‘Famous Footnotes’ step up in important First Amendment cases

A few footnotes in United States Supreme Court history have left large footprints on the development of legal doctrine, including First Amendment cases.

Most notably, Footnote Four of a case about the regulation of skimmed milk1 has been called the most influential footnote in history with its recognition that greater judicial scrutiny may be required for laws impacting individual rights and “discrete and insular minorities.”2

Similarly, Footnote Eleven in Brown v. Board of Education3 is significant for its reliance on social science research, including the famous doll study showing the devastating impact of segregation on the minds of young children.4

While one notable federal appellate judge has called them abominations5, footnotes remain a consistent presence in judicial opinions.6 There also have been many important footnotes in the Supreme Court’s First Amendment jurisprudence.  While perhaps not approaching the significance of the “Famous Footnote Four,” the following four footnotes in First Amendment cases have contributed to mightily to First Amendment jurisprudence, impacting the secondary effects doctrine, the commercial speech doctrine, the reaches of libel law, and the free-expression rights of corporations.

Footnote 34 of Young v. American Mini Theatres7

In Young, the U.S. Supreme Court examined the constitutionality of an amendment to Detroit’s Anti-Skid Row Ordinance that regulated the location of adult theatres.  The city sought to disperse the businesses, prohibiting them from locating within 500 feet of another theatre.   The ordinance clearly discriminated on the basis of the content of the adult movies and seemingly should be subject to strict scrutiny.

But, in footnote 34 Justice John Paul Stevens introduced the concept of “secondary effects”, explaining that the purpose of the law was not to silence offensive expression, but to prohibit harmful adverse secondary effects associated with such businesses, such as increased crime and decreased property values.8   The Court’s decision inspired a passionate dissent from Justice Potter Stewart who accused the Court of “riding roughshod over cardinal principles of First Amendment law.”9

A decade later the secondary effects doctrine catapulted from a footnote to the primary justification for justifying the zoning of adult businesses.10  Under the secondary effects doctrine, seemingly content-based laws are treated as content-neutral under what the Court has admitted is “something of a fiction.”11   The secondary-effects doctrine remains a corrosive influence on First Amendment law. 12  And it all began in a footnote.13

Footnote 24 of Virginia Pharmacy Bd. v. Virginia Consumer Council, Inc.14

In 1942, the U.S. Supreme Court declared that advertising was not protected by the First Amendment.15  More than three decades later, the Court changed its mind and ruled that truthful commercial speech was entitled to First Amendment protection in a case involving the advertising of prescription drug prices.16   The Court declared that commercial speech was a form of speech deserving of protection, that consumers’ interests “may be as keen, if not far keener” in commercial speech than political speech.17

However, the Court was not willing to treat commercial speech the same as political speech. In footnote 24, the Court clarified that there are distinctions between commercial speech and other forms of noncommercial speech.  The two primary distinctions are that commercial speech is more verifiable and more durable than noncommercial speech.

While the second-class treatment of commercial speech has come under criticism18, it remains a reality that commercial speech still receives a reduced level of protection.19  The reasons given in footnote 24 of Virginia Pharmacy remain the justifications for its second-class treatment.

Footnote 19 of New York Times Co. v. Sullivan20

Times v. Sullivan remains one of the Supreme Court’s most celebrated First Amendment decisions.  Alexander Meiklejohn, then 92 years old, famously told another celebrated free-speech scholar Harry Kalven that the decision was “an occasion for dancing in the streets.”21

The decision authored by Justice William Brennan constitutionalized libel law, requiring public officials suing for libel to show by clear and convincing evidence that a defendant uttered false statements with actual malice – defined as acting with knowing falsity or reckless disregard.22  The decision not only changed libel law but it arguably saved the civil rights movement by protecting the press from chilling lawsuits designed to suppress press coverage.  Anthony Lewis noted that at the time of the Court’s decision there were claims totaling $300 million dollars brought in various libel suits against the press.23

Another important facet of Times v. Sullivan is that it recognized that at times false speech may be entitled to First Amendment protection.  In Footnote 19, Justice Brennan quoted the great British philosopher John Stuart Mill for the proposition that false speech may contribute as a result of “the clearer perception and livelier impression of truth, produced by its collision with error.”24   This principle remains a vibrant force in First Amendment law, as reflected by the Court’s decision invalidating the Stolen Valor Act.25

Footnote 15 of First National Bank v. Bellotti26

In First National Bank v. Bellotti, the U.S. Supreme Court addressed the First Amendment rights of banks and business corporations to spend and contribute money to oppose a referendum to the Massachusetts Constitution that would impose a graduated personal income tax.   A key question in the case was whether a corporation or a business has First Amendment rights.

The Court explained that freedom of expression was liberty within the meaning of the Due Process and that “the Court has not identified a separate source for the right when it has been asserted by corporations.”27   The Court included its footnote 15 to its statement, explaining that corporations have been considered persons since the late nineteenth century.   The Court wrote: “It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.”28

The question whether corporations are persons within the meaning of the First Amendment has been central to a wide variety of campaign finance reform decisions, including the seminal Citizens United v. FEC.29  It remains a controversial area of free-speech jurisprudence.

1 Carolene Products v. United States, 304 U.S. 144 (1938).
2 Id. at 152 n. 4; Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 46 S. Tex. L. Rev. 163 (2004).
3 347 U.S. 483 (1954).
4 Michael Heise, Brown v. Board of Education, Footnote Eleven, and Multidisciplinarity, 90 Cornell L. Rev. 279 (2005).
5 Abner J. Mikva, Law Reviews, Judicial Opinions, and Their Relationship to Writing, 40 Stetson L. Rev. 221, 224 (2000).
6 Joan Ames Magat, Bottomheavy: Legal Footnotes, 60 J. Legal Educ. 65, 66 (2010).
7 427 U.S. 50 (1976).
8 Id. at 71 n. 34.
9 Id. at 85-86 (Stewart, J., dissenting).
10 Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
11 City of Los Angeles v. Alameda Books, 535 U.S. 425, 448 (2002).
12 David L. Hudson Jr. The Secondary Effects Doctrine: Stripping Away First Amendment Freedoms, 23 Stan. L. & Pol’y Rev. 19 (2012).
13 Id. at 21.
14 Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748 (1976).
15 Valentine v. Chrestensen, 316 U.S. 52, 54 (1942)(“ We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”)
16 Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748 (1976).
17 Id. at 763.
18 Alex Kozinski and Stuart Banner, Who’s Afraid of Commercial Speech?, 76 Va. La. Rev. 627 (1990).
19 See David L. Hudson Jr. “Will Roberts Court Flip Burger Court Precedents?” Newseum Institute, 5/9/08 (noting that Commercial speech remains protected to a lesser degree than political speech in First Amendment jurisprudence, and that may not change for the foreseeable future.”).
20 376 U.S. 254 (1964).
21 Quoted in Anthony Lewis. Make No Law: The Sullivan Case and the First Amendment 154, 200.
22 Sullivan, 376 U.S. at 280.
23 Lewis at 36.
24 Sullivan, 376 U.S. at 279 n. 19.
25 United States v. Alvarez, 567 U.S. _ (2012).
26 435 U.S. 765 (1978)
27 Id. at 780.
28 Id. at 780 n. 15.
29 558 U.S. 310 (2010).

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