The Rehnquist Legacy

Book Chapter Richard W. Garnett, Less is More: Justice Rehnquist, the Freedom of Speech, and Democracy, in The Rehnquist Legacy 26 (Craig M. Bradley ed., 2006) The First Amendment\u27s Free Speech Clause - Congress shall make no law . . . abridging the freedom of speech - occupies much of the field when it comes to our public debates on matters of law, policy, and morality. Today, in the courts of both law and public opinion, arguments about a huge range of human activities - from cutting-edge scientific research and legal-aid work to video games and unauthorized dancing - are constructed using First Amendment premises, precedents, and jargon. Chief Justice Rehnquist, however, has for the most part resisted, or at least regretted, this free-speech takeover during his tenure on the Supreme Court. This chapter examines several of Rehnquist\u27s 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 that Rehnquist\u27s 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\u27 evaluation of the abstract weight or worthiness of the government\u27s interests, rather than on deliberation, compromise, and trial-and-error by and among citizens and politically accountable public officials.https://scholarship.law.nd.edu/law_books/1393/thumbnail.jp