This paper shows that for all the changes that have taken place on the U.S. Supreme Court during the past five Terms, what has not altered in any appreciable manner is the First Amendment free speech jurisprudence of Justice Kennedy. Several of Kennedy’s colleagues have said that he has 'a thing’ about the First Amendment.' In my book about Kennedy (The Tie Goes to Freedom (Rowman & Littlefield, 2009)), I argued that this 'thing' was the 'universal element' of his jurisprudence. This is Kennedy’s commitment to a robust, libertarian defense of expressive freedom, and the belief that the concept of toleration underpinning the First Amendment prohibits governmental attempts to choose which viewpoints are socially acceptable.
Reflecting upon the time since the end of the October 2006 Term – the end of the period analyzed in my book about Kennedy, this paper demonstrates that this element is alive and well by analyzing the opinions penned by the Justice in two cases involving content-based restrictions on free speech (Citizens United v. FEC (2010) and United States v. Alvarez (2012)).