Ex-Supreme Court Justice Powell, First Amendment moderate, dies

Tuesday, August 25, 1998

Former Supreme ...
Photo by AP
Former Supreme Court Justice Lewis F. Powell

WASHINGTON — Retired Supreme Court Justice Lewis Powell, who died early
today at age 90, was a moderate
in all things — including his views on the First Amendment.

During his 15 years on the court, Powell authored and joined a range of
First Amendment cases without carving out a reputation as either a strong
friend or foe of First Amendment values.

In several of his more memorable rulings in the area, he espoused balancing
tests or standards that sometimes worked in favor of free expression or
separation of church and state, but sometimes did not.

“It was a mixed bag,” said Jane Kirtley of the Reporters Committee for
Freedom of the Press, of Powell’s career.

A prime example: In 1980, Powell authored the Central Hudson
decision, which has formed the basis of commercial speech rights ever since.
That ruling gave a measure of First Amendment protection to commercial
speech or advertising, but not to false or misleading advertising.

In Branzburg v. Hayes in 1972, the court refused to grant reporters
protection from being required to reveal their sources to a grand jury.
Powell joined the majority, but wrote a separate opinion to indicate there
might be some circumstances under which a reporter should be given such a

That Powell opinion is largely responsible for the legislative debate that
ensued nationwide, resulting in passage of reporters’ shield laws in some

Powell was also a prime supporter of the so-called Lemon test for
evaluating whether government actions violate the establishment-of-religion
clause of the First Amendment.

In the 1973 case of Committee for Public Education and
Religious Liberty v. Nyquist,
Powell, writing for a unanimous court,
struck down New York programs that aided parochial schools “because their
effect, inevitably, is to subsidize and advance the religious mission of
sectarian schools.”

On other occasions, however, he was more willing to allow government
accommodation of religious practices.

In a series of free-expression cases early in his tenure on the court,
Powell voted in defense of political dissent, even that which is expressed
in objectionable ways.

Striking down the criminal prosecution of a demonstrator for calling a
police officer a “m———–,” Powell said police should be “trained to
exercise a higher degree of restraint” and should not punish that kind of
speech. After he retired from the court, Powell indicated he would have
joined in the majority striking down laws that punished flag-burning.

The scholar Gerald Gunther once described Powell’s First Amendment
jurisprudence as “devoid of simplistic rules and categorical answers, but
… rich in sensitive, candid, and articulate perceptions of competing