Page 36 - AVN August 2018

BUSINESS
LEGALESE | By Clyde DeWitt
indeed to the business itself. This ominous, onerous threat undermines free speech and press principles
essential to our personal freedom.”
Justice Kennedy went on in his strong dissenting opinion (about which he felt so strong that he took the
unusual step of reading it from the bench) to opine, “Our law does not permit the government to burden
future speech for this sort of taint.”
He went on, “What is at work in this case is not the power to punish an individual for his past
transgressions but the authority to suppress a particular class of disfavored speech. The forfeiture provisions
accomplish this in a direct way by seizing speech presumed to be protected along with the instruments of its
dissemination, and in an indirect way by threatening all who engage in the business of distributing adult or
sexually explicit materials with the same disabling measures. ...
“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. That confidence erodes if it is perceived that speakers and the press are vulnerable for all of their
expression based on some errant expression in the past.”
Alexander was a huge victory for the federal government, along with the many states that have “Baby
RICO” statutes, and a disaster for the media, particularly adult media.
Justice Kennedy was an advocate for free speech across the board, including speech that many readers of
this publication find problematic. In Hill v. Colorado, 530 U.S. 703 (2000), for example, abortion opponents
sought a declaration that a criminal statute prohibiting any person from knowingly approaching within eight
feet of another person near a health care facility without that person’s consent violated the First Amendment.
The issue pitted the right of privacy of those seeking abortions, which prevailed against the protester’s right
of free speech. Justice Kennedy dissented, adamantly:
“For the first time, the Court approves a law which bars a private citizen from passing a message, in a
peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk. If from this time
forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and
open discourse in a public forum.”
“AS SOME...PETITIONERS IN THESE
CASES DEMONSTRATE, MARRIAGE
EMBODIES A LOVE THAT MAY ENDURE EVEN
PAST DEATH. IT WOULD MISUNDERSTAND
THESE MEN AND WOMEN TO SAY THEY
DISRESPECT THE IDEA OF MARRIAGE.”
—ANTHONY M. KENNEDY
He also wrote the majority in the immensely controversial Citizens United v. Federal Election Commission, 558
U.S. 310 (2010), holding in essence that the First Amendment foreclosed any limit on federal campaign
advertising spending, which was then followed by the per curiam opinion in which he joined in American
Tradition Partnership, Inc. v. Bullock, 567 U.S. 516 (2012), not surprisingly extending the rule to states. Free
speech is free speech, no matter who is talking—in this case, corporations and other non-human entities.
All told, Justice Kennedy’s gay rights opinions certainly will be remembered as the hallmark of his career.
First, in Lawrence v. Texas, 539 U.S. 558 (2003), he wrote the majority opinion for a sharply divided court,
overruling the Court’s 1986 opinion in Bowers v. Hardwick, 478 U.S. 186 (1986). In Bowers, the Court had
upheld, 5-4, a Georgia statute outlawing consenting, private homosexual activities. In an opinion that had the
evangelicals spinning, Justice Kennedy held, “Bowers was not correct when it was decided, and it is not correct
today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Then, of course, came Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584 (2015) that, if it survives President
Trump’s replacements on the Court, certainly will be Justice Kennedy’s most remembered moment. Amidst
rapidly changing American attitudes about the subject—punctuated by President Obama’s news-grabbing
2012 interview with Robin Roberts (herself gay) on Good Morning America announcing his support for same-
sex marriage—came Justice Kennedy’s 5-4 Obergefell decision:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion,
sacrifice, and family. In forming a marital union, two people become something greater than once they were.
As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past
death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea
is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope
is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask
for equal dignity in the eyes of the law. The Constitution grants them that right.”
Anthony Kennedy undoubtedly will be remembered as among the most brilliant jurists ever to serve on the
Court. His skills with a pen made him an F. Scott Fitzgerald of the law.
An outstanding justice who became one as an accident of fate.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be
found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your personal attorney.
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