The Long View on Recent First Amendment Rulings
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.