Geoff Stone writes about CJ Rehnquist’s Freedom of Speech and Press jurisprudence over at the ACS blog. Geoff compares Rehnquists votes on these issues to those of other justices, and finds him wanting. This particularly seems to be so for Stone because, while Rehnquist was less likely to vote for First Amendment plaintiffs in cases involving, for instance, the press and porn, he was more likely to find a First Amendment right when speech that the Left is less likely to value was at issue (e.g., religious speech, commercial speech, and campaign speech). Stone offers this truly ridiculous conclusion:
His inclination to sustain First Amendment claims only when they involved commercial advertising, campaign expenditures, or religious expression belies any plausible theory of originalism, judicial restraint, or principled constitutional interpretation.
First, Rehnquist did not sustain only those claims. By Stone’s own account, those just happened to be areas where he was more likely than his colleagues to vote in favor of a First Amendment interest. Second, the originalist view of the First Amendment holds that political speech is the core of what the Freedom of Speech clause meant to protect, so it is perfectly keeping with that theory to specially protect that speech. Similarly, because religion is given special consideration by the Free Exercise Clause elsewhere in the First Amendment, and because most originalists believe that religion is included in the same Amendment as Free Speech for a reason--that is, because the framers(even in prior drafts) expressed the view that speech and religion were both freedoms of conscience, it would likewise make sense from an originalist perspective to be especially protective of that speech. Commercial speech is the least likely of these three to find support in originalism, but Stone goes further and suggests that Rehnquist’s position is outside any principled constitutional interpretation. O.K., protection of commercial speech certainly finds some support in textualism, as well as in a simple case-based jurisprudence that takes seriously the prior expansive rulings of the Supreme Court. Indeed, it "belies any plausible theory of . . . principled constitutional jurisprudence" to say that there is a grand right to display porn at drive-ins, but that the same First Amendment does not protect the right of a business to truthfully advertise prices.
I think that Stone got a bit ahead of himself. It is fine if he disagrees with the originalist view of the First Amendment, but it is sloppy and erroneous to say that a justice who grants heightened protection to religious and political speech is acting outside the confines of that jurisprudential view.