A Unitary First Amendment – Redux

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission.  Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election.  In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.
    
This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session.  And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce.  In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama.  How far will the Court go in affirming the political free speech rights of corporations?  

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake.  And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed.  Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different.  And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act.  This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”  

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters.  This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press.  “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them.  So, the justice asked, should the Court really second-guess Congress?  Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.”  Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.

Citizens United and ‘Hillary: The Movie’

If you’re feeling, like so many of us, that our life and times are too harmonious, smart, and principled, you might welcome something completely jumbled, uninformed, and hypocritical.  If so, here’s just the thing: an article by E.J. Dionne of The Washington Post.

The subject of Dionne’s piece is a case — Citizens United v. FEC — scheduled for oral argument today in the Supreme Court.  Like so many when reporting this story, Dionne employs the journalistic equivalent of the magician’s trick of misdirection when telling his tale.

Thus does he direct the reader’s attention not to the specifics of the case itself — which is whether the execrable campaign finance laws (read: McCain-Feingold) can constitutionally suppress free speech, and political speech at that — but to the imaginary threat that, if decided wrongly, the case “could surrender control of our democracy to corporate interests.”

What, you might wonder, could cause such fear and trembling?  A plot by corporate giants to make every man, woman, and child read The Wealth of Nations?

Well, not if it’s the Citizens United case.  Because that case isn’t about a corporate giant, but rather a small nonprofit activist organization, and its “crime” was the production and would-be distribution of a political film, called “Hillary: The Movie.” 

Now you might not like this film (if you’re a fan of Hillary you definitely wouldn’t like it), but nothing could be clearer than that this is political speech, the kind that, outside the confines of the election laws, has always occupied the highest reaches of constitutional protection under the First Amendment.

Dionne’s misdirection technique also turns a blind eye to another interesting fact: The campaign finance laws that prevent the airing of issue ads x number of days before federal elections don’t apply to newspapers, but only to the broadcast media, cable and satellite included.

Call it cynical, but some might wonder if this fact helps explain the embrace of McCain-Feingold by so many newspaper columnists and editorialists, and newspaper publishers, for that matter.

One of the problems attending any attempt to create what our associate, Professor Larry Winer, refers to as a “unitary” First Amendment is that so many people on the front lines of this battle, like reporters, demonstrate little or no interest in defending the First Amendment rights of anyone but themselves.

Thus can one count on one hand the number of mainstream media reports that have been critical of campus speech codes, or any manner of political correctness– or the suppression of political speech, as demonstrated in Citizens United.

It’s not a pretty picture.

Another Chance to Undo McCain-Feingold

 

A case scheduled for argument next month in the Supreme Court provides another opportunity to drive a stake through the heart of the worst part of the abominable campaign finance law, commonly referred to as McCain-Feingold.

The case (Citizens United vs. FEC), comes in the wake of an earlier Supreme Court decision carving out an as-applied exemption for “electioneering communications” (read: issue ads), save where the communication “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Welcome as this exemption was and is, the problem, as explained nicely in an amicus brief filed on behalf of ten state broadcasters associations, is that because it requires speakers to make complex and risky decisions about the legality of these ads, the law has a chilling effect on speech.

This case would not have been necessary had the Court done the right thing in 2003, in McConnell vs. FEC, or in 2007, in Wisconsin Right to Life, and thrown out, for its facial unconstitutionality, the whole of the electioneering communications part of the law, Section 203.

In 2002 the Media Institute filed an amicus brief in McConnell, arguing that this aspect of the Bipartisan Campaign Reform Act was an impermissible restriction on political speech, and in 2007 we filed comments with the FEC, in company with the Thomas Jefferson Center.

Here’s hoping that the current case yields the eradication of this most offensive section of this  odious law.

 

A Unitary First Amendment

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.
 
In last week’s Supreme Court oral argument of the “Hillary: the Movie” case, Citizens United v. F.E.C., the government attorney apparently perplexed several of the Justices by the breadth of his argument.  His argument, and the responses of some Justices, highlight a crucial aspect of the First Amendment.

Citizens United is a nonprofit corporation that made a 90-minute film sharply critical of Hillary Clinton.  During her presidential campaign it wanted to pay cable companies to make the film available to subscribers free via video on demand.

The McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA), however, bans “electioneering communications.”  This ban prohibits a corporation or labor union from using its general treasury funds for any broadcast, cable, or satellite communication that constitutes express advocacy or its functional equivalent regarding a clearly identified federal candidate within a set time prior to an election.  Electioneering communications, however, do not include news or commentary by a media company, and the statutory ban does not apply to the print media or the Internet.

We are used to media exceptionalism, at least with regard to broadcasting.  That is, throughout its history broadcasting has struggled under a strange First Amendment jurisprudence affording it limited freedom of expression and subjecting it to a panoply of “public interest” obligations that would be constitutional anathemas for any other medium of mass communication.  

Political access rules and requirements for children’s educational programming, for example, fall in this public interest category for broadcasting.  BCRA strangely perpetuates this dichotomous approach by, on the one hand, in effect covering only “television” (broadcast, cable, and satellite), and at the same time exempting from its reach news and commentary in all media.

When pressed by the Justices, the government attorney took the position that the Constitution would allow Congress, if it wished, to extend the statutory ban to print media, a book for example.  To this, Justice Alito replied, “That’s pretty incredible,” going on to characterize the government’s position as allowing it to ban a book about politics, under an expanded BCRA statute, if published by a corporation close to an election.  

Justice Kennedy then demonstrated how bizarre the government’s position is by noting that a book, downloaded by satellite onto a Kindle reader, presumably both would come under the reach of the present statute and, in the government’s view, constitutionally be subject to censorship.  Before long Justice Scalia confessed to being “a little disoriented” because he thought the Court was dealing with the constitutional provision, known as the First Amendment, that he remembers as beginning with “Congress shall make no law.”

BCRA’s restriction on political speech in the guise of campaign finance reform is troubling in its own right.  What great evil of political propaganda justifies this sort of censorship?  But it is good to see members of the Court now “disoriented” by the hopelessly disjointed, media-based approach to First Amendment freedom of expression that the Court itself spawned in the middle of the 20th century and unfortunately maintains in our radically transformed digital era.  

These Justices were incredulous that the government would suggest it could extend a regulation of electronic media to print.  But the disconnect finally should go just as strongly in the other direction – what is prohibited in regulating print media is also prohibited for all media, including broadcasting.

In recent years, the Federal Communications Commission under former chairman Martin pursued a relentless and unwarranted campaign against so-called “indecency” on broadcast television.  The Supreme Court has pending before it a challenge to the Commission’s authority in this area to regulate what no government entity can restrict in any other media.  It would be gratifying if in its decision in the next few weeks the Court finally adopts and applies a unitary First Amendment.

Professor Winer is also the Faculty Editor of Jurimetrics.

The First Amendment’s Fleeting Friends

If anyone has seen his share of First Amendment friends and foes over the years, it’s Floyd Abrams, that iconic New York attorney whose name can hardly be uttered without the words “First Amendment” somewhere in the same sentence.

But, as Floyd pointed out in a new Speaking Freely opinion paper this week, the real problem facing the First Amendment is not outright opposition – everyone claims to “care about” this constitutional guarantee, after all.  The problem lies with many of its “friends,” who invoke the First Amendment at their convenience to further their own agendas, without much regard for the underlying principle itself.  And who then sit out First Amendment challenges that don’t suit their ideological taste. 

Liberals and conservatives are equally guilty of being fair-weather friends, Floyd notes.  “Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN-sponsored efforts to ban the supposed ‘defamation’ of Islam.  Conservatives care deeply about such efforts to stifle speech, but offer little if any protection to American students when they mouth off outside of their schools.”

Floyd poses a telling question for each ideological camp: Would conservatives be so adamantly opposed to a return of the Fairness Doctrine if talk radio were leaning left?  Will liberals get over their long-held belief that money is inherently corrupting of political speech, now that candidate Obama raised staggering amounts of cash (while refusing federal funding) to reach the White House?   

The title of Floyd’s opinion paper says it all: “First Amendment Deserves More Than Fleeting Friends.”  Liberals and conservatives alike, take heed – even if it hurts.