Bench Memos

Law & the Courts

Judge Kavanaugh’s Free-Speech Record

Justice Anthony Kennedy was a staunch defender of the First Amendment. He was the most speech-protective justice on a quite speech-protective Court. This might lead some to wonder about Judge Kavanaugh’s record on First Amendment issues.

Over at Popehat, Ken White analyzes Judge Kavanaugh’s record on the freedom of speech. Here is what he finds:

Kavanaugh has been an appellate judge for 12 years and has written many opinions on free speech issues. They trend very protective of free speech, both in substance and in rhetoric. His opinions are consistent with the Supreme Court’s strong protection of free speech rights this century. People who buy into the “conservatives are weaponizing the First Amendment” narrative will see him as a strong advocate of that movement, in that he has applied the First Amendment to campaign finance laws, telecommunications regulation, and other aspects of the regulatory state. But he’s also demonstrated fidelity to free speech principles in classic speech scenarios. Even when he concurs in a First Amendment decision, he frequently writes a separate opinion to clarify his analytical approach to the problem. He’s quoted First Amendment guru Eugene Volokh — one of the leading voices in free speech analysis and a strong defender of speech rights.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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