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."
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.