Of Burning Houses and Roasting Pigs: Why Butler V. Michigan Remains a Key Free Speech Victory More Than a Half-Century Later

Article excerpt

I. INTRODUCTION
II. THE STORY BEHIND BUTLER AND THE PRINCIPLE TO WHICH IT
      GAVE RISE: BURNING DOWN THE FIRST AMENDMENT
      HOUSE TO ROAST THE OFFENDING PIG
III. THE LASTING LEGACY OF BUTLER ON FIRST AMENDMENT
      JURISPRUDENCE
      A. Ginsberg v. New York
      B. FCC v. Pacifica Foundation
      C. Bolger v. Youngs Drug Products Corp
      D. Sable Communications of California v. FCC
      E. Reno v. ACLU
      F. United States v. Playboy Entertainment Group, Inc
      G. Ashcroft v. Free Speech Coalition
IV.  CONCLUSION

I. INTRODUCTION

When thinking about celebrated free speech cases since 1950, a dozen or so U.S. Supreme Court rulings involving the First Amendment (1) probably come readily to mind. They likely include, chronologically, free speech victories such as New York Times Co. v. Sullivan, (2) Tinker v. Des Moines Independent Community School District, (3) Brandenburg v. Ohio, (4) Cohen v. California, (5) New York Times Co. v. United States, (6) Miami Herald Publishing Co. v. Tornillo, (7) Hustler Magazine v. Falwell, (8) Texas v. Johnson, (9) Florida Star v. B.J.F., (10) McIntyre v. Ohio Elections Commission, (11) Reno v. ACLU, (12) and Snyder v. Phelps. (13) Besides Snyder, other relatively recent cases like Bartnicki v. Vopper (14) and Brown v. Entertainment Merchants Association (15) might also come to First Amendment scholars' minds.

This Article contends, however, that one of the most important free speech cases since 1950--an especially vital case today when considered within the context of the ongoing culture wars in which shielding minors from supposedly harmful content is an often-used government rationale, or perhaps excuse, for censorship--is the much less celebrated 1957 high court decision in Butler v. Michigan. (16) One current constitutional law casebook devotes a meager three sentences--in a "note" section, no less--to Butler, (17) while another casebook fails to mention it at all. (18) The Butler opinion spans a mere five pages in the United States Reports and consists of fewer than ten total paragraphs. (19) It illustrates, however, that brevity, concision, and unanimity are powerful characteristics when a Supreme Court opinion identifies--employing a memorable phrase in the process--a clear-cut, timeless legal principle upon which future courts and jurists can build and premise their own decisions.

Part II of this Article provides an overview of Butler, including background on the key protagonists in the controversy. (20) Part III then illustrates how the central holding of Butler has been employed numerous times over the past fifty years across multiple media platforms, including the Internet, and in a wide range of factual scenarios. (21) Next, Part IV argues that Butler will remain important in the near future, and identifies the reasons why Butler has proved so powerful despite not typically falling within the pantheon of celebrated First Amendment victories. (22)

II. THE STORY BEHIND BUTLER AND THE PRINCIPLE TO WHICH IT GAVE RISE: BURNING DOWN THE FIRST AMENDMENT HOUSE TO ROAST THE OFFENDING PIG

"The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children." (23)

This critical observation in Butler gave rise to a pivotal principle in First Amendment jurisprudence--that the government cannot, in the name of shielding minors from supposedly objectionable content, implement a blanket ban on that content and thereby reduce the scope of speech available to consenting adults. The effect of such measures, as Justice Felix Frankfurter colorfully wrote, is "to bum the house to roast the pig." (24) In short, Butler is a crucial victory for the First Amendment rights of adults to receive controversial speech. (25) It also marks a key defeat for the longstanding notion of censoring speech in the name of protecting children. (26)

How did the Court reach this result in Butler? …

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