Samuel R. Olken, John Marshall Law School, on Justice George Sutherland and the Business of Expression, forthcoming in Judging Free Speech: First Amendment Jurisprudence of U.S. Supreme Court Justices.
In 1936-1937, Justice George Sutherland wrote his only two United States Supreme Court opinions about freedom of expression. Sutherland’s majority opinion in Grosjean v. American Press Co. (1936) and his dissent inAssociated Press v. NLRB (1937) set forth a novel and hybrid constitutional concept, the business of expression, which melded economic liberty and freedom of expression and reflected Sutherland’s aversion towards political factions and solicitude for private economic rights. In both cases Sutherland assessed economic regulations of the press through the prism of economic liberty and suggested that through partial laws – what Sutherland considered illegitimate class legislation – political factions sought to impede the business of expression. Sutherland’s analysis underscored the interplay between economic liberty and freedom of expression.