Supreme Court as Civic Educator: Free Speech According to Justice Kennedy

Abstract

Recent analyses of the First Amendment free speech opinions of the Rehnquist Court have confirmed that decisions in this area of the law contradict the traditional ideological labels that scholars and other Court commentators routinely use to describe the justices. However, Justice Anthony M. Kennedy, whose opinions defined much of the Rehnquist Court's speech jurisprudence, is still described in terms of his First Amendment "libertarianism." In this article, I argue that this approach provides an inadequate understanding of this aspect of the judicial decision-making of the Justice who is now the sole occupant of the "swing" seat on the Roberts Court. Kennedy is a free speech libertarian, but rather than describing his opinions in terms of this ideology, we should focus on the goal of civic education that he uses his judicial opinions to achieve.

Kennedy's interest in civic education became publicly apparent in 2001 when, in collaboration with the American Bar Association, he created the Dialogue on Freedom. The principles of this extra-judicial program are inextricably intertwined with Kennedy's jurisprudence. In the area of expressive freedom, the importance of civic education can be seen in the Justice's opinions in Texas v. Johnson (1989), Rosenberger v. Rector & Visitors of the Uni. of Va. (1995), and Hill v. Colorado (2000). In all three cases Kennedy authored opinions passionately defending the concept of, and educating the public about the importance of maintaining viewpoint diversity.

To substantiate my conclusions I draw on Justice Kennedy's pre- and post-confirmation speeches, and the papers of Justice Blackmun.

Keywords: Justice Kennedy, First Amendment, Freedom of Speech