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The Conservative Press and the Interwar Origins of First Amendment Lochnerism

Published online by Cambridge University Press:  14 May 2021

Sam Lebovic
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Abstract

In the 1930s and 1940s, the conservative newspaper industry argued that the First Amendment should shield them from New Deal economic regulations. This article uses these forgotten clashes about freedom of the press to provide a new history of the origins and trajectory of the anti-regulatory First Amendment. It shows that conservative newspaper attorneys were at the forefront of efforts to use civil liberties to protect their economic interests in the New Deal. But it argues that these efforts were only partially successful. The courts rejected these maximalist First Amendment claims, distinguishing between economic liberties and civil liberties. But maximalist claims were more successful in the political culture, where conservative newspapers helped legitimize a belief that a laissez-faire “marketplace of ideas“ was a liberal principle with deep roots in the past. The origins of First Amendment Lochnerism thus lie not in judicial precedent, but in contestation in the political culture. A clearer understanding of the dynamics of this long-running effort to deploy civil liberties claims for conservative purposes, the article concludes, will help us better navigate the contemporary crises of the First Amendment.

Type
Original Article
Information
Law and History Review , Volume 39 , Issue 3 , August 2021 , pp. 539 - 567
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the American Society for Legal History

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Footnotes

The author thanks the anonymous reviewers for their careful readings, which did much to improve the article.

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