Vol. 26 No. 3 (July 2016) pp. 58-61
JUDGING FREE SPEECH: FIRST AMENDMENT JURISPRUDENCE OF US SUPREME COURT JUSTICES, by Helen J. Knowles and Steven B. Lichtman (eds). New York: Palgrave Macmillan, 2015. 288pp. Cloth $110.00. ISBN: 9781137434913. Paper $30.00. ISBN: 9781137434906.
Reviewed by Wayne Batchis, Department of Political Science, University of Delaware. Email: firstname.lastname@example.org.
When we delve into the weeds to address topics in constitutional law, we tend to talk about “the Court.” The reason is clear. If the goal is to understand, for example, a particular doctrine derived from the First Amendment, we generally need to know the rules of the game, articulated over the years by majority opinions. JUDGING FREE SPEECH changes the conversation. The entries – by an impressive array of scholars – instead each focus our attention on the First Amendment jurisprudence of one particular justice. The result is a concise, thoughtful and illuminating volume of essays on nine select members of the Supreme Court (past and present), highlighting each justice’s distinctive approach to the freedom of expression.
The book also thankfully defies the unfortunate, but at times deserved lament that academic writing must necessarily be inscrutable and abstruse. The entries in this collection provide a genuinely enjoyable read, light on the jargon with amble helpings of colorful substance. More importantly, this volume demonstrates that political scientists can “do” law, and do it well. The majority of contributing scholars are political scientists who – refreshingly, in my opinion – take law and doctrine seriously, while at the same time offering a brand of analysis that is broader than what one might find in the pages of a typical law review.
I must admit, I found the choice of justices profiled a bit haphazard. I would have perhaps preferred that the book maintain its focus on the current – or at least modern – Court, rather than dedicating several chapters to the jurisprudence of justices long gone. In many cases, I found that the chapters on contemporary justices were more likely to offer fresh insights.
The final chapter, for example, penned by Harvard Law professor Mark Tushnet, offers an important, not merely informative, synthesis of Stephen Breyer’s First Amendment jurisprudence. Breyer is a critical First Amendment player on the current Court. For good or ill, his approach to free expression is on cusp of becoming vastly more influential as the death of Justice Scalia, sharp ideological division, and a pivotal presidential election coalesce to make a dramatic shift on the Court likely. Many agree that the current Court is highly responsive to First Amendment claims, perhaps more so than it has been at any time in its history. In some ways the left and right flanks of the Court have come together on free speech. However, Breyer’s distinctive, legislative-like approach, described with insight and clarity by Tushnet, is a sharp contrast with the categorical, tradition-oriented approach preferred by the Chief Justice and other conservatives. Tushnet explores how Breyer’s First Amendment approach is tethered to his pragmatic conception of what is needed for a democratic society to thrive.
As the editors point out in their conclusion, there is some suggestion that other justices, particularly Justice Kagan – whose First Amendment track record has been somewhat limited up to this point – may be willing to follow in Breyer’s footsteps. The next few years could be pivotal for the future of First Amendment jurisprudence. The path the Court takes on free speech matters may determine the Amendment’s meaning for decades to come.
Like Tushnet’s chapter, Helen J. Knowles also provides an important profile of the First Amendment jurisprudence of a current justice. Indeed, Knowles’ chosen jurist is arguably the [*59] most consequential free speech justice on the contemporary Court. Anthony Kennedy may be best known as a “swing justice” for his propensity to align himself with both the liberal and conservative justices in high profile 5-4 decisions, but as Knowles points out, his First Amendment record has been anything but inconsistent. Kennedy stands out for his libertarian perspective, and even a casual student of First Amendment case law would likely observe Kennedy’s tendency to author highly speech-protective decisions.
However, Knowles’ chapter goes beyond simply restating what we already know about Kennedy’s jurisprudence, making some trenchant observations and raising new questions. Libertarianism, of course, is traditionally anchored to the centrality of the individual. Why then did Kennedy stake out a bold role as a champion of corporate and other institutional speech in his AUSTIN V. MICHIGAN CHAMBER OF COMMERCE dissent and CITIZENS UNITED majority opinions? Knowles has an answer for us, culled in part from a lecture he gave in 1990. In the era of the powerful modern state, according to Kennedy, protecting the individual requires the empowerment of groups and institutions. To Kennedy, these voices are needed to counterbalance government dominance.
Knowles also points to the way Kennedy’s “hostility toward content-based restrictions on speech” (p. 170) in the past led him to overtly reject even a speech-protective strict scrutiny test due to the slim possibility that a compelling justification might be deemed sufficient to allow for speech suppression. Unlike Breyer, Kennedy rarely appears comfortable with a balancing approach, even one designed to be highly speech-protective. Yet curiously, Knowles observes that in 2012 Kennedy seemed to retreat from this position, openly applying a strict scrutiny test in UNITED STATES V. ALVAREZ. Only time will tell whether this is indicative of a genuine and lasting shift in his approach – perhaps a product of repeated failure to persuade enough justices to adopt his favored view – or simply an anomaly.
The third – of three – profiles of a sitting justice was penned by the co-editor of the book, Steven B. Lichtman, adapted from a previously published law review article. Lichtman’s thesis is as bold as his title is clever: BLACK LIKE ME: THE FREE SPEECH JURISPRUDENCE OF CLARENCE THOMAS. He draws a fascinating, if at times flawed, parallel between two justices one would rarely associate with one another, the deeply conservative Clarence Thomas and the iconoclastic liberal Hugo Black. Hugo Black was of course well known for a distinctive brand of absolutism on the First Amendment, a perspective which he repeatedly articulated in his many decades on the Court, and which the other justices repeatedly refused to accept. Michael Paris and Kevin J. McMahon fill the third chapter with an excellent profile of Black’s First Amendment jurisprudence.
Lichtman is right to point out that despite the obvious ideological contrast between Thomas and Black, on the First Amendment they share a good deal in common. Thomas, like Black, had, and continues to have, a rather speech-protective reputation. Lichtman may be right that at a certain point in their judicial careers both Black and Thomas also underwent a dramatic and unexpected retrenchment in their First Amendment sensibilities. However, I found this part of his thesis a bit less convincing. The author points to decisions such as TINKER, MORSE and BROWN, in which the respective free speech champions rejected First Amendment claims by students and minors. But one might just as easily conclude that these opinions are very much consistent with absolutism on the First Amendment – either the First Amendment applies in full or it does not at all. In other words, to these two justices perhaps the free speech guarantee simply does not attach to minor children under school supervision.
Lichtman also rightfully raises the unexpected VIRGINIA V. BLACK, in which Thomas authored a strikingly personal dissent rejecting First Amendment protection of cross burnings. I would agree with Lichtman that Thomas’s characterization of cross burnings as terroristic conduct rather than expression is both curious and arguably inconsistent with Thomas’ speech-[*60] protective past. However, Lichtman overstates his case, accusing Thomas of “ben[ding] reality” and playing “fast and loose with the facts” (p. 207). To support his argument that Thomas was dissembling, Lichtman suggests that in BLACK, “there was nobody present at whom the terror was aimed” (p. 207). However, the Court took care to point out that although the cross burning at issue occurred on private property, it was within view of 8-10 houses and a state highway in which 40-50 cars passed in an hour’s time (VIRGINIA V. BLACK, 538 U.S. 343, 348 (2002)). The Court struck down the Virginia law because it included a built-in presumption that a cross burning is an unprotected true threat, not because this particular cross burning was necessarily protected (VIRGINIA V. BLACK, 538 U.S. 343, 367 (2002)) as Lichtman seems to suggest. 1 Nonetheless, aside from these small caveats, Lichtman’s piece comparing Clarence Thomas with Hugo Black is a compelling read.
Frederick P. Lewis’ chapter on Holmes is a solid, well-written piece that would make a fine addition to an undergraduate First Amendment syllabus; but it follows a well-trod path. I was pleased to encounter a final section in which the author sought to bring Holmes’ jurisprudence into the 21st century – Lewis ponders what Holmes would make of today’s First Amendment developments. But I was disappointed that only three relatively short paragraphs were dedicated to answering this question.
Samuel R. Olken’s contribution similarly addresses the jurisprudence of a justice long-gone from the Court. Unlike Holmes however, Olken chooses a justice with an almost non-existent First Amendment profile. Olken readily admits in the first sentence of his essay that Justice Sutherland, who sat on the Court though the late 1930s, was the author of just two free speech decisions. Why then, choose Sutherland as one of just nine justices profiled? Olken makes an interesting case that Sutherland’s speech-protective decisions can be explained as a natural extension of his widely known conservatism in other areas of constitutional interpretation. Sutherland was, after all, perhaps best known as one of the “Four Horsemen” who repeatedly joined forces to thwart FDR’s progressive initiatives.
Also exploring the jurisprudence of a justice known for conservatism, is Douglas E. Edlin’s fascinating piece on John Marshall Harlan II. Edlin takes great care to distinguish Harlan’s conservatism from the ideological conservatism one might be accustomed to today. Harlan’s was a judicial conservatism; and Edlin expertly examines how Harlan’s cautious incrementalism and deference to the political branches informed his First Amendment jurisprudence.
Keith J. Bybee likewise has a distinctive take on a moderately conservative justice, Potter Stewart. Bybee uses his profile as an opportunity to highlight four arguably neglected words in the First Amendment: “or of the press.” Stewart’s free speech claim to fame may have been his – perhaps unduly blunt – concession to common sense intuition when it comes to identifying unprotected pornography. However, Bybee made the much better choice of focusing his chapter on Stewart’s largely forgotten, but nonetheless important, approach to the press clause. In the process the author delves into a thought provoking assessment, not only of Stewart’s “valorization of press freedom,” (p. 148) but of its implications in today’s dramatically reconfigured media landscape. The result – despite profiling the jurisprudence of a justice who retired in 1981 – is a compelling analysis that is both relevant and timely.
JUDGING FREE SPEECH would make an excellent supplement to a course on the First Amendment or judicial decision making. By the editors own admission, the project was designed primarily with the undergraduate reader in mind. However, several of the pieces ratchet up the analytical level, and would potentially be suitable for a graduate or law student. Indeed, many scholars may find pieces in this volume useful for their own research. My judgment: JUDGING FREE SPEECH is highly recommended.
1 Lichtman argues: “Unlike in R.A.V., in which a black family was singled out for a message of [*61] hate and fear that was planted on their front lawn, in VIRGINIA V. BLACK no blacks (or any potential objects of the Klan’s pathologies) were exposed to the cross burning. This was clearly a mere ceremony” (p. 206).
AUSTIN V. MICHIGAN CHAMBER OF COMMERCE, 494 U.S. 652 (1990).
BROWN V. ENTERTAINMENT MERCHANTS ASSOCIATION, 564 U.S. 786 (2011).
CITIZENS UNITED V. FEDERAL ELECTION COMMISSION, 558 U.S. 310 (2010).
MORSE V. FREDERICK, 551 U.S. 393 (2007).
R.A.V. V. CITY OF ST. PAUL, 505 U.S. 377 (1992).
TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503 (1969).
UNITED STATES V. ALVAREZ, 567 U.S.___ (2012).
VIRGINIA V. BLACK, 538 U.S. 343 (2002).
© Copyright 2016 by author, Wayne Batchis