Protector Of Commercial Speech Stepping Down p. 40

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By: Debra Gersh Hernandez

Supreme Court Justice Harry Blackmun is best known as author of Roe vs.Wade, but he also is renowned for his role in decisions protecting commercial free speech rights; he was a late bloomer in his support for the print press sp.

SUPREME COURT JUSTICE Harry Blackmun, who at age 85 announced he will be stepping down from the bench, is best known as the author of the controversial Roe vs. Wade decision, which said a woman’s right to privacy protects her decision to have an abortion.
But Blackmun also is known for his role in decisions protecting the rights of commercial speech.
In the 1976 case of Virginia State Board of Pharmacy vs. Virginia Citizens Consumer Council Inc., Blackmun wrote the majority ruling that commercial speech does enjoy constitutional protection.
“What is at issue,” he wrote, “is whether a state may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and recipients.
“Reserving other questions, we conclude that the answer to this one is in the negative.”
The court, however, also held that commercial speech was not quite equal to political speech and could be regulated if it were false or misleading, for example.
“Some forms of commercial speech regulation are surely permissible,” he wrote.
The following year, Blackmun again wrote for the majority in Bates vs. State Bar of Arizona, which examined the constitutionality of a state ban on advertising by lawyers.
Again, the court determined that the advertising in question could not be suppressed though it could be regulated.
“In holding that advertising by attorneys may not be subjected to blanket suppression and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way,” Blackmun wrote.
Allowable restrictions would include those on false or misleading ads; time, place and manner of advertising; and ads for illegal transactions.
The Bates case did not examine such advertising in the broadcast media.
In one of the most important commercial speech cases of the 1980s, Central Hudson Gas & Electric Corp. vs. Public Service Commission, Blackmun did not write the majority decision but did weigh in with a concurring statement.
The majority determined that the “state must assert a substantial interest to be achieved by restrictions on commercial speech” and set up a four-point test.
In his concurrence, Blackmun agreed that scrutiny of commercial speech is appropriate when designed to protect consumers but not when it is designed “to suppress information about a product in order to manipulate a private economic decision that the state cannot or has not regulated or outlawed directly.”
However, protecting commercial speech can be a double-edged sword, warned Duke University Law School professor William Van Alstyne.
Blackmun’s “most notable contribution in the First Amendment area surely was in the zeal of his commitment to protection of commercial speech, virtually as far as political speech,” Van Alstyne commented.
“Many would celebrate that as a big contribution, but there is risk and it tends to be one you encounter along the way with some of his work,” he said.
To the extent that commercial speech is protected similarly to political speech, the opposite also can apply, and political speech can be cut back to the level of commercial speech rights, Van Alstyne said. “If you have a common rule for both, I can see where you can water down political speech,” he said. “It has its darker possibilities.
“I think Justice Blackmun’s contributions have been notable, but they’re subject to some reserve and doubt,” Van Alstyne added.
Blackmun also commented on press cases regarding other issues before the court, although rarely did he pen the majority opinion.
“He’s concurred and gone along with the crowd more than he’s struck out in a lot of these areas,” noted Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press.
“But having said that, in last few years, he’s been one person we counted on time and time again,” she added.

Not an early
friend of the press

Blackmun did not start out as much of a friend to the press, Kirtley pointed out. Appointed in 1970 by President Nixon, Blackmun dissented in the 1971 Pentagon Papers case, in which the majority ruled that the government could not stop newspapers’ publication of secret documents about its involvement in Vietnam.
In his dissent, Blackmun noted that although the New York Times took three months to analyze the papers which dated to 1968, the case was rushed through the court system without time for proper analysis.
“It may well be that if these cases were allowed to develop as they should be developed and to be tried as lawyers should try them and as courts should hear them, free of pressure and panic and sensationalism, other light would be shed on the situation and contrary considerations, for me, might prevail,” he wrote. “But that is not the present posture of the litigation.”
Noting that there were examples in the papers that could have led to the death of American soldiers, destroyed alliances and hurt diplomatic negotiations, Blackmun wrote that he hoped “the damage already has not been done.”
Blackmun has been a strong proponent of access to courtrooms, although Kirtley wondered whether he was more concerned about the Sixth Amendment right to a public trial than the First Amendment.
In Gannett vs. DePasquale in 1979, Blackmun partially dissented from the majority that found that the right to a public trial was one enjoyed by the defendant not the news media and the public.
Blackmun interpreted the Sixth Amendment to mean public access.
In the next court access case, Richmond Newspapers Inc. vs. Virginia in 1980, he joined the majority in finding that closing a criminal court without an overriding interest was unconstitutional under the First and 14th Amendments.
In Richmond Newspapers, Blackmun wrote that he “took great pains” in drafting his Gannett opinion and that he believed that the court was in error there.
Regarding the Richmond case, however, Blackmun wrote that he remained “convinced that the right to a public trial is to be found where the Constitution explicitly placed it ? in the Sixth Amendment.”
“Having said all this, and with the Sixth Amendment set to one side in this case, I am driven to conclude, as a secondary position, that the First Amendment must provide some measure of protection for public access to trial,” he wrote.
Kirtley said of Blackmun’s Gannett dissent, “It’s impossible to know, but I wonder how much he affected [the court’s] ruling in Richmond Newspapers.
“I am convinced that Blackmun’s dissent in Gannett was behind [Chief Justice Warren] Burger accepting Richmond and convincing the majority,” she said.
Although he was not an out-front leader, she said, his earlier comments in a number of cases seem to lay the groundwork for future decisions.
In Kirtley’s opinion, the Gannett-Richmond scenario is one of many examples of how Blackmun influenced the court. Another example would be the effect of his Virginia State Board of Pharmacy on Central Hudson.
“He was sort of putting out ideas and testing them,” she said. “He was not afraid to suggest an approach not yet adopted by the court.”
Kirtley said Blackmun’s concurring opinions also tended to suggest that the court provide more guidance in its opinions.
“He’s very conscious of Supreme Court precedents, and he doesn’t have a lot of patience with opinions that do not set out principles,” she said.
“Years ago, no one thought he’d be a particular supporter” of the press, she said. “As time has gone by, we tend to hope he’ll be on the press side, and many times he was.”
Recent examples of Blackmun’s support for the press include his dissent in the Cohen vs. Cowles Media Co. case, which found that a newspaper can be liable for breach of contract by revealing the identity of a source.
Blackmun wrote, “I do not agree . . . that the use of that claim to penalize the reporting of truthful information regarding a political campaign does not violate the First Amendment.”
His latest media ruling lifted a gag order on the CBS News program, 48 Hours, allowing it to broadcast videotape made in a meat-packing plant with an employee’s hidden camera. The employee gave the tape to CBS for its report on food contamination.
Blackmun, who oversees the district in which the case took place, overturned the ban and reiterated the strict burden of proof that must be shown in cases of prior restraint.
In addition, he wrote, if CBS did obtain the tape through “calculated misdeeds,” the beef company’s remedy would have to come through legal action after the fact.
“That opinion,” Kirtley said, “brief as it was, was a textbook recapitulation [of the notion] that in this country, you’re not allowed to stop the press or broadcast media from publishing information that may be defamatory.
“I cannot overestimate the importance of his doing that,” she said, pointing out that it could be a tactic used by big companies seeking to stop unflattering press reports.
Blackmun also has been crucial in 5-4 decisions.
“His generally solid position in favor of a strong First Amendment has been very helpful,” Van Alstyne said. “He’s written very few doctrinal opinions, but his position has been important. The court is frequently divided 5-4.”
While Van Alstyne said he “shares in the general gratitude” for Blackmun’s contributions, he views Blackmun’s writings as more personal than doctrinal and thinks people have been impressed “by the poignancy of his writings.”
“His opinions are more designed to appeal to the political public rather than dealing with questions of substantial law,” Van Alstyne said.
Although Blackmun has been an important deciding vote, Van Alstyne said, those positions have enjoyed a substantial majority.
“It’s implausible that they will be eroded by whomever Clinton appoints,” he said. “With [Justice Ruth Bader] Ginsburg on board, that decision already is secure.
“Among the people mentioned so far, I don’t know of anyone mentioned who is so right-leaning, nor is the right of the court such a majority, that it will make much difference,” he added.
?(Reuters photo) [Caption]
?(Justice Harry Blackmun )[Photo]

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