When Justice Stevens Failed the First Amendment

>That retiring Justice John Paul Stevens is leader of the Supreme Court's (more or less) liberal wing is practically a cliché.  The Alliance for Justice summarizes the prevailing liberal view of Stevens as an "unparalleled champion of the Constitution," including among his achievements his "eloquent" defense of "individual liberties."  But, in fact, Stevens has a mixed record on core First Amendment freedoms; and the paucity of attention it has received from the left raises questions about liberalism's declining commitment to fundamental speech and associational rights.

In Texas v Johnson, Justice Stevens dissented from a landmark decision striking down a state law that criminalized flag desecration. In FCC v Pacifica Foundation, he wrote the majority opinion in a notorious, highly consequential ruling empowering the FCC to sanction "indecent" radio broadcasts, in response to complaints about George Carlin's classic "seven dirty words" monologue.  (Stevens tried qualifying this decision in a too little, too late dissent in Fox v FCC.)  He concurred in U.S. v Williams, upholding a federal criminal law including prohibitions on false advertisements for virtual child porn.  He dissented in Boy Scouts of American v Dale, a ruling upholding the private associational rights of the Scouts to exclude gay people.  And, most recently, he dissented vigorously (from the bench) in Citizens United v FEC, the hotly contested five to four decision striking down bans on independent expenditures by corporations.

The Citizens United case is complicated, as well controversial, even among some traditional free speech advocates, and I've already discussed it here; so, without diminishing it's importance in protecting core political speech, I'll put it aside in this assessment of Stevens's First Amendment record.  I've discussed the issues in BSA v Dale and the liberal tendency to elevate anti-discrimination policies over First Amendment rights here.  I've discussed U.S. v Williams here and here and FCC v Pacifica here.  For now I'll focus mainly on the simplest, clearest case pitting Stevens against the First Amendment -- Texas v Johnson.
Gregory Lee Johnson torched an American flag during a non-violent protest of the Republican National Convention in Dallas, in 1984.  He was convicted and sentenced to one year in prison under Texas law for desecrating a "venerated object."  For free speech advocates, this was a very easy and very important case that tested the limits of peaceful political protests: Johnson's was engaged in "expressive conduct," the state of Texas conceded.  His protest did not entail, encourage, or cause a breach of the peace (it's only casualty was one mass produced flag).  So the state relied on the offensiveness of flag burning (described by a few "seriously offended" witnesses) as one justification for criminalizing it.  Conservatives who have long derided liberal efforts to punish speech that seriously offends liberal sensibilities should recognize this effort to protect onlookers from offensive flag burnings as mere political correctness.

The state also argued that it had an interest in "preserving the flag as a symbol of nationhood and national unity."  (In other words, flag burning is not a minor violation of political correctness but a major one.)  But the court rejected this "national unity" argument in 1943, in  West Virginia v Barnette, when it recognized the fundamental right of school children not to salute the flag.  Barnette offered a famously eloquent defense of freedom of conscience that Stevens tried, unconvincingly, to distinguish from the freedom at issue in the flag burning case.

You don't need a law degree to understand that a symbol is not more sacred than the ideals it represents.  Indeed, when you desecrate a flag, you testify to the liberty for which it stands.  Stevens acknowledged that allowing desecration of the flag could enhance its power as a symbol of freedom, but he believed instead that "public desecration of the flag would tarnish its value."  He characterized the burden on free speech of a flag desecration ban as trivial, ignoring the fact that Johnson was sentenced to a year in jail for violating it.

What is perhaps most striking about Stevens's dissent is its emotionalism.  He did not approach the flag burning protest judiciously or logically; he reacted to it like a man deeply offended, a veteran who could not countenance desecrating a symbol under which he'd fought.  His opinion in FCC v Pacifica was similarly flawed.  In considering George Carlin's right to satirize our phobias about "dirty words," Stevens acknowledged that offensiveness "is not a sufficient reason for suppressing" speech; then only a couple of paragraphs later, he upheld the sanctioning of Carlin's speech precisely because it was "patently offensive."  Stevens's feelings about exposing children to "dirty words" on the radio, like his feelings about flag burning, seem to have overpowered his logic.

You can sympathize with his feelings in both or either of these cases and still be thankful that in Texas v Johnson, at least, the reasoning of five other justices prevailed.  Had Stevens succeeded in persuading one more justice to join him in allowing a ban on flag burning, he would have succeeded in qualifying one of our essential, foundational freedoms -- the right to reject the nation's most fiercely held orthodoxies.

I am not suggesting that judges should approach cases without emotion, even if they could:  any judge who claims that his sympathies play no role in his conclusions is lying or utterly lacking in self-awareness.  I am not denigrating empathy, which as Dahlia Lithwick (one of my favorite legal commentators) and Sonja West observe helped make Stevens a "great Justice." And I'm not disputing his many virtues or his guardianship of important fundamental rights and liberties (to which others have attested).  But empathy does not always favor liberty.  Indeed, it often disfavors free speech.

Preserving the right to indulge in profoundly offensive or hateful speech requires a tough skin and a hard heart.  When neo-Nazis propose parading through a community of Holocaust survivors, liberty demands that we elevate their First Amendment rights over the feelings of survivors.  When the homophobic Fred Phelps organizes protests outside of military funerals, liberty requires that we protect his First Amendment rights too, despite the viciousness with which he exercises them.

The desire to punish or prohibit cruelties like this is understandable, of course, but courts are charged with protecting rights, not feelings; if that sounds cold to you, consider whether you want the government tending to your emotional life.  Your feelings are your business, and the Constitution protects your right to protect express them, no matter how badly your expressions makes others feel.  Stevens, no doubt, understood this principle, but he did not always abide by it.

I'm not suggesting that he was hostile to First Amendment rights; he was, in other cases, their staunch defender.  Stevens "wrote passionately about restrictions on Internet indecency, the expansion of anti-adult-business zoning, the protection of commercial speech and numerous other subjects," David L. Hudson writes at the First Amendment Center, listing the Justice's "Top Ten in First Amendment Jurisprudence."  But this jurisprudence was not entirely reliable.  Stevens's failures in key First Amendment cases -- notably Texas v Johnson and FCC v Pacifica -- were failures to protect rights instead of feelings. For free speech advocates, his legacy is complex, and cautionary.