THE FIRST AMENDMENT AND THE NIXON COURT
Haiman, Franklyn S.
The United States Supreme Court, pushed to the Right by the four appointments of President Nixon, ended its 1971-72 term last June with a flurry of opinions that did not bode well for the...
...byMandel's exclusion...
...The law also empowers the Attorney General to waive that prohibition in individual cases, and earlier attorneys general had sensibly seen fit to do so for Dr...
...The United States Court of Appeals for the District of Columbia reversed that decision and ordered hearings to proceed...
...Justice Stewart is a moderate man who was appointed to the Supreme Court by President Eisenhower and who has pursued a highly independent course...
...For the Court carried over until its present term a whole battery of cases that had been accumulating on its docket dealing with various phases of the question of obscenity and of the extent to which the communication of sexual material (e.g., the film I Am Curious Yellow) is protected by the freedom of speech clause of the Bill of Rights...
...Justice Stewart, writing for himself and Justices Brennan and Marshall, summed up the frustrations of the Branzburg-Pappas-Caldwell minority in these words: The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society...
...The Constitution was designed to keep government off the backs of the people...
...Justice Powell, writing the majority opinion for the Court, insisted that he and his colleagues were not revoking the 1968 Logan Valley decision...
...Just four years earlier, in the first shopping center case to reach the Supreme Court (Amalgamated Food Employees v. Logan Valley Plaza), it seemed that the justices had put an end to prohibitions against the exercise of free speech in the open areas of privately owned shopping centers...
...Those who already walk submissively will say there is no cause for alarm...
...the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging...
...Finding the college president's action in violation of the First Amendment, the Court, speaking through Justice Powell, forcefully reiterated some relatively recently established free speech doctrine: At the outset we note that colleges and universities are not immune from the sweep of theFirst Amendment...
...THE ONLY HAPPY THING one can say about how the First Amendment fared in 1972 is that the damage was probably slight by comparison to what we may face by the end of June of 1973...
...This statement is subject to some qualifications...
...In Branzburg v. Hayes, a Louisville Courier-Journal reporter had been ordered by the Kentucky Court of Appeals to identify for the Jefferson County grand jury some unnamed individuals whose use of marijuana he had described in two newspaper articles...
...The new Court majority has returned us to the pre-1968 days when no one knew for sure what his free speech rights in a shopping center were, and when many a dissenter was unceremoniously bounced from their grounds...
...And, fear of accountability will cause editors and critics to write with more restrained pens...
...But he went on: It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability...
...Fear of exposure will cause dissidents to communicate less openly to trusted reporters...
...The first of these cases had been initiated by the American Civil Liberties Union, on behalf of Arlo Tatum and other plaintiffs...
...Mandeltemporary admission...
...THE THREE CASES involving a journalist's right to withhold information from a grand jury had met with varying fates in the lower courts...
...Rather, the likelihood is that they will slowly gnaw away at past gains while trying to make it appear that precedent is being respected...
...Said Justice Marshall: The vote in Logan Valley was 6-3, and that decision is only four years old...
...Justice Marshall again eloquently expressed dismay at the direction in which this decision took the Supreme Court: I...
...Further retreat from the expansive interpretations of the First Amendment that have prevailed since the 1930s appear almost inevitable by the end of the Court's current term...
...This case involved a Chicago city ordinance that makes it illegal to picket or demonstrate within 150 feet of any school building during school hours, though an exception is made for picketing in connection with a labor dispute...
...There can be nodoubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right (Healy v. James...
...Rather, he said, since the earlier case involved a group of picketers engaged in a labor dispute with a grocery store in the shopping center, whose message could not very well be communicated at any other location, their right to picket had to be permitted...
...The first of these dealt with the refusal of the president of Central Connecticut State College to grant official recognition as a campus organization to a local chapter of the Students for a Democratic Society...
...Mandel to speak in the United States had a First Amendment right "to receive information and ideas," a right that admittedly may have been diminished by the government's refusal to issue a visa...
...In a groundbreaking decision, the 9th Circuit held that Earl Caldwell, a black reporter for the New York Times in San Francisco, did not have to divulge to a federal grand jury information he had obtained about the Black Panther party through confidential interviews with their leaders unless the government could show a compelling and overriding national interest in requiring Caldwell's testimony, and that this interest could not be served by any alternative means of obtaining the information...
...Numerous holdings of this Court attest to the fact that theFirst Amendment does not literally mean thatwe "are guaranteed the right to express anythought, free from government censorship...
...Reviewing the decisions in which the Supreme Court, during the 1960s, had struck down government actions which were found to constitute a "chilling effect" on the exercise of First Amendment rights, the Chief Justice said: In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a government agency was engagedin certain activities or from the individual's concomitant fear that...
...Justice Rehnquist notwithstanding, Healy v. James was the Nixon Court's finest moment in an otherwise dreary performance vis-a-vis COMMENTS AND OPINIONS 16 the First Amendment...
...In blocking his admission, the Government has departed from the basictraditions of our country, its fearless acceptanceof free discussion...
...In cases involving freedom of speech he has been on the nonrestrictive side more often than not...
...without some protection for seeking out the news, freedom of the press could be eviscerated...
...The college classroomwith its surrounding environs is peculiarly the"marketplace of ideas" and we break no newground in re-affirming the nation's dedicationto safeguarding academic freedom...
...Mandel...
...By a vote of 6-3, the Court ruled that the Attorney General did not violate the Constitution in refusing to allow a visa to be issued to Ernest Mandel, a Belgian Marxist who had been invited to the United States to speak at several of our major universities (Kleindienst v. Mandel...
...of the challenged activities of the Department of the Army," but that they do not believe the courts should intervene until a plaintiff can show some genuine "injury...
...Upholding the Attorney General's action, Justice Blackmun took his turn at speaking for the Nixon Court...
...For each, some plausible justification was invoked...
...There is no valid distinction between that case and this one, and, therefore, the results in both cases should be the same...
...the agency might in the future take some other and additional action detrimental to the individual...
...Indeed, to be completely fair, there were even two or three decisions handed down by the 1972 Nixon Court that could be said to have followed the liberal tendencies of the past...
...The best example was a decision handed down on June 22, 1972, in which the four Nixon appointees, Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell, and William Rehnquist—joined, as they generally are, by Justice Byron White—reversed a ruling of the lower courts that had permitted the distribution of antiwar leaflets in the malls of a Portland, Oregon, shopping center (Lloyd Corporation v. Tanner...
...In United States v. Caldwell, the United States 9th Circuit Court of Appeals showed greater concern for the First Amendment implications of this issue than did the Kentucky and Massachusetts courts...
...Without addressing itself directly to the limitations on freedom of speech inherent in the ordinance, a unanimous Court found that the distinction between labor picketing and other peaceful picketing violated the equal protection clause of the Fourteenth Amendment...
...Its other decent moment came in its decision in Chicago Police Department v. Mosley...
...They include such milestones as the Chinese Exclusion case . . . in which this Court upheld the Government'spower to exclude and expel Chinese aliensfrom our midst...
...So, once again, we may have a series of 5-4 decisions, which will further erode the First Amendment gains that have steadily been made for nearly half a century...
...Also influencing the Court's judgment was their view that the protest in the Logan Valley case "was related to the shopping center's operations," whereas the leaflet in Lloyd v. Tanner was "directed to all members of the public" and could have been passed out "on any public street, on any public sidewalk, in any public park, or in any public building in the city of Portland...
...In the wake of revelations that Army intelligence units had been maintaining extensive surveillance over peace groups and other dissenters, these plaintiffs alleged that such activities created a chilling effect on the exercise of their rights of freedom of speech and association...
...Amongthe rights protected by the First Amendment isthe right of individuals to associate to furthertheir personal beliefs...
...Nixon's appointees having their first opportunity to address themselves to the matter...
...The fact remains that Logan Valley is binding unless and until it is over-ruled...
...For so great is the Nixon Court's deference to the other branches of government that the justices could not bring themselves to question the "plenary power" of the Congress to enact legislation which bars any persons it wishes to bar from the country, nor of the power of the Executive to implement such a congressional mandate...
...Reporters, like the average citizen, have an obligation, said the Court, to respond to grand jury subpoenas...
...Almost none of them, by themselves, were unqualifiedly regressive...
...We can apparently depend upon the Chief Justice not to let us forget any of those qualifications...
...There can be no influence more paralyzing of that objective than army surveillance...
...Justice White, writing for the Supreme Court, first paid his lip-service to the First Amendment: COMMENTS AND OPINIONS We do not question the significance of free speech, free press or assembly to the country's welfare...
...Dr...
...As though it were too much for him, however, to stand firm with the minority in all of the end-of-term decisions, and despite his strong language about the NixonWhite majority's "crabbed view of the First Amendment," he joined with that majority on June 29 to concur in what was probably the most astonishing and regressive of all the Court's June opinions...
...The new justices are cautious men and not likely to move sharply in new directions...
...Judging by past performances on this topic, they will have an ally in Justice White and an opponent in Justice Stewart...
...Again the majority paid their lip service to past precedent by conceding that those who had invited Dr...
...Rather, in each of these cases...
...Nothing is served...
...Mandel had been admitted for a visit to the United States in 1962 as a working journal ist and again in 1968 as a visiting speaker at a number of universities...
...But submissiveness is not our heritage...
...Justice Douglas, in dissent, noted: Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press...
...am stunned to learn that a country withour proud heritage has refused Dr...
...No, indeed...
...Attorney General John Mitchell, however, chose not to follow suit, even though that course had been recommended to him by Secretary of State William Rogers...
...There is no reason whatsoever to believe that any of the four is likely to come down on the nonrestrictive side of such a question, and much reason to fear that they will want to draw narrower boundaries around permitted speech than have been drawn during the last decade...
...No citation is givenfor this kind of unprecedented deference to theExecutive, nor can I imagine (nor am I told) the slightest justification . . . in the Government's view this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the "political" branches of Government, Congress, andthe Executive...
...The Chief Justice went on to state that the majority intimate "no view with respect to the propriety or desirability...
...It appears to be the Court's intention to deal with these cases as a group, and that could mean some major new pronouncements on this politically explosive and deeply significant free speech issue, with Mr...
...Army COMMENTS AND OPINIONS surveillance, like Army regimentation, is at war with the principles of the First Amendment...
...is not dispositive of our inquiry...
...Justice Thurgood Marshall, who had written the Logan Valley opinion for the Supreme Court, vigorously dissented from the Lloyd v. Tanner decision, joined by Justices William Douglas, William Brennan, and Potter Stewart...
...The 1968 Court had reasoned that the size and function of shopping centers, even though privately owned, were such that, like company towns of an earlier day (Marsh v. Alabama, 1946), they constituted a natural public forum where the communication of controversial ideas had to be allowed...
...The four-man minority in Lloyd v. Tanner raised their voices in joint protest against two other end-of-term First Amendment decisions by the Nixon-White majority, one on June 26, 1972, in the widely publicized Army spying case, and the other on June 29, 1972, in a package of cases involving the claimed right 14 of newspaper reporters to maintain the confidentiality of their sources in the face of grand jury investigations...
...The supreme Judicial Court of Massachusetts ruled that Pappas had no constitutional right to refuse to divulge to the Bristol County grand jury what he had seen or heard in the Panther headquarters that might be relevant to the criminal investigation in which they were engaged...
...The huge Lloyd Corporation center in Portland, however, is partially interlaced with public streets and sidewalks where, said the Court, the leaflets could have been handed out without invading private property...
...The United States Supreme Court, pushed to the Right by the four appointments of President Nixon, ended its 1971-72 term last June with a flurry of opinions that did not bode well for the freedom of speech and press clause of our Bill of Rights...
...On June 29, the Nixon-White majority affirmed the decisions of the Kentucky and Massachusetts courts and reversed the decision of its 9th Circuit Court...
...It was this order of the Court of Appeals that the U.S...
...This had happened despite a constitutionally dubious provision of the Immigration and Nationality Act of 1952, which bars from entry to the country those who advocate or publish "the economic, international and governmental doctrines of world communism...
...The decisions and opinions on which these forebodings are based were but straws in the wind...
...But, continued Justice Blackmun, "Recognition that First Amendment rights are implicated...
...As if unable to allow the Court even this one vigorous stand in defense of the First Amendment without spoiling it in some way, Justice Rehnquist, concurring in the final decision, felt it necessary to disassociate himself from the language of Justice Powell's opinion...
...Speaking separately, he sought to make perfectly clear that despite this particular decision of the Court, as a general principle, "The government as employer or school administrator may impose upon employees and students reasonable regulations that would be impermissible if imposed by the government upon all citizens...
...We hold," concluded the Court's opinion in Kleindienst v. Mandel, "that when the Executive exercises this power...
...Although little enough was said in this opinion about the free speech clause of the First Amendment, Chief Justice Burger felt called upon to enter a demurrer: I join the Court's opinion but with the reservation that some of the language used in the discussion of the First Amendment could, if read out of context, be misleading...
...It is a measure of the disease which afflicts us...
...Justice Douglas, writing one of the dissents, saw the situation rather differently: This case is a cancer in our body politic...
...The government sought to have the case dismissed without a hearing, and secured an order to that effect from a federal district judge...
...Supreme Court majority overturned by a 5-4 vote on June 26 (Tatum v. Laird) . Once again, as in the shopping center decision, the Court majority, speaking this time through Chief Justice Burger, attempted to make it appear that they were not turning their backs on earlier precedents...
...But, I am aware that the composition of this Court has radically changed in four years...
...Nevertheless, the Supreme Court did manage to hand down two decisions on June 26, both unanimously, which reinforced the more expansive earlier interpretations of free speech...
...on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against First Amendment interests...
...A second case, In the Matter of Paul Pappas, dealt with a television newsman-photographer who had gained access to a Black Panther party headquarters in New Bedford, Massachusetts, on condition that he not disclose anything that he saw or heard there other than the events of an anticipated police raid...
Vol. 20 • January 1973 • No. 1
