Volume 70, Issue 5, 1317-1330
Justice Kennedy has been hailed by free speech advocates as a leading free speech champion. In contrast, other experts have not only criticized particular opinions and votes by Justice Kennedy that rejected free speech claims, but they also have maintained that Justice Kennedy specifically declined to protect speech that was at odds with his conservative political and religious views. It is certainly true that Justice Kennedy did not uphold freedom of speech in some important contexts, including when the Government asserted countervailing national security or “War on Drugs” concerns. However, in other important cases, Justice Kennedy showed courage in defending freedom for expression that was not only inconsistent with his own views and values, but also reviled by the public, thus earning him enormous criticism. Moreover, in enforcing the First Amendment’s non-Establishment Clause, Justice Kennedy displayed similar courage in re-examining and revising his own views in a major case, thus protecting individual religious liberty from government and popular pressure in the sensitive public school context. Overall, we can draw inspiration from Justice Kennedy’s consistent vision that we must be free to make our own choices in the realm of ideas and beliefs, even if we may disagree with particular choices Justice Kennedy made in implementing that vision.