I will proceed in three steps. First, I examine what, precisely, we mean by the pejorative tag "Lochner," "Lochnerism," or "Lochnerian," focusing on five prominent characteristics or features of that concept and considering how each translates (or does not translate) into the First Amendment realm. Second, I examine Bartnicki and the Lochneresque characteristics it possesses. To the extent we continue to apply the Lochner label in the First Amendment conversation, Bartnicki remains a good illustration of the phenomenon. Third, I examine one example of how Bartnicki has been applied, or not applied, by a lower court so as to avoid Lochnerian results in a case involving government regulations protecting personal privacy in consumer credit data and information.
Howard M. Wasserman,
Bartnicki as Lochner: Some Thoughts on First Amendment Lochnerism
, 33 N. Ky. L. Rev. 421
Available at: http://ecollections.law.fiu.edu/faculty_publications/66