Justice Souter and the First Amendment

This article is part of an online symposium on the First Amendment Center Online titled Justice Souter & the First Amendment.

Justice David Hackett Souter — a man who rose from relative national obscurity in New Hampshire to become a U.S. Supreme Court justice — has made his mark in many areas of First Amendment jurisprudence. The Harvard Law School graduate and Rhodes scholar, who replaced Justice William Brennan on the high court and is now poised to retire himself, has penned key opinions in the areas of the establishment clause, campaign finance, secondary effects, freedom of association, public employee speech and more.

Establishment clause
Souter has been prolific in writing opinions about the first 10 words of the First Amendment — “Congress shall make no law respecting an establishment of religion.” He believes that the clause erects a fairly high wall of separation between church and state. Souter dissented in Rosenberger v. Rector & Visitors of the University of Virginia (1995), a case in which the 5-4 majority ruled that a public university committed viewpoint discrimination in refusing to fund a student Christian publication. The majority viewed the decision as a classic form of viewpoint discrimination by subjecting certain religious speech to second-class treatment. However, Souter saw the case much differently, writing: “The Court today, for the first time, approves direct funding of core religious activities by an arm of the State. … Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money.”

Souter also dissented in the Court’s sharply divided ruling Zelman v. Simmons-Harris (2002), in which the Court upheld by a 5-4 vote an Ohio school-voucher program designed as an alternative to Cleveland’s failing public schools. “The record indicates that the schools are failing to serve their objective, and the vouchers in issue here are said to be needed to provide adequate alternatives to them,” Souter wrote. “If there were an excuse for giving short shrift to the Establishment Clause, it would probably apply here. But there is no excuse. Constitutional limitations are placed on government to preserve constitutional values in hard cases, like these.” He even accused the majority of “overruling Everson” — the Court’s landmark 1947 decision in Everson v. Board of Education, in which the Court extended the establishment clause to state and local governments and explained the central meaning of the provision. In Everson, Justice Hugo Black wrote that the wall of separation between church of state “must be kept high and impregnable.”

Dissents aren’t the only opinions Souter has written in establishment-clause cases. He authored the Court’s main opinion in McCreary County v. American Civil Liberties Union (2005), which found that Ten Commandments displays in two Kentucky courthouses violated the principle of church-state separation. “This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual,” he wrote.

Earlier this year, Souter wrote a concurring opinion in Summum v. Pleasant View, a case involving whether a city in Utah must accept a religious group’s monument for placement in a public park. The case came to the Court as one about the government-speech doctrine, not as an establishment-clause case. But Souter recognized that the Court must eventually reconcile the government-speech doctrine and the principle of church-state separation, writing: “It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis.”

Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, says that Souter sees himself as a guardian of religious freedom. “During his confirmation hearings, he made statements about separation of church and state that were quite at variance” with conventional conservative interpretation of religious-liberty principles.

Campaign finance
One of the more interesting areas of First Amendment jurisprudence concerns what limits Congress can place on campaign finance. Supporters of regulation contend limits are necessary to prevent corruption or the appearance of corruption. Detractors contend that regulation of campaign contributions and spending infringe on political free-speech rights. Justice Souter authored several opinions in this area of First Amendment law, generally supporting limits on political contributions.

Souter wrote the Court’s opinion in Nixon v. Shrink Missouri Government (2000), in which the majority upheld Missouri’s limits on political contributions in state races. More generally, Souter has approved of the Court’s differential treatment of political contributions from campaign spending that have occurred since the landmark Buckley v. Valeo (1976) decision. In his majority opinion in Shrink, Souter contended that the test for whether a limit on political contributions was constitutional was “whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”

He wrote a dissenting opinion in Randall v. Sorrell (2006), in which the Court struck down campaign-finance restrictions in Vermont. Though the state had relatively low contribution limits, Souter believed they did not violate the First Amendment. “To place Vermont’s contribution limits beyond the constitutional pale, therefore, is to forget not only the facts of Shrink, but also our self-admonition against second-guessing legislative judgments about the risk of corruption to which contribution limits have to be fitted.”

Secondary-effects doctrine
Souter also played a key role in the development and expansion of the secondary-effects doctrine. In a concurring opinion in Barnes v. Glen Theatre (1991), Souter reasoned that government officials could regulate nude dancing because of the harmful, secondary effects associated with such expression — such as increased crime and decreased property values. Souter’s opinion extended the doctrine from its traditional application in land-use zoning cases to direct regulations on the content of erotic expression. Souter’s concurrence became the model for municipalities across the country, which sought to justify restrictions on adult entertainment not on moral grounds but on the secondary-effects doctrine.

Nearly 10 years later in City of Erie v. PAP’s A.M. (2000), Souter wrote a dissenting opinion in which he retracted his earlier position to a certain extent: “I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late.”

Public-employee speech, free association, arts
Souter wrote opinions in many other areas of First Amendment law. He dissented from the Court’s ruling in Garcetti v. Ceballos (2006), in which the majority of the Court limited public-employee speech by eliminating protection for speech made pursuant to official job duties. Souter disagreed, finding “there is no good reason for categorically discounting a speaker’s interest in commenting on a matter of public concern just because the government employs him.”

Souter also wrote in the area of freedom of association. He authored the opinion for a unanimous Court in Hurley v. Irish-American Gay, Lesbian and Bi-Sexual Group of Boston (1995), in which the justices recognized the First Amendment rights of parade organizers to exclude groups with a different message. “Disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including ones more acceptable to others,” he wrote. However, Souter dissented in Boy Scouts of America v. Dale (2000) when the Court ruled that the Boy Scouts had a First Amendment right to exclude an assistant leader because of his sexual orientation.

Perhaps the starkest evidence of Souter’s commitment to First Amendment principles came in his solitary dissent in National Endowment for the Arts v. Finley (1998) in which the Court rejected a First Amendment challenge to a federal law requiring that the NEA take into account “general standards of respect and decency” before awarding grants to artists. “He insisted upon scrupulous application of the doctrine of unconstitutional conditions in First Amendment rights,” said O’Neil. “That is why he took that lone position in NEA v. Finley with respect to federal grants to individual artists.”

“He was a worthy successor to Brennan in the First Amendment area,” O’Neil says. “He carried that mantle quite effectively and consistently.”

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