Tag: free speech

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however – ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter – and also be sure to follow our friends @IJ and @GoldwaterInst!)

Arrested for Pamphlets

The feds are seeking to jail 78-year old Julian Heicklen for distributing pamphlets.  Heicklen knows that jurors are supposed to be able to vote their conscience in criminal cases – so he distributes pamphlets on that subject near the federal courthouse.  The feds are evidently worried about the contents of those pamphlets and assert that Heicklen’s conduct amounts to “jury tampering.”  But if Heicklen just gave the pamphlets to anyone and everyone, as he claims, without attempting to sway the outcome of any particular case, his conduct is free speech, plain and simple.   Heicklen should get a jury trial to fight the free speech violation – since our Constitution says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” but prosecutors are going to invoke wrongheaded precedents that say this case can be tried before a judge, not a jury.  Oh, and the police arrested another guy for simply videotaping Heicklen’s arrest.  No pamphlets, no photography, no jury trial. 

Cato co-published a book in defense of jury nullification in 1998.   More here and here.   (I am betting that books, blog posts, and law review articles are still legal should this post reach readers in New York City, but we’ll see about that.)

Corporations Aren’t People But They Are (Legal) Persons

Recently, activist and filmmaker Annie Leonard released a video titled “The Story of Citizens United v. FEC,” an eight-and-a-half-minute criticism of last year’s Supreme Court case of the same name.

Well, sort of.

Competitive Enterprise Institute’s Lee Doren made his own video critique in response to Ms. Leonard’s offering, and points out quite clearly that Ms. Leonard doesn’t really deal with any actual constitutional problems in her position—essentially ignoring the decision and its rationale—and instead spends most of her time corporation bashing.

Lee was kind enough to cite, inter alia, a blogpost I wrote last year about what “corporate personhood” does and does not mean. If Ms. Leonard was going to ignore the decision, it may have at least served her well to read that post before producing her video. As I pointed out, under the logic she puts forth, “individuals acting through corporations should be denied their freedom of speech because corporations are ‘state-created entities.’ The theory goes that if a state has the power to create corporations, then it has the power to define those entities’ rights.” Ms Leonard’s video was made by (or coordination with) Free Range Studios—a corporation—and thus she’s making the argument that Congress should be able to keep her from or punish her for making that video because Free Range Studios shouldn’t have rights.

Despite the misinformation in Ms. Leonard’s video, we believe she and Free Range Studios have every right to be wrong as publicly as they see fit, even if she doesn’t.

Please watch Lee’s full video below, and look for the Cato shout-out around the 12:20 mark. If you’re in the Chicagoland area, I’ll be speaking about corporate rights and corporate personhood at John Marshall Law School tomorrow at 10:15AM local time. Feel free to stop by and please introduce yourself. 


Defending the Undefendable

Freedom requires tolerance. That principle will be put to the test today as Americans respond to the Supreme Court decision in Snyder v. Phelps.

As Ilya Shapiro first noted below, Chief Justice John Roberts, writing for the Court, with a thoughtful dissent by Justice Samuel Alito, upheld the right of Rev. Fred Phelps and members of the Westboro Baptist Church to picket at military funerals, carrying signs that read “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.” It is a mark of our liberty that in most cases we defend even the most despicable speech. And in that we stand in stark contrast to much of the world.

In truth, we should also defend most (but not all) despicable actions — short of those that violate the rights of others. But at least we defend speech, even though the line between speech and action is not always clear. But here, the Court set forth the issues carefully and correctly, examining the content, form, and context of the speech as revealed by the whole record — none of which is to say that governments cannot regulate the time, place, and manner of speech under content-neutral provisions. But as Chief Justice Roberts concluded, “As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

By contrast, just today the New York Times reports that Shahbaz Bhatti, the only Christian member of Pakistan’s cabinet, was shot dead as he left his home this morning. His sin? He opposed Pakistan’s blasphemy law, despite threats to his life by Islamist extremists. And only two months ago the governor of Pakistan’s Punjab province, Salman Taseer, was shot and killed by one of his guards for speaking out in defense of a Christian woman sentenced to death under Pakistan’s blasphemy law. Tolerance is all too rare around the world, but it is the foundation of liberty. We’re fortunate to live in a nation whose Founders implanted that principle in our Constitution.

A Year After Citizens United, Campaign Finance Back at the Court

As Caleb noted earlier, today marks the one-year anniversary of Citizens United, a case I first thought ”just” concerned some weird regulation of pay-per-view movies, but turned out to be about asserted government power to ban political speech — including books and TV commercials — simply because the speaker was not one individual but a group (in corporate or or other associational form).  See also this op-ed by ACLU lawyer Joel Gora.

Roger similarly noted the continuing discussion in Congress and elsewhere about the public financing of elections.  As it turns out, the Supreme Court has agreed to hear a challenge to such a system, specifically Arizona’s Clean Elections Act.  Brought by our friends at the Institute for Justice and the Goldwater Institute and supported by our brief at the cert petition stage, this lawsuit challenges a law that aimed to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. That is, if a privately funded candidate spends more than her publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the Clean Elections Act, the effects have been to significantly chill political speech: privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, matching funds provisions such as those at issue here diminish the quality and quantity of political speech.

In 2008, however, the Supreme Court struck down a similar part of the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents (Davis v. FEC, in which Cato also filed a brief). Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato’s latest brief thus asks the following question: Whether Arizona may give a publicly funded candidate extra money because a privately funded opponent or his supporters have, in the state’s judgment, spoken too much. We highlight Davis and numerous other cases that point to a clear answer: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The case is McComish v. Bennett, consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  The Court will hear it March 28, with a decision expected by the end of June.

Citizens United Turns One

The Supreme Court majority in Citizens United asserted plainly that the federal government’s powers are few and defined in the realm of political speech. The decision has since been cast as one that does little more than give “corporations and unions the freedom to spend as much as they like to support or attack candidates.” Of course, the stakes were far higher. As the government’s attorney asserted during the initial oral argument, the Federal Election Commission retained the authority to ban the sale of certain books (e-books included) in the weeks leading up to an election, a fact opponents of Citizens United rarely mention.

Shortly after that oral argument, Austin Bragg and I made a short video with Steve Simpson of the Institute for Justice, Allison Hayward of George Mason University School of Law (and now of the Center for Competitive Politics) and John Samples, director of the Center for Representative Government at the Cato Institute.

It Turns Out You Can Indeed Criticize the Government

As I wrote almost exactly a year ago, my friend Mark Sigmon filed a case on behalf of the ACLU seeking to prohibit a town in North Carolina from enforcing its sign ordinance against a man who painted “Screwed by the Town of Cary” on the side of his house.  Well, yesterday, the federal district court granted the plaintiff David Bowden summary judgment and entered a permanent injunction against the town. 

The court concluded that the sign ordinance was content-based under the First Amendment because it required more than a perfunctory inquiry into the content of signs in order to determine whether the ordinance would apply.  For example, the ordinance required the town to determine whether something was a “work of art,” a “holiday message,” etc.  The court then concluded that the town’s asserted interests in aesthetics and traffic safety were not compelling, and that even if they were, the ordinance was not narrowly tailored because it would allow, for example, a huge flashing holiday sign.

The opinion in the case makes clear that governments should not be in the business of looking at the substance of speech, except in the most superficial manner – for example, to determine if something is commercial speech or not.  Because the law is not entirely clear in this area, if the Town of Cary appeals, the resulting opinion should be instructive.  Hopefully the Fourth Circuit would affirm the district court and take another step to ensure that core speech is relatively unmolested.  Especially political speech that you write on your own house.

Kudos to Mark and to the First Amendment.