This Isn’t Lochner, It’s the First Amendment: Reorienting the Right to Contract and Commercial Speech

William French | October 1, 2019

The commercial speech doctrine has long weathered accusations that it is simply an attempt to reinvigorate the laissez-faire protections provided by Lochner v. New York. The modern interpretation of Lochner is generally condemnatory, arguing that its “right to contract” is a symbol of the Supreme Court’s unprincipled decision to impose its own economic preferences upon the nation. Even though Lochnerism itself has been dead for nearly 100 years, some scholars believe that the First Amendment’s commercial speech doctrine is on its way to replicating the defenses provided by the right to contract. The argument goes that because speech pervades essentially all human conduct, including market transactions, the constitutional protection of free speech could serve to invalidate any attempts at regulating the commercial sphere, just like the right to contract did. But these scholars miss a crucial point: unlike the right to contract, the First Amendment’s ambit is necessarily restricted to pure speech. Accordingly, the commercial speech doctrine simply lacks the tools to serve the same role as the right to contract. In truth, Lochner is only a boogeyman when it comes to commercial speech; although there are certainly important discussions to be had about commercial speech, they must be centered on First Amendment principles, not the ominous ghost of Lochnerism. This Note seeks to draw that line once and for all.