An Unworthy Ruling

For most of this century the U.S. Supreme Court has struggled with the freedom of speech. Though the Constitution says that government “shall make no law . . . abridging the freedom of speech,” the court has carved out exceptions where it believed that public necessity or safety warranted. The prohibition against shouting “Fire!” in a crowded theater when there is none is the most famous example.

In attempting to enunciate principles for determining when speech may be curtailed, the court has moved in recent years toward creating a “hierarchy of speech” under which some speech is deemed more valuable--and therefore more worthy of protection--than other speech. Last week six justices endorsed this view. The implications for free speech are disquieting, raising the prospect of increased government regulation of “unworthy” speech that is otherwise constitutionally protected.

Under the hierarchy theory, political speech is considered the most valuable of all. This idea was implied in 1964, when the court said in New York Times vs. Sullivan that criticism of the government is “at the very center of the constitutionally protected area of free expression.” Defenders of a free press cheered. But notice: If some speech is at the center of the First Amendment, other speech is not at the center.

Ten years ago, in Young vs. American Mini Theatres, the court upheld a Detroit zoning ordinance that prohibited smut shops, including adult movie theaters and bookstores, from being within 1,000 feet of each other. The ordinance had been adopted in an effort to prevent the urban blight that such establishments are said to cause.

Although the theaters argued that their First Amendment rights had been violated, Justice John Paul Stevens, writing for a four-judge plurality, said, “Society’s interest in protecting (sexually oriented speech) is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate.”

Justice Lewis F. Powell Jr. cast the fifth vote upholding the Detroit ordinance. But he wrote a separate concurring opinion in which he specifically rejected the view “that non-obscene erotic materials may be treated differently under First Amendment principles from other forms of protected expression.” The four dissenting justices also denied that some speech is less protected than other speech.

So while five justices voted to uphold the ordinance, five justices also said that there was no hierarchy of speech. All protected speech gets the same protection, they said.

Powell restated his opposition to a hierarchy of speech in 1978 in FCC vs. Pacifica, but more recently changed his mind. Last year, in Dun & Bradstreet vs. Greenmoss, he accepted the notion that the First Amendment values “private speech” less than “public speech,” and cited the New York Times vs. Sullivan words in support of that view.

This brings us to the case that the court decided last week, Renton vs. Playtime Theatres, in which seven justices upheld a zoning ordinance in Renton, Wash., that was similar to Detroit’s. Detroit had sought to spread out the dirty bookstores and movie theaters. Renton consolidated them in an out-of-the-way industrial area.

Justice William H. Rehnquist, writing for himself and five other justices (Justice Harry A. Blackmun did not sign the opinion), found the Renton zoning rule constitutional. He cited with approval the plurality’s language in the Detroit case that said that sexual speech is less valuable than political speech. Just because speech is constitutionally protected does not mean that it is protected for all purposes.

This time, however, Powell signed the opinion. Whatever his earlier view, he now agrees that less-worthy speech may be regulated even if it may not be suppressed.

The hierarchy-of-speech concept is wrong, and poses dangers to free expression. Can zoning laws be used to regulate other speech that the community wants to restrict? Can other regulations be applied that have nothing to do with zoning, including the police powers of licensing, issuing permits and abating nuisances? How many categories of speech will they wind up with? Will they keep adding until the First Amendment is as complicated as the tax code? Judges should not decide which speech is more or less valuable, and the government should not be able to restrict protected speech even if it has a socially useful rationale. Protected expression should be fully protected.

Prof. Roger L. Goldman of St. Louis University Law School has examined the idea of a hierarchy-of-speech theory and has concluded, “Once the idea is loosed that ‘unworthy’ speech can be constitutionally regulated, it may be too late for the court to reestablish the ‘firstness’ of the First Amendment. For those who believe that the First Amendment is basic to our democracy, we will all be the losers.”