The Court’s First Amendment Cases

By David Kelston

The Court handed down three First Amendment decisions, each with a different majority, each appearing to vindicate First Amendment rights, and only one clearly unfortunate (the Arizona election case).  But a consistent theme in the cases appears to be a mistrust of government that could augur poorly for preservation of the health care bill intact.

First, the unfortunate result – and one consistent with Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), and the Court’s clear unwillingness to tolerate attempts to control money in electoral politics.  In Arizona Free Enterprise Club’s Freedom Club v. Bennett, 131 S.Ct. 2806 (2011), the Court struck down Arizona’s public financing law.  Chief Justice Roberts wrote for the five-member majority, including Justices Scalia, Kennedy, Thomas and Alito.

Then-Senator Obama privately raised three-quarters of a billion dollars for his 2008 presidential race.  Had he opted to stay within public financing guidelines, he would have received just over $100 million in public funds.  Clearly, optional public financing of elections, at least at current levels, will never replace private money in the most important elections.  But public financing, which is aimed at limiting the corrosive effect of private campaign contributions, may still have a chance in local elections.  (Currently, about one-third of the states have public financing election laws.)  But this became an even slimmer possibility with this case.

Buckley v. Valeo, 424 U.S. 1 (1976), held that large political contributions may result in “political quid pro quos” that undermine democracy, and it declared the presidential public financing system constitutional.  Arizona’s modest law gave public funds to candidates who opted into the system, and addressed public financing’s main problem – how to set the subsidy at a realistic level – by augmenting the initial payment with additional payments based on the spending of the publicly financed candidate’s opposition.  Thus, a candidate for the Arizona senate who opted for public financing (and its limits), got an initial subsidy of $21,479, and twice that amount more based on his/her opponent’s spending, to a total subsidy of $64,437.  Yet, in reasoning that turns common sense on its head, the majority found that this subsidy impermissibly burdens the free speech of the privately funded opponent, in violation of the First Amendment.  Thus, a subsidy that was intended to, and apparently did, create more speech and more debate, was struck down as supposedly doing the opposite

Underlying Free Enterprise Club, like Citizens, is a single and disturbing fact: this Court has decided that attempts to “level the election playing field” are impermissible under the First Amendment and, even when the states provide other rationales – like fighting corruption in politics – their laws will nevertheless be subject to intrusive scrutiny that is highly suspicious of anything that attempts to limit private money in politics.

In Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011), Justice Scalia, writing for justices who often find themselves in disagreement (Kennedy, Ginsburg, Sotomayor and Kagan, Alito concurring), engaged in what seemed to be a routine First Amendment analysis to strike down a California statute that prohibited sale of violent videos to minors without parental consent.  Justice Scalia reasoned: 1) video games qualify for First Amendment protection; 2) government has no power to restrict expression because of its content, except in a few well-recognized areas, primarily obscenity; 3) new categories of speech may not be classified as “unprotected” by government; 4) because California’s law imposes a restriction on the content of protected speech, it is invalid unless it passes strict scrutiny, that is, it is justified by a compelling government interest and is narrowly drawn to serve that interest; 5) the California statute does not meet that standard, and California cannot show even a “direct causal link between violent video games and harm to minors.”  Id. at 2738.

While the majority’s analyses seems uncontroversial (and certainly more convincing than the Alito, Roberts concurrence on vagueness grounds), one cannot help but think that, at least in part, its outcome is motivated by a kind of anti-government animus, see id. at 2735 (rejecting “expansive view of government power”) and that the Court, had it wanted to, could easily have found a way to justify California’s modest controls on video games graphically depicting, for instance, decapitations and making players into “virtual”rapists, mass murderers, and the like.  Justice Breyer’s dissent found a compelling interest in California’s need to protect parents’ “authority in their own household to direct the rearing of their children,” id. at 2767, and his opinion seems perfectly reasonable.
Like much this last term, this case may be a part of a preview to a showdown on the health care act.

Finally, there is Snyder v. Phelps, 131 S.Ct. 1207 (2011), likely not an opinion that breaks any new ground, but nevertheless interesting – and appreciated – as showing again how vigorous the First Amendment can be in serving its purpose of protecting unpopular speech.  In Snyder, where only Justice Alito dissented, the “Westboro Baptist Church” – apparently little more than the Phelps family – had been held liable (to the tune of almost $12 million) for intentional infliction of emotional distress upon the Snyder father by virtue of the church’s picketing the funeral of Marine Lance Corporal Matthew Snyder, killed in Iraq.  While the church’s picketing did not directly disrupt the funeral, their activities – including signs reflecting their belief that God hates the United States because of its tolerance of homosexuals and kills American soldiers as punishment – caused the Snyder father great distress.

But the Court rightfully found the church’s activities protected, if unpopular speech that could not be abridged by civil tort remedies: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” id. at 1219, quoting Texas v. Johnson, 491 U.S. 397 (1989).  It is good to be reminded that the core purpose of the First Amendment is other than promoting business interests and thwarting government attempts to, say, make elections more democratic.

David Kelston is an attorney at Adkins, Kelston & Zavez.