When I was a first-year law student many years ago (40 if anyone is keeping track), one of my favorite classes was Constitutional Law. I was fascinated by the subject, but the professor caused the love affair with this area of the law to begin. His name was Robert Popper. He was a graduate of Harvard Law School and I think he was the only Harvard alumnus at UMKC at the time. He was a brilliant man and had a great deal of charisma. I knew next to nothing about the subject, but he introduced me to it. I think all of us loved the class and more importantly Dr. Popper.
Toward the end of the semester, some of my fellow students went and bought a military jacket and had some impolite words printed on the back. I am confident the editors would not want me to use the words in this column but they were directed to Justice Rehnquist.
The gift was based on a 1971 Supreme Court decision entitled Cohen v.
California. If you are curious, you can Google the case or this is a link to the opinion: https://www.law.cornell.edu/supremecourt/text/403/15. Robert Paul Cohen was convicted in a Los Angeles Municipal Court of violating a criminal law in California that prohibits “malicious and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct. The offensive conduct Mr. Cohen committed was “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace.” It was determined that wearing a jacket in the Los Angeles County Courthouse with the words plainly visible on his back stating to “_____ the draft” was behavior that has a tendency to provoke others to violence or in turn disturb the peace.”
The backdrop for this case was the war in Vietnam. It was a very controversial time as many opposed the war. Cohen claimed that the California law as applied to him was unconstitutional because it violated his Fourteenth and First Amendment rights to freedom of expression.
The Court recognized that “the constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Yet, the Court recognized that “the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses.”
However, there must be a compelling interest for the government restraint on speech to withstand constitutional scrutiny. There have been many First Amendment cases decided since the Cohen case and ironically Justice Rehnquist was not even on the court when Cohen was decided. However, most constitutional scholars agree that Justice Rehnquist was no protector of the First Amendment. One such scholar at the University of Chicago School of Law noted that in 259 speech or press cases under the First Amendment in which Rehnquist participated, he rejected the First Amendment 80 percent of the time and in only 53 of 259 cases did he vote to uphold the First Amendment.
Rehnquist was appointed by President Nixon in 1972 and served a total of 33 years on the court, the last 19 as Chief Justice. He was a true conservative and my classmates had five years of Rehnquist decisions upon which to base their gift to the Professor.
We are now amid a tumultuous time very similar to the Vietnam War era. President Trump has been very blunt about his disdain for the mainstream media. Sadly, social media have replaced print and broadcast media as the method of obtaining their news for many. I am especially grateful for the survival of the print media. Facebook has been taking steps to stop the spread of “fake news” and “alternative facts” which are a clear and present danger. Neither of those phrases existed until Donald Trump began running for President.
Everyone is speculating about the effect that President Trump will have on the Supreme Court. Justice Kennedy is 81, Justice Ginsberg is 84 and Justice Breyer is 79. Rumors are rampant about retirement, but retirement is not the only method of removal. Justice Rehnquist died and created his vacancy.
The First Amendment will be tested in major ways in the coming years. Many are upset about the football players sitting or not standing during the National Anthem. Can anyone question that they have the First Amendment right to express themselves? Do those who create fake news or alternative facts have First Amendment protection? What are the limits of restraints on protesters? The situation in Charlottesville and in other places around the country are straining the First Amendment. Do those with abhorrent views have the right to protest and express those views if they do it peacefully? These questions and others may be answered in our courts. I thought the 1970s were exciting times to be alive. Fasten your seat belts as we enter the new era of protests and court decisions.
-- Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org