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.

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  1. Wonder who is going to replace that pompous windbag.


    1. Project much?

      1. Are bots really capable of that?

    2. When NOBAMA was running everyone was concerned about him ruining the courts with his picks. Well what do we have here. A republican choice judge choosing to side with BIG business. What a surprise. And with this abortion thing it is only a way to divide and conquer the people — and here I was worrying about abortion. What does abortion matter when the supreme court says a corp can spend unlimited amounts of cash on campaigns, I gotta get a grip.. check out this story


  2. Fuck all the justices. None of them are consistent in any way other than making sure they don’t upset the apple cart too much (can’t have any fundamentally government-altering, though correct, decisions) and mostly skew towards giving the government more power.

    1. Citizens United, for example.

      1. What part of “mostly” don’t you understand?

        1. Show mercy, Episiarch. Your opponent is merely a dimensionless point.

          1. Mercy is for the weak. There is no mercy in this dojo! Do you understand me Mr. Lawrence?!?

            1. Well, okay then. Women lamenting it is!

              1. Sweep the leg, ProL…SWEEP THE LEG!

                1. “Get a body bag man!”

                2. Put him in a body bag!

                  1. Late but right. I’ll take it.

        2. What part of “mostly” don’t you understand?

          The part that came after the overly broad generalization, “None of them are consistent in any way.”

    2. Exactly. As a good example, it has been over 60 years since FDR died and no court has come close to overturning the new deal stuff that the SC was bullied into OKing.

  3. The easiest way to resolve the apparent contradiction in Stevens’ rulings is to conclude that he actively protects speech he can see himself engaging in, and doesn’t protect speech he doesn’t see himself engaging in.

    He can imagine wanting to tell people about alcoholic beverages, but not saying “Fuck” on the Tonight Show.

    See how simple that was?

    If you just assume he’s a self-serving and hypocritical asshole, it all makes sense.

    1. I know it when I see it on Carson.

    2. That’s a workable theory Fluffy.
      My default position is that once a Justice has served on the court for 12 years, he gives in and just starts doing what the voices tell him to do.

      1. Put me on the Court, and I guarantee I’ll get more literal about the Constitution as I age, not less.

        I also will likely be one of the few, if any, justices never able to swing a majority his way.

        1. Me, I’d just vote the way I feel like (i.e. pro-freedom where that’s an option) and never write an opinion, so they could never criticize me.

  4. 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.

    Perfect example of one of the many problems with constitutional “scholars” and other so-called deep thinkers. I’ve read the First Amendment. Many, many times. It doesn’t say shit about skepticism and it “directs” very few things. Like “Congress shall make no law…” Asshole.

    1. I guess laws against threats, perjury, libel, copyright violation, disclosing classified information, fraud, false advertising, ….

      are all unconstitutional.

    2. So fraud, perjury, copyright violation, false advertising, death threats, disclosure of classified national security information, libel, slander, etc are all protected by the constitution.

      1. Copyright violation and treason are debatable. Punishing treason and copyright laws are both explicit Congressional powers, and so are in conflict with the first amendment. The first amendment is more recent, but on the other hand it doesn’t explicitly invalidate either power — you would think that if someone intended for an amendment to remove a power, they would, so such laws are defensible.

        As for the others, when the First Amendment was passed, the states still had the power to pass laws abridging speech. The incorporation doctrine may or may not fuck that up, depending on whether you consider prohibiting fraud, etc. a violation of “due process” or “privileges and immunities”.

      2. It says exactly what it says. Don’t shoot the messenger.

  5. The Censor! At last!

    Wait, you mean the other kind of censor? Now I’m offended.

  6. His scattershot approach to First Amendment cases is symptomatic, to me, of a Justice who focuses more on results than on principles.

    A typical Justice, in other words.

    First Amendment cases should fall into three parts, perhaps four (depending on how you count).

    The first part would be a consideration of whether the government action at issue falls within an enumerated power. If not, the decision can end there.

    The second part would be a recitation of the First Amendment.

    The third part would be a consideration of how, or perhaps whether, the government action at issue impacts on speech/the press/expression. This should be pretty binary – it either does or it doesn’t; the degree of impact is pretty irrelevant.

    The fourth part, where the action is, will be discussion of what the crucial word “abridging” means, and whether the impact of the statute abridges speech or not.

    About 90% of our current First Amendment jurisprudence is completely beside the point, and is little more than window dressing for government restrictions on speech.

    1. I see law is not much different from the art of differential diagnosis.

      1. I just make it up as I go along. Even in my scholarly work.

        1. I probably better say I’m kidding before someone takes me seriously and sends me a nasty e-mail. The truth is, I don’t make it up. Other people do it for me. Like judges.

    2. Out of curiosity, do you oppose the time/place/manner exceptions?

      1. Not in principle. It would depend on how part four, about what constitutes abridging, works out.

        1. Following your framework, by virtue of what granted power can Congress, on the federal level, or your jurisdiction, on the state level, impose time/place/manner restrictions?

  7. OK I’m sold. Stevens is worse than Moa Zedong. Don’t bother wrapping it up, I’ll just wear it home.

    Now give me a sliver of hope that the next guy won’t be worse? Can ya do that???
    Didn’t think so.

  8. If you just assume he’s a self-serving and hypocritical asshole, it all makes sense.

    That works almost as well for the rest of them, too, except once in a while Thomas will issue an opinion, like in the Ibuprofen strip-search case, that’s like his mother shouted at him to “Turn off that radio!” and he spitefully obeyed by asking the radio to marry him on their first date.

    1. That’s ibufuckingprofen. Technically.

  9. 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.)

    That’s a strawman argument. The real distinction is not the method of broadcasting, but whether the viewer is paying to see the content. Stuff he’s getting for free is public expression and therefore subject to certain laws governing public expression. Stuff he’s paying to see is private expression and if he has a problem with it, he can complain to the company and/or cancel his subscription; private expression is a private problem. If you didn’t want to see that crap, why’d you go subscribing to cable TV?

    It’s kind of like the difference between public nudity and a strip show. If two faggots are banging each other up on a parade float (as they very often do, incidentally) you have every right and reason to complain to the police, and the cops have every right and reason to arrest and fine the hell out of those cocksuckers’ asses. If, on the other hand, you go to a well-known strip joint (The Manhole) and pay the five-dollar cover charge at the door and then go crying to the police that you’re offended because you saw those faggots from the parade float going at it up on stage, the police have every right and reason to laugh you out of the station with a “If you didn’t want to see those faggots going at it, why’d you go to a gay strip club, homo?”

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