George Sutherland and the Business of Expression

  • Samuel R. Olken


Although Justice George Sutherland was on the US Supreme Court from 1922 to 1938, he authored only two opinions pertaining to freedom of expression. Of those two opinions, one was a dissent in a 1937 case, Associated Press v. NLRB,1involving the application of the National Labor Relations Act to the editorial operation of a news agency. The year before, in Grosjean v. American Press Co.,2 Sutherland delivered his lone majority opinion on freedom of the press in a case that arose from a Louisiana license tax imposed only upon periodicals for which circulation exceeded a certain threshold. Yet, notwithstanding the relative paucity of Sutherland’s written analysis of the First Amendment, these opinions reveal an intriguing perspective about freedom of expression in a democratic republic and underscore the link between economic liberty and the value of the press. Like Justice Oliver Wendell Holmes Jr., with whom Sutherland served on the Supreme Court for a decade, Sutherland’s contribution to the development of free speech jurisprudence emanated from a relatively sparse number of cases. Whereas Holmes’s thirty-year tenure yielded a handful of seminal free speech opinions, Sutherland, whose Supreme Court career was almost half as long as Holmes’s, produced only two free press opinions.


Political Faction Free Speech Governmental Authority National Labor Relation Fourteenth Amendment 
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  1. 1.
    Associated Press v. NLRB, 301 U.S. 103 (1937). For additional analysis and discussion of many of the points made in this chapter, the reader is encouraged to consult the following articles: Samuel R. Olken, “The Business of Expression: Economic Liberty, Political Factions and the Forgotten First Amendment Jurisprudence of Justice George Sutherland”, William and Mary Bill of Rights Journal 10 (2002): 249–357Google Scholar
  2. Samuel R. Olken, “Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions”, William and Mary Bill of Rights Journal 6 (1997): 1–88.Google Scholar
  3. 16.
    See generally Alan Jones, “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism’: A Reconsideration”, Journal of American History 53 (1967): 751–771CrossRefGoogle Scholar
  4. 17.
    See generally Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston, MA: Little, Brown & Co., 1883)Google Scholar
  5. 18.
    See Joel Francis Paschal, Mr. Justice Sutherland: A Man against the State (Princeton, NJ: Princeton University Press, 1951)Google Scholar
  6. 22.
    See generally Samuel R. Olken, “The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism”, Notre Dame Law Review 89 (2014): 2051–2092.Google Scholar
  7. 62.
    For an excellent discussion of the case, including its political background, see Richard C. Cortner, The Kingfish and the Constitution: Huey Long, the First Amendment, and the Emergence of Modern Press Freedom in America (Westport, CT: Praeger, 1996).Google Scholar
  8. 72.
    Ibid. See also Andrew L. Kaufman, Cardozo (Cambridge, MA: Harvard University Press, 1998), 539–541.Google Scholar

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© Helen J. Knowles and Steven B. Lichtman 2015

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  • Samuel R. Olken

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