FW/PBS, Inc. v. Dallas/Concurrence Stevens

by John Paul Stevens

Justice STEVENS, concurring in part and dissenting in part.

As the Court explains in Part III of its opinion, it is not certain that any petitioner has standing to challenge the provisions of the licensing scheme that disqualify applicants who are themselves unqualified or who reside with, or are married to, unqualified persons. Given the breadth of those provisions, the assertions in the Staten and Foster affidavits, and the District Court's understanding of the relevant facts, however, I cannot join the decision to direct dismissal of this portion of the litigation. See ante, at 235. I would remand for an evidentiary hearing on the standing issues.

I join Parts I, II, and IV of Justice O'CONNOR's opinion. With respect to Justice SCALIA's proposed resurrection of Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), I have this comment. As I explained in my dissenting opinion in Splawn v. California, 431 U.S. 595, 602, 97 S.Ct. 1987, 1991-92, 52 L.Ed.2d 606 (1977), Ginzburg was decided before the Court extended First Amendment protection to commercial speech and cannot withstand our decision in Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). If conduct or communication is protected by the First Amendment, it cannot lose its protected status by being advertised in a truthful and inoffensive manner. Any other result would be perverse,

"Signs which identify the 'adult' character of a motion picture theater or of a bookstore convey the message that sexually provocative entertainment is to be found within. . . . Such signs . . . provide a warning to those who find erotic materials offensive that they should shop elsewhere for other kinds of books, magazines, or entertainment. Under any sensible regulatory scheme, truthful description of subject matter that is pleasing to some and offensive to others ought to be encouraged, not punished." 431 U.S., at 604, 97 S.Ct., at 1992.

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