E-mail:
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Bruce Ackerman bruce.ackerman at yale.edu
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There has been a
lot of talk in recent years about the “weaponization,”
“Lochnerization,”
and “hijacking”
of the First Amendment for deregulatory, reactionary ends. This past spring,
the Columbia Law Review, together
with the Knight First Amendment Institute at Columbia University,convened a symposium to take stock of
these developments. Jeremy Kessler and I were honored to be involved in the
event and to be asked by the law review to write an introductory essay for the
forthcoming symposium issue. Our essay, “The Search
for an Egalitarian First Amendment,” examines the historical origins and
contemporary causes of the First Amendment’s inegalitarian turn, and it offers
a critical roadmap to potential responses. We have just posted a draft online.
Here is the abstract:
Over the past
decade, the Roberts Court has handed down a series of decisions that
demonstrate the degree to which the First Amendment can be used to thwart
economic and social welfare regulation—generating widespread accusations that
the Court has created a “new Lochner.”
This introduction to the Columbia Law
Review’s symposium on Free Expression in an Age of Inequality takes up
three questions raised by these developments. Why has First Amendment law
become such a prominent site for struggles over socioeconomic inequality? Does
the First Amendment tradition contain egalitarian elements that could be
recovered? And what might a more egalitarian First Amendment look like today?
After describing
the phenomenon of First Amendment Lochnerism, we trace its origins to the
collapse of the early twentieth-century “progressive” model of civil
libertarianism, which offered a relatively statist, collectivist, and
labor-oriented vision of civil liberties law. The recent eruption of First
Amendment Lochnerism is also bound up with transformations in the economic and
regulatory environment associated with the advent of “informational capitalism”
and the “information state.” First Amendment Lochernism may reflect
contemporary judicial politics, but it has deep roots.
To figure out how
to respond to the egalitarian anxieties besetting the First Amendment, it is
natural to consult normative theories of free speech. Yet on account of their
depoliticization and abstraction, among other factors, the canonical theories
prove indeterminate when confronted by these anxieties. Instead, it is a series
of midlevel conceptual and jurisprudential moves that most often do the work of
resisting First Amendment Lochnerism. This grammar of free speech
egalitarianism, we suggest, enables the creative elaboration of a few basic
motifs, concerning the scope and severity of judicial enforcement, the
identification and reconciliation of competing speech interests, and the
quality and accessibility of the overall expressive system. If First Amendment
Lochnerism is to be countered in any concerted fashion, the roadmap for reform
will be found within this grammar; where it gives out, a new language may
become necessary.