Justice White held ‘grudging’ attitude toward speech, press freedoms

Wednesday, April 17, 2002

After Supreme Court Justice Byron White retired in 1993, Chief Justice William Rehnquist paid tribute to White’s “firm resolve not to be classified in any one doctrinal pigeonhole.”

Rehnquist’s Exhibit A for that statement in his Yale Law Journal article was White’s First Amendment jurisprudence, a body of opinions which, Rehnquist said, “demonstrate how his judicial work defies easy categorization.”

White, who died April 15 at age 84, authored a broad range of First Amendment opinions in his 31 years on the high court. In rulings ranging from obscenity to libel to student press freedom, White often, but not always, disappointed First Amendment advocates. In spite of Rehnquist’s admonition against pigeonholing White’s rulings, most scholars place him among the justices who have been most hostile to free speech in recent decades.

“White had a rather grudging attitude toward the First Amendment’s freedoms
of speech and press,” said Ronald Collins, First Amendment Center scholar. “This is particularly evident in his opinions concerning press freedoms, obscenity, flag burning, government employment and defamation.”

The roots of White’s grudging attitude toward the press and free expression may be personal. Some have pointed to White’s early fame as a college and pro football star, where he grew to dislike the media spotlight. He hated the nickname “Whizzer” given to him by a Denver newspaper in the 1930s. The nickname stuck even through his Supreme Court days, and legend has it that when a reporter asked his court secretary how to spell Whizzer, her reply was “B-Y-R-O-N.” He often made it clear to journalists covering the court that he was uninterested in how — or whether — he was portrayed in the news media.

In other areas of the law, White also displayed less skepticism toward government regulation, which could explain his tolerance for some government restrictions on press and speech.

Among the landmark rulings on First Amendment issues authored by White:

  • Red Lion Broadcasting v. FCC, a 1969 decision that upheld the Federal Communications Commission’s “fairness doctrine” regulation, which had been opposed by the broadcast industry. The ruling gave broadcasters second-class status under the First Amendment, citing the public interest in having some regulation of scarce airwaves.

  • Branzburg v. Hayes, a 1972 decision that said journalists have no right under the First Amendment to refuse to testify before grand juries when their testimony would be relevant to criminal investigations. Journalists sought the privilege to underline their independence from government probes and to protect anonymous sources.
  • Zurcher v. Stanford Daily, the 1978 decision that upheld a police raid on a college newspaper in search of evidence. Though White said police must use “particular exactitude” to justify a search that could impinge on First Amendment rights, the press enjoys no special privilege against such searches.
  • Herbert v. Lando in 1979, in which White said that the First Amendment does not keep libel plaintiffs from inquiring into the editorial process and the publisher’s state of mind. Media organizations still object to the decision as an intrusion into editorial prerogatives.
  • Schad v. Borough of Mount Ephraim, a 1981 decision that bars localities from excluding entire categories of expression — including adult entertainment — from within their boundaries.
  • New York v. Ferber, a 1982 ruling that said government could outlaw child pornography even if it is not obscene, because of the damage caused to the children involved in producing the material. The decision figured prominently in a ruling yesterday in which the court struck down a law banning “virtual” child pornography that uses computer-generated images but not real children.
  • Hazelwood School District v. Kuhlmeier, a 1988 decision that substantially set back student free-press rights. The ruling upheld a Missouri school principal’s decision to delete articles involving pregnancy and divorce from a high school newspaper. “A school need not tolerate student speech that is inconsistent with its basic educational mission,” wrote White, “even though the government could not censor similar speech outside the school.” The Student Press Law Center reported a 300% rise in the number of calls it got for legal help from school newspapers in the years since Hazelwood.

On rare occasions, White dissented from decisions that went against First Amendment claims. In the 1991 decision Barnes v. Glen Theatre, the majority upheld a law that banned total nudity in public places. In dissent, White made a rare defense of a nude-dancing establishment that had challenged the law. “The viewers are exclusively consenting adults who pay money to see these dances,” wrote White. “That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the court, is hardly an excuse for distorting and ignoring settled doctrine. The court’s assessment of the artistic merits of nude dancing performances should not be the determining factor in deciding this case.”