First Amendment Coronado-ism

We are right now living through one of the most significant rollbacks in First Amendment law since the 1950s. To name a few examples:

• University employees are being fired for speech deemed critical of Charlie Kirk, in circumstances where it is almost impossible to argue that the terminations satisfy the Pickering standard for speech on matters of public concern.
• Legal immigrants are facing deportation for speech that opposes the current foreign policy orthodoxy of the American government; 
• The Attorney General is suggesting, in defiance of decades of well-settled law, that there is a "hate speech" exception to the First Amendment.
• The President is extorting settlements from critical media outlets via utterly frivolous defamation lawsuits, even as more and more conservative judges seek to roll back the landmark defamation decision in New York Times v. Sullivan in order to make such extortions even easier to launch.

There is irony to this. Until very recently, the constitutional law zeitgeist had been to raise alarms over "First Amendment Lochner-ism" -- the use of "First Amendment" claims as a cudgel to block governmental regulations (think 303 Creative or NIFLA v. Becerra). In this telling, our problem is a First Amendment that has spiraled out of control, a hypertrophic commitment to "free speech" that swallows up anything and everything (since what law doesn't, at some level, regulate "expression"?). In a world of First Amendment Lochner-ism, "rollback" was the furthest thing from anyone's minds.

However troublesome or misguided the First Amendment Lochner cases might be, one might think that their saving grace is that their expansiveness offers a bulwark against the sort of First Amendment regression we're seeing today. Yet few -- and I include myself in this -- seem to actually have confidence that these First Amendment principles will in fact serve as a meaningful shield now in the face of these new conservative assaults. It turns out that we don't have a hyperexpansive First Amendment, we have a First Amendment that implacably guards against enforcement of liberal policy objectives while pliable to the point of contortionism in order to accommodate conservative bugaboos.

This, too, reflects the Lochner era. Lochner itself refers to the Supreme Court's finding of a "liberty of contract" implicit in the Fourteenth Amendment's due process clause, which significantly curtailed states' authority to pass economic regulation. But the Lochner era also encompasses a series of rulings that similarly hamstrung federal authority to pass economic regulation -- limits ironically justified by reference to state's rights and respect for federalism. So, for example, in United States v. E.C. Knight, the Supreme Court struck down application of the Sherman Antitrust Act to a sugar refining monopoly, concluding that manufacturing was not "commerce" and so the law impinged on an arena reserved to the states.

Already the heads-I-win-tails-you-lose logic is apparent here: the feds can't pass economic regulations because of states rights, and the states can't pass economic regulations because it violates federal constitutional limits. But the apex of this logic came in a little-known Lochner era case, Coronado Coal Co, v. United Mine Workers, where the Supreme Court considered applying the Sherman Antitrust Act's prohibition on restraints on trade against union activity targeting a coal mine. Again, E.C. Knight had already concluded that the Sherman Act was unconstitutional as applied to employers (and subsequent cases had explicitly held that mining was akin to manufacturing in not being "commerce"). As bitter a pill as that might have been to swallow for the emergent labor movement, at the very least one might think that this logic would equally prevent leveraging the Sherman Act against collective action by employees (via unions). But no -- in Coronado, the Court concluded that the Sherman Antitrust Act, though not constitutionally enforceable against mining companies or manufacturing concerns, could be enforced against labor unions. The hyperexpansive Lochner rules suddenly were quite pliable once a union tried to be their beneficiary.

So I will suggest that today we do not have a regime of First Amendment Lochner-ism. We actually have First Amendment Coronado-ism. If Lochner stands for judges blocking democratic actors via hyperexpansive interpretations of constitutional law; Coronado highlights judges dropping those barriers the instant they pose an obstacle to their own faction's policy objectives. Lochner is bad law; Coronado is simple lawlessness.

And on a professional level, it has to be said that it is nearly impossible to teach Constitutional Law in a such an environment, at least not without collapsing into complete cynicism. I can defend to my students the position that the First Amendment protects even hateful speech; I can't defend the position that the First Amendment protects hateful speech in all circumstances except quoting Charlie Kirk's own words verbatim. I can defend to my students different standards of proof for defamation cases, I can't defend a rule that says it's defamation for a newspaper to criticize a presidential candidate. These developments breed contempt in my students for the entire notion of "free speech" as it's currently operationalized, and frankly I can't blame them for it -- they see it as a sucker's bet, a check they'll never be able to cash. And as someone who does believe in many of the classic free speech shibboleths it breaks my heart to see it.

A few days ago, Justice Barrett defended herself from Justice Jackson's allegation that the Court's only governing principle was "this Administration always wins" by arguing that the Court's rulings are not about this president but all presidents, and "so the decisions that we make about executive power today are the same ones that will still be precedent three or four presidents from now." Even if they were for "all presidents", these decisions would be catastrophic. But there is ample reason to be skeptical that these decisions do in fact augur a general theory of judicial deference to the executive branch, at least when Democrats occupy the office (quoth Scott Lemieux: "don't google 'Biden v. Nebraska'!").

When Justice Barrett pretends that she's enforcing a principle accessible to all, nobody believes her, and nobody should believe her. And just as I predicted the hyperexpansive religious liberty protections would suddenly find their limits when liberal Jews try to access them, so too do I strongly suspect we're going to see a significant rollback of supposed First Amendment Lochner-ism now that it stands in the way of letting conservatives crush speech they do not like.

The Legend No One Knew

At the start of Terence Crawford's history-making bout against Canelo Alvarez, Max Kellerman remarked that he'd never seen a fight with as dramatic stakes for one man's legacy as this match did for Crawford. If Crawford won, he'd cement himself as his generation's greatest fighter. If he lost, he'd be written off as a guy who couldn't quite reach greatness in his biggest fight.

The downside I thought was a bit harsh. But the upside was right, as was the overall tenor: A Crawford victory would rocket him to the top of the all-time greats list; a loss and he'd be viewed as a very good fighter but not one making any major historical mark.

Whatever dispute I and Kellerman might have is moot, of course. Crawford soundly outboxed Canelo, winning a unanimous decision and instantly making his status as one of the greatest to ever lace up gloves inarguable.

It is amazing, when one thinks about it, how Crawford got to this point while essentially -- as far as the wider world is concerned -- being an unknown. Terence Crawford is not a household name. I don't think I've ever seen him in a beer commercial or doing a cameo Hollywood appearance. But he has quietly, decisively, been a dominant force in the sport for over a decade.

This fight against Alvarez reportedly marked the first time Crawford had been a betting underdog since his 2013 match against Breidis Prescott. Though not the most scintillating performance, that fight was a coming out party for Bud. He came in on short notice as, more-or-less. a nobody -- a decent amateur pedigree but not from a boxing hotbed (Omaha, Nebraska) and without much hype behind him. Boxing fans, frankly, are familiar with this archetype -- glossy record but Podunk background equals soft-touch for a bigger name still riding off his Amir Khan upset. Instead, Crawford cruised to an easy victory, soundly outboxing his Columbian opponent -- but not in a way that instantly suggested "a star is born."

Yet from then on out, Crawford was nothing but dominant. He dropped down to lightweight to win a title against Ricky Burns, and from that point forward never left the upper echelons of the sport. If Prescott was the last time that Crawford was a betting underdog, we could also ask when was the last time Crawford seemed to be truly challenged in a fight. For me, that was the very early rounds against Yuriorkis Gamboa -- but Crawford turned that fight around with a vengeance, dropping Gamboa four times from the fifth round forward en route to a ninth round stoppage. And after that, can one remember a point where Crawford genuinely, seriously seemed to be in trouble in the ring? It is no disrespect to Canelo to say it didn't happen last night -- not that Crawford dominated Alvarez, but he always seemed in control, always seemed just a little bit better.

How can one be so dominant, for so long, and have nobody outside the sport's insiders really know you? Part of it was temperament -- as noted, he never seemed interested in making himself into a celebrity. But even in the ring, Crawford's was a deceiving appearances sort of domination. He was never viewed as a knockout artist, even though he had plenty of fighters. He wasn't seen as a search-and-destroy punisher, but he was a ferocious finisher. 

What he had was a preternatural sense of control, coupled with one of the meanest streaks I've ever seen in the ring. Crawford liked to beat people up. And he was very good at it.

Look at the cast of characters whose careers Crawford essentially ended, at least at the upper echelon of the sport. On his way to unifying the junior welterweight division, Crawford demolished both Viktor Postol and Julius Indongo; both were undefeated, both became essential non-entities in boxing going forward. Felix Diaz had one more win after Crawford beat him in 2017; Jeff Horn only won twice. Jose Benavidez was never the same after Crawford was through with him. Amir Khan and Kell Brook were basically sent into a swan song against each other after Crawford violently dispatched both. He sent Shawn Porter into retirement; he may have done the same to Errol Spence. These are very, very good fighters. Crawford didn't just beat them. He wrecked them.

And yet even then, many thought this fight against Canelo was a gimmick. Crawford had unified at 147, and then he did what a lot of folks did in pursuing a vanity title at 154 pounds. This is no disrespect to Crawford; it's a career move we've seen from many of the greats around his size. Floyd Mayweather did it; Oscar de la Hoya did it, Manny Pacquiao did it. And I don't think we're disrespecting Israil Madrimov to point out this his name isn't quite in the same class as Errol Spence or Shawn Porter or Kell Brook. But jumping up another two weight classes on top of that? To face the biggest star in the sport and a man who was still one of the pound-for-pound elites? It seemed absurd. It seemed like a cash grab.

It was neither. It was greatness.

At the end of the fight, Crawford dedicated his win to the nobodies. For so long, despite all of his accomplishments, Terence Crawford was one of those nobodies. Now, through sheer talent and force of will, he has made himself into somebody the sport will never forget.