Justice Souter, Justice Holmes, the First Amendment and Yankee independence

Thursday, June 25, 2009

This article is part of an online symposium on the First Amendment Center Online titled Justice Souter & the First Amendment.

David Hackett Souter wrote his college senior thesis on the great jurist Oliver Wendell Holmes Jr. Like Holmes, he was New England-born, Harvard-educated, and served on a state high court before becoming a Supreme Court justice. Like Holmes, he wasn’t an ideologue. And like Holmes, he had a maverick streak in him, which bewildered those who didn’t know him personally.

Holmes was prolific, both in his judicial capacity (writing more than 2,000 opinions) and in his scholarly output. Moreover, Holmes is remembered for his landmark free-speech opinions such as his dissents in Abrams v. United States (1919) and Gitlow v. New York (1925).

Souter’s record, by contrast, is far more modest. His tenure on the Court was a decade shorter than Holmes's, and neither his few extrajudicial writings nor his First Amendment opinions are likely to leave a Holmesian-like mark on the law.

Unlike Holmes, who showed little interest in protecting sexual expression, Souter was a frequent defender of such expression (see his lone dissent in National Endowment for the Arts v. Finley, 1998). Further, where Holmes’s views on political expression evolved to become more speech-protective, Souter’s views on the political-expression cases of his day (primarily those involving campaign-finance laws) tended to deny First Amendment protection.

Holmes developed a First Amendment jurisprudence; Souter’s approach was far less sophisticated. Holmes had a cadre of devoted followers; Souter has lived relatively isolated. Yet we see in both jurists an old-fashioned kind of Yankee independence — a general desire to keep the government at bay when it comes to First Amendment freedom. A Dec. 3, 2000, quip well captures Souter’s First Amendment faith: “When I was in school I never had official prayer before math class, but I can assure you, I prayed before each and every math test.”

Facts, figures & First Amendment pros & cons
During Justice Souter’s 19 years of service on the Court, he cast votes in 102 free-expression cases in the periods when William Rehnquist and John Roberts were Chief Justices. Souter voted with the majority 71% of the time in those cases.

Of the 102 votes he cast in those cases, the jurist who succeeded Justice William Brennan voted to affirm First Amendment claims 55% of the time. He authored a total of five First Amendment majority opinions, 10 concurrences, and 17 dissents. In David Hackett Souter: Traditional Republican on the Rehnquist Court, Tinsley E. Yarbrough describes Souter's votes in this area as reflecting a “moderately liberal stance.”

In certain areas, Justice Souter has been far more inclined to find a First Amendment violation than in others. For example, he has been a staunch defender of commercial speech. Of the 15 such cases in which he participated, he voted to sustain the free speech claim in all but two cases — United States v. Edge Broadcasting (1993) and Los Angeles Police Department v. United Reported Publishing Corp. (1999).

Souter’s record reveals a similar sentiment in matters involving sexual expression. Among other things, he cast the deciding vote in sustaining the First Amendment claim in United States v. Playboy Entertainment Group (2000). And in Alexander v. United States (1993), he voted to affirm a First Amendment claim in an obscenity/RICO case in which he was in the minority (5-4).

On a related front, though Souter had originally defended the secondary-effects doctrine in Barnes v. Glen Theatre (1991), a decade later he distanced himself from its application in City of Erie v. PAP’s A.M. (2000). “[A]fter many subsequent occasions to think further about the needs of the First Amendment,” he wrote in an opinion concurring and dissenting in part, “I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late.” Notably, even in Barnes Souter was unwilling to sustain restrictions on nude dancing if they were based on “society’s moral views.”

When the First Amendment issue at stake concerns restrictions on political campaign expenditures and related matters, the justice born on Constitution Day (Sept. 17) was disinclined to give the First Amendment an expansive reading. As David Hudson points out in this symposium, “Justice Souter authored several opinions in this area of First Amendment law, generally supporting limits on political contributions.”

Exhibit A: His opinion for the Court in Nixon v. Shrink Missouri Government (2000), in which a 6-3 majority upheld Missouri’s limits on political contributions in state races.

Exhibit B: His dissent in Randall v. Sorrell (2006), in which the Court (again 6-3) struck down campaign-finance restrictions in Vermont.

Exhibit C: Souter wrote for the Court in Federal Election Commission v. Beaumont (2003), in which the majority (7-2) denied the First Amendment claims of advocacy groups that wished to contribute to candidates’ campaigns.

Also in the campaign context, in Republican Party of Minnesota v. White (2002), Souter sided with the dissenters (5-4) who would have denied First Amendment protection to statements made by candidates in state judicial elections.

Souter, J., dissenting
Like Justice Holmes, Justice Souter was often at his First Amendment best in his dissenting opinions.

His forceful dissent in Garcetti v. Ceballos (2006), a public-employee speech case in which a divided Court denied the First Amendment claim, is one such case. Souter took sharp analytical aim at the majority’s interpretation of existing doctrines related to public employees and government speech. In the process, he offered up a strong case against the majority’s “categorical exclusion of First Amendment protection” for whistleblowers. Given the aftermath of Garcetti — a slew of cases in which public employees who reported wrongdoing lost their cases — it would not be surprising if at some point the Court revisited this matter and turned to Souter’s dissent for guidance.

There is also Souter’s solitary dissent in National Endowment for the Arts v. Finley. Few judicial opinions rival his discussion there of the value of artistic expression and the problems created when such expression is squelched by viewpoint discrimination. “One need do nothing more than read the text of the statute,” wrote Souter, “to conclude that Congress’s purpose in imposing the decency and respect criteria was to prevent the funding of art that conveys an offensive message; the decency and respect provision on its face is quintessentially viewpoint based, and quotations from the Congressional Record merely confirm the obvious legislative purpose.”

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