Stevens’ 10 worst First Amendment opinions

Thursday, April 22, 2010

When you serve more than 34 years on the U.S. Supreme Court, you will issue
rulings that inspire praise and incur wrath.

During his tenure, Justice John Paul Stevens has written many opinions protective
of First Amendment freedoms. However, he also has penned some opinions — whether in
majority or in dissent — that elevated other interests above free

Below are 10 of his low points:

  1. FCC
    v. Pacifica Foundation

    In this decision, the Court ruled that the Federal Communications Commission
    could fine a radio station for broadcasting George Carlin’s “Filthy Words”
    monologue during daytime hours when children are apt to listen. Stevens’
    plurality opinion approved of government regulation of broadcasting, in part by
    reaffirming its second-class status as a communications medium, and declaring it
    had a “uniquely pervasive presence” in Americans’ lives and was “uniquely
    accessible” by children. Stevens pressed the idea that the Carlin speech was
    low-value speech entitled to reduced protection because of its sexual and vulgar

    Stevens’ opinion caused fellow Justice William Brennan to express his ire: “I
    find the Court's misapplication of fundamental First Amendment principles so
    patent, and its attempt to impose its notions of propriety on the whole of the
    American people so misguided, that I am unable to remain silent.” Through the
    years, many have questioned the logic of Pacifica in allowing the
    regulation of “indecent” speech, as it is often difficult to define exactly what
    is indecent.

  2. Board
    of Education v. Mergens
    (1990) (dissenting opinion)

    With Stevens as the lone dissenter, the Court ruled 8-1 that Nebraska public
    high school officials could not prohibit student Bridget Mergens from forming a
    Bible club, particularly as they had allowed numerous other student clubs. A
    federal law known as the Equal Access Act bars public school officials from
    discriminating against student clubs on a religious or philosophic viewpoint
    basis. The majority also said this law did not violate the establishment

    Stevens’ dissent declared that school officials should have the power to
    exclude controversial student clubs and students should defer to the judgment of
    school administrators. He also said the establishment-clause issue was a much
    closer question than the majority made it seem.

  3. Young
    v. American Mini Theatres

    This case is also among Justice Stevens’ top 10 First Amendment opinions in
    part because of his evolution from this case toward greater protection for adult
    expression. But Stevens’ initial opinion in American Mini Theatres
    created the legal construct that allowed government officials an easier path to
    censor adult expression because of its purported offensiveness.

    In his opinion, Stevens said Detroit officials passed a restrictive zoning
    law for adult businesses not because they disliked the offensive expression, but
    because of harmful secondary effects associated with such expression, such as
    decreased property values and increased crime. Thus was born the
    secondary-effects doctrine, which enables laws singling out adult-oriented
    expression to be evaluated with less judicial rigor with regard to the First
    Amendment. Stevens later deplored the expansion of this doctrine, but he did
    start the ball rolling with his unfortunate opinion in American Mini

  4. Texas
    v. Johnson
    (1989) (dissenting opinion)

    The Court ruled 5-4 that a Texas flag-desecration law violated the First
    Amendment rights of Gregory Lee Johnson, who had engaged in protected political
    expression when he burned an American flag outside a national political
    convention in 1984. The case reinforced the principle that government cannot ban
    disagreeable and offensive expression and ideas.

    In dissent, though, Stevens — a Navy World War II veteran — called the flag a
    special symbol that deserved protection. “The case has nothing to do with
    ‘disagreeable ideas,’” he wrote. “It involves disagreeable conduct that, in my
    opinion, diminishes the value of an important national asset.”

  5. Hill
    v. Colorado

    A Colorado law that limited speech within 100 feet of “health care
    facilities” didn’t violate the First Amendment, the Supreme Court ruled 6-3. The
    law, designed to suppress anti-abortion protests, included a floating buffer
    zone prohibiting individuals from coming within eight feet of people going to
    and from the clinics. Stevens wrote for the majority that the law was a
    constitutional and content-neutral way to protect the privacy of those visiting
    clinics. He found a “recognizable privacy interest in avoiding unwanted

    Many free-expression advocates agreed that Justice Antonin Scalia had a point
    when he wrote in his dissent: “[T]he jurisprudence of this Court has a way of
    changing when abortion is involved.” Justice Anthony Kennedy was even blunter,
    beginning his dissent by admonishing that the ruling “contradicts more than a
    half century of well-established First Amendment principles.”

  6. Good
    News Club v. Milford
    (2001) (dissenting opinion)

    Ruling 6-3, the Court said a public school district violated the First
    Amendment free-speech clause when it denied a religious group access to its
    facilities during after-school hours. The district had a community-use policy
    and regularly allowed other groups to use its facilities. To the majority, the
    treatment of the religious group smacked of viewpoint discrimination.

    Stevens’ dissent said district officials should have the power to exclude
    evangelical groups or those that engage in religious proselytizing.

  7. FCC
    v. League of Women Voters
    (1984) (dissenting opinion)

    The League of Women Voters challenged a provision of the 1967 Public
    Broadcasting Act that prohibited noncommercial educational radio stations from
    editorializing. The high court agreed, with Justice Brennan writing for the
    majority that the provision was a content-based restriction on political speech
    that deprived listeners of important information.

    Stevens disagreed, authoring a disturbing dissent that argued the
    government’s interest in neutrality was more important than ensuring free speech
    over the airwaves. “The quality of the interest in maintaining government
    neutrality in the free market of ideas — of avoiding subtle forms of censorship
    and propaganda — outweigh(s) the impact on expression that results from this
    statute,” he wrote.

  8. Nixon
    v. Shrink Mo. Gov. PAC
    (2001) (concurring opinion)

    Voting 6-3, the Court ruled that a Missouri law limiting campaign
    contributions did not violate the First Amendment. In his concurring opinion,
    Stevens wrote: “Money is property; it is not speech.” Many First Amendment
    experts contend just the opposite, because when people contribute to a political
    candidate or cause, they are expressing support.

  9. Boy
    Scouts of America v. Dale
    (2000) (dissenting opinion)

    The justices took up the contentious question of whether the Boy Scouts of
    America had a First Amendment right to exclude a gay troop leader. The Court
    split 5-4, with the majority holding that organizations have a First
    Amendment-based right of expressive association and cannot be forced by the
    state to adopt positions or statements contrary to their stated beliefs.

    The majority opinion increased recognition and respect for the right of
    expressive association. But in dissent, Stevens claimed that the Boy Scouts had
    failed to adopt a clear position against homosexuality. His opinion also failed
    to recognize protection for group’s expressive-association rights.

  10. Glickman
    v. Wileman Bros.

    The Court ruled 5-4 that California officials could impose an assessment fee
    on tree-fruit producers and handlers to pay for generic advertisements for
    nectarines, plums and peaches. The majority rejected the growers’ argument that
    the state was compelling them to engage in speech by funding advertising they
    did not endorse.

    Stevens’ majority opinion ignored the compelled-speech issue. He reasoned
    that the program only made the producers “make contributions for advertising.”
    The four dissenting justices argued that the case did involve compelled
    commercial speech.

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