Thurgood Marshall: Making the First Amendment effective

By Jason Morrison

This article was written for Media Law class at Ohio Wesleyan University, 5 December 2000.

When one thinks of the great defenders of the First Amendment, Justice Thurgood Marshall does not immediately spring to mind. His stance on free speech and press, however, was consistent throughout his career on the Supreme Court. His opinions consistently reinterpreted or built upon the Constitution to meet the realities of modern life so that Americans, even those most poor and unable to be heard, would not lose their freedoms of speech and the press.

Marshall spent 30 years on the Supreme Court, but he is probably most famous for the work he did before becoming a justice. After graduating from Howard Law school, he worked from 1936 through 1961 with the National Association for the Advancement of Colored People (NAACP).1 His greatest triumph was arguing successfully before the Supreme Court in Brown v. Board of Education in 1954. In one fell swoop, the Court found public school segregation illegal, overturning years of precedent.2

Even when solely considering Marshall's career as a Supreme Court Justice, his First Amendment stance may not come to mind. His interest in civil rights did not die with his nomination to the court and it is not surprising that he is known as an advocate in that area. He wrote strong opinions on segregation,3 affirmative action4 and related issues. Marshall is also well known for his long-running attack on the constitutionality of the death penalty.5 Finally, Marshall's term as justice is often thought of in terms of his liberalism, tracing his effectiveness as a "New Deal liberal devoted to advancing the interests of African Americans"6 against an increasingly conservative Supreme Court.

None of these aspects of his career on the Court, however, fully explain or do justice to his consistent defense of First Amendment. His interest in advancing civil rights and his general liberalism may shed light on some of his First Amendment opinions, but his record is better explained by three beliefs Marshall held which made this work logical and necessary. First, a willingness to interpret the Constitution broadly and if need be use his opinions for "social engineering"; second, a great insistence that decisions be practical, grounded in the real world, and look out for those lacking political power; and third, a deep respect for the principles of free speech and press embodied in the First Amendment.

Interpreting the Constitution

Marshall often voiced his opinion that the Constitution is an imperfect document that should be improved upon rather than just interpreted. Despite hundreds of arguments over the original intent of the framers of the Constitution, the Court has "has always been a political body. It's historic opinions-in Marbury, in Dred Scott, in Lochner, in West Coast Hotel, in Brown-have all been legislative decisions; they 'made' new law to replace old laws. To claim that justices simply 'interpret' the Constitution denies reality; the Court necessarily plays a role in the political process."7 It is interesting that in Brown vs. Board of Education, 8 the court agreed with a younger Thurgood Marshall then working for the NAACP. This case found racial discrimination in public education to be unconstitutional despite the fact that the court found no such intent in the Fourteenth Amendment.

The First Amendment explicitly states that "Congress shall make no law... abridging the freedom of speech, or of the press,"9 yet the Court has consistently ruled there are certain kinds of speech, such as child pornography, which Congress can abridge.10 Marshall, however, went further than most justices in finding fault with the document he was charged with interpreting.

Perhaps the best illustration of this was his speech at the Annual Seminar of the San Francisco Patent And Trademark Law Association May 6, 1987. Amid a nation-wide celebration of the Constitution's bicentennial, Marshall found false the "complacent belief that the vision of those who debated and compromised in Philadelphia yielded the 'more perfect Union' it is said we now enjoy."

". . . the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite 'The Constitution,' they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago."11

Although in the speech, Marshall referred specifically to the Constitution's acceptance of slavery and denial of citizenship to all people, his point of view clearly extended to all parts of the Constitution. In his opinions he did not rely on the First Amendment as it was written, but rather looked to the spirit of the document and most importantly, what seemed most fair. As one biographer put it, "He was a litigator influenced by [Howard Law School's Dean Charles Hamilton] Houston's idea of law as an instrument of social engineering. Combining that with a trial lawyer's perspective, Marshall believed that the right answers to legal questions yielded solutions to practical problems. A judge who identified those solutions found the law at the same time. Seeing the judge's job in this way, Marshall took advantage of what everyone agreed was his greatest strength, the soundness of his judgement."12

In one of the most widely-praised opinions in the history of obscenity law,13 Stanley v. Georgia, the Court examined a case in which a Georgia man was charged with "knowingly hav[ing] possession of . . . obscene matter" in violation of state law.14 Part of Georgia's argument was that in a previous case, the Court had held that "obscenity is not within the area of constitutionally protected speech or press."15 Marshall wrote, however, that the Court had yet to rule on cases involving mere possession of obscenity. Despite the fact that the Court had already limited obscene speech, an act prohibited by the First Amendment, and that possession could arguably fall outside the First Amendment altogether, Marshall's opinion for the Court held the Georgia law unconstitutional. In a powerful statement, he told the state "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."16

Marshall had no problem constructing what he saw as a socially necessary right-the right to read anything one chooses in one's own home-out of two amendments which on their face said nothing about it. There is no amendment guaranteeing a right to privacy, per se, but our "constitutional heritage" speaks against it.

In another case, Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,17 Marshall saw another social need never covered in the Constitution and sought to remedy it. Members of the above union picketed a store in Logan Valley Plaza's shopping center while on the company's property. Had the protest occurred on a city street, it would have been protected by the First Amendment extended by the Fourteenth. Neither Congress nor the state could punish someone for reasonably assembling and speaking in this way.18 But since the activity took place on private property, it came into conflict with the owner's rights and was no longer a case of the state violating a person's rights, but rather a property owner accusing the picketers of trespassing.

The Court, led by Marshall, held that the Union had a First Amendment right to picket, even on private property. Marshall cited the similarity between this case and Marsh v. Alabama,19 where it was ruled that First Amendment rights existed in a public area of a privately-owned "company town."20 Marshall's legal reasoning was somewhat convoluted: "the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put."21 Because the state could not infringe on this right, its prosecution of a trespassing charge could not infringe either.

But what this case effectively did was create a new right to free speech on private property opened for public use. This is a far cry from "Congress shall make no law" but was a necessary addition to the constitutional protection. The next logical question, then, is: Why was Marshall so ready to go above and beyond the Constitution?

Ruling Pragmatically

The Logan Valley Plaza case was pioneering,22 but Marshall did not write his opinion simply because he found the Constitution easily reinterpreted. As in most, if not all, of his First Amendment opinions, Marshall was more concerned with the reality of the case, than the legal theory. He has been called pragmatic in this sense, using his wide understanding of both how decisions play out later in local courts and, perhaps most importantly, how decisions will affect people in real life.23

In Logan Valley Plaza, Marshall cited a laundry-list of real-world reasons why it was important that the union be able to picket in the shopping center. The nearest public road was hundreds of feet away, rendering picketing there useless and the picketers would have had to walk on dangerous, heavily traveled high-speed roads. The plaza failed to demonstrate that the picketers were actually interfering with their use of the property. But more broadly, Marshall found that the economic realities of the times showed that with the expansion of suburbs, business had moved away from public business districts and into private shopping centers. Marshall cited statistics, rather than statutes: "by the end of 1966 there were between 10,000 and 11,000 shopping centers in the United States and Canada, accounting for approximately 37% of the total retail sales in those two countries." Therefore, the Court had to extend this freedom-businesses should not be able to immunize themselves from criticism just by surrounding themselves in a sea of parking lots.24 Marshall effectively recognized the picketer's right to a proper audience along with a right to access.25

Although this paper does not examine the effectiveness of Marshall's pragmatism, it is interesting to note that in a series of two cases, the Court reversed the Logan Valley Plaza ruling. Marshall's dissenting opinions shed more light on his consideration of the topic. In Lloyd v. Tanner,26 protestors of the Vietnam War and the draft were instructed by security guards that they could not distribute handbills inside the mall of a large shopping center. The Court, in an opinion by Justice Lewis Powell, said the protestors, unlike the picketers in Logan Valley Plaza, were engaged in speech wholly unrelated to the mall or its businesses, and therefore the private property had not been opened for public use in that manner. Marshall disagreed. He listed similarities between the two shopping centers, including large private parking areas bordered by public roads and extensive use of private walkways, and noted that if anything, the Lloyd Center was larger and more open to the public than Logan Valley and "an integral part of the Portland community."27 Marshall then attacked the Court's argument by noting the actual use of the shopping center. The protests were not unrelated to the Lloyd Center because it was constantly being used for speech purposes, including speeches by presidential candidates. Marshall put the people's interests in perspective: "For many persons who do not have easy access to television, radio, the major newspapers, and the other forms of mass media, the only way they can express themselves to a broad range of citizens on issues of general public concern is to picket, or to handbill, or to utilize other free or relatively inexpensive means of communication. The only hope that these people have to be able to communicate effectively is to be permitted to speak in those areas in which most of their fellow citizens can be found. One such area is the business district of a city or town or its functional equivalent."28

In Hudgens v. NLRB,29 the Court finally completely overturned the Logan Valley Plaza decision. Striking warehouse employees picketed their employer's retail store located in a shopping plaza. When an agent of the owner threatened to have them arrested for trespassing they left, but later filed a complaint with the National Labor Relations Board. The Court said that even though they employees were protesting in a way directly related to the business of the store, they had no First Amendment right to do so on private property. After chiding Court for ruling on the constitutional question before ruling on the National Labor Relations Act rule ostensibly used by the lower courts, Marshall found the implications of the Court's ruling incompatible with the actual situation. The audience that the picketers in this case were trying to reach could not be identified until they came to the store, and alternative means of communication like television advertisement or picketing on distant public streets would have been expensive and uncommunicative, respectively.30 In this case, Marshall also succinctly stated his belief that the law needed to be flexible. "In the final analysis, the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems, I believe, from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech."31

The Court had one more case to consider in this area. In Pruneyard Shopping Center v. Robins32 the Court held a California Supreme Court decision giving people the right to speech in shopping centers in accordance with the California Constitution to be constitutional. The Court decided states had the right to guarantee the rights it struck down in Hudgens v. NLRB. Marshall concurred, though he maintained that Logan Valley Plaza had been the correct interpretation at the federal level all along.

Work like Marshall's, to create and delineate a specific right, was not unusual for the Court. It has been noted that "it is generally the courts that are institutionally entrusted with protection of the utility of speech because the legislatures are frequently unresponsive to the politically powerless."33 Marshall both readily "engineers" law rather than just interpreting it and does so based upon real world concerns rather than just theoretical. Both are key elements to his record on First Amendment issues, but what about the amendment itself? Can Marshall's First Amendment positions be explained by other factors?

Belief in Importance of Free Speech

Marshall's opinions in Logan Valley Plaza, Lloyd v. Tanner, and Hudgens v. NLRB could be read as a consequence of his involvement in the civil right movement. Picketing and distributing handbills were ways in which minority groups could get their message spread about unfair hiring practices, segregation and other issues. But Marshall's opinions in several similar cases show a strong commitment to free speech, even when it might conflict with the goals of groups seeking to advance civil rights.

In Grayned v. City of Rockford,34 African-American students at West Senior High School in Rockford, Illinois, presented a list of grievances to school administrators. When no action was taken, a protest was planned and approximately 200 people gathered next to school grounds in protest, carrying signs with slogans such as "Black cheerleaders to cheer too." Police arrested 40 demonstrators and charged them with violating an antipicketing law and an antinoise law by demonstrating outside a school while it was in session.

Though Marshall wrote the opinion of the Court striking down the antipicketing ordinance as being content-specific (it banned all picketing except labor-related picketing), he held the antinoise law to be a constitutional "time, place and manner" restriction. Despite the civil rights content of the protest and in part because of the content-neutral aspect of the law, Marshall explained that the law was neither vague nor overbroad. "Although a silent vigil may not unduly interfere with a public library, making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time."35 Marshall's opinion, in fact, has been praised as providing "excellent guidelines to public communicators who might have occasion to contemplate what is and is not permissible in the public forum."36 In this case, Marshall showed his command of the case law surrounding the First Amendment as well as its importance.

Marshall wrote the opinion in an even clearer case of free speech overriding an important civil rights goal, Linmark Associates v. Willingboro.37 In this case, an ordinance banned the placement of "For Sale" signs on front lawns in the hope of slowing the flight of whites further out into the suburbs as an increase of African American residents was perceived. Though Marshall recognized the benefit of an integrated community, he found that the ban was an unconstitutional abridgement of speech.

Marshall's opinion, as always, was grounded in an understanding of the real implications of the statute. Though sellers theoretically had many outlets through which to advertise their home, "For Sale" signs were the only effective means without the expense of newspaper ads or real estate agents. Marshall also looked for evidence that the signs actually led to white flight, but found none.

If Marshall's respect for the First Amendment went deeper than its incidental use in civil rights, perhaps it was a political decision. Indeed, Marshall signed on to a large number of Justice William J. Brennan's opinions.38 Although one biographer noted that "Marshall felt no need to stake out a distinctive position or define himself and his views to his colleagues. Most of the time his views were close enough to Brennan's that he did not think it a productive use of his colleague's time for him to spell out minor differences that mattered little in the end." Marshall did, however, "use his time at the conferences to mention the real-world dimensions of the Court's cases,"39 shedding light the rational behind his agreement with Brennan. And although he is much better known for his civil rights and death penalty work, Marshall has been listed as one of the "impenetrable bulwarks" against infringement of First Amendment freedoms.40 It would be difficult to identify Marshall's First Amendment stance as simply going along with Brennan or toeing the liberal line when faced with the body of his opinions in important press cases.

Marshall's stance on libel, for example, showed his deep respect for the First Amendment. In Rosenbloom v. Metromedia,41 a nudist magazine distributor sued a radio station after the station, reporting on the distributor's arrest, failed to call the magazines "allegedly" obscene and later referred to the distributor as a "smut distributor" and "girlie book peddler." The distributor was then acquitted when the state found the materials in question were not obscene and brought a libel suit against the radio station. Brennan wrote the opinion of the Court, saying that even though the distributor was not a public figure, the New York Times v. Sullivan standard of knowing or reckless falsity applied to those involved in issues of general public concern.

Marshall, however, found fault with the whole New York Times v. Sullivan system. The problem, he said, was that in attempting to balance speech and privacy with an all-encompassing general rule, the Court had just found an exception to that rule. Issues of public concern were never mentioned in the original test, yet here the Court was amending it. "The Court is required to weigh the nuances of each particular circumstance on its scale of values regarding the relative importance of society's interest in protecting individuals from defamation against the importance of a free press ... whatever precision the ad hoc method supplies is achieved at a substantial cost in predictability and certainty. Moreover, such an approach will require this Court to engage in a constant and continuing supervision of defamation litigation throughout the country."42 Furthermore, Marshall saw the most important problem in the unlimited judgments possible in defamation cases. "Our notions of liberty require a free and vigorous press that presents what it believes to be information of interest or importance; not timorous, afraid of an error that leaves it open to liability for hundreds of thousands of dollars. The size of the potential judgment that may be rendered against the press must be the most significant factor in producing self-censorship -- a judgment like the one rendered against Metromedia would be fatal to many smaller publishers."43 Marshall's answer was to limit damages to proved actual injuries and get rid of punitive damages in libel cases altogether.44 First, note that Marshall was again thinking about the real world effect of the decision rather than applying theoretical models. Second, Marshall's answer may have eliminated many of the problems the Court has had since New York Times v. Sullivan in dealing with libel.45 Marshall's proposal also showed a clear understanding and support of freedom of the press sans specific political considerations.

Marshall dissented in another libel case, Herbert v. Lando. 46 In this case, the plaintiff, who acknowledged he was a public figure, deposed an editor and asked a series of questions about his state of mind and the editorial process in order to show actual malice. The editor refused, saying the First Amendment granted a constitutional privilege against having to answer such questions. The Court, in an opinion written by Justice Byron White, said there was no such privilege. Marshall was concerned about the possibility that this new discovery procedure would be abused, worried that it could be used to drag cases out longer in a war of attrition. He also noted the "chilling effect" this would have on reporters and editors-if even their thoughts can be called to trial, they will no doubt be more reluctant to share them.47 Neither of the two possibilities would further the aims of the First Amendment, though Marshall's inclusion of such a privilege is a good example of engineering law to avoid practical problems.

When The Florida Star printed the name of a sexual assault victim in its police reports section, the victim brought suit under a state law making it illegal to print the name of the victim in a sex offence. The Star, however, obtained the name legally when it was left in the police report in the press room by the police department. In Marshall's opinion for the Court, he rejected the Star's arguments for a constitutional finding that the press cannot be punished for printing something true and instead merely found Florida's law unconstitutional. Marshall found that the information was true, lawfully obtained, and that the law did not advance a state interest of the highest order.48 Though sympathetic to the victim, Marshall found the First Amendment too strong to limit in this case.

Marshall's perspective led him to find First Amendment conflicts where other justices did not. When a district court ordered CNN not to air footage of communication between Manuel Noriega and his counsel, the Court denied a writ of certiorari, refusing to hear the case. This bothered Marshall, because he saw prior restraint-the court issued the order "without any finding that suppression of the broadcast was necessary to protect Noriega's right to a fair trial."49 Once again, Marshall's opinion places a heavy burden on state actions that infringe on the First Amendment.

Marshall's opinions in other cases bear out his appreciation for the First Amendment as well, and in nearly every case it is clear that he is willing to build upon the Constitution if necessary to deal with the real situation of the times. Because his triumphs in civil rights were so spectacular, it is possible he will remain an unknown factor in the development of the First Amendment. It is clear, however, that his stance was consistent: Americans must not lose their freedoms of speech and the press, even if the Constitution must be reinterpreted to meet the realities of modern life.

2 Brown v. Board of Education, 347 U.S. 483 (1954).
3 See Memphis v. Greene, 451 U.S. 100 (1981) and Milliken v. Bradley, 418 U.S. 717 (1974), for example.
4 See University of California Regents v. Bakke, 438 U.S. 265 (1978) and Fullilove v. Klutznick, 448 U.S. 448 (1980), for example.
5 See Furman v. Georgia, 408 U.S. 238 (1972), Caldwell v. Mississippi, 472 U.S. 320 (1985) and Ford v. Wainwright, 477 U.S. 399 (1986), for example.
6 TUSHNET 180-181.
8 Brown et al. v. Board of Education of Topeka et al. 347 U.S. 483 (1954).
9 USCS Const. Amend. 1.
10 Ginsberg v. New York, 390 U.S. 629 (1968).
11 Thurgood Marshall, Remarks of Thurgood Marshall At The Annual Seminar of the San Francisco Patent And Trademark Law Association, in THURGOOD MARSHALL: AMERICAN REVOLUTIONARY (Dec. 3, 2000) .
12 TUSHNET 31.
14 Stanley v. Georgia, 394 U.S. 557 (1969).
15 Roth v. United States, 354 U.S. 476, 485 (1957)
16 Stanley, 394 U.S. 557, 565
17 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968)
18 Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Schneider v. State, 308 U.S. 147 (1939); Jamison v. Texas, 318 U.S. 413 (1943)
19 Amalgamated Food Employees, 391 U.S. 308, 317.
20 Marsh v. Alabama, 326 U.S. 501 (1946).
21 Amalgamated Food Employees, 391 U.S. 308, 319-320.
23 TUSHNET 183
24 Amalgamated Food Employees, 391 U.S. 308, 322-326.
25 BARRON 102.
26 Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
27 Lloyd Corp., 407 U.S. 551, 575.
28 Lloyd Corp., 407 U.S. 551, 580-581.
29 Hudgens v. National Labor Relations Board et al., 424 U.S. 507 (1976).
30 Hudgens, 424 U.S. 507, 533.
31 Hudgens, 424 U.S. 507, 542.
32 Pruneyard Shopping Center et al. v. Robins et al., 447 U.S. 74 (1980)
34 Grayned v. City of Rockford, 408 U.S. 104 (1972)
35 Grayned, 408 U.S. 104, 117.
36 TEDFORD 277.
37 Linmark Associates, Inc. et al. v. Willingboro et al., 431 U.S. 85 (1977).
38 See Lehman v. City Of Shaker Heights, 418 U.S. 298 (1974), EPA v. Mink, 410 U.S. 73 (1973), Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), Posadas De Puerto Rico Assoc. v. Tourism Co., 478 U.S. 328 (1986) for a few First Amendment-specific examples.
39 TUSHNET 56-57.
40 JAMES E. LEAHY, THE FIRST AMENDMENT, 1791-1991 28 (1991).
41 Rosenbloom v. Metromedia, 403 U.S. 29 (1971).
42 Rosenbloom, 403 U.S. 29, 81.
43 Rosenbloom, 403 U.S. 29, 82.
44 Rosenbloom, 403 U.S. 29, 85.
46 Herbert v. Lando, 441 U.S. 153 (1979).
47 Herbert 441 U.S. 153, 204-210.
48 The Florida Star v. B. J. F., 491 U.S. 524 (1989)
49 Cable News Network, Inc., et al. v. Manuel Antonio Noriega And United States, 498 U.S. 976 (1990)

Copyright 2001 Jason Morrison