Justice George Sutherland and the Business of Expression

Abstract

In 1936-1937, Justice George Sutherland wrote his only two United States Supreme Court opinions about freedom of expression. Sutherland’s majority opinion in Grosjean v. American Press Co. (1936) and his dissent in Associated Press v. NLRB (1937) set forth a novel and hybrid constitutional concept, the business of expression, which melded economic liberty and freedom of expression and reflected Sutherland’s aversion towards political factions and solicitude for private economic rights. In both cases Sutherland assessed economic regulations of the press through the prism of economic liberty and suggested that through partial laws – what Sutherland considered illegitimate class legislation – political factions sought to impede the business of expression. Sutherland’s analysis underscored the interplay between economic liberty and freedom of expression.

Keywords: First Amendment, Free Expression, Econopmic Liberty, Justice Sutherland, Constitutional Law, Constitutionasl History, Political Factions