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12 Comm. Law. 30 (1994-1995)
Blackmun Will Be Missed by Free Speech Advocates

handle is hein.journals/comlaw12 and id is 82 raw text is: Blackmun Will Be Missed by Free Speech Advocates BY F. DENNIS HALE* News is often unjust, even when it focuses on an institution that exists to promote justice. Press coverage of Harry Blackmun's retirement after twenty-four years on the Supreme Court emphasized his authorship of the Roe v. Wade decision-to the exclusion of the more than 3,000 other decisions that he wrote or signed. For journalists at least, the story behind Blackmun's retirement is the loss of a consistent supporter of free expression, particularly during the 1980s and 1990s. Blackmun joined the court on June 9, 1970, as an appointee of Richard Nixon, who had pledged to make the Court more conservative. He was a friend of Warren Burger, a fellow Min- nesotan who was appointed Chief Jus- tice in 1969. In one of his first major cases on freedom of speech, Blackmun voted with Burger in opposing press rights. In 1971, Blackmun dissented from the Pentagon Papers decision, in which six judges ruled that The New York Times should remain free to pub- lish information from classified Defense Department documents. Blackmun objected to the speed of the decision, noting that he preferred to decide the case free of pressure and panic and sensationalism. During the rest of the 1970s Black- mun joined a conservative court major- ity that refused to expand First Amendment press rights, particularly in *Mr. Hale is professor of journalism in the School of Mass Communication, Bowling Green State University, Ohio. the area of news gathering. Among the primary examples are Saxbe v. Wash- ington Post (reporters did not have the right to interview selected federal prison inmates); Zurcher v. Stanford (First Amendment did not prevent war- ranted searches of newsrooms); and FCC v. Pacifica (restrictions of inde- cent language in broadcasting). But Blackmun's support for free expression emerged in the 1980s when, in a number of cases, he provided one of the critical votes allowing the news media to prevail. The constitutional right to burn an Ameri- can flag was secured in 1989 in Texas v. Johnson on a 5-4 vote with Black- mun in the majority. Also in 1989, Blackmun joined a five-judge majority that invalidated a $100,000 fine against The Florida Star for identifying a rape victim. Blackmun also provided a pro-press vote in another case involv- ing the reporting of sex crimes. In 1982 the majority in Globe v. Superior inval- idated a Massachusetts statute that pre- vented any sex crime victim under age 18 from testifying in open court. His most important contribution to a close victory for the press came in the 1986 decision of Philadelphia Newspa- pers v. Hepps. Five on the Court agreed that libel plaintiffs are required by the Constitution to prove the falsity of defamatory publications. Such a requirement existed in many jurisdic- tions as a matter of state law, but the Hepps decision created a uniform national standard. On several occasions Blackmun dis- sented from Supreme Court decisions that restricted free expression, includ- ing Gannett v. DePasquale (in which he objected to a Court decision permit- ting closure of a pretrial hearing on the suppression of evidence for a murder trial); Hazelwood School District v. Kuhlmeir (dissenting from a majority opinion that allowed public school administrators to censor student papers); and Heffrom v. Krishna (objecting to a majority opinion that allowed restriction of pamphlet distrib- ution on a state fairground). Most recently, Blackmun dissented to the 1991 decision of Cohen v. Cowles Media, in which Minnesota newspapers had violated the promises of reporters not to divulge the name of a campaign spokesperson who was dis- tributing dirty political information. Five justices agreed that Minnesota's promissory estoppel law would allow a news source to sue the press when a promise had been broken. Blackmun and three other dissenters argued that the First Amendment certainly protect- ed the reporting of political informa- tion, such as the name of the source of political dirty laundry in the cam- paign's eleventh hour. Statistics on the Court's voting pat- terns document Blackmun's movement from the conservative to liberal side of public policy. During the five terms of the Rehnquist Court (1986-91), Black- mun favored speech advocates 66 per- cent of the time. Only liberals Thurgood Marshall and William Bren- nan were more supportive. Blackmun's 66 percent support level compared to 59 percent for the entire court. By con- trast, Chief Justice Rehnquist only sup- ported free expression in 29 percent of the cases. Quite a different voting record was evident during his seventeen years on the Burger Court (1969-1986). While he was third in support of expression on the Rehnquist Court, Blackmun was only seventh in support on the Burger Court. His agreement with other jus- tices on free expression cases also illus- trates his move to the left. On the Burger Court he agreed with liberal Thurgood Marshall 64 percent of the time, increasing to 77 percent on the Rehnquist Court. On the Burger Court he agreed with conservative William Rehnquist 73 percent of the time, an agreement level that dropped to 58 per- cent when Rehnquist became Chief Justice. 30 ED Communications Lawyer ED Fall 1994

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