Academic journal article Newspaper Research Journal

State Supreme Court Justices' Views on Free Expression

Academic journal article Newspaper Research Journal

State Supreme Court Justices' Views on Free Expression

Article excerpt

What kind of state justices are inclined to rule in favor of media rights? That was a major concern of this survey of state supreme court justices about nine areas of free expression. The intent was to identify support for the speech rights and to determine judicial characteristics that were associated with that support. Is speech support related to justices' political party, attorney experience or perceptions of press coverage of their courts? These issues were explored by surveying retired members of state supreme courts.

State Media Rights

In 1986 a scholar observed: "Most legal questions involving the press, however, are decided by state courts applying state law." He added: "State courts and legislatures make a great many decisions regarding laws that impact directly upon the day-to-day operations of the print and broadcast media."(1) This is particularly true of the nine legal areas in this survey.

Libel. The states define various provisions of libel law such as defamation, identification, publication, falsity, qualified privilege and fair comment. Three databases illustrate the importance of state courts in litigating media libel cases. Gillmor examined 614 libel cases from 1982-1988 and found that 71 percent were from state courts.(2) The Libel Defense Resource Center analyzed 424 libel trial verdicts for 1980-1998 and found that 78 percent were from state courts. And an LDRC study of appellate libel decisions for 1984-1988 found 74 percent were from state cases.(3)

Invasion of privacy. State courts have variously recognized four privacy torts: 31 state courts recognize false light, 36 recognize disclosure and 39 recognize intrusion and misappropriation.(4) Most media privacy cases begin in state courts. Scott examined 44 years of intrusion and disclosure cases and found that 75 percent originated in state courts.(5)

Obscenity law. In 1973 in Miller, the Supreme Court limited constitutional protection for erotic speech and granted the states greater latitude for prosecuting obscenity. Simon observed that the "Supreme Court returned much of obscenity law to the states."(6) Subsequently, state legislatures and state courts drafted definitions of obscenity that were compatible with Miller. But two state supreme courts relied on their state constitutions to decriminalize obscenity. In 1987 the Oregon Supreme Court wrote that "In this state any person can write, print, read, say, show or sell anything to a consenting adult even though the expression may be generally or universally considered `obscene.'"(7) And in 1988 the Hawaii Supreme Court ruled that the privacy provision in its state constitution protected the right of adults to view obscene material in the privacy of their homes.(8)

Public forums. The right to distribute pamphlets in shopping malls is another area in which the Supreme Court in the 1970s deferred to the states.(9) In 1979 the California Supreme Court ruled that its state right of free speech allowed citizens to peacefully distribute pamphlets in the common areas of malls. One year later the U.S. Supreme Court tolerated the approach when it ruled that the California policy did not infringe on mall owners' property rights.(10) A number of state courts since then have created a right` grounded in state constitutions, to distribute pamphlets in malls.(11) Where this right exists, it has been created by the state supreme court and not the legislature.

Student speech rights. This is another area in which the U.S. Supreme Court has minimized First Amendment protection and deferred to state policy makers. In Hazelwood the court ruled that public school administrators may censor official student publications.(12) Since Hazelwood, six state legislatures have approved statutes that grant public school students basic speech protection. And the Supreme Court of New Jersey ruled in 1994 that a junior high school administrator exceeded his authority when he censored movie reviews in the student paper because the movies, Rainman and Mississippi Burning, were R-rated. …

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