What a Difference Five Years Haven't Made: Justice Kennedy and the First Amendment, 2007-2012
Helen J. Knowles
February 5, 2013
University of Missouri-Kansas City Law Review, July 2013, Forthcoming
This article shows that for all the changes that have taken place on the U.S. Supreme Court during the past five Terms, what has not altered in any appreciable manner is the First Amendment free speech jurisprudence of Justice Kennedy. Several of Kennedy’s colleagues have said that he has “‘a thing’ about the First Amendment.” In THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY (2009), I argued that this “thing” was the “universal element” of his jurisprudence. This is Kennedy’s commitment to a robust, libertarian defense of expressive freedom, and the belief that the concept of toleration underpinning the First Amendment prohibits governmental attempts to choose which viewpoints are socially acceptable.
This article reflects upon the time since the end of the October 2006 Term – the end of the period analyzed in the book, and analyzes the opinions penned by the Justice in two cases involving content-based restrictions on free speech (Citizens United v. FEC (2010) and United States v. Alvarez (2012)). This analysis makes extensive use of a paragraph from one of the drafts of Justice Kennedy’s dissent in Austin v. Michigan Chamber of Commerce (1990), a paragraph that was left out of the final published opinion. It also uses the Justice’s opinions in commercial speech cases to evaluate his arguments in Citizens United.
In this paper I reach two main conclusions. First, the “universal element” of Justice Kennedy’s jurisprudence is alive and well. Second, for all the attention focused upon, and boisterous analysis accompanying Citizens United, there are several reasons why the doctrinal legacy of Alvarez has the potential to be far more significant. In short, it is Alvarez rather than Citizens United that provides us with a good understanding of Kennedy’s free speech jurisprudence and the role played by that jurisprudence on the current Court.
(This is a significantly revised version of a previous draft)
Number of Pages in PDF File: 79
Keywords: free speech, first amendment, Justice Kennedy, citizens united v. FEC, United States v. Alvarez, commercial speech, campaign finance, constitutional theory, constitutional law
Date posted: November 4, 2012 ; Last revised: February 9, 2013