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This Isn't Lochner, It's The First Amendment: Reorienting The Right To Contract And Commercial Speech, William French
This Isn't Lochner, It's The First Amendment: Reorienting The Right To Contract And Commercial Speech, William French
Northwestern University Law Review
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 …
Redefining Workplace Speech After Janus, Theo A. Lesczynski
Redefining Workplace Speech After Janus, Theo A. Lesczynski
Northwestern University Law Review
We have a First Amendment right to criticize the government. But this freedom does not translate into a right to criticize one’s boss even if, as for millions of Americans, one’s boss happens to be a government employer. Public employee speech doctrine has long established wide latitude for public employers to supervise their workers. Employees must show at the threshold that their speech was on a matter of public concern and not an internal workplace matter. The Supreme Court’s pronouncements over the last decade in a related doctrinal area, however, have unsettled the line demarcating workplace speech. In its agency …