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BLACKMUN, J., dissenting

See 954 F. 2d 1029 (CA5 1992). Here, in contrast, the District Court reviewed Coleman's claim of innocence and rejected it on the merits.

The application for stay of execution presented to THE CHIEF JUSTICE and by him referred to the full Court is denied.

It is so ordered.

JUSTICE STEVENS concurs in the denial of a stay and would deny the petition for writ of certiorari.


Last Term the Court ruled that Roger Coleman could not present his arguments on the merits to the federal courts, simply because the person then acting as his attorney had made a trivial error in filing his notice of appeal three days late. Coleman v. Thompson, 501 U. S. 722 (1991). While I dissented from that ruling—and still believe it was erroneous—I found some consolation in the Court's suggestion that matters might have been different had Coleman argued that he was actually innocent of the crime. See id., at 747–751, 757.

Coleman has now produced substantial evidence that he may be innocent of the crime for which he was sentenced to die. Yet the Court once again turns him away, this time permitting the Commonwealth of Virginia to execute him without a hearing at which his evidence could be fully presented. The Court's ruling is all the more troubling for me, in view of this Court's decision to hear argument next Term in a case in which the petitioner contends, just as Coleman does, that evidence of his innocence entitles him to a hearing on the merits. Herrera v. Collins, No. 91–7328, cert. granted, 502 U. S. 1085 (1992).

I have previously voted to stay an execution pending this Court's decision next Term in Herrera. See Ellis v. Texas, 503 U. S. 915 (1992); Ellis v. Collins, 503 U. S. 915 (1992). I

BLACKMUN, J., dissenting

cannot believe that Coleman, who raises a substantially identical claim, should be denied all possibility of relief simply because his petition reached this Court later than did Leonel Herrera's. Accordingly, I would stay the execution.

JUSTICE SOUTER would grant the application for stay of execution.





No. 90-1056. Argued October 8, 1991-Decided May 26, 1992 Respondent Freeman, while the treasurer for a political campaign in Ten

nessee, filed an action in the Chancery Court, alleging, among other things, that $2–7–111(b) of the Tennessee Code—which prohibits the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place-limited her ability to communicate with voters in violation of, inter alia, the First and Fourteenth Amendments. The court dismissed her suit, but the State Supreme Court reversed, ruling that the State had a compelling interest in banning such activities within the polling place itself but not on the premises around the polling place. Thus, it concluded, the 100-foot limit was not narrowly tailored to protect, and was not the least restrictive

means to serve, the State's interests. Held: The judgment is reversed, and the case is remanded. 802 S. W. 2d 210, reversed and remanded.

JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY, concluded that $2–7–111(b) does not violate the First and Fourteenth Amendments. Pp. 196–211.

(a) The section is a facially content-based restriction on political speech in a public forum and, thus, must be subjected to exacting scrutiny: The State must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. This case presents a particularly difficult reconciliation, since it involves a conflict between the exercise of the right to engage in political discourse and the fundamental right to vote, which is at the heart of this country's democracy. Pp. 196–198.

(b) Section 2–7–111(b) advances Tennessee's compelling interests in preventing voter intimidation and election fraud. There is a substantial and long-lived consensus among the 50 States that some restricted zone around polling places is necessary to serve the interest in protecting the right to vote freely and effectively. The real question then is how large a restricted zone is permissible or sufficiently tailored. A State is not required to prove empirically that an election regulation is perfectly tailored to secure such a compelling interest. Rather, legislatures should be permitted to respond to potential deficiencies in the electoral process with foresight, provided that the response is reasonable and


does not significantly impinge on constitutionally protected rights. Munro v. Socialist Workers Party, 479 U. S. 189, 195–196. Section 2–7– 111(b)'s minor geographical limitation does not constitute such a significant impingement. While it is possible that at some measurable distance from the polls governmental regulation of vote solicitation could effectively become an impermissible burden on the First Amendment, Tennessee, in establishing its 100-foot boundary, is on the constitutional side of the line. Pp. 198–211.

JUSTICE SCALIA concluded that $2-7-111 is constitutional because it is a reasonable, viewpoint-neutral regulation of a nonpublic forum. The environs of a polling place, including adjacent streets and sidewalks, have traditionally not been devoted to assembly and debate and therefore do not constitute a traditional public forum. Cf. Greer v. Spock, 424 U. S. 828. Thus, speech restrictions such as those in $2–7–111 need not be subjected to “exacting scrutiny" analysis. Pp. 214-216.

BLACKMUN, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and WHITE and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 211. SCALIA, J., filed an opinion concurring in the judgment, post, p. 214. STEVENS, J., filed a dissenting opinion, in which O'CONNOR and SOUTER, JJ., joined, post, p. 217. THOMAS, J., took no part in the consideration or decision of the case.

Charles W. Burson, Attorney General of Tennessee, petitioner, argued the cause, pro se. With him on the briefs were John Knox Walkup, Solicitor General, and Andy D. Bennett and Michael W. Catalano, Deputy Attorneys General.

John E. Herbison argued the cause for respondent. With him on the brief was Alan B. Morrison.*

*Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Kenneth O. Eikenberry, Attorney General of Washington, and James M. Johnson, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Gail Norton of Colorado, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Warren Price III of Hawaii, Roland W. Burris of Illinois, Linley E. Pearson of Indiana, Bonnie J. Campbell of Iowa, Frederic J. Cowan of Kentucky, Michael E. Carpenter of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Marc Racicot of Montana, Frankie Sue Del Papa of

Opinion of BLACKMUN, J.

JUSTICE BLACKMUN announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY join.

Twenty-six years ago, this Court, in a majority opinion written by Justice Hugo L. Black, struck down a state law that made it a crime for a newspaper editor to publish an editorial on election day urging readers to vote in a particular way. Mills v. Alabama, 384 U. S. 214 (1966). While the Court did not hesitate to denounce the statute as an "obvious and flagrant abridgment” of First Amendment rights, id., at 219, it was quick to point out that its holding “in no way involve[d] the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there,” id., at 218.

Today, we confront the issue carefully left open in Mills. The question presented is whether a provision of the Tennessee Code, which prohibits the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place, violates the First and Fourteenth Amendments.


The State of Tennessee has carved out an election-day “campaign-free zone” through $2–7–111(b) of its election code. That section reads in pertinent part:

“Within the appropriate boundary as established in subsection (a) [100 feet from the entrances), and the building in which the polling place is located, the display of campaign posters, signs or other campaign materials, distribution of campaign materials, and solicitation of votes for or against any person or political party or posi

Nevada, Nicholas J. Spaeth of North Dakota, Mark Barnett of South Dakota, Paul Van Dam of Utah, Mary Sue Terry of Virginia, and Mario J. Palumbo of West Virginia; and for the National Conference of State Legislatures et al. by Richard Ruda and Frederick C. Schafrick.

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