Remembering Justice Potter Stewart

Monday, February 27, 2012

Potter Stewart (1915-1985) may not be a Supreme Court justice whose name we immediately associate with First Amendment law. Maybe he’s not quite in the free-speech company of Oliver Wendell Holmes, Louis Brandeis, William O. Douglas, Hugo Black or William Brennan. But Stewart deserves appreciation for his contributions to First Amendment law and history.

Unfortunately for Stewart, who served on the high court from 1958 to 1981, he is best known for a somewhat amusing line he penned in a concurring opinion in an obscenity case, Jacobellis v. Ohio. The case involved the prosecution of a theater manager for showing the French movie “Les Amants” (“The Lovers”). Stewart famously wrote:

“I shall not attempt further to define the kinds of material I understand to be embraced within that shorthand description (of pornography), and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

At a press conference announcing his retirement in 1981, Stewart remarked that “I know it when I see it” would probably be the epitaph on his tombstone. “I regret a little bit that if I’ll be remembered at all, I’ll be remembered for that particular phrase,” he said.

But Stewart should be remembered for many of his First Amendment opinions.

Having been a college journalist at the Yale Daily News, Stewart at times showed a special solicitude for the press, dissenting, for instance, in Branzburg v. Hayes (1972). In that case, the Court ruled that the First Amendment did not bar the government from forcing reporters to disclose their confidential sources. The Court had consolidated three different cases involving three reporters — Paul Branzburg, Paul Pappas and Earl Caldwell — who all had refused to disclose their sources to grand juries. According to the Court majority, the First Amendment did not give these reporters a privilege to avoid revealing the information sought.

Stewart began his dissenting opinion with a memorable line: “The Court’s crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society.” But he did more than criticize his colleagues; he proposed a test that later served as the blueprint for state reporter-shield laws around the country. In Stewart’s vision, the government could not force a reporter to reveal his or her information unless it could:

“(1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of the law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.”

Stewart also wrote a memorable dissent in Zurcher v. Stanford Daily (1978), involving the constitutionality of a search warrant carried out at a college newspaper. The Court ruled 5-3 that the warrant did not violate either the Fourth Amendment prohibition against “unreasonable searches and seizures” or the First Amendment. The majority concluded that the press did not enjoy any special protection from search warrants backed up by probable cause.

Stewart’s dissent began this way: “It seems to me self-evident that police searches of newspaper offices burden the freedom of the press.” He described how disruptive searches of newsrooms could be, and how destructive to the First Amendment such unannounced probes could be to the protection of confidential sources. It would be better to have the government seek a subpoena, which a reporter could try to quash at a judicial hearing, he argued. Then came another of Stewart’s memorable passages:

“Perhaps as a matter of abstract policy a newspaper office should receive no more protection from unannounced police searches than, say, the office of a doctor or the office of a bank. But we are here to uphold a Constitution. And our Constitution does not explicitly protect the practice of medicine or the business of banking from all abridgment by government. It does explicitly protect the freedom of the press.”

In a 1974 speech at Yale University, Stewart told the audience at his alma mater of the importance of a free press as part of the Fourth Estate — as a necessary check on the three branches of government.

In the area of assembly, Stewart wrote many opinions safeguarding that underappreciated First Amendment freedom.

In Coates v. City of Cincinnati (1971), the Supreme Court considered the constitutionality of a city ordinance that made it a crime for three or more people to gather on a public street in a way that might annoy others. Stewart wrote the Court’s majority opinion invalidating the ordinance.

He noted that the law was unconstitutionally vague, as people should not be convicted on the basis of whether a police officer thinks their conduct is annoying. But he also said the law directly infringed on free-assembly rights: “The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people.” He continued in frank prose: “The ordinance before us makes a crime out of what under the Constitution cannot be a crime. It is aimed directly at activity protected by the Constitution.”

As precedent for his opinion in Coates, Stewart cited his own earlier opinion in an assembly-petition case that arose out of the civil rights movement. Hundreds of African-American high school and college students marched on the state capital in Columbia, S.C., to protest segregation. They carried placards with messages such as “I am proud to be a Negro” and “Down with Segregation.” Though they caused no violence they apparently made too much noise for the taste of police officers with their singing of religious hymns.

Police arrested 187 protesters and charged them with breach of the peace. They received convictions with penalties from a $10 fine or five days in jail to a $100 fine or 30 days in jail. In Edwards v. South Carolina (1963), Stewart wrote the Court’s opinion overturning the convictions as violations of the freedoms of speech, assembly and petition.

“The circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form,” he wrote. “The Fourteenth Amendment (which extends First Amendment freedoms to the states through its due-process clause) does not permit a State to make criminal the peaceful expression of unpopular views.”

Stewart’s views may not always have been popular with First Amendment advocates. He did write a Court decision limiting the ability of journalists to interview prison inmates in Pell v. Procunier (1974). But Stewart wasn’t out to please people. He said he wanted to be remembered as “a good lawyer who did his best.”

Potter Stewart did his best and produced some important and memorable First Amendment work.

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