Less is More: Justice Rehnquist, the Freedom of Speech, and Democracy

Document Type

Book Chapter

Publication Date

2006

Publication Information

 in The Rehnquist Legacy 26 (Craig M. Bradley ed., 2006).
Available in Kresge Law Library

Abstract

From the Publisher

This chapter examines several of Rehnquist's opinions in free-speech cases involving the not-so-clear line between government speech and spending, on the one hand, and government-facilitated private speech on the other. This examination suggests, it is argued, that Rehnquist's work does not reflect skepticism or hostility toward the core values protected by the Free Speech Clause, as some have charged, but instead reveals a careful appreciation for the fact that the translation and reduction of so many policy questions to free-speech problems comes at a cost. After all, as the civic, social, and political territory controlled by the Free Speech Clause grows, the amount shrinks that is governed democratically and experimentally by the people and their representatives or that is left under the direction of private persons, groups, and institutions. One implication of the free-speech takeover, Rehnquist seems to be warning us, is that difficult policy and other decisions depend increasingly on judges' evaluation of the abstract weight or worthiness of the government's interests, rather than on deliberation, compromise, and trial-and-error by and among citizens and politically accountable public officials.

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