Page 34 - AVN August 2018

BUSINESS
LEGALESE | By Clyde DeWitt
KEEPING SPEECH FREE
The honorable Anthony M. Kennedy’s legacy
right way. Case in point, read this
from Justice Kennedy’s concurring
opinion in Texas v. Johnson, 491 U.S.
Sometimes, things just work out the
397 (1989):
“The hard fact is that sometimes
we must make decisions we do
not like. We make them because
they are right, right in the sense that the law and
the Constitution, as we see them, compel the result.
And so great is our commitment to the process
that, except in the rare case, we do not pause to
express distaste for the result, perhaps for fear of
undermining a valued principle that dictates the
decision. This is one of those rare cases.”
That was concurring with Justice Brennan’s 5-4
opinion holding that burning a flag in protest was
protected by the First Amendment—meaning that
Justice Kennedy’s opinion was the deciding vote.
Ronald Reagan, who nominated Justice Kennedy
and whose second term as president had concluded
six months earlier, must have been spinning.
Anthony Kennedy, notably, was not President
Reagan’s first choice.
“IN A SOCIETY
COMMITTED TO
FREEDOM OF
THOUGHT, INQUIRY,
AND DISCUSSION
WITHOUT
INTERFERENCE OR
GUIDANCE FROM
THE STATE, PUBLIC
CONFIDENCE
IN THE INSTITUTIONS
DEVOTED TO THE
DISSEMINATION OF
WRITTEN MATTER
AND FILMS IS
ESSENTIAL.”
—SUPREME COURT JUSTICE
ANTHONY M. KENNEDY
In 1981, not all that long after President Reagan
was sworn in, he appointed Sandra Day O’Connor
to the Supreme Court in response to the retirement
of Justice Potter Stewart (one of President Nixon’s
four appointees that turned the Court around).
Justice O’Connor, the first woman ever to serve on
the Court, came from nowhere; she was judge on
an Arizona intermediate appellate court, although
a Stanford Law classmate of then-Associate Justice
William Rehnquist.
When President Reagan ran for re-election in 1984, he sought and obtained the support of the evangelicals
(aka Religious Right), appointing Edwin Meese as attorney general. President Reagan at that point created a
litmus test for Supreme Court justices, which the Republicans continue to this day. When Justice Harlan retired
in 1986, Reagan went straight for the jugular. He elevated Associate Justice William Rehnquist—unquestionably
the most conservative justice on the Court—to chief justice; and he appointed Antonin Scalia, along with his
ultraconservative intellectual firepower, to the associate justice position. You probably know that Justice Scalia
was no fan of the First Amendment—at least where erotic speech was concerned.
The next opening at which President Reagan had a shot was when Justice Lewis Powell retired in 1987. By
then, the Reagan Administration was hunkered down to appoint justices who would be certain to overrule Roe v.
Wade in order to mollify the Religious Right. What happened was serendipitous.
Reagan’s first try was Robert Bork, an out-of-whack conservative who was viewed by the legal community—
even by many of its conservatives—as totally off the map in terms of his legal views. The Senate rejected him.
The next try was a Harvard guy, Douglas H. Ginsburg, but he was said to have puffed on a few blunts, so he
withdrew his nomination.
The third choice was an off-the-wall judge from the Ninth Circuit named Anthony McLeod Kennedy. Being a
Catholic, Kennedy was assumed to be anti-abortion. That was a part of the Republicans’ effort to stack the Court
with Catholics (in which they succeeded), figuring that approach would get Roe v. Wade overruled for sure. They
were in for many surprises.
To be sure, Justice Kennedy was in lockstep with the Republicans on some issues. For example, Justice
Kennedy voted in the 5-4 majority in Bush v. Gore, which put George W. Bush in the White House despite the fact
that the Florida Supreme Court had authorized a recount of the ballots. (It turned out that Gore had actually
won the state by about 500 votes.) However, when it came to the First Amendment, the Republicans weren’t so
happy, as noted above.
In the horrible obscenity-forfeiture case Alexander v. United States, 509 U.S. 544 (1993), the Court held
that a finding of obscenity as to a half-dozen items could support the forfeiture of Ferris Alexander’s entire
multimillion-dollar adult bookstore empire. Justice Kennedy wanted no part of it:
“The Court today embraces a rule that would find no affront to the First Amendment in the Government’s
destruction of a book and film business and its entire inventory of legitimate expression as punishment for a
single past speech offense. Until now I had thought one could browse through any book or film store in the
United States without fear that the proprietor had chosen each item to avoid risk to the whole inventory and
34 | AVN.com | 8.18