Justice Brennan and the Freedom of Speech: A First Amendment Odyssey
University of Pennsylvania law review
At the time of Justice William J. Brennan, Jr.'s appointment to the Supreme Court of the United States, first amendment doctrine was in its infancy. The Court had not yet addressed the issues of obscenity or libel, it had made only passing acquaintance with the complexities of commercial advertising and the concept of the public forum, it had not yet discovered the content-based/content neutral distinction, its protection of subversive advocacy was more theoretical than real, and its overall
... and its overall free speech jurisprudence was rigid, simplistic, and incomplete. At the time of Justice Brennan's retirement some thirty-four years later, the Court's free speech doctrine was far richer, more subtle, and more speech-protective than ever before in our nation's history. Justice Brennan, it is fair to say, was the primary architect of this revolution in our understanding of the freedom of speech. During his long tenure on the Court, Justice Brennan established himself as one of the staunchest defenders of the freedom of speech the Court has ever known. Of the 252 free speech decisions in whichJustice Brennan participated, 1 the Court accepted the free speech claim in 148, or 59%, of the cases. Justice Brennan accepted the free speech claim in 221, or 88%, of these cases. 2 Thus, during t Harry Kalvenjr. Professor of Law and Dean, University of Chicago Law School.