First Amendment Expansionism

Abstract

In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims, and nearly all have met with some level of success.

These claims are examples of First Amendment opportunism, where litigants repackage other types of legal arguments as speech claims. To the extent that many have succeeded, they are also examples of First Amendment expansionism, where the First Amendment’s territory pushes outward to encompass ever more areas of law. In many instances, it has expanded to include anti-regulatory claims that are difficult to distinguish from those of the Lochner era.

Here, I will consider one recent case that epitomizes both First Amendment opportunism and First Amendment expansionism. What explains them, however, is another matter. Although many forces are at work, the two phenomena may say something about the nature of speech and the nature of rules.

Keywords: First Amendment, freedom of speech, legal theory, Lochner