Is Freedom of Speech at Risk in the Election?

By David Kairys. Kairys, a law professor at Temple University, is a leading civil rights lawyer and author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. This is drawn in part from his article forthcoming in the Illinois Law Review with full cites to the cases discussed here, The Contradictory Messages of Rehnquist-Roberts Era Speech Law: Liberty and Justice for Some.

The Supreme Court is most known these days for two innovative free speech principles and an unprecedented court order: money is speech and corporations are people, and George W. Bush is the 43rd president of the United States.   

These decisions have drawn the harsh criticism they deserve. The campaign finance cases transformed our electoral and constitutional systems by ruling that a handful of the wealthiest Americans must be allowed to dominate the electoral process.

But all three of these cases expanded speech rights and have contributed to a widespread impression that over the last few decades, the Supreme Court, while more or less dominated by self-described conservative justices, has been generally, if also sometimes excessively, pro-free speech.  This impression has been fed by occasional decisions protecting some outlier protests, like picketing near soldiers’ funerals.

Others see the court as anti-free speech, pointing to decisions that restrict the speech rights of, for example, students and government employees, and to the lack of judicial protection of demonstrators as public officials increasingly these days keep them away from public and media visibility and the objects of their protests, out of sight and out of mind.

Looking at the range of speech decisions over the past few decades, inconsistent, selective, and contradictory seem better descriptors than pro- or anti- free speech.  But there are discernible and significant themes and patterns in the tangle of speech decisions, principles, and doctrines, and they have been ignored far too long. 

Free speech as we know it was established by the Supreme Court in the mid-1930s and maintained (with some notable exceptions) through the mid-1970s as a means of self-expression and empowerment of the people, and as an essential element of American democracy. The Rehnquist-Roberts era court has stood this constitutional and cultural understanding on its head – restricting speech rights available to people of ordinary means, while greatly expanding speech rights available to wealthy people, businesses, and corporations.  As we approach a presidential election whose winner will likely determine the court’s direction for some time, continuing to ignore this body of conservative speech law poses a serious risk to freedom, public discourse, and American democracy. 

This short examination of the conservative court’s free speech record, drawn from a forthcoming article, focuses on nine leading speech principles and doctrines innovated or substantially enhanced by conservative majorities, four that enlarge speech rights, then five that constrict them.  The first expansive principle is emphasized because it also exposes a significant new critique of the campaign finance cases.

The Rehnquist-Roberts era court’s prohibition of laws limiting campaign financing as violations of free speech, which goes back to Buckley v. Valeo (1976), initially faced two main obstacles in well-established First Amendment law: (1) the limits were imposed on money, not directly on speech; and (2) they were not complete prohibitions but limits on amounts of money.  The first obstacle was removed by the controversial conclusion that money is speech.  The second was overcome without noticeable controversy at the time or since by reliance on what the majority described as an established First Amendment principle – government may not limit the quantity of protected speech. 

The no-quantity-limits-on-speech principle has been strangely ignored in popular and legal commentary on the matter for almost four decades.  It treats limits on the quantity of speech the same way courts have long treated complete prohibitions of speech – with the highest level of free-speech protection that presumes unconstitutionality, and that allows no consideration of the adequacy of the quantity not prohibited or of alternative avenues of speech.  Campaign finance limits are prohibited, the Buckley Court said, because they “necessarily reduce[] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” 

It’s an appealing idea. Government should not dictate the amount or intensity of speech, and a limit on the quantity of speech represses some quantum of speech.  Once one accepts that money is speech, why not treat the prohibition of each additional dollar over a money limit as if it were a complete ban on speech? 

However, there are unmentioned reasons not to extend heightened constitutional protection to unlimited quantities of speech or money (or anything else). Limits on the quantity of speech may have little or no impact on the strength, clarity, or reach of the message. The quantity allowed and alternative avenues may be quite sufficient.  The quantity disallowed may be insignificant, or may interfere with others or significant societal interests.  The quantity demands of some may limit the quantity or means available to others or exceed the capacity of government and society.   

But whatever the merits of the quantity-limits principle, and despite its centrality to almost four decades of invalidation of campaign financing reforms, it is not a principle at all, at least not in the sense that principles have general applicability.  Outside of the campaign finance context, judicially sanctioned, and often direct, limits on the quantity of speech proliferate speech law: limits on the number of picketers, the number of demonstrators, the number and frequency of permits for demonstrations and parades, the volume of amplifiers, the number and size of protest signs. 

For example, quantity limits on the number of union and other picketers are regularly allowed unless the protestors can show a larger quantity is “necessary to convey [their] message.”  More picketers yield more messages or repetitions of the same message, communicate more common agreement and a stronger base, and may change the content, coverage, and reach of the message.  Limiting the number of picketers also completely bans some speakers as well as their additional messages. 

Similar treatment of campaign finance might take the form of limits on the nightly TV ad time allowed in favor of each candidate (which would probably gain wide support among TV viewers).  The question would be, as it is in the picketing limits cases, whether the quantity allowed is “ample” or more quantity is “necessary to convey” the message.

The Rehnquist-Roberts era court is extremely sensitive to reductions of the quantity of money in campaign finance cases, while being completely oblivious to reductions of the quantity of speech or speakers in the range of non-campaign-finance contexts.

Among the major innovations the Rehnquist-Roberts era court has brought to speech law are the other two principles that provide the foundation for the campaign finance cases: money-is-speech and corporations-are-people.  These innovations have been subject to deep and frequent criticism that need not be detailed here, except for one development: like the quantity-limits principle, the money-is-speech principle has been applied by the court selectively to the money wealthy people spend in elections. 

People of ordinary means also spend money to support speech and the candidates they prefer – in smaller amounts and often in person-to-person encounters the court refers to, somewhat derisively, as solicitation.  This money has never been recognized or treated by the court as speech, and has been characterized as “disruptive” and an “inconvenience.” If big money in elections is speech, then this money should also be analyzed as speech.  In the Rehnquist-Roberts era, some people’s money is speech, others’ money is annoying.  

In addition, the Rehnquist-Roberts era court has extended full First Amendment protection to commercial speech, which used to be viewed as somewhat protected but outside of the self-expressive, individual-empowering, and democratic purposes of highly protected speech.  The reasoning selectively emphasizes the rights of listeners to receive commercial speech.  This listeners-rights rationale is available in all speech cases, but was rejected, for example, when the court decided that the FCC can ban from radio George Carlin’s classic critique of the FCC, “The Seven Dirty Words You Can Never Say.” 

The innovative protection of commercial speech has been used by the court to invalidate a range of government reforms that protect consumers or important social interests, such as advertising limits or bans related to tobacco, gambling, and consumption of electricity.

The First Amendment principle that content-based restrictions on speech are presumptively unconstitutional is as old and basic as any and goes to the heart of what we condemn as censorship. However, the court held that an explicitly content-based restriction is excused from consideration as content-based if its purpose is to accomplish some non-content-based secondary effect.  Such restrictions are deemed unrelated suppression or censorship of speech because of their secondary effects, although they clearly are directly related. And the secondary effects doctrine focuses on generally stated possible purposes rather than real purposes, leaving it available to justify restriction of most any speech the government or courts dislike. 

The court has not explained why articulation of after-the-fact, generally stated possible governmental purposes that are not content-based should render a content-based restriction on speech any less content-based or objectionable.  The campaign finance cases subsequent to adoption of the doctrine ignore it, although it seems applicable, even assuming that money is speech: campaign finance limits are aimed not at the content of speech but at the secondary effects of money on elections.

The Court expanded the incidental effects doctrine, which allows government to prohibit protected expressive conduct if the restriction on speech is “incidental” and “unrelated to suppression of expression.”  The prohibition’s relationship to suppression of expression hinges on its purpose, and, like the secondary effects doctrine, the actual purpose or motive is irrelevant.  The court accepts generally stated possible purposes not related to suppression, even in cases where the actual purpose is clear and squarely aimed at suppression.  Before the Rehnquist-Roberts era, the court used the doctrine to uphold a conviction for burning a draft card as a protest against the Vietnam War. 

As expanded, the doctrine is rather uncontained and available for seriously limiting speech rights, since there are always generally stated hypothetical purposes unrelated to suppression that can be suggested or thought up after the fact.  The doctrine has been used by the court selectively to uphold permanent closure of a bookstore based on sexual conduct by some patrons and a ban on nude dancing.  It has not been seriously applied to campaign finance limits, although donating and spending money seem to fit.

Reasonable time, place, and manner restrictions have long limited protected speech when it is incompatible with important government functions or social interests.  For example, an amplified bullhorn may be fine in a downtown area during work hours, but not on a residential block in the middle of the night. Prior to the Rehnquist-Roberts era, the doctrine was kept within fairly narrow bounds, since if applied expansively it would swallow the idea and reality of protected free speech.  But the requirements for application of the doctrine have been significantly relaxed and its speech-prohibitive potential expanded in the Rehnquist-Roberts era.

The Court has used the doctrine to uphold a city’s geographic prohibition of adult theaters that essentially covered the whole city, and upheld prohibitions of leafleting at a fairground and sleeping in Lafayette Park in Washington as a protest of the treatment of homeless people. The court’s broadening of allowable time, place, and manner restrictions has also provided the lower courts a basis for limiting and marginalizing First-Amendment-protected demonstrations, and for selectively restrictive limits on the quantity of speech. 

Despite the expansion of the doctrine, the court has found it inapplicable in the campaign finance cases, distinguishing campaign finance limits as restrictive of speech, rather than a manner or mode of speech. But the other time, place, and manner restrictions are imposed on protected speech, as Buckley recognized, and campaign finance limits are imposed on protected speech only if one accepts that money is speech, rather than a manner of, or an activity that facilitates, speech.

One of the hallmarks of speech law before the Rehnquist-Roberts era was the principle that speech may not be banned or limited because it is offensive. The Rehnquist-Roberts era has been mixed on this principle, about which there seems to be a difference of opinion among the conservative justices.  The principle has at least faded: a ban on nude dancing has been upheld; the definition of obscenity has been expanded and left to local community mores; the FCC’s ban from radio of George Carlin’s “Seven Filthy Words” was upheld, though preceded by a warning to listeners; and offensive speech by students is considerably less protected than it was.

Before the Rehnquist-Roberts era, First Amendment law straightforwardly established a right to engage in speech activities on open public streets, sidewalks, and parks.  This has been replaced by a new, complex overlay of rules – the public forum doctrine – that must be satisfied as a precondition to vindication of speech rights.  Initially, the Court said that “the character of the property” determines whether it is a public forum, and public streets, sidewalks, and parks were recognized as “quintessential” public forums.  However, in one of the recent cases, an open, public sidewalk leading to a post office was held not to be a public forum, with the explanation that “the mere physical characteristics of the property cannot dictate forum analysis.”  The public forum doctrine has also been used to reject protection of speech activities in the open, public areas of New York’s teeming air terminals outside of the gates and security areas. 

In the cases denying public forum status, the Court has emphasized that speech was not the “principal purpose” of the public facilities at issue. But speech is rarely the principal purpose of any public facility.  The point is that, unlike many places in the world, our public spaces are generally open and available for speech, assembly, and association that express criticism of government and unpopular views – not because that is the purpose of our public spaces, but because we have made a constitutional, social, and cultural commitment to freedom of speech. 

That commitment is also evident in the pre-Rehnquist-Roberts era cases protecting limited speech rights in some privately owned public places. In the 1960s the Court protected limited speech rights in privately owned public shopping malls, where people gather in modern times much as they once did at centralized inner-city markets and gathering places. Those cases were reversed in the Rehnquist-Roberts era. 

The areas of First Amendment law in which the court in the Rehnquist-Roberts era greatly expanded and enhanced the scope and strength of speech rights are those available to very wealthy people, corporations, and businesses. 

The areas in which the court curtailed or restricted speech rights are those most available to and availing for speech by people of ordinary means.  They can’t afford air time on electronic mass media – the usual means of communication in recent times, along with the internet and social media – and the Court has rejected their claims to public access to the mass media. 

They are left with speech rights based on means of communication that were current in the 1930s, when free speech as we know it was first established: assembling, leafleting, speaking, demonstrating, and picketing in public places to air grievances, to reach out and gather support, and to try to gain a spot on the local or national news.  In the post-World War II, largely suburbanized context, this is mostly possible these days at transit terminals and shopping malls.  These areas and facilities have largely replaced the town square and inner-city marketplace as places where a large and varied array of people can be contacted and can exchange views without large expenditures of money.  But the Rehnquist-Roberts era court has substantially diminished if not eliminated those already limited places and activities available for speech by people of ordinary means, and allowed the government to isolate and marginalize them and their messages. 

Rehnquist-Roberts era speech law is not generally pro- or anti-free speech, but there are three major themes or patterns: (1) enlargement of the speech rights available to wealthy people, businesses, corporations, and otherwise favored people or institutions; (2) restriction of the speech rights available to people of ordinary means, workers and unions, government employees, students, and otherwise disfavored people or institutions, and of the basic democratic rights of every American to vote and participate as equals in the electoral and political processes; and (3) free-speech barriers to public access to the media and to electoral, economic, and social reforms aimed at improving the lot and lives of Americans. 

The familiar First Amendment rhetoric of self-expression, empowerment of the people, and triumphal U.S. democracy still lingers, though sometimes strangely, in Rehnquist-Roberts era speech law.  The Buckley Court invalidated campaign finance limits because “the people . . . must retain control,” and suggested that unlimited money is democratic and will not affect the results of elections because the amounts of money spent on each candidate “normally vary with the size and intensity of the candidate’s support.”  The court did not explain how domination of the public debate leading up to elections by a very small group of our wealthiest keeps “the people [in] control,” and the money spent on each candidate will vary, of course, with candidates’ attractiveness to very wealthy people and corporations. 

This skews, corrupts, and undermines the democratic process, which is supposed to be based on the value and sanctity of each person, not each dollar.  Freedom of speech in the Rehnquist-Roberts era no longer has much to do with democracy, or with empowerment or self-expression of the American people, except for the very wealthy and for corporations claiming humanity. 

This is what we now call freedom of speech, and what we can expect for the future if the justices appointed in the next few years resemble the current majority.