40 Pages Posted: 20 Sep 2011
Date Written: September 20, 2011
Justice Kennedy’s basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations, and intermediate review for content neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for a stronger, absolute rule of unconstitutionality for content-based regulations which do not fall into one of the traditional exceptions of free speech doctrine, such as obscenity, defamation, words tantamount to an act otherwise criminal, impairing some other constitutional right, an incitement to lawless action, or speech calculated to bring about imminent harm that the state has substantive power to regulate. Given his entire body of decisions regarding the freedom of speech over his quarter century on the Court, no Justice on the modern Court has been more consistently protective of the First Amendment freedom of speech than Justice Kennedy.
Suggested Citation: Suggested Citation
Kelso, R. Randall and Kelso, Charles D., The Constitutional Jurisprudence of Justice Kennedy on Speech (September 20, 2011). Available at SSRN: https://ssrn.com/abstract=1930998 or http://dx.doi.org/10.2139/ssrn.1930998