The Long View on Recent First Amendment Rulings

Columbia Law School Professor Jeremy K. Kessler Draws from History to Reflect on the U.S. Supreme Court's Recent Controversial Decisions on Civil Liberties.

New York, October 12, 2015—Critics of the U.S. Supreme Court’s economically libertarian application of civil liberties law  in recent decisions such as Citizens United and Hobby Lobby overlook a long history of the judicial protection of economic power in the name of the First Amendment, said Columbia Law School Professor Jeremy K. Kessler, in a Sept. 30 presentation sponsored by the Law School’s Center for Gender and Sexuality Law.

A noted legal historian, Kessler pointed out that the first time a Supreme Court majority invoked the First Amendment’s “preferred position” in the constitutional order, it was to exempt Jehovah’s Witnesses from paying local peddling taxes. Dissenting from the new “liberal” majority’s 1943 decision, Justice Robert Jackson warned of a return to the mistakes of the Lochner era, referencing a string of early 20th century cases in which the court, in the name of individual liberty, struck down general business regulations.

In the paper he presented, “The Early Years of First Amendment Lochnerism,” Kessler writes that the Jehovah’s Witnesses’ anti-tax campaign grew out of an alliance between “corporate elites and entrepreneurial religious believers.” Only acting in concert could these two unpopular groups convince a pro-New-Deal Supreme Court to strike down non-discriminatory economic regulations on First Amendment grounds, he argues.
Contemporary critics of “First Amendment Lochnerism” complain that the Supreme Court has been favoring the rights of the rich and powerful over the rights of the disadvantaged. But Kessler argues that this should come as no surprise: aggressive judicial enforcement of the First Amendment will in the long run favor those with greatest access to the courts. If today’s progressives want to ensure protection of poor or otherwise vulnerable groups, they should turn to the political system as civil libertarians did in the early 20th century, he says.
“It was a vision that focused on the political–rather than the judicial–enforcement of the First Amendment, and that accordingly championed administrative agencies such as the National Labor Relations Board and the Justice Department’s Civil Liberties Unit as the nation’s principal First Amendment institutions,” he writes.
Kessler’s talk was sponsored by the Center for Gender and Sexuality Law’s Public Rights/Private Conscience Project, which launched in 2014 to address the increased use of religious exemptions from compliance with laws securing equality. The project is led by Faculty Director Professor Katherine Franke and Director Kara Loewentheil, who both introduced Kessler at the event. Kessler’s talk was the first in a series the project is presenting, the Fall 2015 Colloquium: Law, Rights, Religion.
Kessler joined Columbia Law School in July, after clerking for Judge Pierre N. Leval on the U.S. Court of Appeals for the Second Circuit. Previously, he served as the David Berg Foundation Fellow at NYU. School of Law, and a Middleton Fellow in Presidential Studies at the Lyndon B. Johnson Presidential Library in Austin, Texas.
He graduated summa cum laude from Yale College and received an M.Phil. in the History and Philosophy of Science from the University of Cambridge, where he was a Gates Cambridge Scholar. Kessler earned a J.D. from Yale Law School, where he was a Legal History Fellow and executive editor of the Yale Journal of Law and the Humanities.   
Kessler will again discuss “The Early Years of First Amendment Lochnerism” on October 20 at Harvard Law School.