John Paul Stevens

Reading about the Supreme Court changes to come, the death of Chief Justice William Rehnquist and the nomination of John Roberts to server as the next chief, I ran into a biography of John Paul Stevens, where a few brief but revealing paragraphs explore his style of interpreting the law. I found his analysis in the Federal Communications Commission v. Pacifica Foundation (1978) showed a good appreciation of the place of law in society. There he distinguishes among books, theater and the radio as modes of expression, to which, he argues, the First Amendment may or may not be applied to various extents, in balance against other rights.

I quote three paragraphs from this source:

An openness to experience and to the interplay of facts and values is evident throughout Stevens' opinions. A good example is his opinion for the majority in Federal Communications Commission v. Pacifica Foundation (1978), upholding an administrative decision to accept a father's complaint against a radio station for broadcasting a monologue entitled "Filthy Words," inadvertently tuned in while he was driving with his son. Rather than deal with freedom of speech as an abstraction, as some of his colleagues did, Stevens explored a series of facts in the case, each of which illuminates important personal or societal interests.

It was a radio broadcast, intruding upon "the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder," not a book or a theater production. "Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away." A radio broadcast, however, is also available to children, in whose well-being the government has a legitimate interest and over whom parents have a claim of authority. It was heard by a young child, and young children are more apt to be adversely affected than older children. The monologue was broadcast in the afternoon, when the very young are more likely to listen, rather than at night. Its plain language also affected its accessibility. For contrast, Stevens quoted a passage from the Canterbury Tales at least as lewd as anything in the monologue but relatively obscure and less likely to turn up uninvited in anyone's house. That it was spoken rather than written made it available even to children too young to read. This broadcast, he said, "could well have enlarged a child's vocabulary in a minute."

Further, the explicit language was spoken during regular programming, not in a telecast of an Elizabethan comedy, for example, to which a different kind of audience would be tuned. To support his view of the monologue as speech of relatively little importance, Stevens appended it in full to his opinion, (where it now sits, in law libraries across the country, safely inaccessible to all but callous adults). Last, he deliberately did not decide that this broadcast would justify a criminal prosecution (in which other basic rights would be invoked). Fact-gathering is Stevens's way of discovering how a case will affect people and their constitutional rights and responsibilities. It is an exercise in which, as he says, "one's initial impression of a novel issue is frequently different from his final evaluation," and balancing is his way of deciding which values shall prevail. In this case, had it been high comedy, for example, or a willing adult audience, Stevens's balance might have tipped the other way, protecting the performance and rejecting the complaint.

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