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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