Stevens the Censor v. Stevens the Freedom Fighter

Over at the First Amendment Center, David L. Hudson gathers John Paul Stevens' 10 worst opinions related to freedom of speech. The list includes several cases I mentioned in my column on Stevens last week.

At the top, quite appropriately, is FCC v. Pacifica, the 1978 decision that upheld regulation of broadcast "indecency" on the grounds that TV and radio were "uniquely pervasive." We are still living with the consequences of Stevens' half-baked opinion, which has created an arbitrary distinction between programming based on whether it arrives over the air, in which case its content can be censored, or through wires, in which case channels are free to show whatever their customers want to see. (Satellite TV and radio also fall into the latter category, although their signals travel through the air too; go figure.) From the perspective of the typical consumer, who flips from one channel to another without regard to the mode of distribution, the distinction makes no sense. But regulation of broadcast indecency was never really about helping consumers, who after all are quite capable of voting with their remote controls. It was about placating professional moralists while letting paternalistic busybodies at the FCC dictate matters of taste. The FCC's enforcement actions in this area have become so laughable that the current Court (which reportedly takes "a robustly libertarian view" of the First Amendment) may finally repudiate Stevens' weak and increasingly obsolete reasoning, though continued incoherence would be preferable to a consistency achieved by letting bureaucrats meddle with cable and satellite programming.

The same year he wrote the majority opinion in Pacifica, upholding content-based regulation of TV and radio, Stevens wrote the majority opinion in Young v. American Mini Theatres, upholding content-based regulation of movies. Stevens said restricting the locations of businesses offering adult entertainment was constitutionally permissible becauses those businesses have "secondary effects." The decision is an interesting contrast to Stevens' 1997 majority opinion in Reno v. ACLU, which overturned the Communications Decency Act, a ham-handed attempt to prevent minors from seeing inappropriate material on the Internet. The comparison not only suggests that Stevens' thinking evolved over the years but also highlights how dramatically the distribution of sexually explicit material has changed. Online distribution makes pornography less obtrusive, obviating the concerns that motivated the zoning that the Court upheld in 1978. At the same time, it makes pornography more accessible and pervasive, raising concerns about age restrictions and exposing distributors to obscenity prosecutions anywhere in the country, including conservative jurisdictions where "contemporary community standards" make conviction easier.

Hudson also notes that Stevens voted to uphold a ban on flag desecration, though he does not mention that he did so twice. Congress responded to the the first decision, overturning a Texas law, by passing its own ban, rushing to save Old Glory with the same constitutionally reckless urgency it would later show in the Terri Schiavo case. The Supreme Court promptly overturned it, and Stevens dissented again.

Two other cases are striking: Hudson reminds us that Stevens dissented from the 2000 decision that said freedom of association means the Boy Scouts have a right to insist on heterosexual troop leaders and from a 1984 decision that overturned a law prohibiting nonprofit educational radio stations from airing editorials. In the latter case, Stevens' rationale is not at all surprising coming from a justice who this year insisted that election-related speech by powerful interests must be censored for the sake of democracy: "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."

For the sake of balance, have a look at Hudson's list of "Stevens' Top 10 in First Amendment Jurisprudence," which includes several cases where Stevens sided with freedom. Despite his anti-corporate rhetoric in cases like Citizens United, Stevens has been willing to overturn restrictions on commercial speech. He wrote the majority opinion in the 1996 case 44 Liquormart v. Rhode Island, which struck down a state ban on advertising the alcohol content of beverages. "Precisely because bans against truthful, nonmisleading commercial speech rarely seek to protect consumers from either deception or overreaching, they usually rest solely on the offensive assumption that the public will respond 'irrationally' to the truth," he said. "The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good." I'm not sure how to reconcile this Stevens with the one who thinks the average American cannot be trusted to assess political ads or change the channel when he's offended by dirty words.