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FAINT-HEARTED FIRST AMENDMENT LOCHNERISM

Armijo, Enrique

Boston University law review, 2020-09, Vol.100 (4), p.1377-1433 [Periódico revisado por pares]

Boston: Boston University School of Law

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  • Título:
    FAINT-HEARTED FIRST AMENDMENT LOCHNERISM
  • Autor: Armijo, Enrique
  • Assuntos: Constitutional law ; Decision making ; First Amendment-US ; Power ; Regulation ; Torts
  • É parte de: Boston University law review, 2020-09, Vol.100 (4), p.1377-1433
  • Descrição: Free speech scholars have charged the Roberts Court with "First Amendment Lochnerism": At the urging of powerful interests, the Court is following an antiregulatory agenda and forgetting the lessons of the now-discredited Lochner v. New York decision, by using the Constitution's protection of speech to strike down a host of socioeconomic regulations. Opposing justices have joined the charge, accusing their colleagues of "reawakening Lochner 's pre-New Deal threat of substituting judicial for democratic decision-making" in domains long thought to be free from constitutional scrutiny. Comparing modern free speech doctrine to Lochner, however, is problematic. It ignores the motivating concerns of Justice Holmes's Lochner dissent, which were procedural rather than ideological. It elides the Speech Clause's failure to categorize among kinds of speech, ignores that the line between commercial and noncommercial speech is too difficult to define for that distinction to serve as a level-of scrutiny-setting rule, and denies that First Amendment theory cannot definitively justify lesser protection of commercial speech. This Article is the first to chart a middle path between an anti-Lochnerist First Amendment and a libertarian one. It proposes an approach it calls faint-hearted First Amendment Lochnerism-suspicion of any speech regulation, regardless of the identity of the speaker or of the nature of the expression-while still affirming the government's ability to regulate economic activity and harmful speech. In analyzing the constitutionality of information-forcing government regulation, faint-hearted First Amendment Lochnerism looks to common-law, private law, and rights-based limitations in tort and contract law to decide whether such regulations should be permissible. The Article then applies this methodology to the Court's NIFLA v. Becerra decision, which drew charges of Lochnerism from its detractors, and shows how a foregrounding of relevant private law in First Amendment cases can preserve both (1) the preference for private ordering that is part of the Constitution's design and (2) the government's power to intervene in the traditional social and economic regulatory domains that those leveling the Lochnerism charge fear are most at risk.
  • Editor: Boston: Boston University School of Law
  • Idioma: Inglês
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  • Realização: ABCD-USP USP   Logos de Redes Sociais: Freepik

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