Retired U.S. Supreme Court Justice John Paul Stevens, who served nearly 35 years on the court, left an indelible mark on many areas of First Amendment jurisprudence.
Stevens consistently defended the principle of church-state separation in Establishment Clause cases and forcefully argued for significant protection for commercial speech, which was often relegated to second-class status in the First Amendment family.
Stevens’ commitment to freedom of speech may be seen most clearly in how he evolved in two other areas of First Amendment law, both involving speech that was considered indecent or of lower value. These two areas are indecency and “secondary effects.”
Many may forget that it was Stevens who authored the court’s plurality opinion, upholding the ability of the Federal Communications Commission (FCC) to fine a radio station for playing George Carlin’s “Filthy Words” monologue during daytime hours. Even though the monologue was nothing close to obscenity, federal law also gave the FCC power to regulate so-called indecent speech. In FCC v. Pacifica Foundation (1978), Stevens approved of this power, writing that when the commission finds that “a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”
However, years later when the Supreme Court first examined a direct speech regulation on the worldwide web, Stevens wrote the court’s majority opinion in Reno v. ACLU (1997), involving the part of the Communications Decency Act that criminalized the online transmission of patently offensive or indecent speech.
This time Justice Stevens emphasized that the government’s interests in protecting minors did not justify restricting the free-speech rights of adults. He also distinguished the “emphatically narrow holding” in Pacifica as applying to the broadcast medium, not the vast dimensions of the internet. Stevens wrote that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”
While some may argue the difference in the two cases merely involved different media of speech — broadcast versus the Internet — there was another difference as well: Stevens recognized that the First Amendment protects expression that others deemed indecent.
An even greater transformation occurred in Stevens’ treatment of adult-oriented sexual expression and the so-called secondary effects doctrine. The doctrine is used by government officials to regulate non-obscene sexual expression by claiming that they are not silencing the speech because they don’t like it but rather because it causes harmful, adverse “secondary effects,” such as increased crime or decreased property values in a surrounding area.
Stevens created the secondary effects doctrine in a footnote in Young v. American Mini-Theatres (1976), involving an amendment to Detroit’s anti-Skid Row ordinance that regulated the location of adult businesses. In the footnote, Stevens wrote: “It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive’ speech.”
However, years later the court examined a direct restriction on the clothing that nude performance dancers wear in gentleman’s clubs in City of Erie v. PAP’s A.M. (2000). The majority of the court expanded the reach of the secondary effects to apply not just to the geographic location of adult businesses but to the direct expression of nearly nude entertainers.
“Never before have we approved the use of [the secondary effects] doctrine to justify a total ban on protected First Amendment expression,” Stevens warned in his dissenting opinion.
Once again — as with indecency — Justice Stevens came to be one of the court’s chief defenders of freedom of expression.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).