Monday, June 27, 2011

I Can Barely Hear Myself Think Over the Yapping of these Peasants!

Today, in Arizona Free Enterprise Club v. Bennett, the Supreme Court did something rather amazing: It held that the state's nondiscriminatory promotion of speech violated the First Amendment. The law struck down Arizona's public financing system for elections, whereby candidates who elected into the system received a lump-sum payment, and then an additional 94 cents for every dollar their opponent spent above that sum, for up to three times the original amount proffered (at which point they are barred from any more spending). All candidates can choose to opt-in to the system, or they can choose not to. But several privately-funded candidates sued, saying this violated their First Amendment rights.

My first thought on reading this fact pattern was to think that this is more than just a clean loser -- it's a patently frivolous argument. Not only did the plaintiffs have the option -- which they declined -- of utilizing the public finance system, but after electing not to receive the subsidy, they face a grand total of zero penalties or restrictions on their own spending. Public financed candidates in Arizona are restricted to 3x the original grant, no matter how much their opponents spend. And that matters, since their opponents can spend as much as they want, wherever they want, however they want.

Justice Kagan's dissent gets to the nub of the matter, and demonstrates the absurdity of what passes for the majority's "analysis":
This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker's ideas to another's. See, e.g., id., at 577–578; Regan, 461 U. S., at 543–545. But the candidates bringing this challenge do not make that claim--because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

The only "burden" (or "restriction", or "limit", or whichever equally ludicrous synonym you prefer -- and the majority offers many) on the privately-financed candidate's speech is that their opponents are given the (limited) capacity to talk back. As Chief Justice Roberts observes, "All else being equal, an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted." Which, yes, I suppose that's true. But it's also a inordinately creepy way of conceptualizing a free speech "burden". As Justice Kagan observes, "the very notion that additional speech constitutes a 'burden' is odd and unsettling."

Scott Lemieux says that this case has to be in the conversation for any top ten list of "worst Roberts Court" decision, and I'm inclined to agree. I'm someone who is actually somewhat on the fence on "money as speech" campaign finance questions generally, but even I think this decision is obviously, almost laughably, incorrect.

Justice Brandeis once cast the First Amendment debate as between "more speech and enforced silence". Today's opinion might be the first in Supreme Court history to so proudly wave the banner of the latter.


Andrew said...

Kathleen Sullivan wrote an article in response to Citizens United (Two Concepts of Freedom of Speech, 124 Harv. L. Rev. 143 (2010)) about the two views of the First Amendment at war with each other on the Court: the belief that the First Amendment is about substantive equality in the political process (the left's view), and the belief that it is about non-intereference with private ordering of the speech market (the right's view). The article is interesting, though in my mind, it grants way too much legitimacy to the right's completely unsupportable view.

When viewed in this way, though, this decision is unsurprising if extreme. To them, it's not just about government getting out of the way or speakers - it's purely about leaving the speech market alone. It's not a superficial constitutional law version of Godwin's Law to invoke Lochner here - is precisely what the Court wants.

Despite the principle being the same though, you're right that this case is pretty extreme. Lochner was more Citizens United. This case goes even farther. If Citizens United was a minimum wage law getting struck down, this case involved a law giving supplemental funding to someone that was forced into a below-living-wage contract that the government couldn't prohibit. I'm not sure the Lochner Court would have gone that far.

Anonymous said...

A pretty odd decision.

I am not sure, Andrew, that either the Left or the Right's preferences for the First Amendment have much in common with the views that prevailed regarding the Amendment prior to very, very recent times. Rather, I think that both sides are arguing about what they would prefer the First Amendment to be about, not about its meaning on its own terms.

PG said...

Thanks for noting the Sullivan article, I'll have to check it out. Based on your summary, though, I'm skeptical that Sullivan is quite accurate about either the left or the right. If liberals demanded "substantive equality in the political process," the ACLU wouldn't just fight for the Nazis' right to march in Skokie; they'd fight for Nazis to get all the same subsidies that the Boy Scouts do. Similarly, if the right only wanted non-interference with private ordering of the speech market, that wouldn't explain conservative support for governmental subsidies to Christian speech (e.g. for Ten Commandments displays and the like). Cases like Wide Awake indicate that conservatives want "substantive equality" in the form of equally available government subsidy of their speech.

Kevin said...

Why does this decision vaguely remind me of Sarah Palin's view of the First Amendment, i.e., that it gives her the right to speak without criticism?