Nahmod Law

Introduction

This is the second of two posts on the Supreme Court’s controversial decision dealing with corporate expenditures and campaign finance reform in Citizens United v. FEC, No. 08-205 (1-21-10). The immediately preceding post, which should be consulted, sets out the relevant case law, from Buckley to Wisconsin Right to Life, leading up to that decision. This post comments on Citizens United.

The thoughtful comments of my colleague, Steve Heyman, on Citizens United are accessible through the following link: http://blogs.kentlaw.edu/faculty/2010/03/the-public-vs-the-supreme-court-a-comment-on-the-citizens-united-case.html

Citizens United: The Decision.

All of this finally brings us to Citizens United. Here, the Court, after oral argument, decided not to deal with the narrow question of the constitutionality of BCRA’s application to a not for profit’s documentary about Hillary Clinton that it wanted to make available through video on demand within 30 days of primary elections for President (an “electioneering communication” under BCRA). Instead, the Court ordered reargument, asking the parties to address and argue the broader issue of the facial validity of BCRA with regard to profit and not for profit corporations and labor unions. This latter issue was not really raised by the parties.

The Court ultimately found the electioneering communications provisions unconstitutional, and more. In the course of a 57 page opinion by Justice Kennedy, Austin and McConnell (in part) were overruled. Applying strict scrutiny, the Court determined that corporations have the same First Amendment rights as individuals. According to the Court, corporations could make unlimited independent expenditures for candidates for federal office from their general treasury funds; there was no constitutional need to create PACs.

The Court reached this conclusion for the following reasons:

1. It was only in 1947, in the Labor Management Relations Act, that Congress prohibited independent expenditures by corporations and labor unions.

2. Buckley did not address the issue of corporate campaign expenditures.

3. The rationale of Bellotti was clear and covered this case directly.

4. Austin, a 1990 decision, was the first case that allowed the imposition of a direct restriction on independent corporate expenditures for political speech. Thus, there was a conflict between the pre-Austin and post-Austin line of cases.

5. The anti-distortion, anti-corruption and shareholder protection rationales relied on in Austin did not justify restrictions on corporate speech for political purposes. Political speech may not be limited based on a speaker’s wealth, and no meaningful distinction between media corporations and others existed. Also, independent corporate expenditures don’t give rise to concerns with quid quo pro corruption and the appearance of corruption. Finally, the shareholder protection rationale also applied to media corporations and this proved too much under the First Amendment.

6. Stare decisis was not controlling here: Austin had been undermined by experience (evasion) and rapid changes in technology, and there also were no serious reliance interests.

Justice Stevens, joined by Justices Ginsburg, Breyer and Souter, dissented in a 90 page opinion, disagreeing with the Court in virtually every respect.

Observations Read the rest of this entry »

This is the first of two posts on the Supreme Court’s controversial First Amendment corporate expenditure decision dealing with campaign financing of federal elections, Citizens United v. FEC, No. 08-205 (1-21-10). This post, by way of background, sets out the important Supreme Court campaign finance decisions that led up to Citizens United,  a 5-4 decision whose majority opinion was authored by Justice Kennedy (over 50 pages) and whose dissenting opinion was authored by Justice Stevens (over 80 pages).

The next post will directly address Citizens United.

Buckley.  The story begins in 1976 with Buckley v. Valeo, 424 U.S. 1 (1976), a case involving the constitutionality under the First Amendment of various provisions of the Federal Election Campaign Act of 1971, together with related provisions of the Internal Revenue Code of 1954, as amended in 1974. These campaign finance reform provisions were enacted largely in response to the Watergate era campaign scandals of the Nixon administration. What is of primary concern for our purposes are those provisions limiting individual political contributions and expenditures relative to a clearly identified candidate for federal office, as well as those limiting campaign spending by candidates for federal office. The Act set out an individual contribution cap of $1,000 per candidate, an individual expenditure cap of $1,000 per candidate and an overall individual contribution cap of $25,000 in a single year. Expenditures coordinated with candidates counted as contributions. Other provisions restricted a candidate’s use of personal and family resources and limited the overall amount that a candidate could spend in campaigning for federal office.

In a bifurcated decision, the Court upheld the contribution limits but invalidated the expenditure limits. Applying strict scrutiny or something very close to it, the Court found that the contribution limits were constitutional. On the free speech side, there were associational and symbolic speech considerations, albeit with the mitigating factor that the contributor was not speaking directly so much as giving money to a “mouthpiece.” On the government side, there was the powerful interest in avoiding quid pro quo corruption and the appearance of corruption, and the danger of public loss of faith in the political process. This interest outweighed the free speech interest.

However, the expenditure limits violated the First Amendment because they directly limited the quantity of high value political speech of  individuals and candidates. The government interest in avoiding corruption and its appearance was inadequate to justify the expenditure caps, particularly in light of the expenditure coordination rules and the fact that individuals and groups could avoid expenditure caps simply by not referring to a specific candidate. “[T]he concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Bellotti.  Two years later, in 1978, came First National Bank of Boston v. Bellotti, 435 U.S. 765 (978), where the Court struck down a state statute prohibiting contributions and expenditures by corporations for the purpose of affecting referendum votes unless the referendum materially affected the property, business or assets of the corporation. The Court declared that the issue was not whether corporations had First Amendment rights, but rather that the statute was directed at speech indispensable to democratic decision-making.  The First Amendment rights of the potential audience to receive information were also adversely affected. The Court rejected the arguments that the statute was necessary to protect the integrity of the electoral process, to avoid unduly influencing the outcome and to avoid adversely affecting confidence in democracy. It also disagreed with the contention that corporations would otherwise drown out differing points of view.

The dissenters (White, Brennan and Marshall) maintained that the self-fulfillment rationale of the First Amendment was clearly not pertinent. Also, even though corporations were governed by the statute, individuals, shareholders, officers and customers could still express their views. The statute was not directed at equalizing voices but instead was designed to prevent advantaged corporations, permitted by the state to amass wealth for certain economic purposes, from using their wealth unfairly in the political process. “[The] State need not permit its own creation to consume it.” Read the rest of this entry »

Introduction

Perhaps surprisingly, free speech jurisprudence in the Supreme Court began in earnest only in the second decade of the 20th century. The subject that caught the Court’s and the nation’s attention during that period was advocacy of illegal conduct and, more specifically, subversive advocacy. Did the First Amendment protect the speech of those advocating interference with the efforts of the United States during the First World War? Did it even protect the speech of those advocating the use of force to overthrown the government of the United States? In answering these questions, Justices Holmes and Brandeis, dissenting, made First Amendment history with their clear and present danger test for punishing speech: did the speech present a clear danger of imminent and serious illegal conduct?

The Problem

When I teach First Amendment, I frame the issue this way: if speech advocating illegal conduct to an audience is at one end of the spectrum, and the illegal conduct of the audience (which is clearly punishable) is at the other end, at what point can the government intervene to arrest the speaker?

The least speech-protective approach would ask whether the speech advocating illegal conduct could possibly cause illegal conduct, even if it did not do so in fact. If the speech met this test, the speaker could be arrested at that point. This was pretty much the approach of the Supreme Court, with Holmes and Brandeis dissenting in the 10’s and 20’s. A good early example is Abrams v. United States, 250 U.S. 616 (1919).

The most speech-protective approach would never allow government to arrest the speaker. Government could arrest only those who acted illegally.

The Supreme Court never adopted this extreme speech-protective position but the Holmes-Brandeis clear and present danger test came close. This test was designed to keep the government’s hands off the speaker until the danger, i.e., the illegal conduct, was both imminent and serious. The powerful Enlightenment assumption of rationality underlying this test was that requiring government to wait until the last minute before intervening provided an opportunity for counter-speech that might, and hopefully would, prevent the illegal conduct. Holmes grounded the clear and present danger test on the marketplace of ideas rationale, while Brandeis grounded the test on the self-government and self-fulfillment rationales.

The Outcome

After almost a half-century’s experience by the nation and the Court with the political doctrines of anarchy, radicalism, syndicalism, socialism and Communism (see Dennis v. United States, 341 U. S. 494 (1951) on the last), the Court in 1969 finally came up with the test set out in Brandenburg v. Ohio, 395 U.S. 444 (1969). This speech-protective test was based in large measure on the clear and present danger test, although it did not use the Holmes-Brandeis language.

Brandenburg essentially held that speech advocating illegal conduct could not be punished unless two conditions were met. The first was subjective: did the defendant intend to bring about imminent illegal conduct? The second was objective and predictive in nature: was imminent illegal conduct likely to occur as a result of the speaker’s advocacy of illegal conduct? If the answers were yes, then the speaker could be punished for the speech.

In a very real sense, this test demonstrates that the Supreme Court had learned over the years that government inevitably and quite naturally tends to over-predict danger.

Comments

As it turns out, the Brandenburg test is not universally applicable to many First Amendment issues beyond advocacy of illegal conduct. But it set the stage for what was to come in the remainder of the 20th century and beyond by emphasizing the importance of providing breathing space for free speech, particularly high-value political speech. It also reflected the Court’s suspicion of government motives when punishing speech.

The Brandenburg test can be understood as a kind of strict scrutiny test for speech because it places a very heavy burden of justification on government.

Introduction

The last post dealt with the three major rationales of freedom of speech. This one addresses the important factors to which attention must be paid in every free speech case: content, medium and forum.

Content

The threshold consideration in free speech cases typically revolves around the content (the WHAT) of what is communicated. It turns out that, despite the power of the marketplace of ideas rationale, there is a free speech hierarchy consisting of several tiers, each of which receives a different level of First Amendment protection. At the top of the hierarchy is political speech (recall the self-government rationale), followed closely by artistic and scientific expression. At the bottom is speech that is not protected at all: for example, fighting words, true threats and obscenity. Commercial speech is in the middle.

Medium

It is also important to be sensitive to the particular medium of communication (the HOW) involved in a free speech case. The traditional media of oral speech and writing are ordinarily accorded the maximum protection, all things being equal. In contrast, electronic media such as radio and television are sometimes accorded less than that. Significantly, to this point the Internet has been treated by the Court for the most part as if it were a traditional medium.

Consider also that different media have different physical characteristics that sometimes play a determinative role in First Amendment analysis. For example, a sound truck with blaring announcements that are difficult to ignore is quite different from a person handing out leaflets who can be ignored or otherwise avoided.

Forum

The last important factor in free speech cases is the forum (the WHERE) in which the communication takes place. Thus, different kinds of public property to which speakers desire access are accompanied by different levels of protection. Maximum First Amendment protection is given in traditional public forums such as streets and parks, as well as in voluntary public forums created by government. At the other extreme is public property having a special purpose incompatible with free speech access. A public library’s reading room is one example of the latter.

Conclusion

I realize that the above is quite general. Still, these three factors, which I have found helpful for law students in understanding the First Amendment, must always be taken into account in free speech cases.

This brief explanation of these factors may also be useful for non-lawyers.

The blog is back from vacation.

Introduction

When I begin teaching the First Amendment course, I introduce freedom of speech by briefly describing the conventional rationales of freedom of speech (this post) and then setting out three factors that are crucial for all free speech analysis (a subsequent post).

Three Rationales of Free Speech

1. Self-Government

Like the Constitution, a document that establishes a structure for self-government, the free speech clause of the First Amendment is a product of the Enlightenment. Citizens of the United States are to engage in self-government by using reason and practical judgment. Accordingly, one rationale of freedom of speech is that it is indispensable for self-government. People communicate on political matters so that they can intelligently participate in the democratic process.

This rationale is often identified with the work of Alexander Meiklejohn but it was articulated much earlier by Justice Brandeis in Whitney v. California.

Under this rationale, political speech ranks at the top of the First Amendment hierarchy, with other kinds of speech ranked in a derivative manner based on their relation to  political speech.

2. The Marketplace of Ideas

This rationale, long identified with Justice Holmes in his dissent in Abrams v. United States but actually going back to John Stuart Mill, posits that freedom of speech is important because, in a marketplace of ideas, the better ideas eventually prevail through competition. It is modeled both on laissez faire in the economic realm and on scientific experimentation.

Under this rationale there is no hierarchy of speech. The value of different kinds of speech depends solely on the marketplace’s assessment.

3. Self-Fulfillment and Individual Autonomy

This rationale treats freedom of speech as promoting every individual’s self-fulfillment and autonomy.

Under this rationale, non-political speech such as artistic expression is fully covered; as with the marketplace of ideas rationale, there is no hierarchy of speech. On the other hand, under this approach one wonders what is so special about freedom of speech inasmuch as other provisions of the Constitution–think substantive due process–similarly promote self-fulfillment and autonomy.

Observations

No single one of these rationales captures either the complexity of free speech issues or the actual free speech jurisprudence of the Supreme Court. For example, the self-government rationale does not do that good of a job in explaining why artistic expression and scientific speech should be protected by the First Amendment. Similarly, the marketplace of ideas and self-fulfillment/ individual autonomy rationales do not satisfactorily explain why obscene speech and child pornography are not at all protected by the First Amendment.

Only in combination do these rationales do an adequate job of justifying and explaining free speech jurisprudence. This is a point I made quite some time ago in a Wisconsin Law Review article on artistic expression. Others have made the same point.

Introduction

The first part of the First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

These sixteen words containing the Religion Clauses have for the last fifty years caused a great deal of controversy not only in the United States Supreme Court but among the public at large. What I would like to do here is set out some basic points without getting bogged down in the legalities.

History

The Framers studied  the religious wars of Europe and knew of their terrible impact on religious freedom and on the  lives of Europeans.  They also had a good understanding of the political divisions that religion created in the colonies. In drafting the First Amendment, they were determined to avoid as much of this divisiveness as possible while at the same time insisting on the importance of religious belief for morality, and on freedom of thought.

Read the rest of this entry »

Introduction

Several years ago the United States Supreme Court handed down Garcetti v. Ceballos, 126 S. Ct. 1951 (2006),  the most important public employee free speech case in decades.

[Note: my article, Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 U. of Richmond L. Rev. 561 (2008), is downloadable. This article extensively criticizes Garcetti at the theoretical and doctrinal levels.]

The First Amendment Background: The Pickering Two-Step

In 1968, the Supreme Court decided Pickering v. Bd. of Educ., 391 U.S. 563 (1968), which held that certain speech of public employees was protected by the First Amendment from public employer discipline. Specifically: (1) if the content of the public employee’s speech was a matter of public concern, (2) then the First Amendment kicked in and protected the employee so long as the employer’s interests did not outweigh the free speech interests of the employee and the public. If, however, the employee’s speech was a matter of private concern only, then the First Amendment was inapplicable.

As a practical matter, in most cases where the employee’s speech was a matter of public concern, the employee won under the First Amendment. But this all changed in Garcetti. Read the rest of this entry »

Introduction

Litigants who challenge a legislative classification on equal protection grounds prefer, for obvious reasons, to have strict scrutiny apply to that classification. The paradigm suspect classification for which strict scrutiny is used is a classification based on race. However, there is another category of equal protection cases in which a legislative classification has to overcome strict scrutiny, namely, those cases in which a legislative classification burdens a fundamental interest. Unfortunately, this category often causes a great deal of confusion.

The Supreme Court’s Record

It has not helped that the Supreme Court has sometimes misleadingly characterized fundamental interests as “fundamental rights.” At other times, the Court has made clear that fundamental interests are not substantive constitutional rights at all but are “only” fundamental interests. At still other times, the Court has applied strict scrutiny in equal protection cases in which  substantive constitutional rights were indeed implicated.  Ultimately, the development of fundamental interest doctrine came to a halt in San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). Read the rest of this entry »

Background

Affirmative action involving race is a hot button topic  and there may consequently be some student reluctance to engage in meaningful discussion of the issues involved. So I begin class by pointing out the analytical distinction between constitutionality and wisdom. A statute, for example, may be constitutional but still unwise (or immoral). On the other hand, a statute may be unconstitutional but still wise (and moral). The point is that students should feel free either to critique or to agree with the Supreme Court’s current approach to affirmative action as a matter of constitutional interpretation.

Of course, this distinction often breaks down in practice in affirmative action cases inasmuch as strict scrutiny is applied. After all, aren’t the inquiries into whether there is a compelling government interest, and whether the means are narrowly tailored, based in large part on the Court’s view of the wisdom of the particular affirmative action plan in question? Nevertheless, I find the analytical distinction useful pedagogically.

What Affirmative Action Is/Is Not: Getting to “No”

I begin with a series of simple hypotheticals involving claims of racial discrimination arising out of unsuccessful applications for public employment, where various plaintiffs are victorious and the courts order that they be given the jobs they applied for. I ask students whether these are affirmative action cases, to which the short and correct answer is “no.” Rather, these are cases in which constitutional violations are found and judicially remedied. But it takes some time to get to “no.”

In contrast, true equal protection affirmative action cases are those in which a governmental entity voluntarily adopts a plan involving higher education, public employment and the like, under which certain members of a racial minority are given a benefit while certain members of a racial majority are denied that benefit. Read the rest of this entry »

Introduction

Brown v. Board of Education, 347 U.S. 483 (1954), is one of the great constitutional law cases and perhaps the most important Supreme Court decision of the 20th century. I want to describe how I approach the case in class and what I hope students will learn.

History

Brown cannot be understood in isolation from what preceded it: the history of slavery, the Civil War, the 13th, 14th and 15th Amendments and Jim Crow in the South as exemplified by Plessy v. Ferguson, 166 U.S. 537 (1896). In Plessy, the Court, over Justice Harlan’s prescient dissent, had upheld separate but equal for railroad cars, with far-reaching implications for segregation generally.

Similarly, Brown cannot be understood apart from its own specific historical setting: victory over the racist Nazi regime in the Second World War, the rise of the Soviet Union, the integration of the American military, the urgent need for workers after the Second World War and important demographic changes.

Finally, there is an obvious moral dimension to Brown, although the Court did not expressly ground Brown on moral considerations.

In this connection, I raise the question in class whether the Court in Brown was leading the nation, whether it was following the nation or some combination thereof. I also disabuse my students of the notion that the Court as an institution was particularly heroic in Brown, since its own late 19th and 20th century decisions enabled and encouraged the South to continue the segregationist policies that the Court in Brown finally  began to dismantle. Read the rest of this entry »