Archive for February 2010
From Buckley to Citizens United (Part One of Two)
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 »
Freedom of Speech (3): The Clear and Present Danger Years
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.
A Section 1983 Primer (3): Constitutional States of Mind
Introduction
Are there state of mind requirements for the section 1983 cause of action? The answer is NO as a statutory matter and YES as a constitutional matter.
The Background
Recall that the Supreme Court stated in Monroe v. Pape, 365 U.S. 167 (1961), that section 1983 is to be interpreted against “the background of tort liability.” What does that mean? One possibility is that there is some sort of state of mind requirement, stemming from section 1983 itself, for the 1983 cause of action. If so, is it negligence, deliberate indifference, intent or something else?
After some confusion in the circuits, the Supreme Court finally put the matter to rest in Parratt v. Taylor, 451 U.S. 527 (1981),when it declared as a statutory matter that there is no state of mind requirement for the section 1983 cause of action.
However, it turns out that there are state of mind requirements for the section 1983 cause of action that are based on the underlying constitutional claim.
Constitutional States of Mind, Variable and Otherwise
Simply put, different constitutional provisions have their own state of mind requirements. Thus, it has been the rule since Washington v. Davis, 426 U.S. 229 (1976), that equal protection violations require purposeful discrimination. There is therefore no such thing as a negligent or deliberately indifferent equal protection violation. Similarly, the Supreme Court declared in Daniels v. Williams, 474 U.S. 327 (1986), that due process violations require an abuse of government power, so that negligence is not sufficient. And Eighth Amendment violations require at least deliberate indifference, according to the Court in Farmer v. Brennan, 511 U.S. 825 (1994).
However, it is a bit more complicated than that: different states of mind may be required under the same constitutional provision where the circumstances are different. I call these variable state of mind requirements. For example, while the general rule in substantive due process cases is that deliberate indifference is required, in high speed police pursuit cases where police have little or no time to deliberate, the state of mind required, as ratcheted up by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is “purpose to cause harm.” Similarly, while the general rule in prison condition of confinement cases is that the Eighth Amendment requires deliberate indifference in the sense of subjective criminal recklessness, in prison security cases the state of mind required, as ratcheted up by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), is conduct engaged in “maliciously and sadistically for the very purpose of causing harm.”
Why Different Constitutional States of Mind?
At the most superficial level, the Court engaged in constitutional interpretation when it ruled that equal protection requires purposeful discrimination, that due process requires at least deliberate indifference and that the Eighth Amendment requires at least deliberate indifference in the sense of subjective criminal recklessness. In reality, there is considerably more going on.
First, these state of mind requirements are fault or culpability requirements. The particular constitutional provision implicated in a section 1983 case, which includes its state of mind requirement, constitutes the constitutional norm applicable to the defendant’s conduct. Without fault, there can be no section 1983 cause of action.
Second, these state of mind requirements can serve functions other than setting out the applicable fault or constitutional norm. Notice how the scope of section 1983 liability decreases the higher or more culpable the applicable state of mind requirement. Proving purpose to do harm in a high speed police pursuit case, for example, is much more difficult for plaintiffs than proving deliberate indifference. In this way, the need to compensate for harm caused is reduced .
Perhaps more important, higher state of mind requirements reduce what the Supreme Court increasingly views as the improper chilling effect of potential damages liability on independent decision-making by government officials. Put differently, the Supreme Court is increasingly concerned with over-deterrence.
While this concern with over-deterrence is most obvious in the individual immunities context, it plays a major role in determining applicable constitutional states of mind and is therefore frequently determinative of the scope of the section 1983 cause of action as well.
Nahmod Law 