Pulitzer Finalist: United States Free Speech in Flux

By ZOE FERGUSON

The New York Times columnist Adam Liptak, who covers the SupremeCourt in his biweekly column Sidebar, spoke on controversies surrounding the First Amendment in a lecture Thursday.

Liptak who was named a Pulitzer Prize finalist in exploratory journalism in 2009 framed his discussion on the 1905 court case Joseph Lochner v. New York, which struck down labor laws and allowed greater First Amendment freedoms to companies.

Liptak called the case an anti-canon Supreme Court decision, one that most judges do not refer to as precedent or even give credit. In its landmark ruling, Liptak said the Supreme Court decided that liberty of contract was implicit in the Constitutions promise of due process and allowed companies greater freedom over their employees. It also implied that free speech of commercial entities is equal to that of individuals, he added.

According to Liptak, commercial speech has only been recognized as a protected form of speech under the First Amendment since the 1970s.

Liptak said there are two primary preconditions for Lochnerism: the regulation being opposed must be an ordinary regulatory rule and the speech being violated must be commercial speech.

Liptak said in recent years, some believe that the Roberts Supreme Court has proven itself the most First Amendment court in American history.

He cited recent cases in which the Supreme Court ruled that the Westboro Baptist Church could protest at veterans funerals and abortion opponents may protest outside abortion clinics.

We have to tolerate quite a lot of ugly speech, he said.

According to Liptak, the American position on free speech is an example of what he calls American exceptionalism.

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Pulitzer Finalist: United States Free Speech in Flux