Chief Justice Rehnquist and the Freedom of Speech

April 4, 2008

Richard W. Garnett

With time or overuse, even the most spot-on insight can degrade to a tired cliché or shopworn truism. Still, Tocqueville was right: in the United States, sooner or later, almost every interesting or controversial question becomes a legal one. What’s more, a present-day Tocqueville might add, by way of friendly amendment to his predecessor’s original report, it seems that all of the really interesting or controversial problems are eventually packaged, often quite creatively, in freedom-of-speech terms. As a result, the First Amendment’s Free Speech Clause now occupies much of the field when it comes to our simmering (and sometimes boiling) public debates on matters of law, policy, and morality. Indeed, this “free-speech takeover” of public (and private) discourse was one of the more striking and significant developments during Chief Justice William Rehnquist’s long tenure on the Supreme Court....

Chief Justice Rehnquist and the Freedom of Speech