FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

[T]he Central Hudson test is susceptible to a wide variety of interpretations . . . . Martin Redish (2001)

After a period of much controversy, the Court in 1980 in Central Hudson articulated a general test for determining the constitutionality of regulations of commercial speech. Although the test has subsequently been interpreted from radically different perspectives, and although it has been attacked by numerous Justices, it has nevertheless remained the dominant test. — Robert Post (2000)

Before Sorrell v. IMS Health Inc. (2011) and 44 Liquormart, Inc. v. Rhode Island (1996), there was Central Hudson Gas & Electric v. Public Service Commission (1980).

When it comes to commercial speech and the First Amendment, Central Hudson was the coin of the realm in its day. Recall, the vote was 8-1 with Justice Lewis Powell writing the majority opinion (joined by Justices Stewart, White, Marshall, and Chief Justice Burger), with separate concurrences by Justice Brennan, Blackmun, and Stevens. Justice William Rehnquist wrote a lone dissent.

David O. Stewart, former Powell law clerk

David O. Stewart

Recall as well that Telford Taylor (counsel for the prosecution at the Nuremberg Trials) argued the case on behalf of the Appellants and Burt Neuborne filed an amicus brief on behalf of the Long Island Lighting Co. supporting the Appellants.

Justice Powell was virtually silent during oral arguments. Justices Byron White, John Paul Stevens, Potter Stewart, William Rehnquist, and Harry Blackmun asked the lion’s share of the questions. Even so, the Chief Justice assigned the opinion to Justice Powell.

Central Hudson was the case where the famed four-prong test was announced. Recently, I had occasion to look through the Powell papers archived at the Washington and Lee School of Law library. In browsing through those papers, I came upon a batch of memos and draft opinions concerning the Central Hudson case.

Much to my surprise, a good friend of mine, David O. Stewart, played a major role as the law clerk responsible for drafting Justice Powell’s Central Hudson majority opinion. In that regard, I asked David if he would answer a few questions about the case and his involvement in it. He kindly agreed; his responses are set out below.


Question: How did you come to clerk for Justice Lewis Powell?

Stewart: I applied before graduating from [Yale] Law School. I applied to the D.C. Circuit out of law school and got a clerkship with Judge David Bazelon. And then from there I was fortunate enough to be selected as a law clerk for Justice Powell for the 1979-1980 Term.

Question: How was it that the Central Hudson case came to you?

Portrait of Justice Lewis Powell

Portrait of Justice Lewis Powell

Stewart: There were four of us clerking for Justice Powell – Jonathan B. Sallet, Ellen Richey, and Greg May.

Before each sitting of the Court, we would divvy up the cases through a system modeled after the drafts used in pro sports and help Justice Powell prepare for “our” cases. He rarely required a bench memo since he prepared so carefully himself, but we would run down issues for him and would discuss the case with him. For this sitting, Jon was responsible for both Central Hudson and Consolidated Edison, another First Amendment case, and Justice Powell was to assigned to write the Court’s opinions in both. Since I was not writing the Court opinions in any of my cases from that sitting, Jon had to offload one of his to me. He kept Con Ed and passed along Central Hudson.

Question: Before you set out to write anything about Central Hudson, can you tell us something about Justice Powell’s mindset as how he approached the case? What was important to him?

Stewart: I don’t remember specific back-and-forth with the Justice on it – it was thirty-six years ago! Justice Powell cared a great deal that commercial speech get some protection but not full First Amendment protection. He wanted a middle test, which can be tough to achieve. I recall a lot of back-and-forth with Jon Sallet. In the Powell chambers, one clerk would prepare the first draft of the opinion and another clerk would act as “editor” before it went to the Justice. Since Jon had prepared the case before oral argument, he was the logical choice to serve as editor.

credit: W&M Law School archives

                            credit: W&M Law School archives

Question: How did the four-prong test in Central Hudson come about?

Stewart: I decided – and I’m sure I consulted with the Justice on this – to try to construct a multi-part test. He had written a number of earlier Court opinions that prescribed such multi-part tests in other areas of the law.  [See e.g., Solem v. Helm (1983) (3-prong test)]. Justice Powell always worried that the Court’s opinions should provide clear guidance to lawyers and judges about how to apply the ruling in future cases.  As a lifelong practicing lawyer, he was very sensitive to that concern, perhaps more than others who come to the Supreme Court from academia or a career on the bench. So I hoped to reach that goal with a test derived from the half-dozen or so commercial speech decisions to that point. The goal was easier to articulate than to achieve: to distill the determining factors and put them in a coherent order. I came up with a three-part test and then – in back-and-forth with Jon, who’s a great lawyer – realized that it needed a fourth part of the test to account for some previous decision or other. So we cooked up another one.

Question: Were there any votes to join the Powell opinion that were difficult to secure?

Stewart: My recollection is that Justices White and Stevens had pretty extensive exchanges with our chambers over the opinion.

Question: Justice Powell’s majority opinion has 15 footnotes, several of which are somewhat long and substantive. For example, footnote five is 435 or so words long, and ventures to respond to Justice Stevens’s concern, as Justice Powell put it in that footnote, that “the Commission’s order reaches beyond commercial speech to suppress expression that is entitled to the full protection of the First Amendment.”

What can you tell us about that footnote or any of the other ones?

April 25, 1980 memo from DOS to LP

April 25, 1980 memo from DOS to LP

Stewart: I have looked over the memo traffic now posted online, which brought back some but not all of the exchanges with other Justices.  I don’t remember anything about the Blackmun kerfuffle reflected in those memos; it came late in the process and his reservations didn’t trouble Justice Powell very much. I do remember the back-and-forths with Justices White and Stevens. Justices White, Stevens and Powell were working through what they thought about commercial speech, and there was a good bit of groping, all of it (I thought at the time and still think) entirely well-intentioned.

I remember thinking that Justice Stevens simply didn’t want to have a commercial speech doctrine, or at least couldn’t make himself put together a coherent intellectual argument in support of one.  Justice White, though, was the bombshell. Step four of the “test” was the last-minute addition that Jon and I had developed.

I distinctly remember Justice White coming to see Justice Powell in his chambers – a really, really rare event in the Term I clerked, sort of like the appearance of Haley’s Comet – and explaining that he had been chewing over the case and the draft opinion and had concluded that Step Four appeared to wander into overbreadth analysis; if we meant to do that, he had a problem with the opinion. I was very impressed by his observation, because Justice White was correct and no one else at the Court – at least eight other Justices and ten clerks (including Jon and me) – had noticed it.  I was grateful for his involvement.

Question: Though the vote in Central Hudson was 8-1, three Justices – Brennan, Blackmun, and Stevens – each wrote separate opinions and concurred in the judgment only. Justice Stevens had reservations about how the majority opinion defined commercial speech and also did not think the facts involved actual commercial speech, and Justice Blackmun (joined by Justice Brennan) argued for more protection of commercial speech.

Do you remember how these differences played out in drafting the opinion?

Stewart: Not really. I don’t recall the four-part test changing, except for the revision prompted by Justice White’s overbreadth concerns. Once you get five votes, you have an opinion of the Court and Justice Powell wasn’t going to turn somersaults for more votes. Since the four-part test of Central Hudson is still around this many years later, it seems he read that situation shrewdly.

credit: W&M Law School archives

Question: Is there anything else you’d care to share with us about your work on Central Hudson or anything else pertaining to it?

Stewart: The “takeaway” here shouldn’t be, as I fear some may be inclined to conclude, that this was a runaway clerk situation. We prepared first drafts but we didn’t do anything that Justice Powell didn’t intend. He took real care with each opinion. But you couldn’t work for him without picking up on his approach to cases, his habits of mind, and his preferences for opinions – the clerks used to joke that we would be writing in the passive voice for years after the clerkship because Justice Powell favored it.

For a poetic rendition (in the style of Dr. Seuss) of Central Hudson’s four-prong test, go here.

Other Powell Commercial Speech opinions

  1. Friedman v. Rogers (1979)
  2. First National Bank of Boston v. Bellotti (1978)
  3. Ohralik v. Ohio State Bar Ass’n (1978), and
  4. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973)


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