First Amendment Imperialisn

In a society that has become suspicious of politics and a legal culture that tends to view political struggle as simply an unprincipled, unprofessional and sloppy version of courtroom procedure, the First Amendment principle of abstention has expanded beyond a program of making politics safe to become a primary vehicle in a post-New Deal attempt to reduce the scope of conscious collective control over the market. The First Amendment, understood in this way as a fundamental limitation on the scope of government, has become the locus of a new Lochnerism-or rather, a revival of the old Lochnerism under a new doctrinal label. The courts have increasingly begun to use the First Amendment to restrict economic regulation and enforce a vision of the market freed not from politics "gone bad," but rather from all politics altogether.