Louis Brandeis’s Freedom of Expression

DOI HANDLE Web Site Open Access

Bibliographic Information

Other Title
  • ルイス・ブランダイスの表現の自由
  • ルイス ・ ブランダイス ノ ヒョウゲン ノ ジユウ

Search this article

Abstract

An unexpected origin of Louis Brandeis’s concurring opinion in Whitney v. California was praised as a classic and eloquent opinion in free speech. Compared with the draft dissenting opinion in Ruthenberg v. Michigan, this article determines how Brandies’s opinion evolved and what he communicated to his law clerks and academic colleagues, and then how he developed the serious and imminent danger requirement as a free speech doctrine. The question then arises why did Justice Stone’s footnote 4 in U.S.v. Carolene Products Co. only quote Brandeis’s concurring opinion by ignoring the majority opinion, with which Justice Stone himself concurred ? It may be true that ‘the Holmes-Brandeis rationale’ on free speech may have become dominant in the 1930s. However, a question remains as to how the later Supreme Court relocated Brandeis’s concurring opinion in Whitney. In this context, the two possible interpretations of Brandeis’s concurring opinion are to be examined: one as the protection of minorities in the democratic process, the other as the protection of an individual against the power of the bigness. This article supports the latter approach by rereading the opinions, letters, and memorandum of Brandeis and the consistency of his writings on the protection of an individual against the curse of bigness.

Journal

  • 一橋法学

    一橋法学 22 (3), 177-196, 2023-11

    一橋大学大学院法学研究科

Details 詳細情報について

Report a problem

Back to top