Monday, September 17, 2018

The Search for an Egalitarian First Amendment

David Pozen

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.

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