No Such Thing as a False Idea

This chapter discusses how the early Burger Court's free expression jurisprudence was very similar to that of the latter Warren Court. Prior restraints continued to be disfavored in New York Times v. United States (1971), offensive speech received protection in Cohen v. California (1971), and obscenity and libel remained narrowly defined. The Supreme Court found some protections for commercial speech over time, and public university students' expressive rights were established in Healy v. James (1972). However, personnel changes on the Supreme Court started to limit some of the most prominent Warren Court gains, with the definition of unprotected obscenity being expanded in Miller v. California (1973) and libel being expanded in Gertz v. Robert Welch (1974). The Supreme Court sustained the fighting words doctrine, restricted speech in broadcast media, and continued to permit significant restrictions on symbolic expression. Nevertheless, Brennan and Justice Thurgood Marshall became the new duo most forcefully expressing Millian themes, including in majority opinions. Moreover, the Supreme Court consistently upheld the First Amendment rights of peaceful protestors, particularly in NAACP v. Claiborne Hardware Co. (1982). Unlike the retrenchment of the 1950s, the gains from the 1960s were largely maintained into the 1980s, with some advancements made.