Significant solitary dissents in First Amendment law

Tuesday, May 22, 2012

In judicial decisions, majority opinions make the law. But many cases are not unanimous. Judges and justices have differing judicial philosophies, outlooks, life experiences and ways of interpreting the Constitution. Dissenting opinions also often propound important principles of law. And sometimes history views the dissenter as the one with the correct viewpoint.

Consider that Justice John Marshall Harlan I earned the moniker “the Great Dissenter” for his lone dissents in the Civil Rights Cases (1883) and, particularly, Plessy v. Ferguson (1896), in which  the Court invalidated a federal civil rights law and upheld a state segregation law. Harlan seemed more concerned with the spirit of equal protection under the law. His views on segregation were vindicated many years later in Brown v. Board of Education (1954).

Other dissenting opinions may not become law but are still important. They shed light on a particular justice’s judicial bent, give voice to those who disagree with the majority or present an unusual approach to a problem.

The following lone dissents in U.S. Supreme Court First Amendment cases all are significant.

Stone’s dissent in Minersville School District v. Gobitis
In Minersville School District v. Gobitis (1940), the Supreme Court upheld 8-1 a Pennsylvania law that required public school students to salute the flag and recite the Pledge of Allegiance. Justice Felix Frankfurter wrote in his majority opinion: “The ultimate foundation of a free society is the binding tie of cohesive sentiment.” He reasoned that the Court should defer both to the Legislature and to public school officials, who supported the rule.

Justice Harlan Fiske Stone filed a solitary dissent. He contended that school officials could not “compel public affirmations which violate their religious conscience.” The position Stone advocated became the law of the land only three years later in West Virginia Board of Education v. Barnette. A wave of persecution of Jehovah’s Witnesses after the Gobitis decision caused several justices to rethink their position in that 1943 ruling. In Barnette, the Court struck down a West Virginia flag-salute law by a 6-3 vote. President Franklin Roosevelt had elevated Stone from associate Justice to chief justice, and as chief justice Stone could have written the opinion himself.  Instead, he assigned it to Justice Robert Jackson, who wrote one of the Court’s most celebrated opinions.

Stevens’ dissent in Ashcroft v. ACLU I
The 8-1 ruling in Ashcroft v. ACLU I (2002) held that a federal anti-pornography law, the Child Online Protection Act, was not unconstitutional simply because it imposed contemporary community standards on a global medium of speech — the Internet. A lower court had found that the “contemporary community standards” language was too broad and not protective enough of free-speech. However, the Supreme Court majority said the case should be sent back to the lower court to examine other constitutional issues with the law — such as whether it was too broad for reasons other than the use of contemporary community standards and whether it was too vague.

Justice John Paul Stevens filed the lone dissent. He recognized that the use of “contemporary community standards” in an online world threatened free speech. “The Internet presents a unique forum for communication because information, once posted, is accessible everywhere on the network at once,” Stevens wrote. “The speaker cannot control access based on the location of the listener, nor can it choose the pathways through which its speech is transmitted.”

Interestingly, litigation over COPA continued and the case returned to the Supreme Court in 2004 in Ashcroft v. ACLU II. This time, the Court ruled 6-3 that COPA did not pass First Amendment review. It would have been simpler if the Court had followed Justice Stevens’ lead two years earlier.

Stewart’s dissents in Engel v. Vitale, Abington School District v. Schempp
The Court ruled in Engel v. Vitale (1962) and Abington School District v. Schempp (1963) that teacher-led prayers in public schools violated the establishment clause. The opinion said that having teachers lead prayers in public schools placed coercive pressure upon religious minorities and cross the boundaries of church-state separation that were designed to ensure the government was neutral toward religion.

Justice Potter Stewart filed the lone dissent in both cases. In Engle, he said the Court had deprived schoolchildren of “the opportunity of sharing in the spiritual heritage of our Nation” in Engel. In Schempp, he warned that “there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause.”

To Stewart, the majority justices ignored the free-exercise clause in favor of the establishment clause and church-state separation. Many agreed with Stewart and opposed the Court’s invalidation of school-sponsored prayer in public school.

Rehnquist’s dissent in Virginia Pharmacy v. Virginia Consumer Council
In Virginia Pharmacy v. Virginia Consumer Council (1976), the Supreme Court for the first time explicitly ruled that purely commercial advertising — offering product X for sale at price Y — was protected by the First Amendment.  The 7-1 majority (Justice Stevens did not participate) reasoned that in modern commercial culture, people had a “keen” interest in commercial information. The majority viewed attempts to shield the public from advertising as “overly paternalistic” and a suppression of speech.

Dissenting alone was Justice William Rehnquist. Going solo was not unusual for Rehnquist, particularly when he was an associate justice, from 1971 until his elevation to chief justice in 1986. His law clerks once gave him a “Lone Ranger” figure to celebrate his proclivity to file solitary dissents.

In Virginia Pharmacy, Rehnquist warned that the decision could have dire consequences: “Under the Court’s opinion the way will be open not only for dissemination of price information but for active promotion of prescription drugs, liquor, cigarettes, and other products the use of which it has previously been thought desirable to discourage.” On this point, he has proven prescient.

Alito’s dissents in United States v. Stevens, Snyder v. Phelps
The Roberts Court has proven itself a defender of free speech with regard to offensive expression in a couple of recent decisions — the animal-cruelty video decision of United States v. Stevens (2010) and the funeral-protest decision in Snyder v. Phelps (2011). In Stevens, the government contended that images of animal cruelty should be an unprotected category of speech akin to child pornography. In Snyder, the Court ruled that the Westboro Baptist church had a First Amendment right to engage in its repugnant expression on a public street near a church where the funeral of a slain soldier was taking place.

Justice Samuel Alito filed solitary dissents in both cases. He wrote that the videos of animal cruelty were unprotected speech with no social value. In Snyder, he  was even more emphatic in his disagreement with his colleagues. “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he wrote in the first line of his opinion.

Many people, appalled by the Westboro church’s message that soldiers’ deaths were God’s punishment of the United States for tolerating homosexuality, agreed with Alito.

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