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The Law And Potter Stewart: An Interview With Justice Potter Stewart
A quarter-century of judicial history, as seen—and made—by our only retired Supreme Court justice, a man whose allegiance to the Constitution often forced him to act against his personal preferences.
December 1983 | Volume 35, Issue 1
Yes, I do think they have an obligation to be responsible and, if you will, to censor themselves.
Do you share the view of some critics that the news media are not always responsible and that something might be done on this score?
I believe that they are not always responsible, but as to correctives, I don’t know. It’s a very highly competitive business. I know that—I used to work for a newspaper during summers when I was in college. But I think a different tradition—and traditions are terribly important—might be the answer.
How does current investigative reporting compare with that of the muckrakers early in the century? Theirs has since been considered a very valuable contribution.
Yes, I know it is by contrast with just taking self-serving handouts from government. Somewhere in between lies the proper way of proceeding. But it’s hard to find.
Regarding censorship on another front, you once said that you could not define obscenity but you knew it when you saw it. You may not have been entirely serious when you said that, but is a definition possible? And if not, what do you do about it?
It’s a very subjective matter. And when one thinks that by calling something obscene it can be suppressed—whether it be Das Kapital or Mein Kampf or whatever—it’s a very tricky and potentially dangerous position. But it is highly subjective.
You can’t have a blanket rule, then, as to what school boards should allow or not allow on their high school library bookshelves?
Since not everything can be on a high school’s library bookshelf, the school board has a great deal of discretion in the matter.
Is it, then, the role of the Court to either support the board or overrule it?
No, I think not. I think a choice of books is the school board’s job.
That is contrary to the recent decision in the Long Island case [in which students claimed that the removal of books from their school’s shelves violated the First Amendment].
I expect it is, yes, but that was a kind of nondecision. [While declining to rule on the merits of the case, the Court upheld the right of the students to sue their school board.]
But it did allow the books to be put back.
That’s right. It remanded the case to the lower court, and the board then dropped it, I think.
In 1962 you dissented from a ruling that would ban secular prayer in New York schools. Of course I realize the prayers were not compulsory, but if your view had prevailed, mightn’t it have created difficulties for children whose parents didn’t want them to take part?
If the issue had been the free exercise of religion clause of the First Amendment, it would have been a much more difficult case for me. But it was cast in terms of the clause prohibiting the establishment of religion in the same First Amendment. Nobody claimed that the prayer was compulsory. But the Court found nevertheless that it was violating the establishment clause, which was put in the Constitution so we would not have a Church of England or the equivalent in this country.
Does that mean that you would uphold a school prayer where there is no compulsory element at all, simply a voluntary prayer or a silent moment?
Not if there was a claim that any child was compelled to observe it. There was no compulsion, psychological or otherwise, in the case we are discussing.
Mightn’t you find some ground for suspecting psychological compulsion even if the law was purely voluntary? I mean if the children felt obliged to take part?
If they felt obliged to, there might be a violation of their constitutional rights to the free exercise of their religion, which includes the right of nonbelievers.
Wouldn’t that always be the case?
Well, it wasn’t decided so in that case. It was decided on the establishment clause.
On the Court you favored legalizing abortions in the first six months, but later you were against the use of Medicaid funds for this purpose. Since you would not refuse financial aid for other medical purposes, why would you deny it for this one?
Let me put it this way. The First Amendment gives us, among other things, the right of a free press, but that does not obligate the federal government or any government to supply printing presses to people. For free. Here, it seems to me, is the same difference.
What you’re saying is that it’s one thing to legalize abortion and another thing to finance it?
Exactly, exactly, exactly. It doesn’t follow at all that if a person has a constitutional right to do something, he or she has a constitutional right to be subsidized.
Even though he is covered in all other medical matters?