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An Erring, Forgetful Court

July 09, 1986

When it comes to free speech, the U.S. Supreme Court needs to go back to law school. As it closed its term on Monday, the court issued two opinions on First Amendment rights--one of which continued an unfortunate trend that the justices have embraced in recent years, and the other of which was simply and demonstrably wrong.

To take the wrong one first: The court upheld a New York state law permitting authorities to close buildings used for "prostitution and lewdness." An upstate prosecutor used this law to shutter a bookstore where illicit sexual activities were taking place. The bookstore argued that this action violated its First Amendment rights. By a 6-3 vote the court said, "No way."

Obviously bookstores cannot be turned into sanctuaries where laws can be broken with impunity. That would allow lawbreakers to flourish as booksellers. Selling heroin from a bookstore is just as illegal as selling it anywhere else.

But it's the illegal activity that the law and the court should go after, not the bookstore. In legal terms the law is overbroad. It does too much. You don't have to close the bookstore to stop the illicit sexual activity going on there. An injunction, properly enforced, would have been enough.

As Justices Harry A. Blackmun, Thurgood Marshall and William J. Brennan Jr. noted in their dissent, giving the authorities the power to close bookstores should have made the court pause.

The other First Amendment case was more difficult. The court upheld the suspension of a high-school student who had made a speech laced with sexual innuendo. In 1969 the court had ruled that students have First Amendment rights and could wear black armbands to protest the Vietnam War. To distinguish that case from the current case, the court resorted to its increasingly familiar and troubling hierarchy-of-speech theory, under which political speech gets more First Amendment protection than other speech.

The armbands carried a political message, the court said Monday by a 7-2 vote, so they were protected. The student's "vulgar" speech gets no such protection.

One problem with the hierarchy of speech is that it leaves out a lot that should be protected. Where, for example, does Shakespeare or D. H. Lawrence fit in? Maybe some people read "Hamlet" to decide whom to vote for, but that's probably rare. Since literature is not political speech, it presumably gets less First Amendment protection. Is that really what the court means to say?

The hierarchy of speech allows the court to create exceptions and prohibit speech that it doesn't like. But that's exactly what the First Amendment should protect. Popular speech never has problems. Unpopular speech sometimes does. Mere offensiveness should never be sufficient to keep people quiet. The court forgot that.

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