Retiring Supreme Court Associate Justice Sandra Day O’Connor has played a central role in First Amendment jurisprudence during her 24-year tenure on the High Court. She will be long remembered for her work interpreting the Establishment Clause of that amendment, but her freedom of speech legacy may not inspire many future defenders of the Bill of Rights.
Popularly characterized as a “centrist” or the “swing vote” in many high profile cases, Justice O’Connor has played an important role in the First Amendment free speech arena — though to results that have not won her many accolades from the adult entertainment business. Certainly, her opinion for the majority in the notorious 2003 cross burning case, Virginia v. Black, promoted a speech-protective view of the First Amendment, but the strong words she used to advance the expressive interests of cross burners do not necessarily reflect a passion for free expression that encompasses much of a concern for sexually-oriented expression by adults for the entertainment of other adults.
For instance, though Justice O’Connor concurred in the Supreme Court’s decision striking the Communications Decency Act as unconstitutional in 1997, she favored upholding a greater portion of the law and emphasized that, in her view, the Court’s precedent would allow the creation of “adult zones” on the Internet. Reno v. ACLU, 512 U.S. 844, 886 (1997). Just last year, though the majority of the Court concluded that a federal District Court Judge in Pennsylvania properly enjoined enforcement of the Child Online Protection Act (COPA) because it chilled too much protected adult expression on the Internet, Justice O’Connor joined in Justice Steven Breyer’s dissent that would have reversed the District Court and allowed enforcement of COPA. Ashcroft v. ACLU, 524 U.S. 656 (2004). And who can forget Justice O’Connor’s famous opinion for the majority in City of Erie v. Pap’s A.M., where the Court ruled that the First Amendment did not stand in Erie’s way when it applied a general public nudity prohibition to ban nudity in adult nightclubs? In another blow to adult entertainment, Justice O’Connor opined that “even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis.” City of Erie v. Pap's A.M., 529 U.S. 277, 294 (2000).
Justice O’Connor’s departure will undoubtedly have a significant impact on the ideological balance of the Supreme Court. Though she may not have been a stalwart defender of sexually oriented businesses and adult speech rights (or even political speech rights given her 2003 majority opinion upholding federal limits on campaign contributions), her positions on abortion, separation of church and state, and affirmative action in public universities demonstrated an independent streak that often made her the deciding vote in important social debates before the Supreme Court. While other Justices may be willing to step into Justice O’Connor’s occasional role as a bridge between ideological extremes, her impending replacement with an undoubtedly more conservative justice will diminish the impact of that function because the swing vote will come into play less often. In the short term, Justice O’Connor’s absence may have a more immediate effect on the determination of social debates before the Court in which she has played a determinative role than on adult entertainment issues. But, with the expected retirement of Chief Justice William Rehnquist in the very near future, it will not be long before a newly reinvigorated conservative majority turns its sights to First Amendment issues of central importance to adult businesses and protected adult speech.
Roger Wilcox and Paul Cambria are partners in the New York firm Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. Cambria can be reached at [email protected]. Wilcox can be reached at [email protected].
