What is “Robust” Public Debate? An Analysis of the Supreme Court’s Use of the Word “Robust” in First Amendment Jurisprudence

Abstract

In New York Times Co. v. Sullivan, Justice William Brennan famously wrote of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” “Uninhibited” refers to the lack of government restrictions on debate, and “wide-open” denotes the range of voices participating in that debate. Meanwhile, “robust” is a qualitative adjective that denotes strength, a characteristic whose definition in First Amendment cases is open to interpretation. Examining the use of the word “robust” in cases since Sullivan allows for an analysis of the interplay of First Amendment theory and doctrine that transcends the boundaries of particular areas and issues of First Amendment law. This article analyzes the Court’s use of the word “robust” in First Amendment cases after Sullivan. It finds that perspectives from negative and affirmative First Amendment theory offer competing claims about the best doctrinal recipes for foster robust debate. Using a theoretical framework that combines Robert Post’s notion of constitutional domains with Vincent Blasi’s civic courage theory, the study presents an alternative perspective for the elements of robust debate. The article ends with some prescriptions for First Amendment theory and doctrine.