Stevens: Independent view of First Amendment

Friday, April 9, 2010

WASHINGTON — Supreme Court Justice John Paul Stevens wrote in 1993 that the five clauses of the First Amendment “combine to form a whole larger than its parts” in a way that advances “a broader concept of liberty.”

Stevens, who announced his retirement today, was widely viewed as a strong friend of the First Amendment over his 34 years on the Court. But his embrace was typically nuanced and independent, and not without exceptions — especially when First Amendment free-speech values came in conflict with symbols of patriotism and protecting the integrity of elections.

Overall, says University of Georgia law professor Sonja West, Stevens had “a strong, consistent First Amendment jurisprudence, but it was not an absolutist one.” A former law clerk to Stevens, West teaches media and constitutional law.

Stevens’ free-speech decisions range from FCC v. Pacifica Foundation in 1978, upholding the ban on broadcasting George Carlin’s “seven dirty words,” to Reno v. ACLU in 1997, which gave the Internet broad First Amendment protection. In 44 Liquormart v. Rhode Island in 1996, Stevens struck down a state law banning liquor-price advertising, and in 1982, he authored NAACP v. Claiborne Hardware, protecting a boycott of white businesses from government restriction.

In Bartnicki v. Vopper in 2001, Stevens reversed a verdict against the news media for publishing contents of a private discussion in a labor dispute. “Privacy gives way when balanced against the interest in publishing matters of public importance,” Stevens wrote for the majority.

His pragmatic approach to speech cases — insuring the public has means to participate in political debate — came through in City of Ladue v. Gilleo in 1994. Striking down an ordinance that banned residential lawn signs, Stevens said, “Residential signs are an unusually cheap and convenient form of communication.” In Reno v. ACLU, Stevens made a similar point about the “relatively unlimited, low-cost capacity for communications of all kinds.”

As for the religion clauses, Stevens has been a steady vote in favor of separation of church and state, and against many accommodations of religion in public life.

Stevens struck down an Alabama “moment-of-silence” law for public schools in Wallace v. Jaffree in 1985, and in Santa Fe Independent School District v. Doe in 2000, he wrote that public schools could not precede football games with student-led prayer.

Douglas Laycock, a leading scholar of church-state issues, wrote in 2004 that Stevens’ stands reflected an apparent “hostility to religion. Religion in his view is subject to all the burdens of government, but entitled to few of its benefits.”

Stevens’ defenders say he is not hostile to religion, pointing to his votes in favor of religious groups in the Church of the Lukumi Babalu Aye Inc. v. City of Hialeah and Lamb’s Chapel v. Center Moriches Union Free School District, both 1993 cases. “A careful look at his voting in religion cases suggests that he has a healthy respect for religious thought, although this respect is tempered by a fear of the divisive power of religious disputes in public life,” wrote Eduardo Penalver, a former Stevens clerk who teaches at Fordham University School of Law, in a law-review appraisal of Stevens.

Some of Stevens’ best-known First Amendment statements came in dissents from decisions in which the majority ostensibly expanded First Amendment protections.

In 1989 Stevens, a World War II veteran, objected to the majority’s view in Texas v. Johnson that laws that criminalized burning the American flag violated freedom of speech. Reading from his dissent on the bench, Stevens said, “The value of the flag as a symbol cannot be measured … . Sanctioning the public desecration of the flag will tarnish its value — both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it.”

Stevens has since observed that the majority’s ruling had the effect of making flag-burning less potent as a political act. “Nobody burns flags anymore,” Stevens told The New Yorker recently. “As long as it’s legal, it’s not a big deal.”

In January, Stevens announced from the bench an angry dissent in Citizens United v. Federal Election Commission, in which the majority had ruled that corporations, like individuals, could not be restricted in their campaign spending without running afoul of the First Amendment. Stevens said the Court had long restricted corporate involvement in elections and had no reason to shrink from that task now.

“The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve,” said Stevens.

Stevens’ consideration of other societal values besides free speech led him to shy away from carving out bright-line or categorical exceptions from First Amendment protections for expressions such as obscenity. Instead, he preferred a balancing approach that takes into account the value and, to a degree, the content of the speech at issue. Enforcing all-or-nothing categories, Stevens said in R.A.V. v. City of St. Paul in 1992, “sacrifices subtlety for clarity” and is “ultimately unsound.”

In the religion arena, Stevens dissented sharply when the majority in Zelman v. Simmons-Harris OK’d a school voucher program that included parochial schools.

“Whenever we remove a brick from the wall that was designed to separate religion and government,” Stevens warned, “we increase the risk of religious strife and weaken the foundation of our democracy.”