“Uninhibited, Robust, and Wide-Open”–A Note on Free Speech and the Warren Court

There are several ways to give at the outset, in quick summary, an over-all impression of the Warren Court in the area of the first amendment. The quotation in the title can for many reasons be taken as its trademark. The quotation comes, of course, from a statement about public debate made in the Court’s preeminent decision, New York Times v. Sullivan, and it carries echoes of Alexander Meiklejohn. We have, according to Justice Brennan, “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open …. ” What catches the eye is the daring, unconventional selection of adjectives. These ·words capture the special quality of the Court’s stance toward first amendment issues. They express the gusto and enthusiasm with which the Court has tackled such issues. They indicate an awareness that heresy is robust; that counterstatement on public issues, if it is to be vital and perform its function, may not always be polite. And, most significantly, they express a desire to make a fresh statement about the principles of free speech rather than simply repeat the classic phrases of Holmes in Abrams and Brandeis in Whitney.5 The Court is interested enough to be minting contemporary epigrams–to be making it its own.