Freedom of speech and speech about political candidates: the unintended consequences of three proposals.

• Author: Volokh, Eugene
• Position: Alternatives to Buckley v. Valeo decision

Most effective speech to the public requires money. If spending more than $1,000 on expression is outlawed, then you may not place more than a tiny ad in any major newspaper, buy virtually any television time, put up a billboard, or mail more than a few thousand newsletters. That's an extremely serious restriction on your ability to express your views.

This, of course, has obvious implications for campaign finance laws, because this means that some such laws may be unconstitutional. But it also has implications for free speech law, since the precedents set in campaign finance cases will affect the rules governing speech restrictions generally. And because campaign finance cases arouse such passions, they risk creating rules that can have unexpected -- and possibly dangerous -- consequences in many areas far outside campaign finance.

This essay aims to briefly highlight the potential unexpected consequences of three kinds of arguments about campaign finance restrictions, arguments that as it happens correspond to three opinions in the recent Nixon v. Shrink Missouri Government PAC case.(1) And if the analysis here is right, then it may well be that the Shrink Missouri majority and even the much-lambasted Buckley v. Valeo(2) actually make a good deal of constitutional sense.(3)

1. THE CONSTITUTIONAL TENSION APPROACH

   Let me begin with Justice Breyer's opinion, which I found eloquent enough that I would like to quote it at some length; but let me at the same time quote another similarly eloquent opinion alongside it.

   [T]he principal dissent oversimplifies the problem faced in the campaign finance context. It takes a difficult constitutional problem and turns it into a lopsided dispute between political expression and government censorship. Under the cover of this fiction and its accompanying formula, the dissent would make the Court absolute arbiter of a difficult question best left, in the main, to the political branches. [T]his is a case where constitutionally protected interests lie on both sides of the legal equation. For that reason there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words "strict scrutiny." Nor can we expect that mechanical application of the tests associated with "strict scrutiny" -- the tests of "compelling interests" and "least restrictive means" -- will properly resolve the difficult constitutional problem that campaign finance statutes pose. Cf. Kovacs v. Cooper, 336 U.S. 77, 96 [] (1949) (Frankfurter, J., concurring) (objecting, in the First Amendment context, to "oversimplified formulas") (parallel citation omitted). Our judgment is ... solicited on a conflict of interests of the utmost concern to the well-being of the country. This conflict of interests cannot be resolved by a dogmatic preference for one or the other, nor by a sonorous formula which is in fact only a euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we cannot escape a candid examination of the conflicting claims with full recognition that both are supported by weighty title-deeds. The plain fact [is] that the interest in speech, profoundly important as it is, is no more conclusive in judicial review than other attributes of democracy or than a determination of the people's representatives that a measure is necessary to assure the safety of government itself.... Just as there are those who regard as invulnerable every measure for which the claim of national survival is invoked, there are those who find in the Constitution a wholly unfettered right of expression. Such literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry.... I recognize that [an earlier case] used language that could be interpreted to the contrary.... But those words cannot be taken literally. ... In such circumstances -- where a law significantly implicates competing constitutionally protected interests in complex ways -- the Court has closely scrutinized the statute's impact on those interests, but refrained from employing a simple test that effectively presumes unconstitutionality. Rather, it has balanced interests. And in practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others (perhaps, but not necessarily, because of the existence of a clearly superior, less restrictive alternative). Where a legislature has significantly greater institutional expertise, ... the Court in practice defers to empirical legislative judgments.... Nor is the argument ... adequately [decided] by citing isolated cases. Adjustment of a clash of interests which are at once subtle and fundamental is not likely to reveal entire consistency in a series of instances presenting the clash. It is not too difficult to find what one seeks in the language of decisions reporting the effort to reconcile free speech with the interests with which it conflicts. The case for the defendants requires that their conviction be tested against the entire body of our relevant decisions. [H]ow are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment? -- who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? ... Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress.... The opinion on the left is Justice Breyer's;(4) the one on the right was written by Justice Frankfurter -- the same Justice whose Kovacs v. Cooper concurrence Breyer approvingly cites -- and it was written in Dennis v. United States.(5) Restrictions on Communist advocacy, Justice Frankfurter argued, couldn't be judged by wooden formulae or subjected to a rigid presumption of unconstitutionality, because they implicated constitutional values (free speech versus democracy) on both sides of the inquiry. Instead, these restrictions required context-sensitive balancing, and ultimately deference to the legislative branch. Justice Breyer similarly argues that restrictions on campaign-related speech can't be judged by wooden formulae or subjected to a rigid presumption of unconstitutionality, because they implicate constitutional values (free speech versus democracy) on both sides of the inquiry. Instead, the restrictions require context-sensitive balancing, and ultimately deference to the legislative branch.(6)

   I think Justice Frankfurter got it wrong in Dennis, and I am happy that the Court has since implicitly retreated from its holding in that case.(7) But there's much to what he says, just as there's much to what Justice Breyer said. Their opinions outline a powerful, even if ultimately insufficiently speech-protective, alternative to conventional free speech libertarianism.

   But I doubt that many of the liberals who support the Breyer view of campaign speech restrictions would be wild about a revival of First Amendment Frankfurterianism. Justice Frankfurter certainly didn't limit his balancing to Communist advocacy: He was willing to balance away free speech rights in a wide variety of cases.(8) If Justice Breyer is modeling himself on Justice Frankfurter, that's not a good sign for those who support strong speech protection.

   What about the one limiting principle that Justice Breyer's opinion seems to suggest -- that his deferential balancing applies only when "constitutionally protected interests lie on both sides of the legal equation,"(9) an approach I call the Constitutional Tension Method?(10) This may sound like a helpful

   constraint, until one recognizes how often judges can identify some constitutionally protected "interest" supporting an abridgement of a constitutionally protected right.

   Justice Frankfurter's own jurisprudence provides many such examples. In Dennis, he justified restricting Communist speech by pointing to the constitutional interests in "democracy" and "[t]he constitutional power to act upon [the] basic principle" of "[t]he right of a government to maintain its existence," which is "the most pervasive aspect of sovereignty."(11) In Bridges v. California,(12) he would have upheld a court's punishing a newspaper for commenting on pending litigation, on the grounds that in such a case "the claims on behalf of freedom of speech and of the press encounter claims on behalf of liberties no less precious" -- the right to a fair trial.(13) Likewise, in Terminiello v. City of Chicago,(14) he endorsed Justice Jackson's opinion, which would have allowed punishment of speech that could lead to mob violence, even when the speaker wasn't intentionally trying to incite such violence; without such a power, the opinion argued, constitutional liberties, including the freedom of speech itself, would suffer.(15)

   Other judges and commentators have used the Constitutional Tension Method to argue for yet other speech restrictions. In rough chronological order, here are a few examples:

   * The Sedition Act: Justice Iredell defended the Act on the grounds that seditious speech jeopardized the constitutionally established regime of republican government and even the freedom of the press itself.(16)

   * Antiwar speech: The World War I-era Supreme Court justified restrictions on antiwar speech on the grounds that such speech undermined the constitutionally secured war power.(17)

   * Advocacy of illegal conduct: Gitlow v. New York(18) and other contemporaneous decisions argued that advocacy of illegal conduct was punishable because such speech was contrary to the constitutional framework of democratic decisionmaking.(19)

   * Bitter criticism of religion...