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.