Amanda Shanor (Yale Law School) has posted The New Lochner on SSRN. Here is the abstract:
Commercial interests are increasingly laying claim, often successfully, to First Amendment protections. Once the mainstay of political liberty, the First Amendment has emerged as a powerful deregulatory engine—and one with great implications for modern governance. This Article identifies this important development as a growing constitutional conflict between the First Amendment and the modern administrative state and analyzes its origins and implications.
The Article traces two opposing trends that have led to the growing constitutional conflict. A business-led social movement has mobilized to embed libertarian-leaning understandings of the First Amendment in constitutional jurisprudence. At the same time, administrative regimes have moved away from command and control regulation towards lighter-touch forms of governance that appear more speech-like. Together, these trends have placed the First Amendment on a crash course with the modern administrative state.
The stakes of this conflict are high. Because nearly all human action operates through communication or expression, the First Amendment possesses near total deregulatory potential. For this reason, I argue, the First Amendment operates as the fullest boundary line of constitutional state action.
The Article identifies the unique features of this modern form of constitutional deregulation—which I term the new Lochner—by interrogating the parallel drawn by a growing number of scholars and judges between recent First Amendment jurisprudence and Lochner v. New York’s liberty of contract.
By elaborating the vistas of conflict between the First Amendment and the broader undertaking of the information-based state, this Article casts light on unexplored linkages between theories of the First Amendment and administrative law, and highlights the implications of this unfolding constitutional conflict for understandings of democracy, choice, and constitutional change. It demonstrates that a changing legal culture can alter constitutional principles absent Article V amendment—indeed, not just as to their substantive content, but constitutional salience and the distribution of powers among the branches. This archeology moreover reveals that advocates of the new Lochner are forwarding a concept of liberty that has no limiting principle and, if taken to its logical conclusion, would render self-government impossible. I argue that this new form of formal ‘liberty’ must be rejected because without a principled limit, it pits the Constitution against democracy itself.
Very interesting and recommended.