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Rehnquist: guided by the framers

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — It may be an ironic capstone to the career of a strongly conservative Supreme Court justice. But any review of Chief Justice William Rehnquist’s legacy in First Amendment cases is likely to conclude that Rehnquist’s most memorable free-speech decision in 33 years on the Court was his 1988 ruling Hustler v. Falwell, which handed victory to pornographer Larry Flynt over conservative Christian evangelist Jerry Falwell.

Falwell had sued Flynt’s Hustler Magazine to recover damages for the “emotional distress” caused by an offensive piece of satire — an ad parody — directed at Falwell in the magazine. But Rehnquist, writing for a unanimous court, ruled that such a penalty would stifle satirical speech — which, even at its most offensive, has played an important role throughout American history.

“Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate,” Rehnquist stated. “From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.”

Yet a year later, the same Rehnquist was citing American history to denigrate another form of political expression intended to provoke a strong reaction: burning the American flag.

Dissenting in Texas v. Johnson, Rehnquist exalted the importance of the flag as a national symbol and concluded that burning a flag was “the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.”

How can the same justice be responsible for both, seemingly contradictory, writings about free speech?

In part, the answer may be Rehnquist’s originalist impulses, which led him to try divining how the framers of the Constitution would view a given problem. The framers tolerated political satire, but according to Rehnquist’s view of history, they would not likely have countenanced disrespect for the flag, a powerful symbol of their recent struggle for independence from Britain.

University of Richmond law professor Rodney Smolla also explains the dichotomy as a sign of Rehnquist’s “modern conservative pragmatism.” Smolla, author of a 1988 book about the Hustler case, said in an interview that Rehnquist “viewed the flag as a very special, almost sacred symbol of the unalloyed unity of the American people. Yet he also thought that the First Amendment did not protect a public figure such as Jerry Falwell from vicious and graphic ridicule, embracing the classic American sense that if you can't stand the heat of the fire, you should stay out of the kitchen.”

Whatever the explanation, Rehnquist’s First Amendment track record is a mixed one.

In free-speech and -press cases, Rehnquist often voted against the First Amendment claim — and often in dissent. He usually found that another constitutional interest predominated. “Chief Justice Rehnquist has been no more successful than associate Justice Rehnquist in persuading his colleagues to limit free speech protection,” wrote New York University School of Law professor Burt Neuborne in the 2002 book, The Rehnquist Court: A Retrospective.

In the area of religion, Rehnquist has succeeded in moving the Court toward greater acceptance of funding for religious institutions. But, says University of Texas law professor Douglas Laycock, Rehnquist “has not gotten his way on cases of government-sponsored religious observance — school prayer, Nativity scenes and the like.”

In some free-speech disputes, including obscenity cases, Rehnquist’s vote tipped the Court against the right of expression. In other cases, Rehnquist wrote key majority opinions that also went against First Amendment claims. His majority opinion in the 1991 case Rust v. Sullivan set the tone for numerous subsequent rulings that have allowed the government to decide what speech it will fund. His 1986 decision in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico allowed the government to decide which views and artistic expressions it would pay to disseminate.

But a significant portion of Rehnquist’s writings on free-speech issues can be found in dissents. In the 1980 case Richmond Newspapers v. Virginia, for example, the Court majority found a First Amendment right of the public and press to attend criminal trials. In mocking tones, Rehnquist in dissent said nothing in the First Amendment required the Court to second-guess the decisions of state court judges who wanted to close trials to the public.

In the 1977 case Wooley v. Maynard, the majority said New Hampshire could not, under the First Amendment, force objecting drivers to display license plates bearing the motto “Live Free or Die.” But in dissent Rehnquist said drivers were in no way being forced to endorse the motto, and he invited anyone who did not like the motto to display a bumper sticker nearby saying so.

Rehnquist’s influence over Court doctrine has probably been greater in religion-clause jurisprudence. His first significant writing on the religion clauses, Laycock says, was a dissent in the 1981 case Thomas v. Review Board. Rehnquist wrote that the free-exercise and establishment clauses of the First Amendment were in increasing tension for a simple reason: “our overly expansive interpretation of both Clauses. By broadly construing both Clauses, the Court has constantly narrowed the channel between the Scylla and Charybdis through which any state or federal action must pass in order to survive constitutional scrutiny.” In other words, too many government actions were being found to violate both rights.

Ever since, says Laycock, Rehnquist has worked to change that picture. “Two decades later, his Court has dramatically shrunk both doctrines,” says Laycock.

The result, says Norman Redlich, is that the wall of separation between church and state has become “conspicuously more porous.” But Redlich, former dean of the NYU School of Law and an official with of the American Jewish Congress, wrote in another 2002 book, The Rehnquist Court: Judicial Activism on the Right, that much of the Court’s doctrine was still muddled, and “at least for now, the establishment clause has bite, or at least a threatening bark.”

The 2002 Supreme Court ruling in Zelman v. Simmons-Harris represents Rehnquist’s triumph on the establishment clause side of the equation. Writing for the 5-4 majority, the chief justice upheld a program that allowed needy parents to use a government voucher program to pay for tuition at private schools, including religiously affiliated schools. “Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause,” Rehnquist said.

But Rehnquist's view has not always prevailed in establishment-clause cases. In the 2000 case Santa Fe Independent School District v. Doe, the 6-3 majority said public schools could not begin football games with a prayer — even if the prayer is led and initiated by students.

The chief justice objected not only to the substance but also to the tenor of the decision. “It bristles with hostility to all things religious in public life,” Rehnquist wrote in dissent. “Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of ‘public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.’"

Rehnquist has also been a leader in demanding government neutrality when religious individuals and groups frame their free-exercise claims in terms of free speech. In Rosenberger v. University of Virginia, Rehnquist was in the 5-4 majority, holding that the state university could not exclude a religious student publication from receiving student activity fees because it presented a religious message.

Yet in February 2004 in Locke v. Davey, Rehnquist found that neutrality has its limits. Writing for a 7-2 majority, Rehnquist said the state of Washington was entitled to exclude from its college scholarship program students who planned to major in theology. Opponents of the exclusion said it was a form of blatant discrimination against religion, but Rehnquist said the rule was a valid provision with legitimate anti-establishment objectives.

The Rehnquist opinion surprised some, but University of Tulsa law professor Martin Belsky, editor of The Rehnquist Court: A Retrospective, chalked it up as a case of “states’ rights outbidding the establishment clause.”

As in other First Amendment cases, Rehnquist in Locke v. Davey also justified his views in terms of history. “Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion," Rehnquist wrote.

Once again, Rehnquist’s approach to modern-day First Amendment disputes was to look to the early days of the republic. If it was good enough for the framers, it has been good enough for Rehnquist — a guiding principle that sometimes invigorated the First Amendment, but sometimes left it weaker.


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