Justice Stevens on Intellectual Freedom
By: Kate Lechtenberg
When I was twelve, I visited Washington D.C. and had my picture taken on the steps of the Supreme Court, hoping at the time that I would someday serve there. My plans changed, but I kept following the SCOTUS, and fifteen years later as a young teacher reading Jeffrey Toobin’s The Nine, Justice Stevens became my favorite justice. If there had been SCOTUS trading cards, I would have tracked his down. [Ed. note – There is in fact, a Justice Stephens trading card, as well as a Justice Stephens bobblehead.)]
So when Justice John Paul Stevens died last month, it made me rethink and review why I held him in such high regard. Reading tributes after his death at the age of 99, I was reminded of his independent streak, beginning with the fact that despite being appointed by a Republican president, Stevens prized his independence, impartiality, and commitment to judicial conservatism, though in fact often voted with more liberal justices.
Moreover, I think I also appreciated his dark streak, his tendency to write dramatic dissents with pessimistic, almost doomsday pronouncements, as he did in his dissent to Bush v. Gore in 2001: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” In another sweeping defense, Stevens argued that Citizens United v. FEC constituted “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government.”
As I read several profiles of Justice Stevens, I also learned of several of his important contributions to intellectual freedom issues over the years.
- In 1984, Stevens wrote the opinion in a 5-4 decision that rejected Hollywood’s attempt ban VCRs on copyright grounds; the case was also influential when MP3 players emerged years later. He later argued unsuccessfully that copyright terms should be limited in duration, providing greater access to information.
- Stevens viewed privacy as part of the fundamental right to liberty, not as a separate issue whose existence was not explicitly included in the Constitution and therefore needed to be justified.
- He dissented in a 1986 case that upheld Georgia’s sodomy laws as they applied to homosexuals (which would eventually be overturned by Lawrence v. Texas in 2003). His understanding of privacy and liberty were essential to his argument.
On the First Amendment
- The First Amendment Encyclopedia’s entry on Justice Stevens notes that he was always a strong defender of church and state separation and commercial speech protections.
- However, I=in the 1970s, Stevens wrote decisions that supported restrictions on free speech in the case of George Carlin’s use of profanity and the case of local rules against sexually explicit films.
- Later, in the 90s and 2000s, Stevens was influential in protecting free speech online, and his appeared to become more protective of offensive speech, arguing that tolerance of offensive speech was essential to the First Amendment.
- Indeed, several writers have pointed out that Stevens became one of the most ardent protectors of the First Amendment, even warning that his own “secondary effects” doctrine (in which Stevens first argued that it was appropriate to restrict speech not because the speech itself was offensive but because of dangerous secondary effects of that speech) was in danger of being used too broadly.
- Yet some argue that Stevens’ relationship with the First Amendment was unreliable, complex, and “cautionary.”
In the end, I appreciate Stevens’ evolving, complicated legacy. In Justice Stevens, I see a model for intellectual and civic work that is rigorous, independent, and committed to continued learning and reflection.
Kate Lechtenberg earned a doctoral degree from the University of Iowa’s College of Education, where her research focused on how teachers select, frame, and facilitate discussions about controversial issues. She teaches courses in young adult and children’s literature, collection development, and critical literacy at the University of Iowa. Find her on Twitter @katelechtenberg.