In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court’s majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens’ pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions’ practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep concern with disparities in social power that can exclude economically and politically marginal speakers from public debate. This article refers to Justice Stevens’s combination in free speech cases of a pragmatic methodology and a populist ethic as pragmatic populism.
The article first examines the distinctions between the majority’s and Justice Stevens’s approaches to free speech cases. It then examines the distinctive ways in which Justice Stevens’ pragmatic populism advances expressive freedom: his singular commitment to protecting means of expression especially important to underfinanced speakers; his efforts to ensure that the political process includes many and varied perspectives; and his nuanced analysis of commercial advertising and of speech that assaults marginalized groups and persons.
Constitutional Law | Jurisprudence
Date of this Version
Gregory P. Magarian, "The Pragmatic Populism of Justice Stevens' Free Speech Jurisprudence" (September 2006). Villanova University School of Law Working Paper Series. Working Paper 57.