How Justice Powell applied the First Amendment

Wednesday, August 26, 1998

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

Retired Supreme Court Justice Lewis Powell, who died Tuesday at the age of 90, was the author of a number of First Amendment rulings that remain important today.

First Amendment advocates were not always on the winning side, but Powell’s tests and standards usually represented a middle ground that gave both sides some solace.

Among the top First Amendment majority opinions written by Powell:

  • Gertz v. Welch remains the framework for libel litigation, and its proclamation that “under the First Amendment, there is no such thing as a false idea” has been an umbrella of protection for free expression by columnists and others ever since.
  • The Rotary Club case is one of the court’s few broad pronouncements on the right of association under the First Amendment.
  • Widmar v. Vincent formed the basis for laws guaranteeing equal access for religious groups on public campuses.
  • The Central Hudson test remains the foundation for the court’s assessment of commercial-speech rights.
  • Nixon v. Warner Communications serves as the backdrop for current battles over access to Whitewater-related documents.
  • The Bellotti decision still resonates in the debate over corporate campaign contributions in political races.
  • The Nyquist decision launched decades of battle over government support for parochial schools and is still a factor in debates on school voucher programs.
  • Finally, Procunier in large measure still defines the First Amendment rights of prisoners.

Following are excerpts from these decisions:

GERTZ v. ROBERT WELCH, INC., 418 U.S. 323 (1974)

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. (New York Times Co. v. Sullivan.) They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” (Chaplinsky v. New Hampshire.)

BD. OF DIRS. OF ROTARY INT’L v. ROTARY CLUB, 481 U.S. 537 (1987)

The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights. Such relationships may take various forms, including the most intimate… We have not attempted to mark the precise boundaries of this type of constitutional protection. The intimate relationships to which we have accorded constitutional protection include marriage… the begetting and bearing of children … child rearing and education… and cohabitation with relatives. Of course, we have not held that constitutional protection is restricted to relationships among family members. … In determining whether a particular association is sufficiently personal or private to warrant constitutional protection, we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship. The evidence in this case indicates that the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection.

WIDMAR v. VINCENT, 454 U.S. 263 (1981)

Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. … With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities. Here University of Missouri-Kansas City has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment In order to justify discriminatory exclusion from a public forum based on the religious content of a group’s intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. … The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content to their speech. In this context we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion.


A regulation of appellee New York Public Service Commission which completely bans an electric utility from advertising to promote the use of electricity violates the First and Fourteenth Amendments. … Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquires yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.


During the criminal trial of several of petitioner ex-President’s former advisers on charges, inter alia, of conspiring to obstruct justice in connection with the so-called Watergate investigation, some 22 hours of tape recordings made of conversations in petitioner’s offices in the White House and Executive Office Building were played to the jury and the public in the courtroom, and the reels of the tapes were admitted into evidence. The District Court furnished the jurors, reporters, and members of the public in attendance with transcripts, which were not admitted as evidence but were widely reprinted in the press. At the close of the trial, in which four of the defendants were convicted, and after an earlier unsuccessful attempt over petitioner’s objections to obtain court permission to copy, broadcast, and sell to the public portions of the tapes, respondent broadcasters petitioned for immediate access to the tapes. The District Court denied the petitions on the grounds that since the convicted defendants had filed notices of appeal, their rights would be prejudiced if respondents’ petitions were granted, and that since the transcripts had apprised the public of the tapes’ contents, the public’s “right to know” did not overcome the need to safeguard the defendants’ rights on appeal. … Considering all the circumstances, the common-law right of access to judicial records does not authorize release of the tapes in question from the District Court’s custody. …The common-law right to inspect and copy judicial records is not absolute, but the decision whether to permit access is best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. … The release of the tapes is not required by the First Amendment guarantee of freedom of the press. The question here is not whether the press must be permitted access to public information to which the public generally has access, but whether the tapes, to which the public has never had physical access, must be made available for copying. There is in this case no question of a truncated flow of information to the public, as the contents of the tapes were given wide publicity by all elements of the media … and under the First Amendment the press has no right to information about a trial superior to that of the general public.


Appellants, national banking associations and business corporations, wanted to spend money to publicize their views opposing a referendum proposal to amend the Massachusetts Constitution to authorize the legislature to enact a graduated personal income tax. They brought this action challenging the constitutionality of a Massachusetts criminal statute that prohibited them and other specified business corporations from making contributions or expenditures “for the purpose of … influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporations and upon agreed facts. … The portion of the Massachusetts statute at issue violates the First Amendment. The expression proposed by appellants, namely, the expression of views on an issue of public importance, is at the heart of the First Amendment’s concern. There is no support in the First or Fourteenth Amendment, or in this Court’s decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation that cannot prove, to a court’s satisfaction, a material effect on its business.


Amendments to New York’s Education and Tax Laws established three financial aid programs for nonpublic elementary and secondary schools. … The propriety of a legislature’s purpose may not immunize from further scrutiny a law that either has a primary effect that advances religion or fosters excessive church-state entanglements. The maintenance and repair provisions of the New York statute violate the Establishment Clause because their inevitable effect is to subsidize and advance the religious mission of sectarian schools. … The tuition reimbursement grants, if given directly to sectarian schools, would similarly violate the Establishment Clause, and the fact that they are delivered to the parents rather than the schools does not compel a contrary result, as the effect of the aid is unmistakably to provide financial support for nonpublic, sectarian institutions. … The fact that the grant is given as reimbursement for tuition already paid, and that the recipient is not required to spend the amount received on education, does not alter the effect of the law. … The State must maintain an attitude of “neutrality,” neither “advancing” nor “inhibiting” religion, and it cannot, by designing a program to promote the free exercise of religion, erode the limitations of the Establishment Clause…. Because the challenged sections have the impermissible effect of advancing religion, it is not necessary to consider whether such aid would yield an entanglement with religion. But it should be noted that, apart from any administrative entanglement of the State in particular religious programs, assistance of the sort involved here carries grave potential for entanglement in the broader sense of continuing and expanding political strife over aid to religion.
PROCUNIER v. MARTINEZ, 416 U.S. 396 (1974)

Appellees, prison inmates, brought this class action challenging prisoner mail censorship regulations issued by the Director of the California Department of Corrections and the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates… . The censorship of direct personal correspondence involves incidental restrictions on the right to free speech of both prisoners and their correspondents and is justified if the following criteria are met: (1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental interest involved. Under this standard the invalidation of the mail censorship regulations by the District Court was correct. The decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards against arbitrariness or error, and the requirements specified by the District Court were not unduly burdensome.