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