Elisabeth Mayer for excellent research assistance.Thanks to Monica Bell, Rabia Belt, Amy J. Cohen, Andrew Crespo, Aziz Huq, Elizabeth Kamali, Michael Kang, Andy Koppelman, Anna Lvovsky, Richard McAdams, Robert Post, John Rappaport, Daphna Renan, Geoffrey Stone, Nelson Tebbe, and participants at the University of Virginia and Northwestern University Law School Public Law Workshops, the University of Chicago and Vanderbilt Law School Work-in-Progress Workshops, and the Freedom of Expression Scholars Conference for thoughtful feedback, and to Graham Haviland and Elisabeth Mayer for excellent research assistance.

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 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 notion of freedom of speech and by assuming that the only relevant constitutional interest at stake in free speech cases is the autonomy interest of the speaker. 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.

What this means is that the First Amendment’s Lochner problem will not be solved—as the conventional critiques suggest—by simply denying commercial and corporate speech constitutional protection or by weakening the strength of the protection the First Amendment provides to speech of this kind. It will only be solved by reconceiving freedom of speech as a positive rather than a negative right and one that guarantees, to listeners as well as speakers, the right to participate in a public sphere that is diverse along both racial and class lines. Rethinking the First Amendment in this manner, this Article argues, will raise many difficult questions and make what are currently easy free speech cases much harder to resolve. But there is ultimately no other way to vindicate the democratic values the First Amendment is intended to protect.

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