The First Amendment’s Real Lochner Problem

One of the most common criticisms of contemporary free speech law is that it is too Lochnerian. What critics usually mean by this is that First Amendment doctrine, by extending significant constitutional protection to advertising and other kinds of commercially oriented speech, makes the same mistake as the Supreme Court made in Lochnerv New Yorkand other late nineteenth-and early twentieth-century Due Process Clause cases: namely, it grants judges too much power to second-guess the economic policy decisions of democratically elected legislatures. This Article challenges that argument—not to reject the idea that contemporary free speech law resurrects Lochner, but instead to reconceive what that means. It argues that contemporary free speech law is not Lochner-like in failing to defer to the legislature’s economic policy decisions. Instead, it repeats the errors of the Lochner Court by relying upon an almost wholly negative notion of freedom of speech and by assuming that the only relevant constitutional interest at stake in free speech cases is the autonomy interest of the speaker. The result is a body of law that, not just in its commercial and corporate speech cases, but in many other cases as well,replicates Lochner-era due process jurisprudence in both its doctrinal structure and its political economic effects. What this means is that the First Amendment’s Lochner problem will not be solved—as the conventional critiques suggest—by simply denying commercial and corporate speech constitutional protection or by weakening the strength of the protection the First Amendment provides to speech of this kind. It will only be solved by reconceiving freedom of speech as a positive rather than a negative right and one that guarantees, to listeners as well as speakers, the right to participate in a public sphere that is diverse along both racial and class lines. Rethinking the First Amendment in this manner, this Article argues, will raise many difficult questions and make what are currently easy free speech cases much harder to resolve. But there is ultimately no other way to vindicate the democratic values the First Amendment is intended to protec

Comment

The article explores the challenges law schools face in addressing speech norms and the increasing polarization of national politics and culture. It argues that the disagreements over speech norms are part of broader political transformations and should be seen as an inevitable aspect of societal change. The article suggests the need for law schools to navigate these issues by considering the political and pedagogical dimensions, and addressing the distribution of resources and opportunities

The First Amendment’s Real Lochner Problem

One of the most common criticisms of contemporary free speech law is that it is too Lochnerian. What critics usually mean by this is that First Amendment doctrine, by extending significant constitutional protection to advertising and other kinds of commercially oriented speech, makes the same mistake as the Supreme Court made in Lochnerv New Yorkand other late nineteenth-and early twentieth-century Due Process Clause cases: namely, it grants judges too much power to second-guess the economic policy decisions of democratically elected legislatures. This Article challenges that argument—not to reject the idea that contemporary free speech law resurrects Lochner, but instead to reconceive what that means. It argues that contemporary free speech law is not Lochner-like in failing to defer to the legislature’s economic policy decisions. Instead, it repeats the errors of the Lochner Court by relying upon an almost wholly negative notion of freedom of speech and by assuming that the only relevant constitutional interest at stake in free speech cases is the autonomy interest of the speaker. The result is a body of law that, not just in its commercial and corporate speech cases, but in many other cases as well,replicates Lochner-era due process jurisprudence in both its doctrinal structure and its political economic effects. What this means is that the First Amendment’s Lochner problem will not be solved—as the conventional critiques suggest—by simply denying commercial and corporate speech constitutional protection or by weakening the strength of the protection the First Amendment provides to speech of this kind. It will only be solved by reconceiving freedom of speech as a positive rather than a negative right and one that guarantees, to listeners as well as speakers, the right to participate in a public sphere that is diverse along both racial and class lines. Rethinking the First Amendment in this manner, this Article argues, will raise many difficult questions and make what are currently easy free speech cases much harder to resolve. But there is ultimately no other way to vindicate the democratic values the First Amendment is intended to protec

The effect of stuttered speech on perceptions of job performance

The purpose of this study was to determine whether identifying a speaker as a person who stutters influences a listener\u27s perception about an individual\u27s ability to perform a job. Forty- four male and female subjects examined two videotaped interview samples, where one of the interviews included an individual who stuttered. Subjects were instructed to rate the individuals on various traits, including speech characteristics, personality traits and competency related characteristics. Findings indicated that there was no difference in the perceptions of listeners between individuals who stutter and normally fluent individuals, except when it comes to speech related characteristics

Consumptive coagulopathy caused by a boomslang bite

Click on the link to view

Pathophysiology of Heart Failure

Heart failure occurs when the heart is unable to maintain a cardiac output sufficient to satisfy the oxygen requirements of the body despite adequate blood volume and hemoglobin content. Regardless of the initial cause of heart failure and in spite of compensatory mechanisms, patients often follow a course of worsening heart failure that is characterized by a low cardiac output, high filling pressures, and increased peripheral vascular resistance. In addition to persistence of the initiating event, cardiac deterioration may be caused or aggravated by a variety of factors including depletion of cardiac norepinephrine stores, down-regulation of myocardial beta-adrenergic receptors, microvascular spasm with resultant further cellular necrosis, and subendocardial ischemia perpetuating myocardial failure