A majority of Justices on the contemporary U.S. Supreme Court have increasingly adopted a largely libertarian view of the constitutional right to the freedom of expression. Indeed, on issues ranging from campaign finance to offensive speech to symbolic speech to commercial speech to online expression, the Court has struck down many laws on free speech grounds. Much of the reasoning in these cases mirrors John Stuart Mill’s arguments in On Liberty. This is not new, as Mill’s position on free speech has been advocated by some members of the Court for a century. However, the advocacy of Mill’s position has grown over time, to the point now where it is the dominant view expressed by the Justices in free speech cases. Even where the majority has in recent years found limits to free speech rights (including in cases involving student speech, public employee speech, and speech related to foreign terrorist organizations), several Justices have advocated a Millian framework and arguably followed the exceptions that Mill outlined when advocating the Harm Principle for free speech. Through textual analysis of illustrative cases we demonstrate the growth of Mill’s influence on the Supreme Court and where the Justices have deviated from what Mill advocated.
Kasper, Eric T. and Kozma, Troy A.
"Absolute Freedom of Opinion and Sentiment on All Subjects: John Stuart Mill’s Enduring (and Ever-Growing) Influence on the Supreme Court’s First Amendment Free Speech Jurisprudence,"
University of Massachusetts Law Review: Vol. 15:
1, Article 1.
Available at: https://scholarship.law.umassd.edu/umlr/vol15/iss1/1