Judge Kavanaugh and Justice Kennedy's Free Speech Legacy

Justice Kennedy was the most speech-protective justice on a speech-protective court. What happens to free speech once he is replaced?

Justice Anthony Kennedy was the most speech-protective justice on the most speech-protective Supreme Court in our nation's history. His expansive conception of the First Amendment's protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last. While he did not vote in favor of those claiming First Amendment protection in each and every case—notably cases involving government employees or schoolchildren—he did so more often than those on both sides of the aisle.

Under Chief Justice Roberts the Court has largely been the Kennedy Court. For the past thirteen years Justice Kennedy has voted in the majority more than any other justice, even the Chief. So if you wanted to know how the Court might rule in a given case, it was usually enough to figure out how Justice Kennedy would vote. In First Amendment cases, this usually meant those seeking greater protection for speech and expressive conduct would prevail.

Although Court does not take as many free speech cases as it once did, it would be a mistake to view this as a retreat from the protection of speech. Under current law, a wider array of speech is protected than ever before. As Joel Gora noted in his chapter on the First Amendment in Business and the Roberts Court, the landmark free speech decisions of the Warren and Burger Court have been left largely untouched, while the realm of protected speech has grown. Indeed, one reason the Roberts Court hears fewer First Amendment cases is that it hardly needs to, other than to ensure speech protection on the margins, especially those margins that were historically ignored.

The Roberts Court has refused to carve out new exceptions to that speech which receives constitutional protection, rejecting claims that so-called "crush" films depicting animal cruelty or explicitly violent video games, lies about military honors or gratuitously offensive and bigoted funeral protests lie outside the First Amendment's reach. Although some forms of communication remain unprotected, such as "fighting words," obscenity, and defamation, Justice Kennedy has forcefully opposed adding to the list. At the same time, the Court has expanded the notion of protected speech to include more commercial and campaign-related speech—often to the chagrin of otherwise speech-protective progressives.

Justice Kennedy's commitment to a broad and largely uncompromising vision of the First Amendment continued through this term, when Justice Kennedy joined the Court to affirm protections against compelled speech for crisis pregnancy centers and public sector workers who don't wish to support union activities.

This concern for free expression was not new. On his first full year on the Court, Justice Kennedy made clear he would uphold First Amendment principles, even when it hurts. In Texas v. Johnson, the flag-burning case, Justice Kennedy joined Justice Brennan's sweeping opinion overturning the protestor's conviction. Kennedy also concurred separately to note that "however painful" flag burning may be to some, it still merits protection. "It is poignant but fundamental that the flag protects those who hold it in contempt," he wrote, adding about the protestor that he "was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution."

And who can forget Citizens United, one of Justice Kennedy's most aggressive and principled First Amendment decisions. Citizens United affirmed the core principle, articulated in Buckley v. Valeo, that the First Amendment "was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people" (internal quotation marks deleted). As Gora observes, Kennedy's opinion reflected the "strong libertarian, antipaternalistic, anticensorship themes" central to First Amendment precedents from earlier times.

Judge Kavanaugh's nomination to fill Justice Kennedy's seat makes it very likely this free speech legacy will survive. The Chief Justice has largely supported Kennedy's speech protective vision, and has written important First Amendment decisions of his own, such as his decision for a unanimous Court protecting abortion clinic protests in McCullen v. Coakley (a position Justice Kennedy had urged in dissent several years earlier). Justice Alito, on the other hand, has written separately or dissented in multiple cases involving various forms of offensive or otherwise objectionable speech and protection.

As Ken White documents on Popehat (and Eugene noted here), Judge Kavanaugh has adopted a very speech protective record on the D.C. Circuit, including in areas that were of particular importance to Justice Kennedy, such as campaign-related speech. He has also articulated a principled and nuanced understanding of how the First Amendment applies in the context of compelled commercial speech. Contrary to Damon Root, I believe Judge Kavanaugh's opinion in American Meat Institute v. USDA is quite speech protective, and represents a more sophisticated understanding of how to reconcile various strands of the Supreme Court's commercial speech and compelled speech jurisprudence. There was no question that country-of-origin labeling requirements for meat products would be upheld. The question was how to reconcile this requirement with broader protection against compelled commercial speech, and that's the question Kavanaugh answered.

Largely due to Justice Kennedy's leadership, the Roberts Court showed that a conservative court can be a free speech court. The Kavanaugh nomination provides reason to hope that this free speech legacy is secure.