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Copyright (c) 1991 The Trustees of The University of Pennsylvania 
University of Pennsylvania Law Review

ESSAY: JUSTICE BRENNAN AND THE FREEDOM OF SPEECH: A FIRST AMENDMENT ODYSSEY.

May, 1991

139 U. Pa. L. Rev. 1333

Author

GEOFFREY R. STONE +

Excerpt

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 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 which Justice 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 his thirty-four years on the Court, Brennan was 50% more likely than the Court as a whole to protect the freedom of speech. 3 Moreover, in only two cases from 1956 to 1990 did Justice Brennan reject a ...
 
 
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