Judge Wilkinson's First Amendment: Safeguarding the Democratic Process In Tribute: Judge J. Harvie Wilkinson III: Essay
It is hard to imagine an area of constitutional law that has changed more in Judge Wilkinson's time on the bench than the First Amendment. When Judge Wilkinson joined the U.S. Court of Appeals for the Fourth Circuit in August 1984, the Supreme Court was years away from deciding the signature campaign finance decisions, such as Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission, that are now so important to the political process. Concepts now central to First Amendment law, such as content discrimination and the public forum doctrine, were still in their infancy. And no one could foresee the Internet Age or the difficulties of applying the First Amendment's protections to new media. The ensuing decades have brought considerable change. In some areas-such as political speech and religious exercise-the First Amendment may now have more teeth than it did at any point in our Nation's history. In others, such as the protections afforded to public employees while on the job, the law has moved in the other direction. Whatever the direction, on innumerable fronts, First Amendment doctrine has evolved considerably over the last forty years. Judge Wilkinson has left an indelible mark on that legal evolution. By our count, Judge Wilkinson has authored more than sixty decisions addressing the First Amendment. More than anything else, those opinions demonstrate the rigor and ability of the judge who wrote them: they carefully parse the Supreme Court's guidance (no easy task in First Amendment law), apply it to complicated and nuanced facts, and explain the panel's reasoning in a way that is both illuminating and instructive. But Judge Wilkinson's opinions also serve as a window through which to examine the shift in First Amendment jurisprudence.