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Supreme Court provides mixed day for First Amendment

By Tony Mauro
Special to freedomforum.org

05.15.02

It is hard to read this week's First Amendment decisions by the Supreme Court and not ask the same question that Rodney King posed during the Los Angeles riots 10 years ago: "Can't we all just get along?"

In one 52-page ruling, Ashcroft v. ACLU, the nine-member court divided into four different blocs as it assessed the constitutionality of the Child Online Protection Act, which seeks to restrict access by children to Internet material deemed harmful to minors. The bottom line was that the law, four years after passage, still won't take effect until lower court judges take another look at it.

In the other decision, City of Los Angeles v. Alameda Books, the five-justice majority could not agree on a single rationale for upholding a city ordinance that barred multiple adult businesses under one roof.

The result of both rulings was a mixed, but not altogether terrible, day for First Amendment advocates.

In the Internet case, at least six justices suggested that they have serious doubts about the law's constitutionality that will be difficult to overcome once the case makes its way back to the high court. In that respect, the court's previously stated view that the Internet is a powerful form of expression that deserves a high level of First Amendment protection remains intact.

In the adult-business zoning case, even though the ordinance survived, five justices cautioned against expanding the "secondary-effects" doctrine, which upholds restrictions on adult businesses and other forms of expression based on the effects they have on crime and neighborhood livability.

But in the process of reaching its decisions, the court produced a pair of messy, mix-and-match rulings that give little guidance to lower courts, much less Web site operators or adult businesses.

The splintered rulings are not that uncommon on a court whose justices often feel the need to state their own slightly different take on a case, even if that means depriving the court and the public of a clear new decision on the issue before it. Whereas justices in the past often let go of their own minor objections in the interest of unanimity, the current court appears to have little interest in reaching that goal. It is also possible that the justices assigned to write the majority opinions — Clarence Thomas in the Internet case, Sandra Day O'Connor in the adult-business case — lost their majorities sometime after they circulated rough drafts of their rulings.

In addition, the court's fractured ways may reflect Chief Justice William Rehnquist's preferences for running the court. Whereas past chief justices like Earl Warren might have sent the quibbling justices back to the drawing board to work out their differences, Rehnquist appears inclined to push opinions out the door in the interest of productivity, even if the rulings have ragged edges or vulnerable cores.

So what can be gleaned from the decisions issued May 13?

In the Internet case, these conclusions can safely be drawn:

• Justice John Paul Stevens is the only one of the nine who thinks COPA is unconstitutional flat out, without further findings by lower courts. The law's use of "community standards" to determine what is unfit for minors to see simply does not work on the Internet, says Stevens, noting that the Internet is an inherently global medium. "If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web," Stevens wrote.

• Justices Thomas, Rehnquist and Antonin Scalia agreed that the community-standards approach was not automatically invalid, but that the lower courts need to examine the law more closely to determine if it is unconstitutional for other reasons, such as vagueness.

• Justices Anthony Kennedy, David Souter and Ruth Bader Ginsburg expressed somewhat more doubt about the community-standards approach, but concluded, "We cannot know whether variation in community standards renders the Act substantially overbroad without first assessing the extent of the speech covered and the variations in community standards with respect to that speech."

• Justices O'Connor and Stephen Breyer advocated interpreting the community-standards approach as a national standard in the context of the Internet. Breyer said that conclusion could be drawn from the legislative history of the law, while O'Connor said use of a national standard was just reasonably inferred under the Constitution. O'Connor wrote, "Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with Justice Breyer that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem."

In the adult-zoning case, these conclusions can be drawn:

• Justice Souter, joined by Stevens, Ginsburg and Breyer, found that Los Angeles had failed to justify its ordinance against multiple-use adult businesses, especially since the net effect of the ordinance is to multiply the number of adult businesses citywide. The only plausible motive for that, Souter said, is to make it more expensive for adult businesses to operate. "Every month business will be more expensive than it used to be, perhaps even twice as much. That sounds like a good strategy for driving out expressive adult businesses. It sounds, in other words, like a policy of content-based regulation."

• O'Connor, joined by Rehnquist, Scalia and Thomas, found that Los Angeles could rely on a 1977 study of adult businesses in general to justify the ordinance at issue.

• Kennedy agreed with the O'Connor group that the ordinance should not have been struck down on its face, but says it should be returned to lower courts for further study. "The ordinance may be a covert attack on speech, but we should not presume it to be so," Kennedy wrote. He also cautioned against relying too heavily on secondary effects to justify speech restrictions. "It is no trick to reduce secondary effects by reducing speech or its audience; but a city may not attack secondary effects indirectly by attacking speech."

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.