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Monday, March 06, 2006

Rumsfeld v. FAIR -- Chief Justice Roberts Shows His Elegant Brilliance

In today's unanimous ruling in Rumsfeld v. FAIR, ( click here for link ), Chief Justice John Roberts silently and elegantly corrected a major discrepancy in free speech jurisprudence.

Justice Brennan in Texas v. Johnson, 491 US 397 (1989), found the flag burning case at issue to be "outside of" the O'Brien four-prong test was because Texas's interest in banning flag burning was unrelated to the interest in suppressing free expression.

The third prong of O'Brien explicitly states that a given piece of legislation is constitutional "if the governmental interest is unrelated to the suppression of free _expression." U.S. v. O'Brien, 391 US 367, at 377. The Texas v. Johnson ruling by Justice Brennan thus materially misrepresents the four-prong test set forth in the majority opinion in O'Brien by Chief Justice Warren.

The third prong of the O'Brien test cannot also be "outside of" the O'Brien test.

It is my belief that Chief Justice Roberts has silently and brilliantly corrected one of the Supreme Court's most glaring jurisprudential goofs: The O'Brien test has been made whole once again.

In his interesting same-day reaction to the Rumsfeld v. FAIR decision (posted on the Volokh Conspiracy blog here -- click on this link), Dale Carpenter well-meaningly but, in my opinion, mistakenly believes that Chief Justice Roberts himself made a doctrinal error. On the contrary. Chief Justice Roberts has silently and brilliantly corrected an error in the expressive conduct jurisprudence. Chief Justice Roberts has essentially given a silent nod to Chief Justice Warren's original O'Brien test by saving it from Justice Brennan's jurisprudential mistake.

Already into his first term as Chief Justice, John Roberts has elegantly cleaned and clarified a major dissonance found in the realm of expressive conduct jurisprudence. It is definitely a sign of many good things to come from our nation's new Chief Justice.

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