Intersection and Divergence: Some Reflections on the Warren Court, Civil Rights, and the First Amendment

During Chief Justice Warren's tenure, a substantial body of First Amendment law emerged from struggle to secure racial equality, and in several instances Court seemed quite self-consciously to shape First Amendment doctrines so that freedom of speech would be an important arrow in civil rights movement's quiver. Put another way, Court protected civil liberties of free speech and association to promote civil right of racial equality. In 1965, Harry Kalven elucidated this development in his book The Negro and First Amendment.1 Kalven was an astute and sympathetic observer of both First Amendment doctrine and civil rights movement, and when his book appeared, its civil rights perspective shed fresh light on, and lent a nice coherence to, then-developing First Amendment law of libel, anonymity, privacy, freedom of association, trespass, and public forum. As I reflected on what I might contribute to this Symposium's attempt to assess Warren Court's jurisprudential occurred to me that might be fruitful to inquire into progeny of some of First Amendment cases2 that Kalven analyzed in order to study how First Amendment doctrines played out in contexts other than civil rights movement. I also believe is important to observe what has become of Warren Court's assumption that liberty of speech for all is indispensable to, and indeed is a crucial measure of, extent to which we have secured civil rights for all. Accordingly, I set for myself task of trying to discern what has become of Warren Court's most notable First Amendment case, New York Times Co. v. Sullivan,3 and to discover what doctrines emerged from Court's efforts to protect civil rights demonstrators when they took their protest to streets and lunch counters across South.4The analysis that follows does not assign full responsibility to Warren Court precedents for shambles that is today's First Amendment. The Symposium invitation - to assess the jurisprudential legacy of Warren Court - does seem to suggest that a genuine, discernible, but-for causal chain directly links today's First Amendment doctrine to cases from Warren Court era. And of course a certain sense exists in which, simply by virtue of commands of stare decisis and of precedent, decisions of earlier cases cause outcomes to be what they are in later cases. Later cases inherit earlier ones, and stare decisis requires later courts to address law embodied in precedents set by earlier courts - by adhering to them, by overruling them, or by distinguishing them.5 So later cases represent earlier courts' legacy, willy nilly. But thinking about how to compare later First Amendment cases to those decided by Warren Court brings to surface intractable puzzles about and significance of causal link between two. The puzzles have to do with extent to which one can confidently trace current First Amendment doctrine back to Warren Court. I do not claim to have solved these puzzles. Indeed, having identified them and noted their intractability, I decided to finesse causal question almost entirely.Confident causal attributions are problematic because assessing present in terms of Warren Court past poses notoriously indeterminate nature vs. nurture, or heredity vs. environment, puzzle. The Warren Court precedents are - of course - part of today's First Amendment's genetic material. But what First Amendment has become since Warren Court surely has as much to do with philosophy of justices who have sat on Court since Chief Justice Warren's time, with kinds of First Amendment issues they have confronted, and with of claimants who have sought First Amendment protection for their activities as does with its precedential inheritance. In his book, Kalven observed with considerable accuracy that it would not be a bad summary of last three decades of First Amendment issues in Court to say simply: Jehovah Witnesses, Communists, Negroes. …