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Analysis
 
Chief Justice Rehnquist's First Amendment record

By Ronald K.L. Collins
First Amendment scholar
09.04.05

I. Expression — majority opinions

  1. Alexander v. United States (1993)
  2. American Radio Assn., AFL-CIO v. Mobile Steamship Assn., Inc. (1974)
  3. Boy Scouts of America v. Dale (2000)
  4. Butterworth v. Smith (1990)
  5. California v. LaRue (1972)
  6. City of Dallas v. Stanglin (1989)
  7. City of Los Angeles v. Preferred Communications (1986)
  8. City of Renton v. Playtime Theatres, Inc. (1986)
  9. Dawson v. Delaware (1992)
  10. Doran v. Salem Inn, Inc. (1975)
  11. FEC v. National Right to Work Committee (1982)
  12. Gentile v. State Bar of Nevada (1991)
  13. Hamling v. United States (1974)
  14. Hustler Magazine v. Falwell (1988)
  15. International Society for Krishna Consciousness v. Lee (1992)
  16. Jones v. North Carolina Prisoners' Union (1977)
  17. Keller v. State Bar of California (1990)
  18. Los Angeles Police Dept. v. United Reported Publishing Corp. (1999)
  19. Madsen v. Women's Health Center, Inc. (1994)
  20. McConnell v. Federal Election Commission (2003)
  21. McKinney v. Alabama (1976)
  22. Milkovich v. Lorain Journal Co. (1990)
  23. Mount Healthy City School District Board of Education v. Doyle (1977)
  24. Parker v. Levy (1974)
  25. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico (1986)
  26. Pruneyard Shopping Center v. Robins (1980)
  27. Rust v. Sullivan (1991)
  28. Timmons v. Twin Cities Area New Party (1997)
  29. United States Postal Service v. Greenburgh Civic Assns. (1981)

II. Expression — separate opinions

  1. Abood v. Detroit Board of Education (1977)
  2. Givhan v. Western Line Consolidated School District (1979)
  3. Anderson v. Celebrezze (1983)
  4. Anderson v. Liberty Lobby, Inc. (1986)
  5. Ashcroft v. Free Speech Coalition (2002)
  6. Barnes v. Glen Theatre Inc. (1991)
  7. Bates v. State Bar of Arizona (1977)
  8. Bigelow v. Virginia (1975)
  9. Bolger v. Youngs Drug Products Corp. (1983)
  10. Bose Corp. v. Consumers Union of United States, Inc. (1984)
  11. Carey v. Brown (1980)
  12. Central Hudson Gas & Electric Corp. v. Public Service Comm. (1980)
  13. City of Cincinnati v. Discovery Network (1993)
  14. City of Houston, Texas v. Hill (1987)
  15. Cook v. Gralike (2001)
  16. Cox Broadcasting Corp. v. Cohn (1975)
  17. FCC v. League of Women Voters of California (1984)
  18. Flower v. United States (1972)
  19. Forsyth County, Georgia v. Nationalist Movement (1992)
  20. Gannett Co. v. DePasquale (1979)
  21. Gentile v. State Bar of Nevada (1991)
  22. Greater New Orleans Broadcasting Association v. United States (1999)
  23. Healy v. James (1972)
  24. Hess v. Indiana (1973)
  25. Hynes v. Mayor of Oradell (1976)
  26. In re Primus (1978)
  27. Lee v. International Society for Krishna Consciousness (1992)
  28. McConnell v. Federal Election Commission (2003)
  29. Metro Media, Inc. v. City of San Diego (1981)
  30. National Socialist Party v. Village of Skokie (1977)
  31. Ohralik v. Ohio State Bar Assn. (1978)
  32. Pacific Gas & Electric Co. v. Public Utilities Com'n. (1986)
  33. Richmond Newspapers, Inc. v. Virginia (1980)
  34. Riley v. National Federation of the Blind (1988)
  35. Schaumburg v. Citizens for a Better Environment (1980)
  36. Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984)
  37. Smith v. Goguen (1974)
  38. Southeastern Promotions, Ltd. v. Conrad (1975)
  39. Texas v. Johnson (1989)
  40. United States v. American Friends Service Committee (1974)
  41. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)
  42. Watchtower Bible & Tract Society v. Village of Stratton (2002)
  43. Wooley v. Maynard (1977)


III. Religious liberty — majority opinions

  1. Bowen v. Kendrick (1988)
  2. Goldman v. Weinberger (1986)
  3. Mueller v. Allen (1983)
  4. O'Lone v. Shabazz (1987)
  5. Valley Forge Christian College v. Americans United for Separation of Church & State (1982)
  6. Zelman v. Simmons-Harris (2002)
  7. Zobrest v. Catalina Foothills School District (1993)

IV. Religious liberty — separate opinions

  1. Aguilar v. Fenton (1985)
  2. Bob Jones University v. United States (1983)
  3. Committee for Public Education v. Nyquist (1973)
  4. Elk Grove Unified School Dist. v. Newdow (2004)
  5. Estate of Thornton v. Caldor (1985)
  6. Hobbie v. Unemployment Commission (1987)
  7. Larkin v. Grendel's Den, Inc. (1982)
  8. Larson v. Valente (1982)
  9. Meek v. Pittenger (1975)
  10. Santa Fe Ind. School District v. Doe (2000)
  11. School District of Grand Rapids v. Ball (1985)
  12. Serbian Orthodox Diocese v. Milivojevich (1976)
  13. Thomas v. Review Board (1981)
  14. Wallace v. Jaffree (1985)
  15. Wolman v. Walter (1977)


V. Rehnquist’s voting record in 1-vote-margin First Amendment cases, 1994-2004

First Amendment freedom of expression cases decided by 1 vote

The designation in the righthand box indicates when Chief Justice Rehnquist voted to sustain or deny a First Amendment freedom-of-expression claim during the near-decade in which the current Court (the Rehnquist II Court) has been sitting.

How Rehnquist voted in free-expression cases decided by 1 vote
Case Sustain/deny
Ashcroft v. ACLU II (2004) Deny
McConnell v. Federal Election Commission (2003) Sustain
Republican Party of Minnesota v. White (2002) Sustain
Thompson v. Western States Medical Center (2002) Deny
City of Los Angeles v. Alameda Books (2001) Deny
Federal Election Comm. v. Colorado Republican Federal Campaign Comm. (2001) Sustain
Legal Services Corporation v. Velazquez (2001) Deny
Lorillard Tobacco Co. v. Reilly (2001) Sustain
United States v. Playboy Entertainment Group (2000) Deny
Turner Broadcasting System, Inc. v. FCC (II) (1997) Deny
Rosenberger v. Rector & Visitors of the University of Virginia (1995) Sustain

Comment: In light of the above, Rehnquist’s vote proved most determinative in campaign-finance and election cases, in which he was the fifth vote to strike down such laws in the following cases:

McConnell v. Federal Election Commission (2003)
Federal Election Comm. v. Colorado Republican Federal Campaign Comm. (2001)
Republican Party of Minnesota v. White (2002)

Comment: In light of the above, Rehnquist’s vote proved determinative in sexual-expression cases in which he was the fifth vote uphold such laws in the following case:

City of Los Angeles v. Alameda Books (2001)
Ashcroft v. ACLU II (2004)

Comment: In light of the above, Rehnquist’s vote proved determinative in commercial-speech cases in which he was the fifth vote sometimes to deny a claim and sometimes to sustain a First Amendment claim:

Thompson v. Western States Medical Center (2002) [denying 1-A claim]
Legal Services Corporation v. Velazquez (2001) [denying 1-A claim]
Lorillard Tobacco Co. v. Reilly (2001) [sustaining 1-A claim]

First Amendment religious-liberty cases decided by 1 vote

The designation in the righthand box indicates when Chief Justice Rehnquist voted to sustain or deny a First Amendment religious-liberty claim during the near-decade in which the current Court (the Rehnquist II Court) has been sitting. In the first two cases listed below, the majority, per Chief Justice Rehnquist, found no violation of the establishment clause, while in the Smith case the majority, joined by Rehnquist, narrowed the scope of the free-exercise clause.

How Rehnquist voted in religious-liberty cases decided by 1 vote
Case Sustain/deny
Rosenberger v. Rector & Visitors of the University of Virginia (1995) Deny
Zelman v. Simmons-Harris (2002) Deny
Employment Division v. Smith II (1990) Deny

Comment: Rosenberg involved government funding of a Christian student newspaper. Zelman involved school vouchers. In light of the above, Rehnquist’s vote proved determinative in government-funding cases involving religion.

Another area where the Rehnquist II Court would probably be divided by a one-vote margin is in the Pledge of Allegiance “One nation under God” line of cases. (See Elk Grove Unified School Dist. v. Newdow (2004))


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William Rehnquist's First Amendment legacy


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