Will Roberts Court flip Burger precedents?

Modern First Amendment jurisprudence owes much to the Burger Court — the period the U.S. Supreme Court was headed by Chief Justice Warren E. Burger from 1969 until his retirement in 1986. During that time, the Court articulated numerous tests for determining whether certain types of expression qualified for free-speech protection or whether government regulations crossed the line separating church and state, thus violating the establishment clause.

Amazingly, decades later many of these leading legal standards still control in First Amendment analyses. These include the Lemon test for the establishment clause, the Central Hudson test for commercial speech and the Miller test for obscenity. Chief Justice Burger authored two of the majority opinions (Millerand Lemon) that produced these tests.

While these standards survived the Burger Court and that of his successor, Chief Justice William Rehnquist, what is the outlook for their continued viability under the Court led by Chief Justice John Roberts?

Lemon test

Perhaps the most likely Burger Court test to fall into oblivion is the oft-criticized (and, according to some, aptly named) Lemon test from Chief Justice Burger’s majority opinion in Lemon v. Kurtzman (1971). In Lemon, Burger wrote: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster ‘an excessive government entanglement with religion.’” For years, the Lemon test featured these three prongs — the purpose prong, the effects prong and the entanglement prong.

The Lemon test has had its defenders, including Justice Lewis Powell who, writing in Wallace v. Jaffree (1985), called it “the only coherent test a majority of the Court has ever adopted.” However, application of the Lemon test has led to a dizzying array of inconsistent results. Sometimes the Court has upheld aid to religion and sometimes it has not. Sometimes religious displays have been upheld and sometimes they have been invalidated.

Chief Justice Rehnquist believed the Lemon test was not a useful precedent and that the Court should focus more on history and tradition. Most famously, Justice Antonin Scalia denounced the Lemon test in his concurring opinion in Lamb’s Chapel v. Center Moriches Union Free School District (1993), writing: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again … . I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced.”

Some justices have proposed different tests and principles for establishment-clause cases. Justice Sandra Day O’Connor (who retired in 2006 after joining the Court in 1981 while Burger was chief justice) proposed the endorsement test in Lynch v. Donnelly (1984); Justice Anthony Kennedy proposed the coercion test in Allegheny County v. ACLU (1989); and Rehnquist several times advocated what he at times called “neutrality.” The Court in Agostini v. Felton (1997) folded the entanglement prong into the effects prong. However, theLemon test has not been buried, as a majority of the Court seemingly cannot agree on another unifying principle in church-state separation cases. Thus, for at least the time being, the 9th U.S. Circuit Court of Appeals’ assessment in Access Fund v. United States Department of Agriculture (2007) appears correct: “The Lemon test remains the benchmark to gauge whether a particular government activity violates the Establishment Clause.”

Some believe that recent changes in the Court’s composition on the Roberts Court could hasten the demise of Lemon. For instance, renowned constitutional law scholar Erwin Chemerinsky said: “I think the place in religion where we are going to see the change is the Establishment Clause, because I think here we now have five votes — Roberts, Scalia, Kennedy, (Clarence) Thomas and (Samuel) Alito — to allow much more government aid of religion, to allow much more religious involvement in government, and to overrule the (Lemon) test that’s controlled the Establishment Clause since 1971.” Chemerinsky spoke at the Pepperdine Law Review 2006 symposium “The Rookie Year of the Roberts Court & a Look Ahead,” as reported in the law review’s 2006-2007 volume.

In September 2005, the last two decisions of the Rehnquist Court — Van Orden v. Perry and McCreary County v. ACLU of Kentucky — involved the constitutionality of Ten Commandment displays. O’Connor voted that both displays were unconstitutional. Both decisions were 5-4, with the Court narrowly ruling the display in a Texas public park in the Van Orden case constitutional and the displays in the McCreary County case in Kentucky county courthouses unconstitutional. If Alito, who succeeded O’Connor, votes differently than O’Connor did on church-state separation cases, much establishment-clause jurisprudence hangs in the balance. This could mean thatLemon is living on borrowed time.

The Central Hudson test

In 1976, the U.S. Supreme Court explicitly ruled that commercial speech (i.e., advertising) was entitled to First Amendment protection, writing in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council that the consumer’s interest in advertising may be “as keen, if not keener by far,” than interest in pressing political matters. However, in its 1980 decision Central Hudson Gas & Electric v. Public Service Comm’n of NY, the Court lowered the level of First Amendment protection for commercial speech. The so-calledCentral Hudson test first provided that the commercial speech must concern lawful activities and must not be misleading. In other words, false advertising can be freely regulated by the government. However, if the speech crosses this threshold prong, then the government must assert a substantial interest in its advertising regulation, its regulation must directly and materially advance its interest, and the regulation must be narrowly drawn.

Over the years legal commentators — such as 9th Circuit Judge Alex Kozinski — have criticized the Court’s second-class treatment of commercial speech vis-à-vis political speech. Several justices also have criticized Central Hudsonthrough the years. Justice John Paul Stevens, who is the only current justice who was on the Court when it ruled in the case, never seemed to fully embrace the Central Hudson test. He concurred in the result in Central Hudson but warned in his separate opinion that “it is important that the commercial speech concept not be defined too broadly lest speech deserving of greater constitutional protection be inadvertently suppressed.” Perhaps the most forceful critic has been Justice Thomas, who wrote in his concurring opinion in 44 Liquormart v. Rhode Island: “I do not see a philosophical or historical basis for asserting that commercial speech is of lower value than noncommercial speech.” Justices Scalia, Kennedy and Ruth Bader Ginsburg also have expressed doubts about Central Hudson. O’Connor recognized her colleagues’ concerns in her opinion in the tobacco-advertising case Lorillard Tobacco Co. v. Reilly (2001) when she wrote: “Admittedly, several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases.”

However, these justices have never joined together in a majority opinion and called for the abandonment of Central Hudson. Commercial speech remains protected to a lesser degree than political speech in First Amendment jurisprudence, and that may not change for the foreseeable future. More likely, the Roberts Court will continue the trend of the Rehnquist Court and subject advertising restrictions to a rigorous Central Hudson analysis.

The Miller test

The Miller test remains the dominant test for determining whether hard-core sexual expression qualifies as obscenity — a longtime categorical exception to the First Amendment. In Miller v. California (1973), Chief Justice Burger wrote an opinion establishing “guidelines” for jurors in obscenity cases. These “guidelines” became the Miller test, which requires jurors to ask whether a contested work appeals to the “prurient interest,” describes sexual or excretory material in a patently offensive way and has no serious literary, artistic, political or scientific value. Justice William Brennan — who ironically wrote the Supreme Court’s first obscenity opinion in Roth v. United States (1957) — later changed his mind on obscenity and dissented in Miller and Paris Adult Theatre I v. Slaton, an obscenity case decided the same day as Miller. Brennan wrote in his dissent in Paris Adult Theatre I that the “outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments.”

The first two prongs of the Miller test — prurient interest and patently offensive — require jurors to consider “contemporary community standards.” In the age of the Internet, the debate continues as to whether local community standards should be abandoned in favor of a national standard. Burger famously wrote in his Miller opinion: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” Justices O’Connor and Steven Breyer called (to different degrees) for the adoption of national standards for regulation of harmful material on the Internet in Ashcroft v. ACLU (2002), a case involving an online harmful-to-minors law called the Child Online Protection Act.

Miller, however, has not faced the same level of judicial criticism as Lemon andCentral Hudson. Rather, the Miller test appears healthy and shows no signs of heading to the legal dustbin of history.

The Miller, Central Hudson and Lemon tests remain valid authority in First Amendment jurisprudence until their outright repudiation. Only time (and future Supreme Court appointments) will tell how they fare in the Roberts Court era.

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