ABSTRACT
48 Justice Brennan spent the last two decades of his career on the Supreme Court in dissent. Now and then, he was able to salvage some of the Warren Court legacy, but most often, he found himself complaining of the retrenchment on rights by the majority. See A Life Lived Twice, 100 Yale Law Journal 1117 (1991). Free speech is sometimes portrayed as an area in which there is a consensus, but in truth these same divisions occurred in that domain as well. Although the controlling majority would often cite Justice Brennan s 1964 decision in New York Times v. Sullivan, it soon became clear that they had no taste for the value underlying that decision—robust public debate.
Justice Brennan retired from the Court in June 1990. One of his very last opinions was a dissent in United States v. Kokinda, in which the majority upheld a decision of the federal government denying political activists access to a public sidewalk. In his passionate and moving dissent, the Justice complained of the change in judicial doctrine that had occurred over the years and compared the prevailing position to that of the early 1960s, when the Court had heroically extended its arm to protect the civil rights demonstrations of the period. The Justice s dissent caught my eye and led me to use a number of the lectures to which I was already committed (at Albany Law School, Suffolk University Law School, and Princeton University) to explore the sad turn in the Courts doctrine. To establish a baseline, I reached back to the 1930s, described by Harry Kalven as the period when “speech started to win” (see A Worthy Tradition, page 167), and recovered one of the famed decisions of that era, Schneider v. State. The lecture was published in the Spring 1992 Suffolk University Law Review, and soon thereafter in Public Values in Constitutional Law (Stephen Gottlieb, ed., 1993).
