UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.1FALL 1978
COMMENTS
A Case for Judicial Balancing: Justice Stevens and the First Amendment
Richard G. Birinyi
The Supreme Court's approach to first amendment adjudication is an amalgam of several distinct doctrinal developments.(fn1) Government may regulate "political speech" if it is inciteful;(fn2) commercial speech if the governmental interest outweighs the speaker's interest;(fn3) and obscenity, because it is not speech entitled to first amendment protection.(fn4) The Court's opinions, however, fail to enunciate a comprehensive theory of first amendment analysis,(fn5) thus obscuring the underlying issues and producing inconsistent results.(fn6) In obscenity cases the Court uses the non-speech concept, or categorization technique, to avoid first amendment analysis by placing the speech wholly outside of constitutional protection.(fn7)
Justice John Stevens, the newest member of the Court,(fn8) has attempted to reconcile emerging doctrines in several first amendment areas and develop a more consistent approach to first amendment issues. This comment discusses four of Justice Stevens's opinions that analyze first amendment issues. Two dissenting opinions in Splawn v. California(fn9) and Smith v. United States(fn10) deal expressly with obscenity, and reject the Court's present method of analysis. Young v. American Mini Theatres, Inc.(fn11) and Federal Communications Commission v. Pacifica Foundation(fn12) both develop a balancing approach to ascertain the constitutionality of government regulation of nonobscene offensive speech. The comment concludes that Justice Stevens correctly identifies the factors necessary to insure proper Court protection of speech interests.
Under the Federal Constitution, the first amendment provides the fundamental guarantee for freedom of expression.(fn13) Although the Court has rarely articulated the values underlying freedom of expression,(fn14) many commentators have attempted to provide clear statements of these values.(fn15) Alexander Meiklejohn, one of the most articulate, states that the first amendmentprotects the freedom of those activities of thought and communication by which we "govern." It is concerned, not with a private right, but with a governmental responsibility.
. . . But in the deeper meaning of the Constitution, voting is merely the external expression of a wide and diverse number of activities by means of which citizens attempt to meet the responsibilities of making judgments, which that freedom to govern lays upon them. . . . Self-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare, that in theory, casting a ballot is assumed to express.(fn16)
Under this
formulation the first amendment mandates almost absolute protection for speech
directly related to the political process. As the degree of attenuation between
the speech and the political process increases, the constitution allows a
greater level of governmental regulation. All expression, however, contributes
incrementally to the cultural development of the nation and should be entitled
to some, if not total, first amendment protection.(fn17)
The Court's interpretation of the first amendment developed during the last sixty years(fn18) against a strongly asserted societal interest in controlling those types of speech enunciating unorthodox, harmful, or immoral views.(fn19) The first amendment thus guarantees individual liberties despite society's interest in controlling speech. The Court, however, has held that the first amendment does not protect all forms of speech. For certain classes of speech the Court achieves this result by declaring that the form of expression is not speech. Thus, the Court's unarticu-lated judicial premise that the speech does not further the political process permits government suppression of certain speech, even though it does serve first amendment values.
The first use of the categorization analysis occurred in Chaplinsky v. New Hampshire,(fn20) which held that "fighting words" were not entitled to constitutional protection.(fn21) In subsequent cases the Court expanded on Chaplinsky's dicta and excluded other types of speech from first amendment protection.(fn22) In other classes of speech the Court permits government regulation based upon judicial balancing of competing values. Political speech, for example, enjoys more protection than commercial speech because it more clearly serves first amendment values and government has a lesser interest in controlling it.(fn23) Once the Court classifies the speech, however, it applies the doctrines of that particular area of speech, often failing to consider decisions from other contexts.(fn24)
The Court's failure to develop a comprehensive approach to first amendment adjudication is most obvious in the obscenity area.(fn25) Here the Court relies exclusively on a categorization analysis. Roth v. United States,(fn26) the Court's landmark obscenity opinion, marks the beginning of a line of cases that attempt to define obscenity. Roth necessitated a constitutional definition of obscenity because, in addition to holding obscenity to be nonspeech and not entitled to first amendment protection, the Court held nonobscene material was speech protected by the first amendment.(fn27) Although the Court has abandoned this speech/nonspeech distinction in other areas,(fn28) it refuses to do so in the obscenity context. This refusal prevents comprehensive first amendment adjudication and preserves the artificial categorization analysis. Justice Stevens's initial obscenity opinions, however, point the way toward a more comprehensive first amendment analysis.
In Splawn v. California(fn29) the Court reviewed a prosecution for the sale of an obscene film.(fn30) The trial court instructed the jurors that they could consider evidence concerning the film's sale and distribution in determining obscenity.(fn31) Justice Rehnquist, writing for the majority, relied exclusively on two obscenity cases, Hamling v. United States,(fn32) and Ginzburg v. United States,(fn33) in rejecting the first amendment challenge. Identifying a distinct area of first amendment jurisprudence he wrote: "There is no doubt that as a matter of First Amendment obscenity law, evidence of pandering to prurient interests in the creation, promotion, or dissemination of material is relevant in determining whether material is obscene."(fn34) The majority did not consider any commercial speech cases in framing its opinion.
In Ginzburg the court held that evidence of advertising or pandering of otherwise nonobscene material could justify finding the material involved obscene. The trial court had considered evidence of pandering and convicted the defendant under a federal obscenity statute.(fn35) The Court held "'[w]here the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. "(fn36) The opinion's rationale rested not on the offensive character of the advertising involved, but on the possibility the public would misuse the information.(fn37) Thus, Ginsburg employed a paternalistic approach resting on the Justices' beliefs of how the information would affect the public.
In Virginia Pharmacy Board v. Virginia Consumer Council,(fn38) however, the Court rejected the premises of the paternalistic approach. In Virginia Pharmacy, the Court held a state ban on advertisng prescription drug prices unconstitutional. Justice Blackmun's majority opinion recognized that the public needs free access to information to make informed decisions.(fn39) The state's interest in maintaining pharmacists' professional standards was insufficient to justify closing the channels of communication, and the ban ultimately protected pharmacists' economic interests by keeping the public ignorant. The Court, focusing on the public's right to receive information, concluded: There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and the best means to that end is to open the channels of communications rather than close them. . . . It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.(fn40)
Justice Stevens dissented in Splawn because he thought commercial speech cases should determine the decision. He noted that in Virginia Pharmacy the Court held truthful advertising protected notwithstanding its commercial character. This principle, he felt, precluded the majority's limited analysis in Splawn because the trial court's instructions(fn41) allowed the jury to find the material obscene solely on the basis of truthful, nonoffensive advertising, which in effect bans such advertising.(fn42) Allowing evidence of advertising in obscenity prosecutions has a chilling effect because sellers of nonobscene material may forego advertising to avoid criminal prosecution even though Virginia Pharmacy protects such advertising. Justice Stevens concluded that Virginia Pharmacy implicitly overruled Ginzburg.(fn43)
Justice Stevens correctly recognizes that the majority's...
