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Chief Justice Rehnquist, often joined by Justice White, was generally lukewarm to expansive free speech arguments. Justice Scalia was an unknown quantity but was presumed to be skeptical about expansive free speech arguments. Within a year, Justice Powell was gone, forced by ill health into a premature retirement that deprived the Court of its most respected centrist voice.
Robert Bork was nominated to replace Justice Powell. Justice Kennedy, on the other hand, unexpectedly bloomed into an extraordinary defender of free speech, reinforcing the Brennan position and profoundly altering the free speech dynamics of the emerging Rehnquist Court.
When Justices Marshall and Brennan left the Court in —91, the potential for free speech revisionism was still present. But the accident of personnel does not wholly explain the resilience of free speech doctrine in the Rehnquist Court.
Each of the three components was embraced, deepened, and enlarged by the Rehnquist Court. When free expression bumps up against almost anything else in our system—whether it is privacy, anguish, equality, or patriotism—free expression usually trumps the countervailing value.
It was not always that way in our constitutional history. After all, the opinion was unanimous, and, in retrospect, the case could hardly have been decided otherwise.
But its importance as a signal of continuity was dramatic. Jerry Fallwell of sleeping with his mother, had mapped an end run around Times v.
Without directly overruling the case, it would have been possible for the Supreme Court to back away from the commitment to the primacy of free expression that is at the core of Times v. A Supreme Court with a new Chief Justice who had been avowedly skeptical about much First Amendment doctrine; two new Justices of strongly conservative bent who were untested in First Amendment waters; a senior Justice whose First Amendment attachment was weak at best; and a junior Justice with no strong First Amendment tradition, could have opted for free speech revisionism.
But the dog did not bark. Johnson15 and United States v. In two foundational cases—Brandenburg v. Ohio17 and Police Department v. Johnson made the case a sitting duck for the ban on content-based regulation. That it did not is a tribute to the power of the free speech ideal, and to its attractiveness to both sides of the political spectrum.
The narrow majority in Texas v. Johnson, consisting of Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy, reached across the political spectrum. Not surprisingly, the resulting mix is more complex than the straightforward cases in which free expression was deemed a trumping value.
Schultz,21 the Court was confronted with a broad prohibition on residential picketing. When the smoke cleared, the Court had upheld a ban on massed, targeted picketing of a residence but had invalidated a ban on neighborhood picketing in the vicinity of a residence.
Frisby is hardly a model of precision, but its obvious thrust is an effort to protect as much free expression as possible without surrendering all vestiges of privacy in the home. Similarly, in Madsen v. Pro Choice Network,23 the Court was confronted with district court injunctions limiting expression in the immediate vicinity of abortion clinics that had been the target of unlawful blockage.
In Madsen, the Court upheld a narrow district court injunction. Schenck and Madsden leave many questions unanswered, but the thrust of the two cases is clear—the Rehnquist Court is committed to preserving both free expression and the right of a woman to have reasonable access to a medical facility offering abortions.
The fascinating question is in how many other settings, if any, will free expression mutate from a trumping value into a just another value that must coexist with others deemed equally important?
ACLU,25 suggests that free expression will continue to trump countervailing values, including privacy, but because of the appallingly drafted statute before the Court in ACLU v.
Reno, the jury is still out on what the balance might be with a narrower statute. The pre-Rehnquist Court had expanded the First Amendment universe beyond the speaker to include hearers, conduits, and targets. The problem of involuntary hearers remains troublesome.
Pre-Rehnquist Court doctrine made it clear that merely because a message was grossly offensive to hearers, it did not lose its First Amendment protection. But, in selected contexts, the Rehnquist Court was more sympathetic to involuntary hearers.
Unfortunately, the Court has not attempted a systematic discussion of the relative First Amendment rights of speakers and hearers, leaving the cases to be decided on an ad hoc basis.
In Turner Broadcasting Company v. FCC Turner I ,35 for example, when Congress required that cable broadcasters transmit the signal of all over-the-air broadcasters, cable owners, over-the-air broadcasters, and hearers all claimed to be the protected First Amendment party.
The Turner I Court recognized that cable broadcasters are classic speakers entitled to full First Amendment protection in most contexts but carved out important free expression interests for persons seeking access to cable facilities, as well as for hearers.
The net result is a complex mixture of speaker, hearer, and conduit rights that have not been fully sorted out.
Similarly, in Denver Area Educational Consortium v. Each received a modicum of protection.Elsasser Expediting Services, LLC is a New York Domestic Limited-Liability Company filed on September 4, The company's filing status is listed as Active and its File Number is The Registered Agent on file for this company is Elsasser Expediting Services, LLC and is located at 11 Cherry Street, Selden, NY Location: New York (NY).
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