Deceptively straightforward, the First Amendment’s declaration that “Congress shall make no law… abridging the freedom of speech” has long frustrated judicial efforts to balance civil liberty and social well-being. Further complicating matters, the U.S. Supreme Court routinely shifts its approach to free expression with the ideology of its membership.
The modern court is no exception, already marked by contradictory logic that at times appears driven more by partisan than constitutional considerations. Without a uniform approach to free expression, the Roberts Court leaves a patchwork of inconsistent case law in its wake that will hamper the legal system — and Americans’ rights — for decades to come. It makes for good politics, but hardly good governance.
The past decade’s rulings on campaign finance present the starkest examples. The Rehnquist Court’s 2003 decision in McConnell v. Federal Election Commission established a clear standard regarding regulation of private political spending. In their joint opinion, Justices Stevens and O’Connor noted that the court had always opposed “the corrosive and distorting effects of immense aggregations of wealth” in the electoral process.
Longstanding precedent held that “[t]o say that Congress is without power to pass appropriate legislation to safeguard… an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” For these and other reasons, they upheld the Bipartisan Campaign Reform Act (BCRA) in a striking victory for reformers. The conservative faction made its scathing dissent known, with Justices Scalia, Thomas, and Kennedy decrying the decision as an attack on free speech.
Four years later, newly-appointed Chief Justice Roberts joined the trio and fellow George W. Bush appointee Samuel Alito to undermine McConnell in 2007’s Federal Election Commission v. Wisconsin Right to Life. The previous case had affirmed BCRA’s constitutionality when political advertisements engaged in “express advocacy,” but the Wisconsin majority crafted an exception.
By construing Wisconsin Right to Life’s message as “something other than as an appeal to vote for or against a specific candidate” or “its functional equivalent” — and therefore outside the express advocacy BCRA prohibited — a loophole was opened. Repeatedly calling the act’s prohibition on advertising within 30 or 60 days of an election a free speech “blackout,” the majority opinions injected a sense of intense judicial skepticism completely absent from the McConnell decision.
While the chief justice refrained from junking McConnellright then and there, his colleagues left little doubt of their intent. “When it comes to defining what speech qualifies as … express advocacy subject to a ban,” Justice Alito concludes, “the Court should give the benefit of the doubt to speech, not censorship.” Justice Scalia went further in his concurring opinion, asserting that the pro-regulation groundwork in Austin v. Michigan Chamber of Commerce “was wrongly decided” and thus “McConnell’s holding … was wrong.” It’s worth noting that Scalia delivered impassioned dissents in each case.
With McConnell’s foundations substantially weakened by Wisconsin and others, the court moved to override it entirely in 2010’s Citizens United v. FEC. Dismissing the possibility of a narrow ruling, Justice Kennedy’s opinion drew on Wisconsin’s inherent skepticism of “the substantial, nationwide chilling effect caused by [the] corporate expenditure ban,” and went on to argue that “a statute that chills speech can and must be invalidated.” Kennedy overruled Austin and McConnell’s expenditure restrictions on these grounds, finding that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
Any apparent corruption was instead legitimate influence or access that “will not cause the electorate to lose faith in this democracy.” It followed that because the alleged corruption or the appearance of such did not exist, “no sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” By rejecting a compelling state interest, Kennedy undid McConnell’s precedent authorizing the Bipartisan Campaign Reform Act. In a reversal so unexpected it provoked a rare judicial rebuke in President Barack Obama’s next State of the Union address, Citizens United nullified many of its reforms on First Amendment grounds.
Each Roberts Court decision followed a similar line of constitutional reasoning: that private spending for political advocacy constituted political speech deserving of First Amendment protection. More broadly, the justices found free expression a more compelling cause than any potential electoral distortion.
In voiding more recent precedents with which they disagreed, the majority relied on decades-old decisions to back their arguments — though Kennedy, referring to Austin (1990) and McConnell (2003), cited these cases' supposed “antiquity” as a primary reason to deny them the protection of stare decisis. Though inconsistent with previous case law, the new majority’s campaign-finance decisions largely agreed in constitutional logic and theme. When compared to their other free expression decisions, however, the pattern breaks down.
While not strictly a free speech case, the expressive electoral issues central to Crawford v. Marion County Election Board (2008), a case about voter-identification laws, present a certain problem given the arguments advanced for campaign finance. In Wisconsin, Chief Justice Roberts rightly noted that “the Court has long recognized ‘the governmental interest in preventing corruption and the appearance of corruption’ in electoral campaigns.” Citizens United, however, held that any perceived electoral distortion resulting from First Amendment speech was nonexistent and thus ineligible for regulation. Importantly, even if there was distortion, rights of political expression would likely prove more compelling than the majority-spurned state interest.
But the majority found differently in Crawford. Though “the record contain[ed] no evidence” of any electoral distortion the voter identification law at issue would prevent, according to the court, “there is no question about the legitimacy or importance of the State’s interest” in “preventing election fraud” and protecting “public confidence in the integrity of the electoral process.”
More so than anything else, voting is the ultimate form of political expression. To limit individuals’ voting rights severely curtails their ability to effectively participate in the political process, a reality seemingly in line with Citizen United’s triumphant defense of said participation. Instead, the majority ruled in favor of admittedly nonexistent electoral distortion at expression’s expense. This thematic contradiction legitimized copycat voter-ID legislation nationwide ahead of the crucial 2012 elections.
Likewise at odds with the new standards for campaign finance, the Roberts Court’s rulings on unions’ First Amendment rights seem to stifle rather than encourage political speech. The 2012 case Knox v. SEIU, Local 1000 saw a strong 7-2 majority agree that “when a union imposes a special assessment or dues increase” not disclosed in the regular yearly assessment, “it must provide fresh notice and may not exact any funds from nonmembers without their affirmative consent.” This was in relation to new union dues for overtly political purposes and was expected given the member-nonmember relations standard established in Teachers v. Hudson (1986). But a 5-4 majority then took the matter further, with the court’s conservatives imposing a new standard where nonmembers had to opt in to special assessments rather than opt out.
The difference is critical as the new standard was likely to cost unions substantial political funding. In his four-member Knox dissent, Justice Breyer noted that the majority’s approach would “reduce the financial contribution the union will receive even when a special assessment pays only for expected but perfectly legitimate collective-bargaining expenses.” The minority suggested their colleagues went beyond the scope of the case to purposely shackle unions with a unique new obligation. corporations have no such requirement allowing shareholders, investors, or others to opt out of their political expenditures.
There’s no denying the Supreme Court’s long and often contradictory history with free expression. But where former courts have struck an overarching theme and approach during their tenure, the chief justiceship of John Roberts has proven remarkably inconsistent. The institution’s public approval has plummeted as decisions increasingly appear to reflect partisan allegiances rather than constitutional analysis or precedent. Roberts certainly recognizes his position, having recently crossed ideological lines to temper accusations that the bench has been hopelessly politicized.
Given time, it’s possible this will translate into a more stable and coherent First Amendment doctrine. In the meantime, the country is left to crippling confusion at its highest court of law.
You can read more by Daniel Shea on his blog, Outside(r)LookingIn.