Judging Free Speech: First Amendment Jurisprudence of US Supreme Court Justices

294 Pages·2015·3.61 MB·English

by  Helen J. Knowles

Judging Free Speech

Judging Free Speech
First Amendment Jurisprudence of
US Supreme Court Justices
Edited by
Helen J. Knowles and
Steven B. Lichtman
JUDGING FREE SPEECH
Copyright © Helen J. Knowles and Steven B. Lichtman, 2015.
Softcover reprint of the hardcover 1st edition 2015 978-1-137-43491-3
All rights reserved.
First published in 2015 by PALGRAVE MACMILLAN® in the United

States—a division of St. Martin’s Press LLC, 175 Fifth Avenue,
New York, NY 10010.

Where this book is distributed in the UK, Europe and the rest of
the world, this is by Palgrave Macmillan, a division of Macmillan
Publishers Limited, registered in England, company number 785998,
of Houndmills, Basingstoke, Hampshire RG21 6XS.
Palgrave Macmillan is the global academic imprint of the above companies
and has companies and representatives throughout the world.
Palgrave® and Macmillan® are registered trademarks in the United States,
the United Kingdom, Europe and other countries.
ISBN 978-1-137-43490-6 ISBN 978-1-137-41262-1 (eBook)
DOI 10.1007/978-1-137-41262-1
Library of Congress Cataloging-in-Publication Data
Judging free speech : First Amendment jurisprudence of US Supreme
Court Justices / edited by Helen J. Knowles, Steven B. Lichtman.
pages cm
Includes bibliographical references and index.
1. Freedom of speech—United States. 2. United States.
Constitution. 1st Amendment. 3. Judges—United States.
4. United States. Supreme Court—Officials and employees.
I. Knowles, Helen J., 1973– editor. II. Lichtman, Steven B., editor.
KF9345.J83 2015
342.7308’53—dc23 2015009618
A catalogue record of the book is available from the British Library.
Design by SPi Global.
First edition: September 2015
10 9 8 7 6 5 4 3 2 1
Contents
Acknowledgments vii
Introduction: Oh What a Tangled Web They Weave 1
Helen J. Knowles and Steven B. Lichtman
1 Oliver Wendell Holmes Jr. and the “Marketplace of Ideas”:
Experience Proves To Be the “Life of the Law” 27
Frederick P. Lewis
2 George Sutherland and the Business of Expression 49
Samuel R. Olken
3 Absolutism and Democracy: Hugo L. Black’s Free Speech
Jurisprudence 75
Michael Paris and Kevin J. McMahon
4 “Another’s Lyric”: John Marshall Harlan II, Judicial
Conservatism, and Free Speech 99
Douglas E. Edlin
5 Justice Civility: William J. Brennan Jr.’s Free Speech
Jurisprudence 123
James C. Foster
6 Potter Stewart Meets the Press 147
Keith J. Bybee
7 Anthony M. Kennedy: “Speech Is the Beginning
of Thought” 169
Helen J. Knowles
8 Black Like Me: The Free Speech Jurisprudence
of Clarence Thomas 191
Steven B. Lichtman
vi Contents
9 Stephen Breyer and the First Amendment as
Legal Doctrine 215
Mark Tushnet
Conclusion: It’s Complicated . . . 239
Helen J. Knowles and Steven B. Lichtman
List of Contributors 255
List of Cases Cited 257
Bibliography 263
Index 277
Acknowledgments
This book was borne out of a 2012 unsolicited email, the type of
email that a junior scholar is never disappointed to receive. “Are you
working on anything that has the potential to be a book project which
Palgrave Macmillan would be interested in publishing?” Or words to
that effect. This was followed by a phone conversation with Scarlet
Neath, during which Helen pitched the proposal that would become
the book you are now reading. In short, the project was not a difficult
sell. This is partly because during that conversation Helen confidently
informed Scarlet that the project would have the benefit of two
co-editors. “It is only a matter of asking the co-editor I have in mind;
I ‘know’ he will never turn me down.” Or words to that effect. After
that phone call ended, a few minutes went by as an email was com-
posed to that first choice, Helen’s good friend and colleague Steven
Lichtman. As you can see, he did not turn her down. In his typically
inimitable and restrained manner, Steven responded by saying: “proj-
ect sounds wicked cool . . . can I also write the chapter on Thomas?”
Had Steven not sent that positive reply, this project would have been
shelved; there was no second editorial choice.
Throughout the life of this project, the two of us have benefited
from the assistance, input, and wisdom of numerous individuals. At
Palgrave, we first worked with Scarlet and then with Brian O’Connor
and Elaine Fan, all of whom did a masterful job helping two first-time
book editors get their manuscript to and over the finish line. That goal
would not have been achieved without the assistance of two very tal-
ented and hard-working individuals. After engaging us in extremely
useful conversations about free speech jurisprudence—especially about
the Roberts Court—Brandon Metroka worked tirelessly to proofread
and citation-check the entire manuscript. In so doing, he built upon
the work of Elena Veatch (Skidmore College, ’16). During her two
years as a member of the faculty at Skidmore, Helen had the privilege
of teaching several courses in which Elena excelled as a student. Since
July 2014, when she was hired as the principal research assistant for
Judging Free Speech, Elena has been as much a part of this project as
have the co-editors, who are both exceptionally grateful to her for the
viii Acknowledgments
incredible amount of time and effort that she cheerfully devoted to
the laborious research tasks assigned to her. Together, Brandon and
Elena pointed out numerous important errors, sparing the co-editors
some major embarrassment. Of course, Helen and Steven remain
responsible for the inevitable occasions where they have gone astray.
The co-editors’ expression of gratitude also extends to the
Government Department at Skidmore for providing the funding to
hire Elena. Beyond the Government Department, a debt of gratitude
is also owed Skidmore for awarding Helen a Faculty Development
Grant to hire Ginger Kimler, who did a Herculean job copyediting the
final manuscript before it was submitted to Palgrave.
Of course, this project would not be what it is, nor would it have
been a true labor of love upon which Steven and Helen never tired of
working, were it not for the fantastic contributors, to whom a very
special expression of thanks must go. Helen and Steven are also very
grateful to the following people who, at various stages of the project,
provided them with invaluable advice and/or engaged them in equally
invaluable dialogues about expressive freedom: Bill Blazek, Christian
Castaing, Christopher Ericson, Roy Ginsberg, Mark Graber, Andrew
Lowy, Kirstin Mishkin, Steve Rosow, Ron Seyb, Mark Silverstein,
Steve Wasby, and the individuals who served as the anonymous review-
ers for the book proposal submitted to Palgrave.
Very special expressions of thanks are due the co-editors’ colleagues
and students at Skidmore College and Shippensburg University—this
project benefited from their wisdom and spirit.
We also wish to thank our colleagues and friends who frequent the
annual meeting of the New England Political Science Association.
Over the years, NEPSA has been a joyously collegial source of inspira-
tion and counsel for both of us, and it is our fervent hope that this
project lives up to the standard of excellence that NEPSA sets.
A particular expression of gratitude goes to our cover artist, Arthur
Lien, who responded to our cold-call inquiry about the availability of
the cover image with magnanimity and grace.
Last, but by no means least, are the friends and family members to
whom we wish to say a huge “thank you.”
Helen extends her thanks to her mother, Rae, for her undying love
and support, and to Toffee the cat and Doc the horse for making a
concerted effort to prevent her from going insane. She is also very
grateful to Craig, Linda, and Justin Warkentin, her Thanksgiving
2014 hosts, for giving her the time and space she needed to spend
incalculable hours of the holiday working on the final throes of the
manuscript.
Acknowledgments ix
Steven extends his gratitude to his parents, Joyce and Phil, for
being there every step of the way and for showing him what real
strength is; to Lynn, for turning the lights back on; and to Cosmo, for
making a concerted effort to get cat hair all over his laptop.
HJK, Fayetteville, NY
SBL, Frederick, MD