Former Chief Justice favored the majority in backing government and media speech
As the ongoing trial of top Bush administration official Lewis "Scooter" Libby focuses attention on the freedom of the press, a new Brigham Young University study explains the legacy established on that issue by former Chief Justice William Rehnquist.
The analysis of freedom of speech issues during Rehnquist's two-decade tenure as chief justice confirms his favoritism for big institutions, including government, over minority speech.
Rehnquist's important legacy on free speech is largely unquestioned and experts say his successor, former Rehnquist clerk John Roberts, is likely to follow in his footsteps.
Ed Carter, an assistant professor in communications at Brigham Young University, analyzed more than 390 cases from the last three chief justices to determine whether they were protective of minority speech or not. His findings, published in the latest issue of the Journalism and Mass Communications Quarterly, the top academic journal in journalism, indicated Rehnquist had a majoritarian view of freedom of speech.
"Rehnquist was the least protective of speech compared to his two predecessors, Burger and Warren," said Carter, who has both a master's in journalism from Northwestern and a BYU law degree.
Rehnquist opposed protecting minority or individual speech in nearly two-thirds of the cases he heard over his tenure. For example, he wrote a dissent in a flag-burning case in Texas v. Johnson, deciding not to protect the message of a match-wielding protester but coming out strongly in favor of the patriotic message of the American flag. His specific opinions toward the majority and its right to deliver a message established a strong precedent likely to have implications beyond his lifetime.
"He felt very strongly that the majority should have its day," said Carter, who clerked for Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit. "It's an important ideal in the history of our country. And he did give media and other quasi-public institutions greater powers of expression."
The research concluded that Rehnquist viewed the news media as a majoritarian institution and thus tended to favor news media speech. For example, in Hustler v. Falwell, he wrote an opinion giving a magazine the right to parody and criticize a nationally recognized minister and public figure as part of robust public debate.
"He viewed the media as part of the political process, that the news media would launder news through the marketplace of ideas," Carter said.
As far as the privilege of journalists to conceal sources, which came under scrutiny in the events leading up to Libby's trial, Rehnquist joined the majority opinion in a case that required reporters to disclose confidential sources to a grand jury, but suggested that a privilege might apply in other circumstances.
Kyu Ho Youm, the Jonathan Marshall First Amendment Chair at the School of Journalism and Communication at the University of Oregon, found Carter's study useful.
"Carter's analysis of the influence, impact and the overall approach of the Rehnquist court was extremely informative and very insightful," Youm said. "This kind of research is very telling and revealing to us, being journalists and scholars, who read court opinions sometimes without thinking of the long-term impact."
In one of the final cases of Rehnquist's tenure, he agreed with Justice Antonin Scalia's opinion that the government's right to speak could not be challenged on First Amendment grounds, allowing the government to collect mandatory fees from beef producers for a generic advertising campaign.
"We have seen an inkling of that government speech right, which Rehnquist built. Maybe it will be a footnote in the evolution of the First Amendment, or maybe it will be relevant in lower courts for years to come," Carter said.
The future decisions of the court will likely be influenced by Chief Justice Roberts and his close connection to his predecessor.
"The new chief justice will be very much like Rehnquist rather than coming up with some kind of revolutionary, innovative interpretation," Youm said.
Brad Clark, a graduate student in communications at BYU and co-author of the study, also had the chance to see the big picture within freedom of speech jurisprudence.
"It is interesting to have a longer perspective on Rehnquist's tenure, and that of the other two chief justices," he said.
Writer: Brittany Leonard