Well, I went to the Library at Brooklyn Law School. (Nice to have your Alma Mater 6 blocks away.) Anyway, I did some digging on Justice Kennedy, who, for all intents and purposes will be deciding the fates of Jeff, Max and the Harb Brothers, and this is what I came up with:

This guy is an enigma.

Born: 7/23/1936 (Age 70). B.A. in Pol Sci from Stanford, 1958. LLB from Harvard Law 1961. Professor of Constitutional Law at McGeorge School of Law, University of the Pacific 1965-88. Appointed to United States Court of Appeals for the Ninth Circuit by Gerald Ford in 1975.

Nominated to the United States Supreme Court by Ronald Reagan after the Senate refused to confirm Robert Bork (for latent Fascism) and the withdrawal of Douglas Ginsburg upon allegations that he smoked a shitload of grass when he was younger (including with a young Tipper Gore.) Kennedy was confirmed 97-0 and took his seat in February, 1988.

From the get-go, this guy has had a pronounced Libertarian streak, although from time to time he has reverted to his Conservative origins, most disappointingly in Bush v. Gore 531 U.S. 98 (2000).

On Abortion, he seems to have voted both ways, voting to re-affirm Roe v. Wade in Planned Parenthood v. Casey 505 U.S. 833. But he’s voted to restrict so-called “Partial Birth Abortion” in other cases, including Steinberg v. Carhart and Gonzales v. Carhart where, writing for the majority, he held that the Partial-Birth Abortion Ban Act of 2003 did not impose an undue burden on the due process (i.e. 5th and 14th Amendment) right of women to obtain an abortion, "under precedents we here assume to be controlling," such as Roe or Planned Parenthood.

On Gay rights, his Libertarian streak has shown, in opinions such as Romer v. Evans 517 U.S. 620 and Lawrence v. Texas 539 U.S. 558, which struck down Anti-Sodomy laws as being violative of the Due Process clause. He did, however, vote with the Majority to uphold the Boy Scouts’ ban on Gay Scoutmasters in BSA v. Dale 530 U.S. 640.

But of greatest importance to Jeff, Max and now the Harbs is how he’s ruled in obsceneties cases:

In 1997, he joined with the Majority in striking down the major provisions of the Communications Decency Act (CDA) that Moxie’s always going on about, in Reno v. ACLU 521 U.S. 844. The CDA was the Government’s first attempt to "protect minors" from viewing Internet Porn by criminalizing the "knowing" transmission of "obscene or indecent" messages to any recipient under 18; and also the knowing sending to a person under 18 of anything "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

In 2002 the Court struck down as overbroad two provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." A major portion of the law prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." (As I’m sure Max is already aware.) Writing for the majority in Ashcroft v. Free Speech Coalition, 535 U.S. 234, Justice Kennedy held that "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value" and suggested that the law might have been enforced against such movies as Oscar-winning American Beauty or Romeo and Juliet.

Most recently, and again with Justice Kennedy writing for the majority, in Ashcroft v. ACLU the Court upheld injunctions against the Child Online Protection Act (COPA), the Government’s attempt to get around the ruling in Reno. On the Plus side, Kennedy seems to recognize that technology is making restrictive legislation obsolete. "Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid... and that the Government bear the burden of showing their constitutionality... This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question.

"Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished." He went on to suggest that filters were a more effective deterrant than Legislation, noting that Filters could block offshore sites, while COPA could not.

On the minus side, he did concur with Clarence Thomas in an earlier ruling in the case that COPA's reliance on "community standards" (the so-called Miller Test) to identify what material "is harmful to minors" does not by itself render the statute substantially overbroad for First Amendment purposes, even though the internet is World Wide in Scope and community standards vary from place to place.

In short, this Justice is hard to figure out. He has a demonstrated Libertarian streak, tempered by bouts of Conservatism. He votes for free speech in Internet Porn Cases, yet clings to Miller. He appears to be a technophile, which can only bode well for Jeff, Max and the
Harbs. I'd say it's 65/35 that he comes down on the side of the good guys should any of these cases come before the Supreme Court.