Justice Kennedy and the Freedom of Speech

[wasserma at fiu.edu]

David Bernstein had a post at the Volokh Conspiracy on Saturday, featuring a 
quotation from Robert Bork about government control over culture and morality 
as a way to enhance liberty.  Professor Bernstein then comments how glad he is 
that Justice Kennedy, rather than Bork, occupies that seat on the Supreme Court.  

The link is at:

http://volokh.com/posts/1141510474.shtml

Professor Bernstein's comment relates to the separate fact that Justice Kennedy 
has (quietly, at least in popular reporting) evolved into a speech-protective 
Justice, somewhat in the mode of Brennan, Black, and Douglas.  He even tried to 
change and invigorate some doctrine in his early days on the Court, for 
example, arguing against the use of balancing for content-based laws and for a 
more-expansive definition of public forums.

Has anyone undertaken a systematic examination of his free-speech 
jurisprudence?


Howard Wasserman
FIU College of Law