Justice Kennedy's Free Speech Jurisprudence: A Quantitative and Qualitative Analysis
30 Pages Posted: 4 May 2012 Last revised: 16 Jun 2012
Date Written: May 4, 2012
In the almost twenty-five years that Justice Anthony M. Kennedy has served on the United States Supreme Court, he has gained a reputation as being the foremost defender of free speech principles on the modern Court. In this paper, we seek to determine whether Justice Kennedy’s reputation as a defender of free speech principles is justified. To that end, we undertake both a quantitative and qualitative analysis of the Supreme Court’s free speech jurisprudence during the period of Justice Kennedy’s tenure on the Court (i.e., from February 11, 1988 through the present), with a view towards determining whether Justice Kennedy has been more likely to support free-speech rights than the Court as a whole. Our clear conclusion is that as a quantitative matter, Justice Kennedy is in fact substantially more likely to defend free speech claims than the Court as a whole, across a wide range of First Amendment disputes. In addition, an examination of his majority and separate opinions in free speech cases demonstrates that Justice Kennedy has during his tenure made important and lasting contributions to the law of freedom of speech, most of which have expanded rather than contracted First Amendment liberties.
Keywords: free speech, Justice Kennedy, First Amendment, quantitative, qualitative
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