Burger’s birthday: his rulings shaped First Amendment law

Today, Constitution Day, is also the birthday of former U.S. Supreme Court Chief Justice Warren Burger, whose Court was actively engaged in First Amendment law.

Burger, born Sept. 17, 1907, in St. Paul, Minn., served for 17 years as chief justice after President Richard Nixon appointed him to replace the retiring Earl Warren in 1969. Burger had served since 1955 as a judge on the U.S. Court of Appeals for the District of Columbia.

Modern First Amendment jurisprudence owes much to the Burger Court. Many important legal tests were developed during his time on the Court. Chief Justice Burger authored the majority opinions that creating tests for determining when a law violates the establishment clause and when material is obscene.

In Lemon v. Kurtzman (1971), Burger created what came to be known as the “Lemon test” for laws involving religion. Burger explained: “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.’”

Burger also wrote the Court’s majority opinion in Miller v. California (1973) — still the Court’s seminal obscenity decision. He said juries in obscenity cases should have “guidelines,” which came to be known as the “Miller test.” Under these guidelines, the material in question must appeal predominately to a prurient (morbid or shameful) interest in sex, describe sexual matters in a patently offensive way and have no serious literary, artistic, political or scientific value.

Burger wrote passionately against gag orders against the press in Nebraska Press Association v. Stuart (1976), proclaiming that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

In his last opinion on the Court — July 7, 1986 — Burger wrote the majority opinion in a student-speech case, Bethel School District v. Fraser (1986), ruling that public school officials could prohibit student speech that is vulgar and lewd. The decision curtailed the free-speech rights of public school students. Burger said that “the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

Warren Burger not only made an important impact on First Amendment law, but he also contributed greatly to the modernization of judicial administration.The Washington Post wrote in a June 27, 1995, editorial two days after his death: “Apart from his role in important rulings, he will be remembered as well for having contributed greatly to the modernization and improved administration of the nation’s courts — a particular and worthy he developed in the course of his service.”

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