Monday, August 16, 2010
David Kairys, Temple University School of Law, has published The Contradictory Messages of Speech Law: Eloquence and Annoyance. Here is the abstract.
Constitutional invalidation of laws limiting campaign financing in the 1980s faced two main obstacles in well established First Amendment law, both addressed in the opening passages of Buckley v. Valeo under the heading “General Principles”: the limits were imposed on money, not directly on speech; and they were not prohibitions but limits on amounts of money at levels that preserved the system of individual campaign financing. The first obstacle was removed by the famous conclusion that money is speech. The second was overcome without much fanfare 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.
Buckley, Citizens United v. FEC and all the protective campaign financing cases in between treat limits on the quantity of speech the same way they treat complete prohibitions or bans of speech – with strict scrutiny, no consideration of the adequacy of the allowed quantity or alternative avenues of speech (which are irrelevant under First Amendment strict scrutiny), and the eloquence that regularly accompanies invalidation of violations of the First Amendment.
It’s an appealing idea. Government shouldn’t dictate or restrict the amount or intensity of views expressed by speech that is protected by the First Amendment. A limit on the quantity of speech represses some quantum of speech and may reduce the clarity, depth, impact, and reach of the message. On the other hand, there are good reasons not to extend heightened constitutional protection to unlimited quantities of speech (or anything else).
But whatever the merits of the anti-quantity-limits principle, it’s not a principle at all, at least not in the sense that principles have general applicability. Outside of the campaign finance context, decisions regularly allow limits on the quantity of speech – even if directly imposed on protected speech itself – without mentioning any First Amendment principle prohibiting quantity limits and without applying strict scrutiny. Quantity limits on speech, whether direct or indirect, usually have been characterized as time, place and manner restrictions, and usually have been allowed, whatever the characterization, as long as they are reasonable.
Nor has the money-is-speech principle been applied throughout speech law, or applied at all outside of the campaign finance cases. Contributions of large amounts of money to support campaign speech – the cash itself, in addition to the actual speech – are fully protected speech and can’t be limited to protect the legitimacy and integrity of the electoral process; contributions of small amounts of money by ordinary people to support their speech, requested and given in public places, are an inconvenience that receives no protection and justifies limiting speech rights. Money is sometimes speech, sometimes annoying.
These First Amendment “principles” – the quantity of speech cannot be limited and money is speech – expanded free speech but have not been extended to other areas of speech law or to speakers who express themselves other than by spending large amounts of money. In the same period – the last three to four decades – the trend in speech law has more often been to contract free speech rights, and the new principles adopted in that process also have not been generally applied. For example, the secondary and incidental effects doctrines allow prohibition of speech if the government’s purpose is a secondary effect such as avoidance of crime, or if the regulation is aimed at a nonspeech element of the activity and the effect on speech is incidental. This seems to validate campaign finance limits, since the government is restricting amounts of money (or speech, if they are indistinguishable) not to repress anyone or any message but to protect the integrity and legitimacy of the electoral system.
This inconsistency and selectivity of rules, principles and approaches has characterized the law of free speech, and civil rights law generally, over the past several decades. The result in the law of free speech has been: (1) enlargement of the speech rights available to wealthy and otherwise favored people, and to their preferred form of doing business, corporations; (2) restriction of the speech rights available to people of ordinary means and to various dissenters; and (3) a free-speech barrier to public access to the media and to important electoral, economic and social reforms.
Download the paper from SSRN at the link.