Justice Potter Stewart knew the First Amendment ‘when he saw it’

Justice Potter Stewart

Justice Potter Stewart. 92nd Associate Justice of the United States Supreme Court. (Library of Congress, Prints & Photographs Division)

Reader’s note: This is another in a series on the First Amendment record of U.S. Supreme Court justices.

Potter Stewart served with distinction on the U.S. Supreme Court from 1958 until his retirement in 1981. During that time, he authored many important opinions dealing with freedom of expression. Former colleague Chief Justice Warren Burger eulogized that Stewart “was concerned about the First Amendment, particularly free speech and freedom of the press.”

Stewart’s appreciation for First Amendment principles ranged across issues such as obscenity, subpoenas of reporters, civil rights protests, zoning of adult businesses and freedom of assembly on public streets.

Stewart once lamented that he was best known for one particular clause in his short concurring opinion in an obscenity case: “I know it when I see it,” in Jacobellis v. Ohio (1964). Nico Jacobellis, the manager of a motion picture theatre, earned an obscenity conviction for showing the French film Les Amants (“The Lovers”).

The Court reversed the conviction, but differed in its reasoning. Stewart believed that obscenity prosecutions should be reserved for the hardest of hard-core pornography. But, he acknowledged that it was hard to draw the line between unprotected obscenity and protected speech: Under the First [Amendment], criminal laws in this area are constitutionally limited to hard-core pornography.

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that

Perhaps Stewart’s greatest contribution to First Amendment jurisprudence was in the area of freedom of the press. In Branzburg v. Hayes (1972), the Court addressed whether reporters had a constitutional privilege that allowed them to avoid a grand jury subpoena. The plurality opinion ruled that there was no such privilege.

Stewart authored a dissenting opinion that required prosecutors meet a high burden before forcing reporters to testify before grand juries. His dissenting opinion became the blueprint for numerous state reporter shield laws. In his opinion, Stewart explained the importance of First

News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist, he said.

Stewart wrote the Court’s opinion in Edwards v. South Carolina (1963), reversing the breach-of-the-peace convictions of 187 African-American students. The students had participated in a planned march from a local church to the statehouse in Columbia. They carried signs bearing messages such as “Down with Segregation” and chanted religious hymns. The protestors were peaceful during the entire process until being arrested.

Stewart emphasized the peacefulness of the protestors and emphasized that people should not be punishing simply for advancing views critical of governmental policies or laws. He wrote:

“The Fourteenth Amendment [which extends the First Amendment free-speech clause to the states] does not permit a State to make criminal the peaceful expression of unpopular views.”

Stewart believed that the Court should be consistent in its application of First Amendment principles. He felt that many of his colleagues abandoned their commitment to such principles in the adult business zoning case of Young v. American Mini Theater (1976).

The city of Detroit had amended its anti-Skid Row ordinance to limit the location of adult-oriented businesses. City leaders wanted to avoid the creation of a red-light district that would decrease property values and increase crime. Five members of the Court voted to uphold the law from First Amendment challenge and several emphasized that the speech at issue was a form of low value speech.

Stewart adamantly disagreed with the idea that a law targeting businesses because of their unpopular expression or expressive conduct should be subject to a lower form of judicial review. He abhorred the idea of low-value speech, writing:

By refusing to invalidate Detroit’s ordinance the Court rides roughshod over cardinal principles of First Amendment law, which require that time, place, and manner regulations that affect protected expression be content neutral except in the limited context of a captive or juvenile audience.

Stewart wrote the Court’s opinion in Coates v. City of Cincinnati (1971), reversing the disorderly conduct convictions of several individuals who were arrested for allegedly engaging in annoying conduct. The ordinance in question prohibited three or more persons from assembling together on a public street and “conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings.”

Stewart reasoned that this law was too vague and too broad. On the vagueness question, he utilized his gift for pithily identifying the problem with the ordinance: Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.

Leave a Reply

Your email address will not be published. Required fields are marked *