Nahmod Law

University of Wisconsin v. Southworth

Two years after Finley, discussed in a prior post, University of Wisconsin v. Southworth , 529 U.S. 217 (2000) , presented a fact pattern similar to the one the Court had addressed in Rosenberger, also discussed in a prior post. This time, though, the First Amendment issue was raised by students who were being “taxed” to fund the speech of student organizations.

In Southworth, the Court, in an opinion by Justice Kennedy, held that a mandatory student activity fee assessed on students to support student organizations did not violate the First Amendment rights of students who objected to the political and ideological speech of certain funded organizations. Southworth was essentially a compelled speech/subsidy case, because the university had expressly declared that its disbursement of funds was not government speech. The Court therefore did not engage in government speech analysis.

A Possible Rationale for the Government Speech Doctrine: Political Accountability

Nevertheless, Justice Kennedy did discuss the government speech doctrine and its possible justification. He suggested that had Southworth involved government speech, it would have been outside the bounds of First Amendment scrutiny because political accountability, rather than judicial review, served to limit the government. “When the government speaks, for instance, to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.” 529 U.S. at 235. Read the rest of this entry »

Glickman v. Wileman Brothers & Elliott, Inc.

In Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), the Court held that an assessment imposed by the Secretary of Agriculture on fruit growers for generic advertisements did not violate the First Amendment. The Court explained:  “First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views.”

Justice Souter dissented, arguing that the four-part Central Hudson test applied to such compelled commercial speech, and that the assessment failed the test. In a footnote, Justice Souter raised the government speech doctrine only to say that the government had never argued that it was applicable in Glickman. Perhaps indicative of his growing discomfort with the government speech doctrine, however, Justice Souter did not describe the doctrine in expansive terms but said that the doctrine meant only that “the government may have greater latitude in selecting content than otherwise permissible under the First Amendment.” Read the rest of this entry »

This is the third in a series of posts on now-retired Justice Souter’s positions on government speech. The first post was an introduction and the second addressed Rust v. Sullivan, 500 U.S. 173 (1991).

Rosenberger v. Rectors of the University of Virginia

Fours years after Rust, the Court held in Rosenberger v. Rectors of the University of Virginia, 515 U.S. 819 (1995), that a public university’s refusal to fund a student magazine with a Christian theme, while at the same time funding other student organization publications, was a violation of the Free Speech Clause of the First Amendment. The Court found that the Student Activity Fund from which the Christian magazine was applying for funds was a “metaphysical” limited public forum that was intended to enable private speech, and as such could not discriminate according to viewpoint. Though the university argued that it was discriminating according to content (permitted in a limited public forum), the Court rejected this argument and effectively held that religious belief was a viewpoint.

Rosenberger is often cited for its broad language describing the government speech doctrine implicit in Rust. Justice Kennedy, writing for the Court, said: “We recognized [in Rust] that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” 515 U.S. at 833 (citations omitted). However, Rosenberger itself was not a government speech case: the university had expressly stated that its speech was not at issue. In fact, one of the requirements imposed on student organizations for receiving funding was signing a disclaimer that distanced the university from the speech of the recipients. Read the rest of this entry »

Rust v. Sullivan

Oral argument in Rust v. Sullivan, 500 U.S. 173 (1991), was held on October 30, 1990, which made Rust one of the first cases that Justice Souter heard. In a 5-4 vote that almost certainly would have gone the other way had Justice Brennan still been on the Court, the Court, in an opinion by Chief Justice Rehnquist, upheld federal regulations that prohibited doctors from engaging in abortion counseling as part of a federally funded Title X project.

The ruling rested on the distinction between a subsidy and a restriction. The Court began with the premise that government may choose to fund one activity to the exclusion of another, even if the latter involves the exercise of a fundamental right. It then determined that Rust was not an “unconstitutional conditions” case, because Title X focused on the project rather than the grantee: Title X did not restrict the recipients of funding absolutely from engaging in pro-abortion activities; it merely mandated that Title X projects not include such activities. Therefore, if a doctor wished to go beyond the scope of a Title X program, he or she remained free to do so. Title X merely required that the funds for Title X projects be segregated from funds used to support activities beyond the scope allowed by Title X.

The Dissenters

Justice Blackmun dissented, joined by Justice Marshall and by Justice Stevens in part and by Justice O’Connor in part. “Until today, the Court has never upheld viewpoint- based suppression of speech simply because that suppression was a condition upon the acceptance of public funds.” For three of the dissenters (not including Justice O’Connor), what distinguished Rust from Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983), which dealt with funding coupled with conditions, was that Title X was in part aimed at the suppression of “dangerous ideas.” Because the counseling and referral provisions in Title X were both content and viewpoint based, they violated the First Amendment. The three dissenters further argued that the majority’s mantra that government is free to fund one activity to the exclusion of another was both overly simplistic and incorrect. Read the rest of this entry »

What Is Government Speech?

Simply put, when government itself speaks, rather than regulating the speech of private persons, its speech is immunized from any meaningful First Amendment scrutiny, including the prohibition against engaging in viewpoint discrimination.

Under the doctrine, government becomes a “market participant” in the marketplace of ideas rather than a regulator of that marketplace, and its First Amendment immunity is analogous to the dormant Commerce Clause immunity of state and local governments when they are market participants. Hughes v. Alexandria Scrap Corp., 426 U.S.794, 809-10 (1976).

The Government Speech Doctrine and the Tenure of Justice Souter

Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan, 500 U.S. 173 (1991), was handed down in 1991, and the most recent government speech decision, Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), was handed down in 2009. Read the rest of this entry »

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 Sotomayor, 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 »