Tag: First Amendment

Even Unpopular Causes Get Full First Amendment Protection

Under Washington’s constitution, a popular vote must be ordered on any bill passed by the legislature if a specified percentage of state voters sign a petition for a referendum. Washington’s Public Records Act makes public records, including such referendum petitions, available for public inspection. In 2009, opponents of same-sex marriage used the referendum procedure to attempt to reverse a state law which expands the rights of state-registered domestic partners. Proponents of the law sought access to the petition and two of the petition signers sought a preliminary injunction to prevent disclosure of their personal information, arguing that the PRA violates their right to speak anonymously.

The Ninth Circuit Court of Appeals held that the right to access trumps the right to anonymity. The Supreme Court granted certiorari to determine whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels the public release of identifying information about petition signers, and whether compelled disclosure of such information is narrowly tailored to a compelling government interest.

Cato filed a brief supporting the petition signers, in which we argue that the Court should establish a bright-line rule prohibiting laws that mandate the full disclosure of petition signers’ identities and contact information. Public disclosure carries significant burdens and unconstitutionally chills the exercise of First Amendment rights when no compelling government interest is at stake.

If the Court finds that the state has a compelling interest in public disclosure, disclosure exemptions are constitutionally required. Failure to require exemptions would permit the government to suppress the expression of offensive or unpopular ideas and would discourage individuals from associating in the first place.

Finally, our brief argues that even exemptions are not a substitute for strict scrutiny and provide inadequate protection where disclosure is not justified by compelling state interests. Exemption rules still chill speech, by their nature as an ad hoc process without fixed standards; the government is ill-suited to identify which groups should be exempt from disclosure, as is evidenced by their poor track record of erroneously suppressing controversial or unpopular speech.

The case, Doe v. Reed, will be argued in April.

Civil Liberties Advocates, Not ‘Gun Advocates’

In this NPR story Nina Totenberg gives both sides their say.  But twice she refers to the people advocating Second Amendment rights as “gun advocates” (and once as “gun rights advocates”). That’s not the language NPR uses in other such cases. In 415 NPR stories on abortion, I found only one reference to “abortion advocates,” in 2005. There are far more references, hundreds more, to “abortion rights,” “reproductive rights,” and “women’s rights.” And certainly abortion-rights advocates would insist that they are not “abortion advocates,” they are advocates for the right of women to choose whether or not to have an abortion. NPR grants them the respect of characterizing them the way they prefer.

Similarly, NPR has never used the phrase “pornography advocates,” though it has run a number of stories on the First Amendment and how it applies to pornography. The lawyers who fight restrictions on pornography are First Amendment advocates, not pornography advocates.

And the lawyers who seek to guarantee our rights under the Second Amendment to the U.S. Constitution should be called Second Amendment advocates, or advocates of the right to self-defense, or civil liberties advocates. Or even “gun rights advocates,” as they do advocate the right of individuals to choose whether or not to own a gun. But not “gun advocates.”

Net Neutrality Regulation: A Solution in Search of a Problem

This Reason.tv video illustrates the weak case for network neutrality regulation of Internet service providers.

In the AT&T case, which the video touches on, an AT&T web site blocked some (barely) controversial statements by Eddie Vedder—the Pearl Jam lead singer who stopped mattering a really long time ago. This was an error, and it was contrary to AT&T policy, according to this August 2007 story. Yet the example is one of a few used to argue for net neutrality regulations.

Do we really want the government treading any of this ground?

Most people would probably agree that web site operators should be free to publish or not publish whatever they want. Regulations barring web sites from editing out controversial political statements, or requiring them to broadcast them, would be facially unconstitutional. Strangely, proponents of net neutrality regulation tout this kind of regulation as a virtue at the Internet’s transport layer.

Democracy against Free Speech?

A new poll from Washington Post/ABC News poll shows that most respondents oppose the recent Citizens United decision by the U.S. Supreme Court. Just over 70 percent of those polled want to reinstate the unconstitutional restrictions. The questions asked may be found here.

Sean Parnell asks whether the wording of the questions in this poll drove the results. William McGinley shares Parnell’s concerns and suggests some alternative questions for future polling.

I was not surprised by the result. Polls have long found that substantial majorities support something called “campaign finance reform.” Over two years ago, a poll found that 71 percent of Americans wanted to limit corporate and union spending on campaigns. 62 percent also supported limiting the amount of money a person could give to their own campaign, even though such donations could not involve the possibility of corruption. (This desire to restrict self-funding, by the way, has been patently unconstitutional for over thirty years).

The history of public opinion also should be kept in mind. Fifty years ago, when mass polling started, researchers found that the public both supported and opposed the First Amendment. Surveys found overwhelming support for “the First Amendment” and other abstractions like “the Bill of Rights.” They also frequently detected less than majority support for actual applications of the First Amendment and the Bill of Rights. Majorities opposed, for example, permitting Communists or other disfavored groups to speak at a local school.

Not much has changed over the years. In 2007, a survey funded by the First Amendment Center reported the following opinions related to First Amendment freedoms:

  • Only 56 percent believe that the freedom to worship as one chooses extends to all religious groups;
  • 50 percent agree “A public school teacher should be allowed to use the Bible as a factual text in a history or social studies class.”
  • 58 percent of Americans would prevent protests during a funeral procession, even on public streets and sidewalks;
  • 74 percent would prevent public school students from wearing a T-shirt with a slogan that might offend others;
  • majorities thought “the government should be allowed to require television and radio  broadcasters to offer an equal allotment of time to conservative and liberal commentators.”
  • That same poll also revealed that 66 percent of the public thought “the right to speak freely about whatever you want” was essential. Moreover, 74 percent found “the right to practice the religion of your choice” to be essential.

In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.

These findings suggest two thoughts. Liberals are now saying Citizens United should be undone because majorities oppose the decision. The principle that First Amendment rights should be overturned by majority sentiment may not please liberals in the future. Freedom of religion, in particular, attracts minority support in many concrete applications.

The more important lesson here involves an often ignored truth: the U.S. Constitution does not establish a government through which a majority can do anything it likes. The Bill of Rights marks a limit on political power even if a majority controls the government. (James Madison might have said especially if a majority controls the government). We have a Supreme Court to enforce those limits against government officials and against majorities. In Citizens United, the Court finally did what it should have done: protecting unpopular groups from the heavy hand of the censor. The fact that a majority favored and favors giving unchecked power to the censor matters not at all.

Socialists Shouldn’t Have to Admit Libertarians Into Their Club

Hastings College of the Law, a public law school in California, has a policy prohibiting discrimination on the basis of “race, color, religion, national origin, ancestry, disabilities, age, sex or sexual orientation.” In 2004, the Christian Legal Society, a religious student organization at the school, applied to become a “recognized student organization” – a designation that would have allowed CLS to receive a variety of benefits afforded to about 60 other Hastings groups. While all are welcome to attend CLS meetings, CLS’s charter requires that its officers and voting members abide by key tenets of the Christian faith and comport themselves in ways consistent with its fundamental mission, which includes a prohibition on “unrepentant” sexual conduct outside of marriage between one man and one woman.

Hastings denied CLS registration on the asserted ground that this charter conflicts with the school’s nondiscrimination policy. CLS sued Hastings, asking for no different treatment than is given to any registered student group. The district court granted Hastings summary judgment and the Ninth Circuit affirmed. The Supreme Court granted certiorari to determine whether Hastings’s refusal to grant CLS access to student organization benefits amounted to viewpoint discrimination, which is impermissible under the First Amendment.

Yesterday Cato filed an amicus brief supporting CLS – authored by preeminent legal scholar Richard Epstein – in which we argue that CLS’s right to intimate and expressive association trump any purported state interest in enforcing a school nondiscrimination policy. While Hastings may impose reasonable restrictions on access to limited public forums, it should not be allowed to admit speakers with one point of view while excluding speakers who hold different views. Our brief also discredits Hastings’s assertion that its ability to exclude the public at large from school premises renders their content-based speech restrictions constitutional.

We urge the Court to safeguard public university students’ right to form groups – which by definition exclude people – free from government interference or censorship.  (Of course, our first choice would be for the government to get out of the university business and our second choice would be to stop forcing taxpayers to pay for student clubs, but given those two realities – as in the case at hand – freedom of association is the way to go.)

When Individuals Form Corporations, They Don’t Lose Their Rights

The blogosphere has been abuzz on the heels of the Supreme Court’s landmark Citizens United opinion.  Hysteric criticisms of the speculative changes to our political landscape aside – including the President’s misstatements in the State of the Union – one of the most common and oft-repeated criticisms is that the Constitution does not protect corporations. Several “reform” groups have even drafted and circulated constitutional amendments to address this concern.

This line of attack demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”

Well of course they aren’t — but that’s constitutionally irrelevant:  Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy. 

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn’t because they’re “legal” persons, however – though much of the doctrine builds on that technical point – but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection – that “real people” lose some of their rights when they join together in groups of two or ten or fifty or 100,000 – is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

In any event, as Chief Justice Roberts said in his Citizens United concurrence: “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.” Justice Scalia makes the same point, explaining that the text of the Constitution “makes no distinction between types of speakers.” The New York Times isn’t “an individual American” but its speech is still protected under the First Amendment (regardless of any exemption for “media corporations” – whatever those are in a world where conglomerates own interests not limited to media, not to mention the advent of blogs and other “new” media).

A related line of attack is that 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. Somin rebuts the weakness of this argument here, correctly pointing out that nearly every newspaper and political journal in the country is a corporation.

In short, the contention that the First Amendment does not protect corporations ignores the fact that there is no constitutional difference between individuals and groups of individuals, however organized.  Still, I give credit to the groups who are proposing constitutional amendments that would limit corporate rights: at least they recognize that, after Citizens United, there is no basis upon which to argue that the First Amendment does not protect corporate political speech.  The Free Speech Clause, after all, is blind as to the nature of the speaker.

For further concise refutations of the basic arguments against Citizens United, see here (points 3-6 address issues relating to corporations and their rights).

Citizen United’s Concept of the U.S. Constitution

The Citizens United decision and the talk that has followed imply two different and incompatible ideas of the Constitution.

The majority in Citizens United believe that the U.S. Constitution establishes a government of limited and defined powers. They asked: “Does the Constitution give government the power to prohibit speech by corporations (and others)?” The First Amendment indicated the government did not have that power.

The critics of the Citizens United decision assume the Constitution created a government of  plenary powers with limited exceptions. They recognize that free speech for individuals is one such exception. But that exception is limited to natural people, not legal constructs. If there is no exception to the plenary power of government, the critics conclude, then there is no right to speak. Congress may prohibit speech by corporations (and others).

The Citizens United decision depends on an idea of the Constitution that forces  government to justify its powers to citizens. The critics of the decision assume an idea of the Constitution that forces citizens to justify their rights to the government. Absent such justifications, the government has plenary power over speech and much else.

Which concept of the Constitution do you find most appealing?