William & Mary Bill of Rights Journal


Samuel R. Olken


In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and substantial relationship to public health, safety, morals, or welfare. Bringing Sutherland's beliefs to the present, the authorfeels that constitutional issues raised by the recent must-carry controversy reflect many of the ambiguities raised by the Court in their handling of differential taxation of the press disputes during the 1980s and into the 1990s. The author believes similar questions about the relationship between economic liberty and freedom of expression are likely to recur in other contexts as the Court struggles to adapt traditional First Amendment analytical models to emerging forms of communications technology. From this perspective, the author argues that Sutherland's recognition during the 1930s ofthe convergence ofeconomic liberty, politicalfactions, and expressive activity is highly relevant to modern constitutional inquiry. In the spirit of Sutherland's views, the author proposes a new form of heightened scrutiny in cases involving differential treatment of the press that more precisely considers the economic and expressive interests at stake. Specifically, Olken argues that the Court should employ a nuanced version of heightened scrutiny that considers more explicitly the respective economic and expressive interests of the affected parties when the government regulates private entities engaged in the business of expression