John Paul Stevens: An Independent Life
The first biography of retiring Justice Stevens doesn’t tell-all, or even very much. Burt Neuborne considers some of the rich, provocative questions the authors might have explored.
Reviewed by Burt Neuborne
If timing were everything, this short biography of Justice Stevens, delivered on the eve of his retirement, would win first prize. It even has a concluding section on Justice Stevens’ dissent in Citizens United. But timing isn’t everything, and this book, though useful, will not win any prizes. First, the good stuff. There is an excellent chapter describing the financial problems faced by Justice Stevens’ father, including a description of the conflict of interest issues underlying his criminal conviction and eventual exoneration by the Illinois Supreme Court. Before the Depression, the Stevens family controlled a large Illinois life insurance company and a major hotel in Chicago. When the hotel, built in 1927, was rocked by the Depression, the family-controlled insurance company lent the family-controlled hotel a considerable sum of money in a vain effort to save it. When everything crashed, the policyholders were left holding the bag. The Illinois Supreme Court held that no evidence of fraud existed, but I wonder what a modern court would do with the self-dealing issues. A second excellent chapter details the inside baseball story of Stevens’ nomination to succeed Justice Douglas, edging Arlen Adams and Robert Bork for the plum. It’s fun watching Dick Cheney unsuccessfully try to outflank Edward Levi. It’s also useful to be reminded that President Ford chose Stevens over Bork because he was facing a Senate controlled by the Democrats. Finally, it’s chilling to be reminded of how Supreme Court confirmation hearings have changed.
The excellence ends there. The authors open the book with Justice Stevens’ dissent in the flag burning cases, where he argued that burning an American flag is not protected by the First Amendment. I almost didn’t get past the portion of the first chapter where the authors breezily compare John Paul Stevens to William Kunstler, apparently viewing each as independent spirits. It is, however, impossible to use the two names in the same sentence. Stevens is the epitome of propriety and thoughtfulness. In my opinion, Kunstler was an ego-driven phony. The treatment of Stevens’ flag burning dissent is, unfortunately, reflective of the book’s general failure to analyze his monumental judicial output. Many cases are cited and discussed, but, apart from stressing how unpredictable Justice Stevens could be, and how he is prone to write far more concurrences and dissents than the average Justice, there is next to no analysis of the evolution of his jurisprudence, or the judicial legacy he will leave. You put the book down knowing about as much about the Stevens’ judicial legacy as when you started.
That’s too bad because there is an extraordinary story to tell. Take the two dissents in Texas v. Johnson and Citizens United that open and close the book. The flag burning case marked the final emergence of the speaker-centered vision of free speech that has dominated the Court’s analysis since the “Fuck the Draft” case in 1971. Most of the time, under a speaker-centered view of the First Amendment, it’s a hearer-be-damned world. For me, the most intriguing aspect of the flag burning cases is not Justice Brennan’s somewhat labored opinions, or the Scalia/Thomas embrace of the deregulatory potential of the First Amendment, or even the razor-thin distinction between flag burning and draft card burning. It is the hint in Justice Steven’s flag burning dissent of a more complex free speech universe in which hearers get treated a little better.
The free speech universe consists of at least five players: a speaker, an audience of hearers, the topical target of the speech, a conduit that conveys the speech to a mass audience, and the government censor. The impoverished vision of the First Amendment universe that emerges from the flag burning cases tends to flatten that universe into speakers and censors – speakers wear the white hats; censors the black ones. No one else gets a hat. Speakers are treated as Promethean figures, clothed with dignity. Hearers don’t count for much, unless they threaten a violent reaction. If a whiff of violence is in the air, the speaker can be restrained to head off a breach of the peace; but a civilized hearer who will not resort to violence is usually ignored. When hearers do get acknowledged, as in Justice Kennedy’s Citizens United opinion, it’s usually to explain why speakers should get even more protection. Targets are aptly named. Some targets become fair game for false and misleading speech because they are “public figures.” Others become hapless targets for abuse because they were born into the wrong race, religion or gender. Conduits, generally huge entertainment companies that transmit other people’s speech for profit, have persuaded the Supreme Court to give them a speaker’s white hat. The government censor, wearing the black hat, is seen as a fool or a knave defending the cultural or political status quo.
It’s possible, as did Justice Stevens in Citizens United, to imagine a more complex speech universe where everybody gets a hat. Most of the time, recognizing a more complex free speech universe wouldn’t matter because the interests of all of the participants would line up in the same direction. Most of the time, speakers want to speak; hearers want to hear; conduits want to transmit; and the target has no legitimate beef. Those are the easy free speech cases where the government censor really is a fool or a knave. But Justice Stevens recognizes that there can be trouble in free speech paradise when the interests of the participants genuinely conflict. Sometimes, as in government secrecy contexts, hearers want to receive the speech, but the speaker wishes to remain silent. Sometimes, as with hate speech or flag burning, speakers want to talk, but most hearers don’t want to listen. Sometimes, one set of powerful speakers is able to drown out competitors, making it difficult for a hearer to get both sides. Sometimes, conduits bent on maximizing profits prevent speakers from reaching hearers. Sometimes, innocent targets are victimized by careless or vicious speakers. When such conflicts emerge, how should we resolve them?
First Amendment protection of commercial speech is one example of conflict resolution. Commercial free speech is hearer-centered; not speaker-centered. It is designed to provide consumers with information useful to making informed market choices. False and misleading commercial speech gets no First Amendment protection. Commercial speech conduits, like billboards, newspapers, and broadcasters, can be regulated in the name of important interests like equality, privacy and aesthetics. Targets get real protection against false claims. Consumers get reams of useful information.
I do not argue that it would be a good idea to ratchet down the protection of political and aesthetic speech to the level of commercial speech. General First Amendment doctrine would, however, benefit from taking the interests of hearers and targets more seriously, taking the interests of conduits less seriously, and acknowledging the role of government as a legitimate mediator of potential conflicts of interest in the free speech universe. Sometimes, as Justice Stevens recognizes, the government censor wears the white hat.
