The contributions Justice William J. Brennan Jr. made to free expression in general and the law of libel in particular are unquestioned. His opinion in New York Times Co. v. Sullivan and cases that followed established sturdy protection for critics of public officials and helped further the marketplace of ideas that is so important for public discourse. Justice Brennan wrote thousands of words about Sullivan and its impact that never appeared in published opinions, however. Often he was required to alter his writings to accommodate the views of other justices needed for a majority. Those unpublished opinions – and memoranda he wrote – may more accurately reflect his real vision of the First Amendment than what appeared in his published opinions. This essay examines those unpublished writings in an effort to determine that vision.
Wermiel, Stephen, "Behind the U.S. Reports: Justice Brennan's Unpublished Opinions and Memoranda in New York Times v. Sullivan and Its Progeny" (2014). Articles in Law Reviews & Other Academic Journals. 970.