1976. Young v. American Mini-Theatres, Inc. (1)
Detroit imposes special zoning restrictions on adult movie theaters. "If the theater is used to present 'material distinguished or characterized by an emphasis on matter depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas,'" it is an adult establishment." (2) This is broader than regulable obscenity, and clearly content-based. Can it be saved?
"The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech," writes Justice Stevens for a plurality. (3) He continues:
Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice. (4) True, no? 1978. FCC v. Pacifica Foundation (5)
George Carlin's Filthy Words (or seven dirty words) routine was broadcast on the radio, and the FCC issued a declaratory order to be associated with the radio station's file. The language was patently offensive and indecent and as such worthy of a demerit under federal law.
For a plurality, Justice Stevens again pulls no punches: "The order must ... fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution." (6) That much seemed clear; all of the low-value categories of speech allow regulation based on content (subject to what we might call categorical or definitional balancing tests). Since Carlin's words did not fit within any recognized low-value category, the task for the Court was harder. Two factors led to the plurality's conclusion that the administrative order was constitutional: "the broadcast media have established a uniquely pervasive presence in the lives of all Americans"; (7) and "broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message ["Fuck the Draft"] (8) might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant." (9)
Despite contemporaneous and subsequent critique that this view played too fast and loose with established First Amendment doctrine, the Pacifica holding remains good law, and stands as an excellent example of Justice Stevens' willingness to examine speech content, measure its value against its harm, and engage in a common law judge's best trait, context-specific reasoning.
1982. UNITED STATES V. LEE (10)
For religious reasons, the Amish provide for their own elderly, and believe they should be exempt from the social security tax and benefits system. The Court majority declares, "The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest." (11) The government interest in the social security system is high, and "it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs." (12)
Concurring in the judgment, Justice Stevens agrees that the Free Exercise Clause requires no exemption, but for a quite different reason. First of all: "The Court overstates the magnitude of this risk because the Amish claim applies only to a small religious community with an established welfare system of its own." (13) Strict scrutiny isn't the right standard here, maintains Justice Stevens. He writes:
[A] standard that places an almost insurmountable burden on any individual who objects to a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes) better explains most of this Court's holdings than does the standard articulated by the Court today. (14) He adds: [T]he principal reason for adopting a strong presumption against such claims is not a matter of administrative convenience. It is the overriding interest in keeping the government--whether it be the legislature or the courts--out of the business of evaluating the relative merits of differing religious claims. The risk that governmental approval of some and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude. (15) Eight years later, in Employment Division v. Smith, (16) Justice Stevens' position becomes the official view of the Court regarding Free Exercise Clause exemptions.
1989. TEXAS V. JOHNSON (17)
The Court holds 5-4 that the state may not criminally prosecute Gregory Johnson for burning the American flag in public as an act of political protest. At least it may not do so under Texas' "Desecration of a Venerated Object" statute, which focuses the jury's attention on whether Johnson knew that his action would seriously offend one or more persons.
Justice Stevens--Lieutenant Commander, United States Navy; Bronze Star, codebreaking team--dissenting, would take this case out of standard Free Speech Clause doctrinal analysis:
The question is unique. In my judgment rules that apply to a host of other symbols, such as state flags, armbands, or...