Should Judges Defer to Legislatures on the First Amendment?

Last week the Supreme Court heard oral arguments in Expressions Hair Design v. Schneiderman—an important First Amendment case in which Cato filed an amicus brief—challenging a New York law that allows merchants to advertise “discounts” for paying cash, but makes it illegal to tell their customers that they’re charging an economically equivalent “surcharge” for using a credit card. More simply, the New York legislature was lobbied by credit-card companies to abridge the rights of merchants to convey—and the right of people to receive—information about how prices are structured in the marketplace.  

During the argument, Justice Stephen Breyer invoked a familiar trope when he opined: “We are diving headlong into an area called price regulation. It is a form of price regulation, and price regulation goes on all over the place in regulatory agencies. And so the word that I fear begins with an “L” and ends with an “R”; it’s called Lochner. And there we go.”

Lochner v. New York (1905) involved the Fourteenth Amendment rights of bakers to contract with their employers regarding working hours, and whether the state could restrict those contractual relationships. Unionized bakers had lobbied the New York legislature to put certain conditions on employment that favored bigger bakeries as against upstart immigrant entrepreneurs. The established bakeries could afford to employ more people to keep their shops running for the long hours required in that industry. The Supreme Court recognized the cronyism involved and struck down the law as violating economic liberty.

Lochner became discredited under the New Deal as improper judicial interference with legislative authority. It continues to be seen in progressive and conservative circles alike as the consummate example of “judicial activism,” whereby judges substitute their policy judgment for that of the people’s elected representatives. To say the least, such criticism gets both the history and the law wrong. (For more on how the conservative call for “judicial restraint” is actually based on progressive legal theories, see Ilya Shapiro’s essay in National Affairs.)

So is Justice Breyer really worried that protecting the First Amendment rights of merchants and customers is akin to the states’ ability to regulate the working conditions for bakers in the early 1900s? Lochner had nothing to do with the First Amendment, but it has become a familiar tool for judges to use to advance the theory of judicial deference in cases they don’t like.

Broadly defined, judicial deference is the theory that judges should be restrained when reviewing legislation passed by majorities. This practice is a product of the Progressive-era idea that democracy is the touchstone of our republic, and that people get their rights at the polls. This view, however, goes against our Founding ideal that preservation of liberty is the ends for which we have delegated the government limited powers—and that the judiciary is the branch that should assure that majorities are staying within their bounds.

James Madison made it clear that majorities are dangerous in Federalist 10. He argued that one of the most basic threats to liberty was the ability of “factions” to come together to seek concentrated benefits from majorities through favorable legislation and regulation, rather than competing in the marketplace. The Court in Lochner recognized these dangers when striking down the arbitrary legislation involved, and it has therefore become a symbol of anti-democratic values for progressives who advocate for deference to legislatures.

But even the progressive foundation for judicial deference has its limits. Indeed, the New Deal case United States v. Carolene Products (1938)—the root of the modern presumption of constitutionality of most statutes—explicitly carved out exceptions. In that case’s famous (or infamous) footnote 4, the Supreme Court indicated that this presumption would not apply to certain categories of legislation, including those that run afoul of the First Amendment. And just because a law may have some connection to economics, does not mean that judges should ignore the Constitution when a state has abridged the right of the people to speak freely.

This is not the first time Justice Breyer has used a “parade of horribles” argument when a state legislature has violated the First Amendment. In Sorrell v. IMS Health (2011)—a case in which the Court ruled 6-3 that a Vermont law restricting the sale, disclosure, and use of records revealing the prescribing practices of individual doctors was an unconstitutional speech restriction—Breyer writing in dissent warned: “At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. At worst, it re-awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.”

Justice Oliver Wendell Holmes’s dissent in Lochner denigrated the majority for deciding the case “upon an economic theory which a large part of the country does not entertain”—implying that the Court was invoking laissez-faire ideology to enact “Mr. Herbert Spencer’s Social Statics.” In response to Justice Breyer’s concerns in Sorrell, Justice Kennedy noted that while “[t]he Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics[,]’ [i]t does enact the First Amendment.”

Let’s hope that the Court majority sticks to that principle in Expressions Hair Design and similarly rebuffs Breyer’s bogeyman.