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

By Howard, Robert M. | The New England Journal of Political Science, Spring 2016 | Go to article overview

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


Howard, Robert M., The New England Journal of Political Science


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.

Most of us, scholars and laypeople alike, take First Amendment free speech protections for granted. We expect to be able to criticize the government either by speaking or in writing or by joining a political or social organization without fear of penalty or retribution. Yet, what the essays in this volume show is that these First Amendment free speech protections are actually quite recent, and a product of less than a century of development.

Political Scientists Helen Knowles and Steven Lichtman offer essays by political scientists and law professors that trace the development of First Amendment jurisprudence. They do so using a rather novel method. Instead of a chronological review of case law, each author writes a chapter about a Supreme Court Justice who has helped develop free speech jurisprudence, starting with Oliver Wendell Holmes and ending with Stephen Breyer. It is a curious list, considering the defense of free speech is usually associated with Justices that are more liberal. More than half of this list, however, includes Justices who range from the moderate to moderately conservative (John Harlan II, Potter Stewart and Anthony Kennedy) to two Justices (Sutherland and Thomas) who rank among the most conservative ever by voting record and various other measurements.

Much of the explanation lies in the emphasis in these chapters on the word used in the title - jurisprudence. The editors and authors make clear that this is not an exploration of judicial ideology or judicial policy preference. The authors argue that the political science focus on vote choice fails to examine the opinion language that is critical to understanding the evolution of free speech jurisprudence. The offerings in this volume focus on these Justices' contributions to the logic, reasoning and development of First Amendment law.

In several chapters, the authors highlight several cases not featured in many textbooks. These additional cases add nuance and understanding to the more prominent opinions that one usually reviews and discusses. Additionally, students will have an opportunity to learn more about these particular Justices beyond seeing them as names attached to opinions. For example, in the first chapter about Oliver Wendell Holmes, Jr. by Frederick Lewis, we learn of Holmes' initial venture into First Amendment jurisprudence in Patterson v. Colorado1 in 1907. In this opinion, Holmes argued for a restrictive interpretation of free speech protections. However, by 1919 with his Schenck v. United States2 opinion, Holmes moved away from his initial restrictive view to a more expansive interpretation of protecting speech. The author credits this development to, among other things, the influence of Judge Learned Hand and political theorist Harold Laski. This particular chapter does a nice job descriptively demonstrating how judicial views and preferences are not immutable, but subject to change over time. This also implicitly challenges the ideology measures3 that remain fixed for each Justice from the time of confirmation onward, although to be fair, other measures do account for ideological variation over time.4

The inclusion of a chapter by Samuel Olken on George Sutherland is an interesting addition. Sutherland was one of the very conservative "four horsemen of the apocalypse" opposed to New Deal legislation. Sutherland and his conservative colleagues ruled against economic regulation as an interference with economic liberty, and Sutherland only wrote two opinions on speech, one of which was a dissent. However, Olken argues that Sutherland linked economic liberty to free speech, foreshadowing the modern court's extension of free speech rights to commercial speech.

The Michael Paris and Kevin McMahon chapter on Hugo Black reviews several early cases that show, in contrast to Justice Holmes, a steady development of Black's rigid free speech absolutism. …

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