Justice Kennedy Invokes Time-Honored First Amendment Doctrine

Justice Anthony Kennedy

Justice Anthony Kennedy

Another in the periodic Newseum Institute series about U.S. Supreme Court justices and their memorable comments on our First Amendment freedoms.

Justice Anthony Kennedy invoked one of the most famous and time-honored principles of First Amendment jurisprudence in his dissenting opinion in Williams-Yulee v. The Florida Bar — a case examining a Florida rule banning judicial candidates from directly soliciting money.

The majority of the Court upheld the law, reasoning that the law furthered the state’s compelling interest in preserving the integrity of the judiciary and maintaining public confidence in an impartial judiciary.

Justice Kennedy was one of the Court’s four dissenters and one of the three who wrote separate dissents.

“If there is concern about principled, decent, and thoughtful discourse in election campaigns, the First Amendment provides the answer,” Justice Kennedy wrote. “That answer is more speech.”

Kennedy cites and invokes Justice Louis Brandeis’s concurring opinion in Whitney v. California (1927), where Brandeis warned: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Brandeis’s language is one of the Court’s finest passages in First Amendment history. It also captures the essence of the counter-speech doctrine — that the solution to negative or bad speech is to counter it with positive or good speech.

This doctrine applies quite nicely in the context of a campaign where candidates often counter assertions made by their opponents.

As Kennedy also wrote in his dissent: “Elections are a paradigmatic forum for speech.”


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