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In the preface to his book, The Negro and the First Amendment, Harry Kalven observed that the idea of free speech was marked by an unusually keen "quest for coherent general theory." Every area of the law, Kalven puzzled, was rife with inconsistency and ambiguity, yet inexplicably there was little tolerance· for anomalies in the field of free speech. As to why this was so, Kalven speculated that "free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the society in which we live."

With New York Times Co. v. Sullivan, Kalven believed that a "coherent general theory" had finally been reached. In Kalven's view, Justice Brennan's opinion for the Court had for the first time provided our free speech jurisprudence with a "central meaning," identifying a core function of free speech rather than simply repeating, as the cases had so often done, the theoretically empty "clear and present danger" test of Holmes. Kalven thought the Court was in essence pursuing a theory put forward by Alexander Meiklejohn in the late 1940's, and, though the Sullivan opinion nowhere mentioned Meiklejohn or his work, Justice Brennan later subtly agreed with Kalven's attribution.


Constitutional Law | First Amendment | Law