Chief Justice William Rehnquist was not known as a sympathetic defender of First Amendment rights, although he appeared more supportive of some aspects of the amendment than others. (Image via Wikimedia Commons, public domain)
William Hubbs Rehnquist (1924–2005) was appointed to the Supreme Court in 1972 by President Richard M. Nixon.
In 1986 President Ronald Reagan elevated Rehnquist to chief justice, a position he held until his death in 2005. During his tenure on the Court, both as associate justice and chief justice, Rehnquist was not known as a sympathetic defender of First Amendment rights, although he appeared more supportive of some aspects of the amendment than others.
Born in Milwaukee, Wisconsin, on October 1, 1924, Rehnquist served in the Army during World War II. After the war, he attended Stanford University, where he received bachelor and master of arts degrees in political science and, later, a law degree. He also earned a master of arts degree in government from Harvard. After law school, Rehnquist clerked for Supreme Court Justice Robert H. Jackson. He then took a position with a law firm in Phoenix, Arizona.
In Arizona, Rehnquist was active in Republican Party politics, where he was vocally critical of recently enacted federal civil rights laws. He caught the attention of President Nixon, who appointed him to serve in the Justice Department as an assistant attorney general. In 1972 the President appointed him to the Supreme Court to replace retiring justice John Marshall Harlan II.
Rehnquist was more sympathetic to property rights than individual rights
Academic studies of Rehnquist’s voting record reveal that he was generally more sympathetic to property rights and state authority (Tenth Amendment) claims than to the protection of individual rights. He also was generally not supportive of criminal due process or privacy rights. As an associate justice, Rehnquist was often the lone dissenting vote on the Burger Court, prompting his clerks to nickname him the “Lone Ranger.”
However, as chief justice Rehnquist seemed to modify some of his positions, and he was often joined by Justices Sandra Day O’Connor, Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy to form a conservative voting bloc. His Court is probably best known for its efforts to trim back federal authority and for the decision in Bush v. Gore (2000) that halted the vote count in Florida, thereby giving the state’s electoral votes and the presidency to Republican George W. Bush.
Hustler Magazine v. Falwell was Rehnquist's most famous First Amendment decision
In his most famous First Amendment decision, Chief Justice Rehnquist wrote for a unanimous Court in Hustler Magazine v. Falwell (1988), ruling that pornographer Larry Flynt had a First Amendment right to parody and lampoon evangelist Jerry Falwell.
In Zelman v. Simmons-Harris (2002), Rehnquist wrote the majority opinion rejecting establishment clause arguments, while upholding a school voucher program that provided public money to religious schools. The Court’s 5-4 opinion in Boy Scouts of America v. Dale (2000), delivered by Rehnquist, held that requiring the Boy Scouts to admit homosexuals into their organization would violate their freedom of association rights.
Rehnquist was not known as a great defender of the First Amendment but did author some opinions protecting First Amendment rights
Though not known as a great defender of the First Amendment, Rehnquist authored other opinions that protected the rights of First Amendment litigants. For example, he wrote the Court’s opinion in Jenkins v. Georgia (1974), in which the Court ruled unanimously that the film Carnal Knowledge was not obscene. Rehnquist explained that “nudity alone is not enough to make material legally obscene.”
Rehnquist also authored the Court’s opinion in Givhan v. Western Line Consolidated School District (1979) in which the Court ruled that a public school teacher had a First Amendment right to complain about racial discrimination at her school. The school district had argued that Bessie Givhan lost any free speech protection because she voiced her complaints about racial discrimination to her principal behind closed doors rather than airing her complaints publicly. Rehnquist disagreed with that argument, writing: “This Court’s decisions [involving free speech claims of public employees] . . . do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.”
Rehnquist also authored the Court’s decision in Madsen v. Women’s Health Center, Inc. (1994), in which the Court invalidated some parts of an injunction entered against anti-abortion protesters outside of a women’s health clinic. Although Rehnquist upheld a buffer zone just outside the clinic entrance, he ruled that other provisions of the order, including a three-hundred-foot zone around the clinic and bans on images observable from the clinic, violated the First Amendment. “This broad prohibition on all ‘images observable’ burdens more speech than necessary to achieve the purpose of limiting threats to clinic patients or their families,” he wrote.
Rehnquist’s decision for the Court in Butterworth v. Smith (1990) held that a Florida statute prohibiting witnesses from ever disclosing their grand jury testimony violated the First Amendment. “The potential for abuse of the Florida prohibition, through its employment as a device to silence those who know of unlawful conduct or irregularities on the part of public officials, is apparent,” he wrote.
Rehnquist concurrences and dissents
As for concurrences and dissents, in Agostini v. Felton (1997) Rehnquist joined a majority opinion to allow public school teachers to provide remedial education in parochial schools. But he dissented from the decision in Texas v. Johnson (1989) protecting flag burning. In First National Bank of Boston v. Bellotti (1978), Rehnquist dissented from the majority opinion upholding on free speech grounds the right of an ideological not-for-profit corporation to expend money for political purposes. In Wallace v. Jaffree (1985), he dissented from the majority opinion invalidating a moment of silence in public schools; as an advocate of accommodationism, he saw no establishment clause violation.
In addition to his service on the Supreme Court, Rehnquist was a historian who wrote several books, including The Supreme Court: How It Was, How it Is (1988) and Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (1992). Chief Justices Rehnquist and Salmon P. Chase share the distinction of being the only chief justices to preside over the Senate trials of presidents who were impeached. In 1999 Rehnquist presided over the unsuccessful Senate trial of President Bill Clinton, who had been impeached by the House of Representatives.
This article was originally published in 2009. David Schultz is a professor in the Hamline University Departments of Political Science and Legal Studies, and a visiting professor of law at the University of Minnesota. He is a three-time Fulbright scholar and author/editor of more than 35 books and 200 articles, including several encyclopedias on the U.S. Constitution, the Supreme Court, and money, politics, and the First Amendment.Send Feedback on this article