Justice Marshall: eloquent First Amendment defender

Monday, February 4, 2013

Thurgood Marshall is best known for being the first African-American to serve on the U.S. Supreme Court and as one of the attorneys who argued the education-desegregation case Brown v. Board of Education (1954). But Justice Marshall also had a keen appreciation for the First Amendment and freedom of speech.

Marshall had a gift for explaining the importance of the First Amendment in different contexts. Here are five of his more memorable free-speech passages from opinions dealing with obscenity, picketing, prisoner speech, public-employee speech and commercial speech.

‘Constitutional heritage’
Marshall wrote the Court’s opinion in Stanley v. Georgia (1969) holding that the private possession of obscene material could not be made a crime. The police had gone to Robert Stanley’s home to execute a search warrant to uncover whether he was involved in illegal bookmaking activity. Instead, they found rolls of film of alleged obscene material.

Marshall questioned whether law enforcement had adhered to constitutional standards  under the First and Fourth Amendments. On the First Amendment point, he wrote with passion:

“If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

M.I.S.C. quote
A seminal principle of modern First Amendment law is the content-discrimination principle — that government officials should be loath to restrict speech on the basis of its content or viewpoint. Marshall expressed this principle well in Police Department of City of Chicago v. Mosley (1972), involving a man charged with violating a law prohibiting picketing near schools unless the picketing was for a labor cause. The man, Earl Mosley, had picketed because he said the school had practiced racial discrimination.

I tell my First Amendment law students that a way to remember to remember the content-discrimination principle is to remember the M.I.S.C. quote from this case — message, ideas, subject, content:

“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

‘Human spirit’
Unlike most members of the high court, Justice Marshall showed special solicitude for the rights of prison inmates during his tenure on the bench. In Procunier v. Martinez (1974), involving censorship of prisoner mail, Marshall wrote a concurring opinion that spoke to the need of the “human spirit” for free expression:

“The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity.”

‘Vigilance is necessary’
Justice Marshall consistently defended the free-speech rights of public employees. He wrote the Court’s seminal public-employee speech decision, Pickering v. Board of Education (1968), in which the Court squarely held that public employees retain free-speech rights when they work for the government.

Marshall also showed his sensitivity to public-employee speech in writing the Court’s opinion in Rankin v. McPherson (1987) — holding that a Texas constable violated a former employee’s rights when he fired her for a private conversation she had about President Ronald Reagan when he was shot by would-be assassin John Hinckley Jr.

Marshall wrote:

“Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.”

‘Suitable for a sandbox’
Marshall consistently protected the free-speech rights of advertisers and was a strong proponent of commercial speech. He showed this sensitivity in striking down a federal regulation that prohibited the mailing of contraceptive advertisements.

In Bolger v. Youngs Drug Products (1983), the argument was made that the federal regulation protected adults from objectionable material for children. Marshall responded:

“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”

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