Justice Frankfurter as the Pioneer of the Strict Scrutiny Test-Filling in the Blank in the Development of Free Speech Jurisprudence

National Taiwan University Law Review, Vol. 7, No. 1, pp. 91-122, 2012

32 Pages Posted: 24 Jul 2012  

Toru Mori

Kyoto University - Graduate School of Law

Date Written: April 4, 2012

Abstract

This article shows Justice Frankfurter’s positive influence on the development of the jurisprudence of free speech, which has been overlooked in the shadow of his judicial passivism. Reading the decisions of that time carefully, this article finds the theoretical relationship between him and Justice Brennan, who played the main role in the progressive Warren Court.

As the Supreme Court began to yield to the hysteria of McCarthyism, Frankfurter’s deep concern about the wide discouraging effect of the restraint came to the forefront. It was Frankfurter who began to use the terms 'deter' and 'chill' to describe the negative effect of restrictions on speech. In Sweezy v. New Hampshire, Frankfurter demanded that the State interest be 'compelling' to justify the intrusion on political liberties. Brennan succeeded in developing the compelling interest test in following decisions. It is true that Frankfurter needed more evidence than Brennan to recognize the deterrent effect enough to make restrictions unconstitutional. However, this article confirms that Frankfurter helped the restart of the Supreme Court with his keen sensitivity to the negative potential of restrictions on political liberties.

Keywords: freedom of speech, Justice Frankfurter, Justice Brennan, deterrent effect, compelling interest

Suggested Citation

Mori, Toru, Justice Frankfurter as the Pioneer of the Strict Scrutiny Test-Filling in the Blank in the Development of Free Speech Jurisprudence (April 4, 2012). National Taiwan University Law Review, Vol. 7, No. 1, pp. 91-122, 2012. Available at SSRN: https://ssrn.com/abstract=2116152

Toru Mori (Contact Author)

Kyoto University - Graduate School of Law ( email )

Yoshida-honmachi
Sakyo-ku
Kyoto, 606-8501
Japan

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