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78 Nw. U. L. Rev. 1031 (1983-1984)
Warren Court, the Burger Court and the First Amendment Overbreadth Doctrine

handle is hein.journals/illlr78 and id is 1043 raw text is: Copyright 1984 by Northwestern University School of Law           Printed in U.S.A.
Northwestern University Law Review                                  Vol. 78, No. 5
Martin H Redish*
There has been much discussion in the literature about the widely
differing substantive principles and judicial styles of the Supreme
Courts run by Chief Justices Warren and Burger.' To the casual-and
perhaps cynical-observer, the Warren and the Burger Courts seemed
equally willing to manipulate or abandon precedent and doctrine in
order to achieve a particular type of result: in the case of the Warren
Court, one that is liberal, protective of individual liberty, and likely
to favor federal over state adjudication;2 in the case of the Burger
Court, one that is conservative, more reflective of the interests of the
government than the rights of the individual, and invariably favoring
state over federal adjudication, even of federal constitutional or statu-
tory rights.3
As with many stereotypes, there is certainly more than a grain of
truth in both of these characterizations. At least in the area of freedom
of expression, however, the situation is somewhat more complicated.
Perhaps in this area more than any other, the Burger Court has evinced
a relatively protectionist and libertarian attitude,4 which, though assur-
edly not applied with unwavering consistency, occasionally even sur-
passed the protectionist zeal of the Warren Court.5
* Professor of Law, Northwestern University School of Law. This Article will appear as a
chapter in the author's book, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS. The author
would like to thank Mark Litvack of the class of 1983 and Yvette Ehr of the class of 1984 at
Northwestern University School of Law for their valuable research assistance.
I Compare Kalven, Uninhibited, Robust, and Wide-Open .4 Note on Free Speech and the
Warren Court, 67 MICH. L. REV. 289 (1968) with Emerson, First Amendment Doctrine and the
Burger Court, 68 CALIF. L. REV. 422 (1980).
2 See, e.g., Domborowski v. Pfister, 380 U.S. 479 (1965); Fay v. Noia, 372 U.S. 391 (1963):
3 See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976); Stone v. Powell, 428 U.S.
465 (1976).
4 See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 55 (1980); National Bank of
Boston v. Bellotti, 435 U.S. 765 (1978); Hess v. Indiana, 414 U.S. 105 (1973).
5 One example of the Burger Court's relative protectionism is in the area of commercial
speech, where the Burger Court has provided a level of first amendment protection far beyond the
nonexistent protection during the Warren years. See, e.g., Bates v. State Bar of Ariz., 433 U.S. 350
(1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748
(1976). This is true even though the Burger Court's level of protection remains significantly below


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