Stevens’ top 10 in First Amendment jurisprudence
Justice John Paul Stevens left an indelible mark on First Amendment law during his remarkable tenure on the Supreme Court from 1975-2010. He wrote passionately about restrictions on Internet indecency, the expansion of a doctrine adversely affecting adult businesses, the protection of commercial speech and numerous other subjects.
Below are some of the First Amendment highlights from his career, in order of importance, with a focus on Stevens’ majority or plurality opinions.
- Reno v. ACLU (1997)
In 1996, Congress hastily passed an amendment to a large telecommunications bill called the Communications Decency Act. Two provisions criminalized online transmission of “indecent” and “patently offensive” speech. The law did not define “indecent” speech, and undoubtedly impinged on a great deal of protected speech for adults and older minors.
Stevens’ opinion invalidated these two provisions, finding them both too broad and vague to withstand constitutional review. Even more significantly, Stevens rejected the idea that the Internet was subject to greater government regulation than printed media. The government had argued that the Internet should be treated like the broadcast medium, which the Court had given less protection than print. Ironically, it was Stevens in FCC v. Pacifica (1978) years earlier who had endorsed this approach. But this time he wrote an opinion that acknowledged the diversity and value of this revolutionary new medium. The late attorney Bruce Ennis did not exaggerate when he wrote that Stevens’ decision gave the Internet its “legal birth certificate.”
- Wallace v. Jaffree (1985)
Alabama legislators decried earlier Supreme Court rulings that stopped school-sponsored prayer in public schools. Alabama passed a moment-of-silence law that was specifically intended to bring prayer back into school. Under the leading establishment-clause test — the so-called Lemon test from Lemon v. Kurtzman (1971) — the government must have a secular purpose when it legislates.
“The addition of ‘or voluntary prayer’ [to the existing law] indicates that the State intended to characterize prayer as a favored practice,” Stevens wrote. “Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.”
Stevens remained committed to ensuring a “wall of separation” between church and state. Though the interpretation of the establishment clause remains a subject of intense debate, Stevens staked out a position that sought a high degree of separation.
- 44 Liquormart v. Rhode Island (1996)
Not all speech is treated the same under First Amendment law. One type that is subject to greater regulation is commercial speech — speech that does no more than convey a message about a commercial transaction. It has been called a stepchild in the First Amendment family. However, the Court began a trend of greater protection for commercial speech in the mid-1990s, as evidenced by its decision striking down two Rhode Island laws that prohibited the advertising of alcoholic content in beverages. The state asserted that the law was designed to promote temperance.
Writing for the majority, Stevens said the government should review with greater skepticism complete bans on truthful commercial advertising. He also reasoned that the state could have engaged in less speech-restrictive alternatives, such as raising taxes on liquor.
- Greater New Orleans Broadcasting Association v. United States (1999)
In this decision, Stevens wrote the Court’s unanimous opinion asserting its continued protection of commercial speech. The Court invalidated a federal law that prohibited broadcasting ads for casino gambling into states that did not allow such gambling. The Court was troubled by conflicting provisions in federal regulations, including an allowance for gambling ads by Indian casinos.
Stevens said: “Even under the degree of scrutiny that we have applied in commercial speech cases, decisions that select among speakers conveying virtually identical messages are in serious tension with the principles undergirding the First Amendment.”
- City of Ladue v. Gilleo (1994)
The First Amendment affords all individuals — regardless of wealth or power — the ability to convey their expression. One time-honored method for the average citizen to communicate is placing a sign in his or her yard. Margaret Gilleo sought to do so in her small Ohio town, erecting a peace sign during the Gulf War. City officials cited her under an ordinance that prohibited all yard signs except for “For Sale” signs.
Writing for the Court, Stevens said this ordinance simply swallowed up too much expression even if it didn’t single out signs for their viewpoint.
“Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute,” he wrote. The decision has lasting value in First Amendment law because it stands for the principle that laws that foreclose an entire medium of expression are viewed skeptically.
- U.S. v. National Treasury Employees Union (1995)
A federal regulation prohibited most federal employees from receiving honoraria for their outside writing and speaking. The rule seemed to overreach into employees’ private lives. Stevens wrote the opinion for the Court invalidating the regulation.
“Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas,” Stevens wrote, noting that Nathaniel Hawthorne, Herman Melville and Walt Whitman all worked for the federal government at some point during their literary careers. “The large-scale disincentive to Government employees' expression also imposes a significant burden on the public's right to read and hear what the employees would otherwise have written and said.” Stevens remained a consistent protector of public-employee speech throughout his tenure on the Court.
- Young v. American Mini Theatres (1976)
In the early 1970s, Detroit amended its anti-skid-row ordinance to impose zoning restrictions on adult businesses. City officials wanted to prevent the rise of a red-light district that allegedly would lower property values and increase crime. The adult theaters fought back, claiming the law singled out adult businesses because of their suggestive fare.
However, writing for the Court, Stevens introduced a concept in a footnote that would later define the area of adult-entertainment expression. He said city officials weren’t intending to silence offensive expression, but sought to combat harmful “secondary effects” associated with adult entertainment. Stevens’ footnote was the beginning of the secondary-effects doctrine — the principal tool that allows government officials to impose a range of restrictions on First Amendment expression.
Ironically, when the Court began to apply the secondary-effects doctrine beyond zoning cases, Stevens identified the danger. He dissented in later cases that extended the secondary-effects doctrine to nude dancing.
- Bartnicki v. Vopper (2001)
Here, Stevens protected the right of free speech over privacy in a battle over the disclosure of an intercepted cell-phone conversation. Someone illegally intercepted a cell-phone conversation between two school-union officials. The conversation included what appeared to be harsh and threatening language.
The person then gave the material to a local radio host who played the conversation on his show. The union negotiator, Gloria Bartnicki, sued the radio host and others over the disclosure. Stevens relied on a line of cases for the principle that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” He added that even “privacy concerns give way when balanced against the interest in publishing matters of public importance.”
- Bose Corporation v. Consumers Union of United States (1984)
In this decision, the Court ruled that federal appeals courts hearing defamation cases must conduct an “independent appellate review” to ensure that the evidence meets the high standards of libel law. The case involved a Consumer Reports article highly critical of a new Bose speaker. Bose sued for product disparagement, but lost in the 1st U.S. Circuit Court of Appeals and in its appeal to the Supreme Court. Writing for the majority, Stevens established the independent appellate review standard and stressed its importance, noting that it “reflects a deeply held conviction that judges — and particularly members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.”
- McIntyre v. Ohio Elections Commission (1995)
Margaret McIntyre voiced her opposition to a school tax levy by distributing handbills titled “CONCERNED PARENTS AND TAXPAYERS.” Local Ohio officials cited her for violating an ordinance prohibiting anonymous campaign leafleting. Stevens blasted the ordinance as a flagrant infringement on the time-honored practice of anonymous leafleting. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent,” Stevens wrote. “Anonymity is a shield from the tyranny of the majority.”