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Stevens’ 10 worst First Amendment opinions

By David L. Hudson Jr.
First Amendment scholar
04.22.10

When you serve more than 34 years on the U.S. Supreme Court, you will issue rulings that inspire praise and incur wrath.

During his tenure, Justice John Paul Stevens has written many opinions protective of First Amendment freedoms. However, he also has penned some opinions — whether in majority or in dissent — that elevated other interests above free expression.

Below are 10 of his low points:

  1. FCC v. Pacifica Foundation (1978)

    In this decision, the Court ruled that the Federal Communications Commission could fine a radio station for broadcasting George Carlin’s “Filthy Words” monologue during daytime hours when children are apt to listen. Stevens’ plurality opinion approved of government regulation of broadcasting, in part by reaffirming its second-class status as a communications medium, and declaring it had a “uniquely pervasive presence” in Americans’ lives and was “uniquely accessible” by children. Stevens pressed the idea that the Carlin speech was low-value speech entitled to reduced protection because of its sexual and vulgar content.

    Stevens’ opinion caused fellow Justice William Brennan to express his ire: “I find the Court's misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.” Through the years, many have questioned the logic of Pacifica in allowing the regulation of “indecent” speech, as it is often difficult to define exactly what is indecent.

  2. Board of Education v. Mergens (1990) (dissenting opinion)

    With Stevens as the lone dissenter, the Court ruled 8-1 that Nebraska public high school officials could not prohibit student Bridget Mergens from forming a Bible club, particularly as they had allowed numerous other student clubs. A federal law known as the Equal Access Act bars public school officials from discriminating against student clubs on a religious or philosophic viewpoint basis. The majority also said this law did not violate the establishment clause.

    Stevens’ dissent declared that school officials should have the power to exclude controversial student clubs and students should defer to the judgment of school administrators. He also said the establishment-clause issue was a much closer question than the majority made it seem.

  3. Young v. American Mini Theatres (1978)

    This case is also among Justice Stevens’ top 10 First Amendment opinions in part because of his evolution from this case toward greater protection for adult expression. But Stevens’ initial opinion in American Mini Theatres created the legal construct that allowed government officials an easier path to censor adult expression because of its purported offensiveness.

    In his opinion, Stevens said Detroit officials passed a restrictive zoning law for adult businesses not because they disliked the offensive expression, but because of harmful secondary effects associated with such expression, such as decreased property values and increased crime. Thus was born the secondary-effects doctrine, which enables laws singling out adult-oriented expression to be evaluated with less judicial rigor with regard to the First Amendment. Stevens later deplored the expansion of this doctrine, but he did start the ball rolling with his unfortunate opinion in American Mini Theatres.

  4. Texas v. Johnson (1989) (dissenting opinion)

    The Court ruled 5-4 that a Texas flag-desecration law violated the First Amendment rights of Gregory Lee Johnson, who had engaged in protected political expression when he burned an American flag outside a national political convention in 1984. The case reinforced the principle that government cannot ban disagreeable and offensive expression and ideas.

    In dissent, though, Stevens — a Navy World War II veteran — called the flag a special symbol that deserved protection. “The case has nothing to do with ‘disagreeable ideas,’” he wrote. “It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.”

  5. Hill v. Colorado (2000)

    A Colorado law that limited speech within 100 feet of “health care facilities” didn’t violate the First Amendment, the Supreme Court ruled 6-3. The law, designed to suppress anti-abortion protests, included a floating buffer zone prohibiting individuals from coming within eight feet of people going to and from the clinics. Stevens wrote for the majority that the law was a constitutional and content-neutral way to protect the privacy of those visiting clinics. He found a “recognizable privacy interest in avoiding unwanted communication.”

    Many free-expression advocates agreed that Justice Antonin Scalia had a point when he wrote in his dissent: “[T]he jurisprudence of this Court has a way of changing when abortion is involved.” Justice Anthony Kennedy was even blunter, beginning his dissent by admonishing that the ruling “contradicts more than a half century of well-established First Amendment principles.”

  6. Good News Club v. Milford (2001) (dissenting opinion)

    Ruling 6-3, the Court said a public school district violated the First Amendment free-speech clause when it denied a religious group access to its facilities during after-school hours. The district had a community-use policy and regularly allowed other groups to use its facilities. To the majority, the treatment of the religious group smacked of viewpoint discrimination.

    Stevens’ dissent said district officials should have the power to exclude evangelical groups or those that engage in religious proselytizing.

  7. FCC v. League of Women Voters (1984) (dissenting opinion)

    The League of Women Voters challenged a provision of the 1967 Public Broadcasting Act that prohibited noncommercial educational radio stations from editorializing. The high court agreed, with Justice Brennan writing for the majority that the provision was a content-based restriction on political speech that deprived listeners of important information.

    Stevens disagreed, authoring a disturbing dissent that argued the government’s interest in neutrality was more important than ensuring free speech over the airwaves. “The quality of the interest in maintaining government neutrality in the free market of ideas — of avoiding subtle forms of censorship and propaganda — outweigh(s) the impact on expression that results from this statute,” he wrote.

  8. Nixon v. Shrink Mo. Gov. PAC (2001) (concurring opinion)

    Voting 6-3, the Court ruled that a Missouri law limiting campaign contributions did not violate the First Amendment. In his concurring opinion, Stevens wrote: “Money is property; it is not speech.” Many First Amendment experts contend just the opposite, because when people contribute to a political candidate or cause, they are expressing support.

  9. Boy Scouts of America v. Dale (2000) (dissenting opinion)

    The justices took up the contentious question of whether the Boy Scouts of America had a First Amendment right to exclude a gay troop leader. The Court split 5-4, with the majority holding that organizations have a First Amendment-based right of expressive association and cannot be forced by the state to adopt positions or statements contrary to their stated beliefs.

    The majority opinion increased recognition and respect for the right of expressive association. But in dissent, Stevens claimed that the Boy Scouts had failed to adopt a clear position against homosexuality. His opinion also failed to recognize protection for group’s expressive-association rights.

  10. Glickman v. Wileman Bros. (1997)

    The Court ruled 5-4 that California officials could impose an assessment fee on tree-fruit producers and handlers to pay for generic advertisements for nectarines, plums and peaches. The majority rejected the growers’ argument that the state was compelling them to engage in speech by funding advertising they did not endorse.

    Stevens’ majority opinion ignored the compelled-speech issue. He reasoned that the program only made the producers “make contributions for advertising.” The four dissenting justices argued that the case did involve compelled commercial speech.


Related

Stevens' top 10 in First Amendment jurisprudence

By David L. Hudson Jr. From Internet to adult entertainment, justice had hand in many important rulings. 04.14.10

Justice Stevens & the First Amendment



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