The First Amendment: Select Issues : Select Issues [1 ed.] 9781617611551, 9781617289873

Citation preview

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved. The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved. The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

LAWS AND LEGISLATION

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

THE FIRST AMENDMENT: SELECT ISSUES

No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

LAWS AND LEGISLATION Additional books in this series can be found on Nova‘s website under the Series tab.

Additional E-books in this series can be found on Nova‘s website under the E-book tab.

AMERICAN POLITICAL, ECONOMIC, AND SECURITY ISSUES Additional books in this series can be found on Nova‘s website under the Series tab.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Additional E-books in this series can be found on Nova‘s website under the E-book tab.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

LAWS AND LEGISLATION

THE FIRST AMENDMENT: SELECT ISSUES

RHONDA L. FERRO

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

EDITOR

Nova Science Publishers, Inc. New York

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010 by Nova Science Publishers, Inc.

All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com

NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers‘ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

The First Amendment : select issues / editor, Rhonda L. Ferro. p. cm. Includes index. ISBN:  (eBook)

1. Freedom of expression--United States. 2. United States. Constitution. 1st Amendment. I. Ferro, Rhonda L. KF4770.A25 2010 342.7308'5--dc22 2010026976

Published by Nova Science Publishers, Inc. † New York

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

CONTENTS Preface Chapter 1

Freedom of Speech and Press: Exceptions to the First Amendment Kathleen Ann Ruane

Chapter 2

Regulation of Broadcast Indecency: Background and Legal Analysts Kathleen Ann Ruane

37

Obscenity, Child Pornography, and Indecency: Brief Background and Recent Developments Kathleen Ann Ruane

65

Obscenity and Indecency: Constitutional Principles and Federal Statutes Henry Cohen

73

Chapter 3

Chapter 4

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

vii

Chapter 5

Military Personnel and Freedom of Religious Expression: Selected Legal Issues R. Chuck Mason and Cynthia Brougher

Chapter 6

Legal Standing under the First Amendment‘s Establishment Clause Cynthia Brougher

Chapter 7

The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC L. Paige Whitaker

Chapter 8

Testimony of Laurence H. Tribe, House of Representatives Committee on the Judiciary, Hearing on ―The First Amendment and Campaign Finance Reform after Citizens United‖ Laurence H. Tribe

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

1

109 127

139

149

vi Chapter 9

Chapter 10

Contents Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU School of Law, before the Committee on the Judiciary, Hearing on ―The First Amendment and Campaign Finance Reform after Citizens United‖ Monica Youn The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Index

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

161

177 217

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

PREFACE This book provides an overview of the major exceptions to the First Amendment, of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court has decided that the First Amendment provides no protection for obscenity, child pornography, speech broadcast on radio and television, commercial speech, defamation (libel and slander) and speech that may be harmful to children. Chapter 1 - The First Amendment to the United States Constitution provides that ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖ This language restricts government‘s ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place. This chapter provides an overview of the major exceptions to the First Amendment—of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court has decided that the First Amendment provides no protection for obscenity, child pornography, or speech that constitutes what has become widely known as ―fighting words.‖ The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), and public employees‘ speech. Even speech that enjoys the most extensive First Amendment protection may be subject to ―regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.‖ Furthermore, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes ―strict scrutiny‖ (i.e., if the government shows that the restriction serves ―to promote a compelling interest‖ and is ―the least restrictive means to further the articulated interest‖). Chapter 2 - Two prominent television events placed increased attention on the Federal Communications Commission (FCC) and the broadcast indecency statute that it enforces. The airing of an expletive by Bono during the 2003 Golden Globe Awards, as well as the ―wardrobe malfunction‖ that occurred during the 2004 Super Bowl halftime show, gave

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

viii

Rhonda L. Ferro

broadcast indecency prominence in the 109th and 110th Congresses, and resulted in the enactment of P.L. 109-235 (2006), which increased the penalties for broadcast indecency by tenfold. Federal law makes it a crime to utter ―any obscene, indecent, or profane language by means of radio communication‖ (18 U.S.C. § 1464). Violators of this statute are subject to fines and imprisonment of up to two years, and the FCC may enforce this provision by forfeiture or revocation of a broadcaster‘s license. The FCC has found that, for material to be ―indecent,‖ it ―must describe or depict sexual or excretory organs or activities,‖ and ―must be patently offensive as measured by contemporary community standards for the broadcast medium.‖ The federal government‘s authority to regulate material that is ―indecent‖ but not obscene was upheld by the Supreme Court in Federal Communications Commission v. Pacifica Foundation, which found that prohibiting such material during certain times of the day does not violate the First Amendment. In 1992, Congress enacted P.L. 102-356 (47 U.S.C. § 303 note), section 16(a) of which, as interpreted by the courts, requires the FCC to prohibit ―indecent‖ material on broadcast radio and broadcast television from 6 a.m. to 10 p.m. Under P.L. 109-235, ―indecent‖ broadcasts are now subject to a fine of up to ―$325,000 for each violation or each day of continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for any single act or failure to act.‖ Fines may be levied against broadcast stations, but not against broadcast networks. The FCC appears to have the statutory authority to fine performers as well (up to $32,500 per incident), but has taken the position that ―[c]ompliance with federal broadcast decency restrictions is the responsibility of the station that chooses to air the programming, not the performers.‖ The federal restriction on ―indecent‖ material applies only to broadcast media, and this stems from the fact that there are a limited number of broadcast frequencies available and that the Supreme Court, therefore, allows the government to regulate broadcast media more than other media. This chapter discusses the legal evolution of the FCC‘s indecency regulations, and provides an overview of how the current regulations have been applied. The final section of the report considers whether prohibiting the broadcast of ―indecent‖ words regardless of context would violate the First Amendment. This question arises because the Supreme Court in Pacifica left open the question whether broadcasting an occasional expletive, as in the Bono case, would justify a sanction. Chapter 3 - The First Amendment provides that ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖ The First Amendment applies to pornography, in general. Pornography, here, is used to refer to any words or pictures of a sexual nature. There are two types of pornography to which the First Amendment does not apply, however. They are obscenity and child pornography. Because these are not protected by the First Amendment, they may be, and have been, made illegal. Pornography and ―indecent‖ material that are protected by the First Amendment may nevertheless be restricted in order to limit minors‘ access to them. Chapter 4 - The First Amendment provides: ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖ In general, the First Amendment protects pornography, with this term being used to mean any erotic material. The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. Consequently, they may be banned on the basis of their

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Preface

ix

content, and federal law prohibits the mailing of obscenity, as well as its transport or receipt in interstate or foreign commerce. Most pornography is not legally obscene; to be obscene, pornography must, at a minimum, ―depict or describe patently offensive ‗hard core‘ sexual conduct.‖ The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. Pornography that is not obscene may not be banned, but may be regulated as to the time, place, and manner of its distribution, particularly in order to keep it from children. Thus, the courts have upheld the zoning and licensing of pornography dealers, as well as restrictions on dial-a-porn, nude dancing, and indecent radio and television broadcasting. Federal statutes, in addition to making it a crime to mail obscenity or to transport or receive it in interstate or foreign commerce, provide for criminal and civil forfeiture of real and personal property used in making obscenity pornography, and of the profits of obscenity—in some instances even when they were already used to pay a third party. In addition, obscenity crimes are included among the predicate offenses that may give rise to a violation of the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). The Internet has given rise to three federal statutes designed to protect minors from sexual material posted on it. The Communications Decency Act of 1996 makes it a crime knowingly to use a telecommunications device (telephone, fax, or e-mail) to make an obscene or indecent communication to a minor, or knowingly to use an interactive computer service to transmit an obscene communication to anyone or an indecent communication to a minor. In 1997, however, the Supreme Court held the inclusion of ―indecent‖ communications in this statute unconstitutional. In 1998, Congress, in response, enacted the less-broad Child Online Protection Act (COPA), but it was also held unconstitutional and never took effect. Finally, the Children‘s Internet Protection Act (CIPA), enacted in 2000, requires schools and libraries that accept federal funds to purchase computers or Internet access to block or filter obscenity, child pornography, and, with respect to minors, material that is ―harmful to minors.‖ Filters may be disabled, however, ―for bona fide research or other lawful purpose.‖ In 2003, the Supreme Court held CIPA constitutional. Chapter 5 - The First Amendment of the U.S. Constitution provides the freedom to individuals to exercise their religious beliefs without governmental interference, and simultaneously prohibits government actions that benefit followers of one faith over another. At times, when government actions would otherwise burden individuals‘ religious exercise, the government makes efforts to accommodate the religious practice. However, accommodation of religion to prevent violations of the Free Exercise Clause must be carefully considered in order to prevent violation of the Establishment Clause. The tension between the clauses has been illustrated in a number of military scenarios in recent years. For example, the U.S. Army recently allowed the first Sikh in more than 25 years to graduate from the officer basic training program without sacrificing the articles of his faith, allowing the officer to maintain his unshorn hair, beard, and to wear a turban. In another example, announcements that the Obama administration is reviewing the military‘s current ―don‘t ask, don‘t tell‖ policy regarding homosexual servicemembers have raised several questions about the impact a new policy would have on chaplains whose religious background does not support homosexuality. This chapter provides an overview of the requirements of the First Amendment related to military personnel‘s religious exercise. It analyzes current constitutional and statutory requirements regarding religious exercise, and provides a framework for how Congress and

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

x

Rhonda L. Ferro

the courts might consider future issues that arise related to servicemembers‘ religious exercise. Specifically, the report examines the limitations placed on servicemembers in uniform in the exercise of their religious beliefs. It also examines the role of military chaplains and the legal challenges associated with publicly funding religious personnel. The report analyzes efforts by Congress and the Department of Defense to address the constitutional concerns that are raised by these issues. Chapter 6 - The Establishment Clause of the First Amendment to the U.S. Constitution provides that ―Congress shall make no law respecting an establishment of religion.‖ The Establishment Clause prohibits government actions that would provide preferential treatment of one religion over another or preferential treatment of religion generally over nonreligion. Alleged violations under the Establishment Clause must meet a threshold requirement known as standing, the legal principle that governs whether an individual is the proper party to raise an issue before the courts. Standing is a constitutional principle that serves as a restraint on the power of federal courts to render decisions. Under general standing rules that apply to any case, an individual must have an individualized interest that has actually been harmed under the law or by its application that can be redressed by the lawsuit in order to bring that case to court. In some instances, such as the Establishment Clause, an individual may wish to challenge a governmental action that injures the individual as a member of society. The individual may assert that injury as a citizen dissatisfied with a governmental action, as a taxpayer dissatisfied with a governmental expenditure, or as a citizen dissatisfied with treatment of other citizens. The U.S. Supreme Court has construed the requirements to raise such cases narrowly, and individuals seeking to litigate such alleged injuries must meet both constitutional and prudential standing requirements. The Court has made some exceptions to the general rules of standing and specifically allowed taxpayer standing for certain claims arising under the Establishment Clause. Under the Flast exception to the general prohibition on taxpayer standing, taxpayers may raise challenges of actions exceeding specific constitutional limitations (such as the Establishment Clause) taken by Congress under Article I‘s Taxing and Spending Clause. The Court has maintained its narrow interpretation of this exception, refusing to extend it to permit taxpayer lawsuits challenging executive actions or taxpayer lawsuits challenging actions taken under powers other than taxing and spending. This chapter analyzes the constitutional issues associated with standing, specifically related to cases arising under the Establishment Clause. It provides a background on the doctrine of standing, including the U.S. Supreme Court‘s interpretation of various types of standing, including standing to sue as a citizen, as a taxpayer, and on behalf of another party. It also examines the current standing rules related to the Establishment Clause and the implications of the Court‘s 2007 decision in Hein v. Freedom From Religion Foundation, which further limited the circumstances under which Establishment Clause challenges could be brought. The report also discusses Salazar v. Buono, an Establishment Clause case scheduled for arguments before the Court in October 2009. The Establishment Clause of the First Amendment to the U.S. Constitution provides that ―Congress shall make no law respecting an establishment of religion.... ‖1 The Establishment Clause prohibits government actions that would provide preferential treatment of one religion over another or preferential treatment of religion generally over nonreligion.2 Alleged violations of the Establishment Clause must meet a threshold requirement known as standing,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Preface

xi

the legal principle that governs whether a particular individual is the proper party to raise an issue before the courts. This chapter analyzes the constitutional issues associated with standing, specifically related to cases arising under the Establishment Clause. It provides a background on the doctrine of standing, including the U.S. Supreme Court‘s interpretation of various types of standing, such as standing to sue as a citizen, as a taxpayer, and on behalf of another party. It also examines the current standing rules related to the Establishment Clause and the implications of the Court‘s 2007 decision in Hein v. Freedom From Religion Foundation, which further limited the circumstances under which Establishment Clause challenges could be brought. The report also discusses Salazar v. Buono, an Establishment Clause case scheduled for arguments before the Court in October 2009. Chapter 7 - In a 5-to-4 ruling, the Supreme Court in Citizens United v. FEC invalidated two provisions of the Federal Election Campaign Act (FECA), codified at 2 U.S.C. § 44 1b. It struck down the longstanding prohibition on corporations using their general treasury funds to make independent expenditures, and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which amended FECA, prohibiting corporations and labor unions from using general treasury funds for ―electioneering communications.‖ The Court determined that these restrictions constitute a ―ban on speech‖ in violation of the First Amendment. In so doing, the Court overruled its earlier holdings in Austin v. Michigan Chamber of Commerce, finding that it provided no basis for allowing the government to limit corporate independent expenditures. The Court also overruled the portion of its decision in McConnell v. FEC upholding the facial validity of Section 203, finding that the McConnell Court relied on Austin. The Court, however, upheld the disclaimer and disclosure requirements in Sections 201 and 311 of BCRA as applied to the movie that Citizens United produced and the advertisements it planned to run promoting the movie. According to the Court, while they may burden the ability to speak, disclaimer and disclosure requirements ―impose no ceiling on campaignrelated activities.‖ As a result of the Court‘s ruling, it appears that federal campaign finance law does not limit corporate and, most likely, labor union use of their general treasury funds to make independent expenditures for any communication expressly advocating election or defeat of a candidate, including broadcast and cablecast communications made immediately prior to an election. Corporations and unions may still establish PACs, but are only required to use PAC funds in order to make contributions to candidates, parties, and other political committees. Chapters 8 and 9 feature testimony before the U. S. House of Representatives. Chapter 10 - Political expression is at the heart of First Amendment activity and the Supreme Court has granted it great deference and protection. However, according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely free political marketplace is not required by the First Amendment — nor is it desirable — because without reasonable regulation, corruption will result. Most notably, the Buckley Court ruled that the spending of money in campaigns, whether as a contribution or an expenditure, is a form of ―speech‖ protected by the First Amendment. The Court upheld some infringements on free speech, however, in order to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption. In Buckley, the Supreme Court considered the constitutionality of the Federal Election Campaign Act of 1971 (FECA), requiring political committees to disclose campaign contributions and expenditures and limiting, to various degrees, the ability of persons and

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

xii

Rhonda L. Ferro

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

organizations to make contributions and expenditures. While First Amendment freedoms and campaign finance regulation present conflicting means of attempting to preserve the integrity of the political process, the Court resolved this conflict in favor of the First Amendment interests and subjected any regulation burdening free speech and free association to ―exacting scrutiny.‖ Under this standard of review, a court will evaluate whether the government‘s interests in regulating are compelling, examine whether the regulation burdens and outweighs First Amendment liberties, and inquire as to whether the regulation is narrowly tailored to serve the government‘s interests. If a regulation meets all three criteria, a court will uphold it. This chapter first discusses the key holdings enunciated by the Supreme Court in Buckley, including those upholding reasonable contribution limits, striking down expenditure limits, upholding disclosure reporting requirements, and upholding the system of voluntary presidential election expenditure limitations linked with public financing. It then examines the Court‘s extension of Buckley in several subsequent cases, evaluating them in various regulatory contexts: contribution limits (California Medical Association v. FEC; Citizens Against Rent Control v. Berkeley; Nixon v. Shrink Missouri Government PAC; FEC v. Beaumont); expenditure limits (First National Bank of Boston v. Bellotti; FEC v. Massachusetts Citizens for Life; Austin v. Michigan Chamber of Commerce; FEC v. National Right to Work; Colorado Republican Federal Campaign Committee (Colorado I) v. FEC; FEC v. Colorado Republican Federal Campaign Committee (Colorado II); FEC v. Democratic Senatorial Campaign Committee; FEC v. National Conservative Political Action Committee; Randall v. Sorrell); disclosure requirements (Buckley v. American Constitutional Law Foundation; Brown v. Socialist Workers „74 Campaign Committee; FEC v. Akins; McIntyre v. Ohio Elections Commission); and political party soft money and electioneering communication restrictions (McConnell v. FEC; Wisconsin Right to Life, Inc. v. FEC (WRTL II)).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 1

FREEDOM OF SPEECH AND PRESS: EXCEPTIONS TO THE FIRST AMENDMENT 

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY The First Amendment to the United States Constitution provides that ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖ This language restricts government‘s ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place. This chapter provides an overview of the major exceptions to the First Amendment—of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court has decided that the First Amendment provides no protection for obscenity, child pornography, or speech that constitutes what has become widely known as ―fighting words.‖ The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), and public employees‘ speech. Even speech that enjoys the most extensive First Amendment protection may be subject to ―regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.‖ Furthermore, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes



This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated April 2010.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

2

Kathleen Ann Ruane

―strict scrutiny‖ (i.e., if the government shows that the restriction serves ―to promote a compelling interest‖ and is ―the least restrictive means to further the articulated interest‖).

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

INTRODUCTION The First Amendment to the United States Constitution provides that ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖ This language restricts government‘s ability to constrain the speech of citizens. The prohibition on abridgment of the freedom of speech is not absolute. Certain types of speech may be prohibited outright. Some types of speech may be more easily constrained than others. Furthermore, speech may be more easily regulated depending upon the location at which it takes place. This chapter provides an overview of the major exceptions to the First Amendment—of the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech.1 For example, the Court has decided that the First Amendment provides no protection for obscenity, child pornography, or speech that constitutes what has become widely known as ―fighting words.‖ The Court has also decided that the First Amendment provides less than full protection to commercial speech, defamation (libel and slander), speech that may be harmful to children, speech broadcast on radio and television (as opposed to speech transmitted via cable or the Internet), and public employees‘ speech. Even speech that enjoys the most extensive First Amendment protection may be subject to ―regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.‖ Furthermore, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes ―strict scrutiny‖ (i.e., if the government shows that the restriction serves ―to promote a compelling interest‖ and is ―the least restrictive means to further the articulated interest‖).

UNPROTECTED SPEECH The Supreme Court has identified categories of speech that are unprotected by the First Amendment and may be prohibited entirely. Among them are obscenity, child pornography, and speech that constitutes so-called ―fighting words‖ or ―true threats.‖

Obscenity2 Obscenity apparently is unique in being the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it is harmful to individuals. According to the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity ―was outside the protection intended for speech and press.‖3 Consequently, obscenity may be banned simply because a legislature concludes that banning

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Freedom of Speech and Press: Exceptions to the First Amendment

3

it protects ―the social interest in order and morality.‖4 No actual harm, let alone compelling governmental interest, need be shown in order to ban it. The fundamental question in obscenity cases is whether the speech at issue actually constitutes obscenity. This determination is by no means a simple one. Obscenity is not synonymous with pornography, as most pornography is not legally obscene. Most pornography, in fact, is protected by the First Amendment. To be obscene, pornography must, at a minimum, ―depict or describe patently offensive ‗hard core‘ sexual conduct.‖5 The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. The Miller test asks: (a) whether the ―average person applying contemporary community standards‖ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.6

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The Supreme Court has clarified that only ―the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards.‖7 As for the third prong, ―[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.‖8 The Supreme Court has allowed one exception to the rule that obscenity is not protected by the First Amendment: one has a constitutional right to possess obscene material ―in the privacy of his own home.‖9 However, there is no constitutional right to provide obscene material for private use10 or even to acquire it for private use.11

Child Pornography12 Child pornography is material that visually depicts sexual conduct by children.13 It is unprotected by the First Amendment even when it is not obscene; that is, child pornography need not meet the Miller test to be banned. Because of the legislative interest in destroying the market for the exploitative use of children, there is no constitutional right to possess child pornography even in the privacy of one‘s own home. 14 In 1996, Congress enacted the Child Pornography Protection Act (CPPA), which defined ―child pornography‖ to include visual depictions that appear to be of a minor, even if no minor is actually used. The Supreme Court, however, declared the CPPA unconstitutional to the extent that it prohibited pictures that are produced without actual minors.15 Pornography that uses actual children may be banned because laws against it target ―[t]he production of the work, not its content‖; the CPPA, by contrast, targeted the content, not the production.16 The government ―may not prohibit speech because it increases the chance an unlawful act will be committed ‗at some indefinite future time.‘‖17 In 2003, Congress responded by enacting Title V of the PROTECT Act, P.L. 108-21, which prohibits any ―digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.‖ It also prohibits ―a visual depiction of any kind, including a

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

4

Kathleen Ann Ruane

drawing, cartoon, sculpture, or painting, that ... depicts a minor engaging in sexually explicit conduct,‖ and is obscene or lacks serious literary, artistic, political, or scientific value.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Fighting Words and True Threats So-called ―fighting words‖ also lay beyond the pale of First Amendment protection.18 The ―fighting words‖ doctrine began in Chaplinsky v. New Hampshire, where the Court held that fighting words, by their very utterance inflict injury or tend to incite an immediate breach of the peace and may be punished consistent with the First Amendment.19 In Chaplinsky, the Court upheld a statute which prohibited a person from addressing ―any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place,‖ calling ―him by any offensive or derisive name,‖ or making ―any noise or exclamation in his presence and hearing with the intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.‖20 The state court construed the statute as forbidding only those expressions that ―have a direct tendency to cause acts of violence by the person to whom, individually, the remark [was] addressed.‖21 Given the limited scope of application, the Supreme Court held that the statute at issue did not proscribe protected expression.22 This category of proscribable speech requires the threat of an immediate breach of peace in order to be punishable. In Cohen v. California, the Supreme Court held that words on a tshirt that contained an expletive were not directed at a person in particular and could not be said to incite an immediate breach of the peace.23 For that reason, profane words that are not accompanied by any evidence of violence or public disturbance are not ―fighting words.‖24 The Court went on to describe the value of expression in communicating emotion.25 In the Court‘s view, certain words, including expletives, which could in other contexts be construed as fighting words, may be indispensable in effectively communicating emotion, a form of expression protected by the First Amendment.26 Particular words, such as certain expletives, in and of themselves, likely could not be universally defined as ―fighting words.‖ In Brandenburg v. Ohio, the Supreme Court struck down an Ohio statute that criminalized advocating violent means to bring about social and economic change.27 The Court found that the statute failed to distinguish between advocacy, which is protected by the First Amendment, and incitements to ―imminent lawless action,‖ which are not protected.28 These cases illustrate that ―fighting words‖ require an immediate risk of a breach of peace in order to be proscribable. What speech is proscribable, therefore, appears highly dependent upon the context in which it arises.29 Relatedly, Justice Holmes, in one of his most famous opinions, wrote: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.... The question in every case is whether the words used ... create a clear and present danger.30

In its current formulation of this principle, the Supreme Court held that ―advocacy of the use of force or of law violation‖ is protected unless ―such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.‖31 Similarly, the Court held that a statute prohibiting threats against the life of the President could be

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Freedom of Speech and Press: Exceptions to the First Amendment

5

applied only against speech that constitutes a ―true threat,‖ and not against mere ―political hyperbole.‖32 ―True threat‖ analysis was also used by the Court to uphold a Virginia statute that criminalized cross burning, if the activity was engaged in with the intent to threaten.33

PROTECTED SPEECH All other types of speech are protected by the First Amendment. In general, the government may not prohibit the citizenry from engaging in speech. However, that does not mean that speech may not be subjected to regulation. The following subsections address different ways in which the government constitutionally may place burdens upon speech that is protected, to varying degrees, by the First Amendment.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Content-Based Restrictions In cases of content-based restrictions of speech other than fighting words or true threats, the Supreme Court generally applies ―strict scrutiny,‖ which means that it will uphold a content- based restriction only if it is necessary ―to promote a compelling interest,‖ and is ―the least restrictive means to further the articulated interest.‖34 Rigorous analysis is required because the government, generally, is not constitutionally allowed to favor one type of content or idea by suppressing or otherwise burdening another type of content or idea.35 Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from publishing the name of a rape victim, lawfully obtained.36 This is because there ordinarily is no compelling governmental interest in protecting a rape victim‘s privacy.37 By contrast, ―[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.‖38 The government, therefore, may restrict speech based upon its content, but only when the restriction satisfies the highest level of scrutiny the Court engages in.

Prior Restraint There are two ways in which the government may attempt to restrict speech. The more common way is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint, which may occur in two ways. First, a statute may require that a person submit the speech that he wishes to disseminate—a movie, for example—to a governmental body for a license to disseminate it—e.g., to show the movie. Second, a court may issue a temporary restraining order or an injunction against engaging in particular speech—publishing the Pentagon Papers, for example. With respect to both these types of prior restraint, the Supreme Court has written that ―[a]ny system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity.‖39 Prior restraints, it has held,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

6

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

are the most serious and the least tolerable infringement on First Amendment rights.... A prior restraint ... by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ―chills‖ speech, prior restraint ―freezes‖ it at least for the time. The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events.40

The Supreme Court has written that ―[t]he special vice of a prior restraint is that communication will be suppressed ... before an adequate determination that it is unprotected by the First Amendment.‖41 The prohibition on prior restraint, thus, is essentially a limitation on restraints until a final judicial determination that the restricted speech is not protected by the First Amendment. It is a limitation, for example, against temporary restraining orders and preliminary injunctions pending final judgment, not against permanent injunctions after a final judgment is made that the restricted speech is not protected by the First Amendment.42 In the case of a statute that imposes prior restraint, ―a prescreening arrangement can pass constitutional muster if it includes adequate procedural safeguards.‖43 These procedural safeguards, the Court wrote, include that ―the burden of proving that the [speech] is unprotected expression must rest on the censor,‖ and ―that the censor will, within a specified brief period, either issue a license or go to court to restrain [speech].‖44 In the case of time, place, or manner restrictions (and presumably other forms of speech that do not receive full First Amendment protection), lesser procedural safeguards are adequate.45 Prior restraints are permitted in some circumstances. The Supreme Court has written, in dictum, ―that traditional prior restraint doctrine may not apply to [commercial speech],‖46 and the Court has not ruled whether it does. ―The vast majority of [federal] circuits ... do not apply the doctrine of prior restraint to commercial speech.‖47 ―Some circuits [however] have explicitly indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech.‖48 Furthermore, ―only content-based injunctions are subject to prior restraint analysis.‖49 In addition, prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual property cases, such as those for infringements of copyright or trademark. 50

Forum Doctrine One of the first analyses in which a court will engage when examining a law that burdens protected speech is the forum analysis. The analysis is important because speech may be more easily regulated depending upon where it takes place. For example, speech that cannot be restricted in a public park may be proscribable entirely if it occurs on a military base. The Supreme Court has identified different types of fora. Some public spaces, such as streets and parks, are known as ―traditional public forums,‖ which means that they generally are open to all people to express themselves by speech-making, demonstrating, or leafleting, and the like. The government may exclude speakers from traditional public forums ―only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.‖51 Likewise, in traditional public forums, the government may limit speech on the basis of its content only if it shows ―that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

7

end.‖52 Thus, in traditional public forums, the exclusion of speakers or of speech based on its content is constitutional only if it satisfies what the Court calls ―strict scrutiny.‖ In traditional public forums, the government may regulate speech as to its time, place, and manner of expression, so that, for example, two demonstrations do not occur at the same time and place. The Supreme Court will uphold ―regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.‖53 A ―significant‖ government interest, which is required for a time, place, or manner restriction to be constitutional, may be less vital than a ―compelling‖ government interest, which is required for a content-based exclusion of speech from a traditional public forum to be constitutional. A second category of public forum is the designated public forum, which ―consists of public property which the State has opened for use by the public as a place for expressive activity.‖54 Such a forum ―may be created for a limited purpose such as use by certain groups‖ (e.g., student groups) or for the discussion of certain subjects (e.g., school board business),55 but, within the framework of such legitimate limitations, ―a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.‖56 Thus, ―[g]overnment restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.‖57 A third category of forum is ―[p]ublic property which is not by tradition or designation a forum for public communication.... ‖58 The Supreme Court has held that ―the First Amendment does not guarantee access to property simply because it is owned and controlled by the government.... [T]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.‖59 Thus, although public streets and parks are traditional public forums, a sidewalk in front of a post office, which belongs to the post office, is not a traditional nor a dedicated public forum, and the government may prohibit solicitation on such a sidewalk, on the ground that ―solicitation is inherently disruptive of the Postal Service‘s business.‖60 A Court plurality found this speech restriction reasonable,61 and, ―[i]n such a forum, a government entity may impose restrictions on speech that are reasonable and viewpointneutral.‖62 Such restrictions, in other words, need not meet strict scrutiny. Also falling into the category of nonpublic forums are military bases,63 prisons,64 and school mail systems.65

Non-Content-Based Restrictions If the government limits speech, but its purpose in doing so is not based on the content of the speech, then the limitation on speech may still violate the First Amendment, but it is less likely than a content-based restriction to do so. This is because the Supreme Court applies less than ―strict scrutiny‖ to non-content-based restrictions. With respect to non-content-based restrictions, the Court requires that the governmental interest be ―significant‖ or ―substantial‖ or ―important,‖ but not necessarily, as with content-based restrictions, ―compelling.‖ And, in the case of noncontent-based restrictions, the Court requires that the restriction be narrowly tailored, but not, as with content-based restrictions, that it be the least restrictive means to advance the governmental interest.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

8

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Two types of speech restrictions that receive this ―intermediate‖ scrutiny are (1) time, place, or manner restrictions, and (2) incidental restrictions, which are restrictions aimed at conduct other than speech, but that incidentally restrict speech. This chapter includes separate sections on these two types of restrictions. In addition, restrictions on commercial speech, though content-based, are subject to similar intermediate scrutiny; this chapter also includes a separate section on commercial speech. Finally, bans on nude dancing and zoning restrictions on pornographic theaters and bookstores, although discriminating on the basis of the content of speech, receive intermediate scrutiny because, according to the Supreme Court, they are aimed at combating ―secondary effects,‖ such as crime, and not at the content of speech.66

Time, Place, and Manner Restrictions Even speech that enjoys the most extensive First Amendment protection may be subject to ―regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.‖67 In the case in which this language appears, the Supreme Court allowed a city ordinance that banned picketing ―before or about‖ any residence to be enforced to prevent picketing outside the residence of a doctor who performed abortions, even though the picketing occurred on a public street. The Court noted that ―[t]he First Amendment permits the government to prohibit offensive speech as intrusive when the ‗captive‘ audience cannot avoid the objectionable speech.‖68 Thus, the Court, while acknowledging that music, as a form of expression and communication, is protected under the First Amendment, upheld volume restrictions placed on outdoor music in order to prevent intrusion on those in the area.69 Other significant governmental interests, besides protection of captive audiences, may justify content-neutral time, place, and manner restrictions. For example, in order to prevent crime and maintain property values, a city may place zoning restrictions on ―adult‖ theaters and bookstores.70 And, in order to maintain the orderly movements of crowds at a state fair, a state may limit the distribution of literature to assigned locations.71 However, a time, place, and manner restriction will not be upheld in the absence of sufficient justification or if it is not narrowly tailored. Thus, the Court held unconstitutional a total restriction on displaying flags or banners on public sidewalks surrounding the Supreme Court.72 And a time, place, and manner restriction will not be upheld if it fails to ―leave open ample alternative channels for communication.‖ Thus, the Court held unconstitutional an ordinance that prohibited the display of signs from residences, because ―[d]isplaying a sign from one‘s own residence often carries a message quite distinct from placing the same sign someplace else.‖73 When a court issues an injunction that restricts the time, place, or manner of a particular form of expression, because prior restraint occurs, ―a somewhat more stringent application of general First Amendment principles‖ is required than is required in the case of a generally applicable statute or ordinance that restricts the time, place, or manner of speech.74 Instead of asking whether the restrictions are ―narrowly tailored to serve a significant governmental interest,‖ a court must ask ―whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.‖75 Applying this standard, the Supreme Court, in Madsen v. Women‟s Health Center, Inc., upheld a state court injunction that had ordered the establishment of a 36-foot buffer zone on a public street

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

9

outside a particular health clinic that performed abortions. The Court in this case also upheld an injunction against noise during particular hours, but found that a ―broad prohibition on all ‗images observable‘ burdens speech more than necessary to achieve the purpose of limiting threats to clinic patients or their families.‖76 It also struck down a prohibition on all uninvited approaches of persons seeking the services of the clinic, and a prohibition against picketing, within 300 feet of the residences of clinic staff. The Court distinguished the 300-foot restriction from the ordinance it had previously upheld that banned picketing ―before or about‖ any residence. In Schenck v. Pro-Choice Network of Western New York, the Court applied Madsen to another injunction that placed restrictions on demonstrating outside an abortion clinic.77 The Court upheld the portion of the injunction that banned ―demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and access to or leaving such facilities‖—what it called ―floating buffer zones.‖ The Court cited ―public safety and order‖ in upholding the fixed buffer zones, but it found that the floating buffer zones ―burden more speech than is necessary to serve the relevant governmental interests‖ because they make it ―quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.‖ The Court also upheld a ―provision, specifying that once sidewalk counselors who had entered the buffer zones were required to ‗cease and desist‘ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.‖ In Hill v. Colorado, the Court upheld a Colorado statute that makes it unlawful, within 100 feet of the entrance to any health care facility, to ―knowingly approach‖ within eight feet of another person, without that person‘s consent, ―for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.‖78 This decision is significant because it upheld a statute that applies to everyone, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that ―reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners.‖79 The restrictions are contentneutral because they regulate only the places where some speech may occur, and because they apply equally to all demonstrators, regardless of viewpoint. Although the restrictions do not apply to all speech, the ―kind of cursory examination‖ that might be required to distinguish casual conversation from protest, education, or counseling is not ―problematic.‖80 The law is ―narrowly tailored‖ to achieve the state‘s interests. The eight-foot restriction does not significantly impair the ability to convey messages by signs, and ordinarily allows speakers to come within a normal conversational distance of their targets. Because the statute allows the speaker to remain in one place, persons who wish to hand out leaflets may position themselves beside entrances near the path of oncoming pedestrians, and consequently are not deprived of the opportunity to get the attention of persons entering a clinic.

Incidental Restrictions Some laws are not designed to limit freedom of expression, but nevertheless can have that effect. For example, when a National Park Service regulation prohibiting camping in certain parks was applied to prohibit demonstrators who were attempting to call attention to the plight of the homeless, from sleeping in certain Washington, DC, parks, it had the effect

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

10

Kathleen Ann Ruane

of limiting the demonstrators‘ freedom of expression. Nevertheless, the Court found that application of the regulation did not violate the First Amendment because the regulation was content-neutral and was narrowly focused on a substantial governmental interest in maintaining parks ―in an attractive and intact condition.‖81 The Supreme Court has said that an incidental restriction on speech is constitutional if it is not ―greater than necessary to further a substantial governmental interest.‖82 However, the Court has made clear that an incidental restriction, unlike a content-based restriction, ―need not be the least restrictive or least intrusive means‖ of furthering a governmental interest. Rather, the restriction must be ―narrowly tailored,‖ and ―the requirement of narrow tailoring is satisfied ‗so long as the ... regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation.‘‖83 The Court has noted that the standard for determining the constitutionality of an incidental restriction ―in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions.‖84 Thus, the restriction on camping may be viewed as a restriction on conduct that only incidentally affects speech, or, if one views sleeping in connection with a demonstration as expressive conduct, then the restriction may be viewed as a time, place, and manner restriction on expressive conduct. In either case, as long as the restriction is content- neutral, the same standard for assessing its constitutionality will apply. In 1991, the Supreme Court held that the First Amendment does not prevent the government from requiring that dancers wear ―pasties‖ and a ―G-string‖ when they dance (non-obscenely) in ―adult‖ entertainment establishments. Indiana sought to enforce a state statute prohibiting public nudity against two such establishments, which asserted First Amendment protection. The Court found that the statute proscribed public nudity across the board, not nude dancing as such, and therefore imposed only an incidental restriction on expression.85 In 2000, the Supreme Court again upheld the application of a statute prohibiting public nudity to an ―adult‖ entertainment establishment. It found that the statute was intended ―to combat harmful secondary effects,‖ such as ―prostitution and other criminal activity.‖86 In a 1994 case, the Supreme Court apparently put more teeth into the test for incidental restrictions by remanding the case for further proceedings rather than deferring to Congress‘s judgment as to the necessity for the ―must-carry‖ provisions of the Cable Television Consumer Protection and Competition Act of 1992.87 To justify an incidental restriction of speech, the Court wrote, the government ―must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.‖88 The Court added that [its] obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress‘ factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.89

Commercial Speech ―The Constitution ... affords a lesser protection to commercial speech than to other constitutionally guaranteed expression.‖90 Commercial speech is ―speech that proposes a commercial transaction.‖91 That books and films are published and sold for profit does not

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

11

make them commercial speech; that is, it does not ―prevent them from being a form of expression whose liberty is safeguarded [to the maximum extent] by the First Amendment.‖92 Commercial speech, however, may be banned if it is false or misleading, or if it advertises an illegal product or service. Even if it fits in none of these categories, the government may regulate it more than it may regulate fully protected speech. In addition, the government may generally require disclosures to be included in commercial speech; see the section on ―Compelled Speech,‖ below. The Supreme Court has prescribed the four-prong Central Hudson test to determine whether a governmental regulation of commercial speech is constitutional. This test asks initially (1) whether the commercial speech at issue is protected by the First Amendment (that is, whether it concerns a lawful activity and is not misleading) and (2) whether the asserted governmental interest in restricting it is substantial. ―If both inquiries yield positive answers,‖ then to be constitutional the restriction must (3) ―directly advance[ ] the governmental interest asserted,‖ and (4) be ―not more extensive than is necessary to serve that interest.‖93 The Supreme Court has held that, in applying the third prong of the Central Hudson test, the courts should consider whether the regulation, in its general application, directly advances the governmental interest asserted. If it does, then it need not advance the governmental interest as applied to the particular person or entity challenging it.94 Its application to the particular person or entity challenging it is relevant in applying the fourth Central Hudson factor, although this factor too is to be viewed in terms of ―the relation it bears to the overall problem the government seeks to correct.‖95 The fourth prong is not to be interpreted ―strictly‖ to require the legislature to use the ―least restrictive means‖ available to accomplish its purpose. Instead, the Court has held, legislation regulating commercial speech satisfies the fourth prong if there is a reasonable ―fit‖ between the legislature‘s ends and the means chosen to accomplish those ends.96 The Supreme Court has applied the Central Hudson test in all the commercial speech cases it has decided since Central Hudson, and we discuss some of the cases below.97 In most of these cases, the Court struck down the challenged speech restriction. It has not upheld a commercial speech restriction since 1995.98 In its most recent commercial speech case, Thompson v. Western States Medical Center, the Court noted that ―several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases.‖99 These Justices believe that the test does not provide adequate protection to commercial speech, but the Court has found it unnecessary to consider whether to abandon the test, because it has been striking down the statutes in question. In 44 Liquormart, Inc. v. Rhode Island, the Court struck down a state statute that prohibited disclosure of retail prices in advertisements for alcoholic beverages.100 In the process, it increased the protection that the Central Hudson test guarantees to commercial speech by making clear that a total prohibition on ―the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process‖ will be subject to a stricter review by the courts than a regulation designed ―to protect consumers from misleading, deceptive, or aggressive sales practices.‖101 The Court added, ―The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.‖102 It concluded ―that the price advertising ban cannot survive the more stringent constitutional review that Central Hudson itself concluded was appropriate for the complete suppression of truthful, nonmisleading commercial speech.‖103

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

12

Kathleen Ann Ruane

In Greater New Orleans Broadcasting Association, Inc. v. United States,104 the Court applied the Central Hudson test to strike down, as applied to advertisements of private casino gambling that are broadcast by radio or television stations located in Louisiana, where such gambling is legal, the same federal statute it had upheld in a previous case, United States v. Edge Broadcasting Co. ,105 as applied to broadcast advertising of Virginia‘s lottery by a radio station located in North Carolina, where no such lottery was authorized. The Court emphasized the interrelatedness of the four parts of the Central Hudson test; for example, though the government has a substantial interest in reducing the social costs of gambling, the fact that the Congress has simultaneously encouraged gambling, because of its economic benefits, makes it more difficult for the government to demonstrate that its restriction on commercial speech materially advances its asserted interest and constitutes a reasonable ―fit.‖ In this case, ―[t]he operation of [18 U.S.C.] § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.... [T]he regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all.‖106 In Lorillard Tobacco Co. v. Reilly, the Supreme Court applied the Central Hudson test to strike down most of the Massachusetts attorney general‘s regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars.107 The Court first found the ―outdoor and point-ofsale advertising regulations targeting cigarettes‖ to be preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 133 1-1341.108 By its terms, however, this statute‘s preemption provision applies only to cigarettes, so the Court considered the smokeless tobacco and cigar petitioners‘ First Amendment challenges to the outdoor and point-of-sale advertising regulations. Further, the cigarette petitioners did not raise a preemption challenge to Massachusetts‘ sales practices regulations (regulations, described below, other than outdoor and point-of-sale advertising regulations), so the Court considered the cigarette as well as the smokeless tobacco and cigar petitioners‘ claim that these regulations violate the First Amendment. The Court struck down the outdoor advertising regulations under the fourth prong of the Central Hudson test, finding that the prohibition of any advertising within 1,000 feet of schools or playgrounds ―prohibit[ed] advertising in a substantial portion of the major metropolitan areas of Massachusetts,‖109 and that such a burden on speech did not constitute a reasonable fit between the means and ends of the regulatory scheme. ―Similarly, a ban on all signs of any size seems ill suited to target the problem of highly visible billboards, as opposed to smaller signs.‖110 The Court found ―that the point-of-sale advertising regulations fail both the third and fourth steps of the Central Hudson analysis.‖111 The prohibition on advertising ―placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of‖ any school or playground did not advance the goal of preventing minors from using tobacco products because ―[n]ot all children are less than 5 feet tall, and those who are certainly have the ability to look up and take in their surroundings.‖112 The Court, however, upheld the sales practices regulations that ―bar the use of selfservice displays and require that tobacco products be placed out of the reach of all consumers in a location accessible only to salespersons.‖113 These regulations, though they ―regulate conduct that may have a communicative component,‖ do so ―for reasons unrelated to the communications of ideas.‖114 The Court therefore applied the O‟Brien test for incidental

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

13

restrictions of speech (see the section above on ―Incidental Restrictions‖) and concluded ―that the State has demonstrated a substantial interest in preventing access to tobacco products by minors and has adopted an appropriately narrow means of advancing that interest.‖115 In a case that further elucidates the application of the fourth prong of the Central Hudson test, Thompson v. Western States Medical Center,116 the Court struck down Section 503A of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 353a, which ―exempts ‗compounded drugs‘ from the Food and Drug Administration‘s standard drug approval requirements as long as the providers of those drugs abide by several restrictions, including that they refrain from advertising or promoting particular compounded drugs.‖117 ―Drug compounding,‖ the Court explained, ―is a process by which a pharmacist or doctor combines, mixes, or alters ingredients to create a medication tailored to the needs of an individual patient.‖118 The Court found that the speech restriction in this case served ―important‖ governmental interests, but that, ―[e]ven assuming‖ that it directly advances these interests, it failed the fourth prong of the Central Hudson test.119 In considering the fourth prong, the Court wrote that ―the Government has failed to demonstrate that the speech restrictions are ‗not more extensive than is necessary to serve‘‖ the governmental interests, as ―[s]everal non-speech-related means [of serving those interests] might be possible here.‖120 ―If the First Amendment means anything,‖ the Court added, ―it means that regulating speech must be a last—not first—resort. Yet here it seems to have been the first strategy the Government thought to try.‖121 The Court noted that it had ―rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.‖122 In saying that the government failed to demonstrate that the speech restrictions were ―not more extensive than is necessary to serve‖ the governmental interests, the Court was quoting from the fourth prong of the Central Hudson test, but nowhere in Thompson did it note that it had previously modified the fourth prong to require merely a reasonable ―fit‖ between the legislature‘s ends and means, and not use of the least restrictive means to serve the governmental interests. Rather, it wrote, ―In previous cases addressing this final prong of the Central Hudson test, we have made clear that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so.‖123 Yet the Court did not state that it intended to overrule its reasonable ―fit‖ construction of the fourth prong.

Compelled Speech On occasion, the government attempts to compel speech rather than to restrict it. For example, in Riley v. National Federation of the Blind of North Carolina, Inc., a North Carolina statute required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations.124 The Supreme Court held this unconstitutional, stating, There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees ―freedom of speech,‖ a term necessarily comprising the decision of both what to say and what not to say.125

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

14

Kathleen Ann Ruane

In the commercial speech context, by contrast, the Supreme Court held, in Zauderer v. Office of Disciplinary Counsel, that [an advertiser‘s] constitutionally protected interest in not providing any particular factual information in his advertising is minimal.... [A]n advertiser‘s rights are reasonably protected as long as disclosure requirements are reasonably related to the State‘s interest in preventing deception of consumers.... The right of a commercial speaker not to divulge accurate information regarding his services is not ... a fundamental right. 126

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In Zauderer, the Supreme Court upheld an Ohio requirement that advertisements by lawyers that mention contingent-fee rates disclose whether percentages are computed before or after deduction of court costs and expenses. In Meese v. Keene, however, the Court upheld compelled disclosure in a noncommercial context.127 This case involved a provision of the Foreign Agents Registration Act of 1938, which requires that, when an agent of a foreign principal seeks to disseminate foreign ―political propaganda,‖ he must label such material with certain information, including his identity, the principal‘s identity, and the fact that he has registered with the Department of Justice. The material need not state that it is ―political propaganda,‖ but one agent objected to the statute‘s designating material by that term, which he considered pejorative. The agent wished to exhibit, without the required labels, three Canadian films on nuclear war and acid rain that the Justice Department had determined were ―political propaganda.‖ In Meese v. Keene, the Supreme Court upheld the statute‘s use of the term, essentially because it considered the term not necessarily pejorative. On the subject of compelled disclosure, the Court wrote: Congress did not prohibit, edit, or restrain the distribution of advocacy materials.... To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.128

One might infer from this that compelled disclosure, in a noncommercial context, gives rise to no serious First Amendment issue, and nothing in the Court‘s opinion would seem to refute this inference. Thus, it seems impossible to reconcile this opinion with the Court‘s holding a year later in Riley (which did not mention Meese v. Keene) that, in a noncommercial context, there is no difference of constitutional significance between compelled speech and compelled silence. In Meese v. Keene, the Court did not mention earlier cases in which it had struck down laws compelling speech in a noncommercial context. In Wooley v. Maynard, the Court struck down a New Hampshire statute requiring motorists to leave visible on their license plates the motto ―Live Free or Die.‖129 In West Virginia State Board of Education v. Barnette, the Court held that a state may not require children to pledge allegiance to the United States.130 In Miami Herald Publishing Co. v. Tornillo, the Court struck down a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers‘ criticism and attacks on their record.131 The Court decided two cases in its 1994-1995 term involving compelled speech. In McIntyre v. Ohio Elections Commission, the Court, applying strict scrutiny, struck down a compelled disclosure requirement by holding unconstitutional a state statute that prohibited

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

15

the distribution of anonymous campaign literature. ―The State,‖ the Court wrote, ―may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.‖132 In Hurley v. Irish-American Gay Group of Boston, the Court held that Massachusetts could not require private citizens who organize a parade to include among the marchers a group imparting a message—in this case support for gay rights—that the organizers do not wish to convey. Massachusetts had attempted to apply its statute prohibiting discrimination on the basis of sexual orientation in any place of public accommodations, but the Court held that parades are a form of expression, and the state‘s ―[d]isapproval of a private speaker‘s statement does not legitimatize use of the Commonwealth‘s power to compel the speaker to alter the message by including one more acceptable to others.‖133 In Glickman v. Wileman Brothers & Elliott, Inc., the Supreme Court upheld the constitutionality of marketing orders promulgated by the Secretary of Agriculture that imposed assessments on fruit growers to cover the cost of generic advertising of fruits.134 The First Amendment, the Court held, does not preclude the government from ―compel[ling] financial contributions that are used to fund advertising,‖ provided that such contributions do not finance ―political or ideological‖ views.135 In United States v. United Foods, Inc., the Court struck down a federal statute that mandated assessments on handlers of fresh mushrooms to fund advertising for the product. 136 The Court did not apply the Central Hudson commercial speech test, but rather found ―that the mandated support is contrary to First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity.‖137 It distinguished Glickman on the ground that ―[i]n Glickman the mandated assessments for speech were ancillary to a more comprehensive program restricting marketing authority. Here, for all practical purposes, the advertising itself, far from being ancillary, is the principal object of the regulatory scheme.‖138 In Johanns v. Livestock Marketing Association, the Supreme Court upheld a federal statute that directed the Secretary of Agriculture to use funds raised by an assessment on cattle sales and importation to promote the marketing and consumption of beef and beef products.139 The Court found that, unlike in Glickman and United Foods, where ―the speech was, or was presumed to be, that of an entity other than the government itself,‖ in Johanns the promotional campaign constituted the government‘s own speech and therefore was ―exempt from First Amendment scrutiny.‖140 It did not matter ―whether the funds for the promotions are raised by general taxes or through targeted assessment.‖141 As for the plaintiffs‘ contention ―that crediting the advertising to ‗America‘s Beef Producers‘‖ attributes the speech to them, the Court found that, because the statute does not require such attribution, it does not violate the First Amendment, but the plaintiffs‘ contention might form the basis for challenging the manner in which the statute is applied.142

Defamation Defamation (libel is written defamation; slander is oral defamation) is the intentional communication of a falsehood about a person, to someone other than that person, that injures

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

16

Kathleen Ann Ruane

the person‘s reputation. The injured person may sue and recover damages under state law, unless state law makes the defamation privileged (for example, a statement made in a judicial, legislative, executive, or administrative proceeding is ordinarily privileged). Being required to pay damages for a defamatory statement restricts one‘s freedom of speech; defamation, therefore, constitutes an exception to the First Amendment. The Supreme Court, however, has granted limited First Amendment protection to defamation. The Court has held that public officials and public figures may not recover damages for defamation unless they prove, with ―convincing clarity,‖ that the defamatory statement was made with ―‗actual malice‘—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.‖143 The Court has also held that a private figure who sues a media defendant for defamation may not recover without some showing of fault, although not necessarily of actual malice (unless the relevant state law requires it). However, if a defamatory falsehood involves a matter of public concern, then even a private figure must show actual malice in order to recover presumed damages (i.e., not actual financial damages) or punitive damages.144

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Speech Harmful to Children Speech that is otherwise fully protected by the First Amendment may be restricted in order to protect children. This is because the Court has ―recognized that there is a compelling interest in protecting the physical and psychological well-being of minors.‖145 However, any restriction must be accomplished ―‗by narrowly drawn regulations without unnecessarily interfering with First Amendment freedoms.‘ It is not enough to show that the government‘s ends are compelling; the means must be carefully tailored to achieved those ends.‖146 Thus, the government may prohibit the sale to minors of material that it deems ―harmful to minors‖ (―so called ‗girlie‘ magazines‖), whether or not they are not obscene as to adults.147 It may prohibit the broadcast of ―indecent‖ language on radio and television during hours when children are likely to be in the audience, but it may not ban it around the clock unless it is obscene.148 Federal law currently bans indecent broadcasts between 6 a.m. and 10 p.m.149 Similarly, Congress may not ban dial-a-porn, but it may (as it does at 47 U.S.C. § 223) prohibit it from being made available to minors or to persons who have not previously requested it in writing.150 In Reno v. American Civil Liberties Union, the Supreme Court declared unconstitutional two provisions of the Communications Decency Act (CDA) that prohibited indecent communications to minors on the Internet.151 The Court held that the CDA‘s ―burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.‖ ―[T]he governmental interest in protecting children from harmful materials ... does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not ‗reduc[e] the adult population ... to ... only what is fit for children.‘‖152 The Court distinguished the Internet from radio and television because (1) ―[t]he CDA‘s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet;‖ (2) the CDA

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Freedom of Speech and Press: Exceptions to the First Amendment

17

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

imposes criminal penalties, and the Court has never decided whether indecent broadcasts ―would justify a criminal prosecution;‖ and (3) radio and television, unlike the Internet, have, ―as a matter of history ... received the most limited First Amendment protection ... in large part because warnings could not adequately protect the listener from unexpected program content.... [On the Internet], the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.‖ In 1998, Congress enacted the Child Online Protection Act (COPA), P.L. 105-277, title XIV, to replace the CDA. COPA differs from the CDA in two main respects: (1) it prohibits communication to minors only of ―material that is harmful to minors,‖ rather than material that is indecent, and (2) it applies only to communications for commercial purposes on publicly accessible websites. COPA has not taken effect, because a constitutional challenge was brought and the district court, finding a likelihood that the plaintiffs would prevail, issued a preliminary injunction against enforcement of the statute, pending a trial on the merits. The Third Circuit affirmed, but, in 2002, in Ashcroft v. American Civil Liberties Union, the Supreme Court held that COPA‘s use of community standards to define ―material that is harmful to minors‖ does not by itself render the statute unconstitutional. The Supreme Court, however, did not remove the preliminary injunction against enforcement of the statute, and remanded the case to the Third Circuit to consider whether it is unconstitutional nonetheless. In 2003, the Third Circuit again found the plaintiffs likely to prevail and affirmed the preliminary injunction. In 2004, the Supreme Court affirmed the preliminary injunction because it found that the government had failed to show that filtering prohibited material would not be as effective in accomplishing Congress‘s goals. It remanded the case for trial, however, and did not foreclose the district court from concluding otherwise.153 In 2007, the district court found COPA unconstitutional and issued a permanent injunction against its enforcement; in 2008, the U.S. Court of appeals affirmed, finding that COPA ―does not employ the least restrictive alternative to advance the Government‘s compelling interest‖ and is also vague and overbroad.154 In 2009, the Supreme Court declined to review the case.

Children’s First Amendment Rights In a case upholding high school students‘ right to wear black arm bands to protest the war in Vietnam, the Supreme Court held that public school students do not ―shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.‖155 They do, however, shed them to some extent. The Supreme Court has upheld the suspension of a student for using a sexual metaphor in a speech nominating another student for a student office.156 It has upheld censorship of a student newspaper produced as part of the school curriculum.157 (Lower courts have indicated that non-school-sponsored student writings may not be censored.158) A plurality of the justices found that a school board must be permitted ―to establish and apply their curriculum in such a way as to transmit community values,‖ but that it may not remove school library books in order to deny access to ideas with which it disagrees for political or religious reasons.159 The Supreme Court has also held that Congress may not prohibit people 17 or younger from making contributions to political candidates and contributions or donations to political parties.160 Most recently, in Morse v. Frederick, the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

18

Kathleen Ann Ruane

Court held that a school could punish a pupil for displaying a banner that read, ―BONG HiTS 4 JESUS,‖ because these words could reasonably be interpreted as ―promoting illegal drug use.‖161 The Court indicated that it might have reached a different result if the banner had addressed the issue of ―the criminalization of drug use or possession.‖162 Justice Alito, joined by Justice Kennedy, wrote a concurring opinion stating that they had joined the majority opinion ―on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‗the wisdom of the war on drugs or of legalizing marijuana for medicinal use.‘‖163 As Morse v. Frederick was a 5-to-4 decision, Justices Alito‘s and Kennedy‘s votes were necessary for a majority and therefore should be read as limiting the majority opinion with respect to future cases.

Radio and Television Radio and television broadcasting has more limited First Amendment protection than other media. In Red Lion Broadcasting Co. v. Federal Communications Commission, the Supreme Court invoked what has become known as the ―scarcity rationale‖ to justify this discrimination:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. 164

The Court made this statement in upholding the constitutionality of the Federal Communication Commission‘s ―fairness doctrine,‖ which required broadcast media licensees to provide coverage of controversial issues of interest to the community and to provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues. Later, in Federal Communications Commission v. Pacifica Foundation, the Court upheld the power of the FCC ―to regulate a radio broadcast that is indecent but not obscene.‖165 The Court cited two distinctions between broadcasting and other media: ―First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans ... confront[ing] the citizen, not only in public, but also in the privacy of the home,‖ and ―[s]econd, broadcasting is uniquely accessible to children.‖166 In Turner Broadcasting System, Inc. v. Federal Communications Commission, the Court declined to question the continuing validity of the scarcity rationale, but held that ―application of the more relaxed standard of scrutiny adopted in Red Lion and other broadcast cases is inapt when determining the First Amendment validity of cable regulation.‖167 In Turner, however, the Court found the ―must-carry‖ provisions of the Cable Television Consumer Protection and Competition Act of 1992, which require cable television systems to devote a portion of their channels to the transmission of local broadcast television stations, to be content-neutral in application and subject only to the test for incidental restrictions on speech.168 In Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, a plurality of the Supreme Court (four justices) apparently

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

19

retreated from the Court‘s position in Turner that cable television is entitled to full First Amendment protection. 169 In Part II of its opinion, the plurality upheld § 10(a) of the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 532(h), which permits cable operators to prohibit indecent material on leased access channels. (The Cable Communications Policy Act of 1984 had required cable operators to provide leased access and public access channels free of operator editorial control.) In upholding § 10(a), the Court, citing Pacifica, noted that cable television ―is as ‗accessible to children‘ as over-the-air broadcasting,‖ has also ―established a uniquely pervasive presence in the lives of all Americans‖ and can also ―‗confron[t] the citizen‘ in ‗the privacy of the home‘ ... with little or no prior warning.‖170 It also noted that its ―distinction in Turner ... between cable and broadcast television, relied on the inapplicability of the spectrum scarcity problem to cable,‖ but that that distinction ―has little to do with a case that involves the effects of television viewing on children.‖171 Applying something less than strict scrutiny, the Court concluded ―that § 10(a) is a sufficiently tailored response to an extraordinarily important problem.‖172 It is important to note, however, that this reasoning did not command a majority of the Court. In Part III of Denver Area, a majority of the Court (six justices) struck down § 10(b) of the 1992 Act, 47 U.S.C. § 532(j), which required cable operators, if they do not prohibit such programming on leased access channels, to segregate it on a single channel and block that channel unless the subscriber requests access to it in writing. In this part of the opinion, the Court seemed to apply strict scrutiny, finding ―that protection of children is a ‗compelling interest,‘‖ but ―that, not only is it not a ‗least restrictive alternative,‘ and is not ‗narrowly tailored‘ to meet its legitimate objective, it also seems considerably ‗more extensive than necessary.‘‖173 In Part IV, which only three justices joined, the Court struck down § 10(c), 42 U.S.C. § 531 note, which permitted cable operators to prohibit indecent material on public access channels. Without specifying the level of scrutiny they were applying, the justices concluded ―that the Government cannot sustain its burden of showing that § 10(c) is necessary to protect children or that it is appropriately tailored to secure that end.‖174 In United States v. Playboy Entertainment Group, Inc., the Supreme Court made clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based speech restriction on cable television. 175 The Court struck down a federal statute designed to ―shield children from hearing or seeing images resulting from signal bleed,‖ which refers to blurred images or sounds that come through to non-subscribers. The statute required cable operators, on channels primarily dedicated to sexually oriented programming, either to fully scramble or otherwise fully block such channels, or to not provide such programming when a significant number of children are likely to be viewing it, which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. The Court apparently assumed that the government had a compelling interest in protecting children from sexually oriented signal bleed, but found that Congress had not used the least restrictive means to do so. Congress in fact had enacted another provision that was less restrictive and that served the government‘s purpose. This other provision requires that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or fully block any channel to which a subscriber does not subscribe.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

20

Kathleen Ann Ruane

Freedom of Speech and Government Funding The Supreme Court has held that Congress, incident to its power to provide for the general welfare (Art. I, § 8, cl. 1),

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

may attach conditions on the receipt of federal funds, and has repeatedly employed the power ―to further broad policy objectives by conditioning receipt of federal moneys upon compliance with federal statutory and administrative directives.‖ ... The breadth of this power was made clear in United States v. Butler, 297 U.S. 1, 66 (1936), where the Court ... determined that ―the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.‖ Thus, objectives not thought to be within Article I‘s ―enumerated legislative fields,‖ id., at 65, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.176

This means that Congress may regulate matters by attaching conditions to the receipt of federal funds that it might lack the power to regulate directly. However, the Court added, ―other constitutional provisions may provide an independent bar to the conditional grant of federal funds.‖ One of these other constitutional provisions is the First Amendment. The Court has held, in fact, that the government ―may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.‖177 Similarly, in Federal Communications Commission v. League of Women Voters, the Court declared unconstitutional a federal statute that prohibited noncommercial television and radio stations that accepted federal funds from engaging in editorializing, even with nonfederal funds.178 Congress would have the authority to prohibit television and radio stations from using the federal funds they accept to engage in editorializing, as the Court would view Congress in that case not as limiting speech, but as choosing to fund one activity to the exclusion of another.179 ―A refusal to fund protected activity [i.e., speech], without more, cannot be equated with the imposition of a ‗penalty‘ on that activity.‖180 In Rust v. Sullivan, the case in which this quotation appears, the Court upheld a ―gag order‖ that prohibited family planning clinics that accept federal funds from engaging in abortion counseling or referrals. The Court found that, in this case, ―the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for purposes for which they were authorized.‖181 In Rust v. Sullivan, the Court also indicated that it will allow Congress to condition the receipt of federal funds on acceptance of a limitation on the use of nonfederal funds as well as of federal funds, but apparently will not allow Congress to limit the use of nonfederal funds outside the project that accepts the federal funds.182 Justice Blackmun, dissenting, feared that, ―[u]nder the majority‘s reasoning, the First Amendment could be read to tolerate any governmental restriction upon an employee‘s speech so long as that restriction is limited to the funded workplace.‖183 The Court also ―recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government‘s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.‖184

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

21

In National Endowment for the Arts v. Finley, the Supreme Court upheld the constitutionality of a federal statute (20 U.S.C. § 954(d)(1)) requiring the NEA, in awarding grants, to ―tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.‖185 The Court acknowledged that, if the statute were ―applied in a manner that raises concern about the suppression of disfavored viewpoints,‖186 then such application might be unconstitutional. The statute on its face, however, is constitutional because it ―imposes no categorical requirement,‖ being merely ―advisory.‖187 ―Any content-based considerations that may be taken into account in the grantmaking process are a consequence of the nature of arts funding.... The ‗very assumption‘ of the NEA is that grants will be awarded according to the ‗artistic worth of competing applications,‘ and absolute neutrality is simply ‗inconceivable.‘‖188 The Court also found that the terms of the statute, ―if they appeared in a criminal statute or regulatory scheme ... could raise substantial vagueness concerns.... But when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.‖189 In Legal Services Corporation v. Velazquez, the Court struck down a provision of the Legal Services Corporation Act that prohibited recipients of Legal Services Corporation (LSC) funds (i.e., legal-aid organizations that provide lawyers to the poor in civil matters) from representing a client who seeks ―to amend or otherwise challenge existing [welfare] law.‖190 This meant that, even with non-federal funds, a recipient of federal funds could not argue that a state welfare statute violated a federal statute or that a state or federal welfare law violated the U.S. Constitution. If a case was underway when such a challenge became apparent, the attorney had to withdraw. The Supreme Court distinguished this situation from that in Rust v. Sullivan on the ground ―that the counseling activities of the doctors under Title X amounted to governmental speech,‖ whereas ―an LSC-funded attorney speaks on behalf of the client in a claim against the government for welfare benefits.‖191 Furthermore, the restriction in this case ―distorts the legal system‖ by prohibiting ―speech and expression upon which courts must depend for the proper exercise of the judicial power,‖ and thereby is ―inconsistent with accepted separationof-powers principles.‖192 In United States v. American Library Association,193 the Supreme Court followed Rust v. Sullivan, and upheld the Children‘s Internet Protection Act, which requires schools and libraries that accept federal funds to purchase computers used to access the Internet to block or filter minors‘ Internet access to visual depictions that are obscene, child pornography, or ―harmful to minors‖; and to block or filter adults‘ Internet access to visual depictions that are obscene or child pornography. Blocking or filtering technology may be disabled, however, ―to enable access for bona fide research or other lawful purpose.‖ The plurality noted that ―Congress may not ‗induce‘ the recipient [of federal funds] ‗to engage in activities that would themselves be unconstitutional.‘‖194 The plurality therefore viewed the question before the Court as ―whether [public] libraries would violate the First Amendment by employing the filtering software that CIPA requires.‖195 Does CIPA, in other words, effectively violate library patrons rights? The plurality concluded that it does not, as ―Internet access in public libraries is neither a ‗traditional‘ or a ‗designated‘ public forum,‖196 and that therefore it would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

22

Kathleen Ann Ruane

But the plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance—in other words, does it violate public libraries‟ rights by requiring them to limit their freedom of speech if they accept federal funds? The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, as in Rust v. Sullivan, the statute ―simply insist[s] that public funds be spent for the purposes for which they were authorized.‖197 ―CIPA does not ‗penalize‘ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress‘ decision not to subsidize their doing so.‖198 The Court distinguished Velazquez on the ground that public libraries have no role comparable to that of legal aid attorneys ―that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.‖199 In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme Court upheld the Solomon Amendment, which provides that, in the Court‘s summary, ―if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds.‖200 FAIR, the group that challenged the Solomon Amendment, is an association of law schools that barred military recruiting on their campuses because of the military‘s discrimination against homosexuals. FAIR challenged the Solomon Amendment as violating the First Amendment because it forced schools to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive specified federal funding. The Court first rejected an interpretation of the Solomon Amendment that would have avoided the constitutional issue; under this interpretation, ―a school excluding military recruiters would comply with the Solomon Amendment so long as it also excluded any other employer that violates its nondiscrimination policy.‖201 The Court instead construed the Solomon Amendment to require schools to allow the military the same access as any other employer, including employers who do not discriminate and whom the schools allow on campus. Interpreting the Solomon Amendment as such, the Court concluded: ―Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment‘s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.‖202 The Court added: ―The Solomon Amendment neither limits what law schools may say nor requires them to say anything.... It affects what law schools must do— afford equal access to military recruiters—not what they may or may not say.‖203 The law schools‘ conduct in barring military recruiters, the Court found, ―is not inherently expressive,‖ and, therefore, unlike flag burning, for example, is not ―symbolic speech.‖204 Applying the O‟Brien test for restrictions on conduct that have an incidental effect on speech, the Court found that the Solomon Amendment clearly ―promotes a substantial government interest that would be achieved less effectively absent the regulation.‖205 The Court also found that the Solomon Amendment did not unconstitutionally compel schools to speak, or even to host or accommodate the government‘s message. As for compelling speech, law schools must ―send e-mails and post notices on behalf of the military to comply with the Solomon Amendment.... This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley.206 ... [It] is plainly incidental to

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Freedom of Speech and Press: Exceptions to the First Amendment

23

the Solomon Amendment‘s regulation of conduct.‖ As for forcing one speaker to host or accommodate another, ―[t]he compelled speech violation in each of our prior cases ... resulted from the fact that the complaining speaker‘s own message was affected by the speech it was forced to accommodate.‖207 By contrast, the Court wrote, ―Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military‘s policies.‖208 Finally, the Court found that the Solomon Amendment was not analogous to the New Jersey law that had required the Boy Scouts to accept a homosexual scoutmaster, and which the Supreme Court struck down as violating the Boy Scouts‘ ―right of expressive association.‖209 Recruiters, unlike the scoutmaster, are ―outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school‘s expressive association.‖210

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Free Speech Rights of Government Employees and Government Contractors Government Employees In Pickering v. Board of Education, the Supreme Court said that ―it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with the regulation of speech of the citizenry in general.‖211 The First Amendment, however, ―protects a public employee‘s right, in certain circumstances, to speak as a citizen addressing matters of public concern.‖212 In Pickering, the Supreme Court held it unconstitutional for a school board to fire a teacher for writing a letter to a local newspaper criticizing the administration of the school system. The Court did not, however, hold that the teacher had the same right as a private citizen to write such a letter. Rather, because the teacher had spoken as a citizen on a matter of public concern, the Court balanced ―the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.‖213 In this case, the Court found that: [the statements in the letter were] in no way directed towards any person with whom appellant [the teacher] would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant‘s employment relationships with the Board ... are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.214

In Arnett v. Kennedy, the Supreme Court again balanced governmental interests and employee rights, and this time sustained the constitutionality of a federal statute that authorized removal or suspension without pay of an employee ―for such cause as will promote the efficiency of the service,‖ where the ―cause‖ cited was an employee‘s speech.215 The employee‘s speech in this case, however, consisted in falsely and publicly accusing the director of his agency of bribery. The Court interpreted the statute to proscribe:

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

24

Kathleen Ann Ruane only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees as are necessary for the protection of the Government as employer. Indeed, the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency. 216

In Givhan v. Western Line Consolidated School District, the Court upheld the First Amendment right of a public school teacher to complain to the school principal about ―employment policies and practices at [the] school which [she] conceived to be racially discriminatory in purpose or effect.‖217 In Connick v. Myers, an assistant district attorney was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale.218 The Supreme Court upheld the firing, distinguishing Pickering on the ground that, in that case, unlike in this one, the fired employee had engaged in speech concerning matters of public concern:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy a wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.... We do not suggest, however, that Myers‘ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment. ―[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political....‖ ... We hold only that when a public employee speaks not as a citizen upon matters of public concern, but as an employee upon matters only of personal interest, absent the most unusual of circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee‘s behavior.219

In Connick v. Myers, however, one question in Myers‘ questionnaire did touch upon a matter of public concern, and, to this extent, Myers‘ speech was entitled to Pickering balancing to determine whether it was protected by the First Amendment. The Court also considered that the questionnaire interfered with working relationships, was prepared and distributed at the office, arose out of an employment dispute, and was not circulated to obtain useful research. The Court repeated something it had said in Pickering: it did ―not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.‖220 In Rankin v. McPherson, the Court upheld the right of an employee to remark, after hearing of an attempt on President Reagan‘s life, ―If they go for him again, I hope they get him.‖221 The Court considered the fact that the statement dealt with a matter of public concern, did not amount to a threat to kill the President, did not interfere with the functioning of the workplace, and was made in a private conversation with another employee and therefore did not discredit the office. Furthermore, as the employee‘s duties were purely clerical and encompassed ―no confidential, policymaking, or public contact role,‖ her remark did not indicate that she was ―unworthy of employment.‖222 These Supreme Court cases indicate the relevant factors in determining whether a government employee‘s speech is protected by the First Amendment. It should be emphasized

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

25

that the Court considers the time, place, and manner of expression.223 Thus, if an employee made political speeches on work time, such that they interfered with his or others‘ job performance, he could likely be fired as ―unworthy of employment.‖ At the same time, he could not be fired for the particular political views he expressed, unless his holding of those views made him unfit for the job. Thus, a governmental employer could not allow employees to make speeches in support of one political candidate on work time, but not allow employees to make speeches in support of that candidate‘s opponent. But a Secret Service agent assigned to guard the President would not have the same right as the clerical worker in Rankin to express the hope that the President would be assassinated. In Waters v. Churchill, a plurality of justices concluded that, in applying the Connick test—―what the speech was, in what tone it was delivered, what the listener‘s reactions were‖—the court should not ask the jury to determine the facts for itself. 224 Rather, the court should apply the test ―to the facts as the employer reasonably found them to be.‖225 That is, the employer need not ―come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court,‖ but it may not come to them based on no evidence, or on ―extremely weak evidence when strong evidence is clearly available.‖226 In United States v. National Treasury Employees Union (NTEU), the Court struck down a law that prohibited federal employees from accepting any compensation for making speeches or writing articles, even if neither the subject of the speech or article nor the person or group paying for it had any connection with the employee‘s official duties. The prohibition did not apply to books, nor to fiction or poetry.227 The Court noted that, ―[u]nlike Pickering and its progeny, this case does not involve a post hoc analysis of one employee‘s speech and its impact on that employee‘s public responsibilities.... [T]he Government‘s burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action.‖228 Doing the balancing it had mandated in Pickering, the Court concluded that ―[t]he speculative benefits the honoraria ban may provide the Government are not sufficient to justify this crudely crafted burden on respondents‘ freedom to engage in expressive activities.‖229 In City of San Diego v. Roe, the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating.230 The Court found that the officer‘s ―expression does not qualify as a matter of public concern ... and Pickering balancing does not come into play.‖231 The Court also noted that the officer‘s speech, unlike federal employees‘ speech in NTEU, ―was linked to his official status as a police officer, and designed to exploit his employer‘s image,‖ and therefore ―was detrimental to the mission and functions of his employer.‖232 Therefore, the Court had ―little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].‖233 This leaves uncertain whether, had the officer‘s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern. In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is no protection—Pickering balancing is not to be applied— ―when public employees make statements pursuant to their official duties,‖ even if those statements are about matters of public concern.234 In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

26

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

deputy district attorney claimed that he was subjected to retaliatory employment actions, and sued. The Supreme Court held ―that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.‖235 The fact that the employee‘s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.236 Rather, the ―controlling factor‖ was ―that his expressions were made pursuant to his duties.‖237 Therefore, another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.

Government Contractors In Board of County Commissioners v. Umbehr, the Court held that ―the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.‖238 The Court held that, in determining whether a particular termination violates the First Amendment, ―the Pickering balancing test, adjusted to weigh the government‘s interests as contractor rather than as employer,‖ should be used.239 The Court did ―not address the possibility of suits by bidders or applicants for new government contracts.‖240 In Elrod v. Burns241 and Branti v. Finkel,242 the Supreme Court held that ―[g]overnment officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the job in question.‖243 In O‟Hare Truck Service, Inc. v. Northlake, the Court held ―that the protections of Elrod and Branti extend to ... [a situation] where the government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance.‖244

Symbolic Speech ―The First Amendment literally forbids the abridgment only of ‗speech,‘ but we have long recognized that its protection does not end at the spoken or written word.‖245 Thus wrote the Supreme Court when it held that a statute prohibiting flag desecration violated the First Amendment. Such a statute is not content-neutral if it is designed to protect ―a perceived need to preserve the flag‘s status as a symbol of our Nation and certain national ideals.‖246 By contrast, the Court upheld a federal statute that made it a crime to burn a draft card, finding that the statute served ―the Government‘s substantial interest in assuring the continuing availability of issued Selective Service certificates,‖ and imposed only an ―appropriately narrow‖ incidental restriction of speech.247 Even if Congress‘s purpose in enacting the statute had been to suppress freedom of speech, ―this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.‖248 In 1992, in R.A. V. v. City of St. Paul, the Supreme Court struck down an ordinance that prohibited the placing on public or private property of a symbol, such as ―a burning cross or

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

27

Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others, on the basis of race, color, creed, religion or gender.‖249 Read literally, this ordinance would clearly violate the First Amendment, because, ―[i]f 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.‖250 In this case, however, the Minnesota Supreme Court had construed the ordinance to apply only to conduct that amounted to fighting words. Therefore, the question for the Supreme Court was whether the ordinance, construed to apply only to fighting words, was constitutional. The Court held that it was not, because, although fighting words may be proscribed ―because of their constitutionally proscribable content,‖ they may not ―be made the vehicles for content discrimination unrelated to their distinctively proscribable content.‖251 Thus, the government may proscribe fighting words, but it may not make the further content discrimination of proscribing particular fighting words on the basis of hostility ―towards the underlying message expressed.‖252 In this case, the ordinance banned fighting words that insult ―on the basis of race, color, creed, religion or gender,‖ but not ―for example, on the basis of political affiliation, union membership, or homosexuality.... The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.‖253 This decision does not, of course, preclude prosecution for illegal conduct that may accompany cross burning, such as trespass, arson, or threats. As the Court put it: ―St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.‖254 In a subsequent case, the Supreme Court held that its opinion in R.A. V. did not mean that statutes that impose additional penalties for crimes that are motivated by racial hatred are unconstitutional. Such statutes imposed enhanced sentences not for bigoted thought, but for the commission of crimes that can inflict greater and individual and societal harm because of their bias-inspired motivation. A defendant‘s motive has always been a factor in sentencing, and even in defining crimes; ―Title VII [of the Civil Rights Act of 1964], for example, makes it unlawful for an employer to discriminate against an employee ‗because of such individual‘s race, color, religion, sex, or national origin.‘‖255 In Virginia v. Black, the Court held that its opinion in R.A. V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.256 Such a prohibition does not discriminate on the basis of a defendant‘s beliefs—―as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities.... The First Amendment permits Virginia to outlaw cross burning done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages.‖257

ACKNOWLEDGMENTS This chapter was originally written by Henry Cohen, Legislative Attorney.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

28

Kathleen Ann Ruane

End Notes

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1

Supreme Court cases supporting all the prohibitions and restrictions on speech noted in this and the next paragraph are cited in footnotes accompanying the subsequent discussion of these prohibitions and restrictions. 2 CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Brief Background and Recent Developments, by Kathleen Ann Ruane. 3 Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting, wrote: ―[T]here is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment.‖ Id. at 514. 4 Id. at 485. 5 Miller v. California, 413 U.S. 15, 27 (1973). 6 Id. at 24 (citation omitted). 7 Pope v. Illinois, 481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105 (1974), the Court noted that a ―community‖ was not any ―precise geographic area,‖ and suggested that it might be less than an entire state. In Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 577 (2002), the Supreme Court recognized that ―Web publishers currently lack the ability to limit access to their sites on a geographic basis,‖ and that therefore the use of community standards to define ―obscenity‖ ―would effectively force all speakers on the Web to abide by the ‗most puritan‘ community‘s standards.‖ Nevertheless, the Court found that use of community standards ―does not by itself render‖ a statute unconstitutional.‖ Id. at 585 (emphasis in original). 8 Pope v. Illinois, 481 U.S. at 500-501. 9 Stanley v. Georgia, 394 U.S. 557, 568 (1969). 10 United States v. Reidel, 402 U.S. 351 (1971). 11 United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973). 12 CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Brief Background and Recent Developments, by Kathleen Ann Ruane. 13 New York v. Ferber, 458 U.S. 747, 764 (1982). The definition of ―sexually explicit conduct‖ in the federal child pornography statute includes ―lascivious exhibition of the genitals or pubic area of any person [under 18], and ―is not limited to nude exhibitions or exhibitions in which the outlines of those areas [are] discernible through clothing.‖ 18 U.S.C. §§ 2256(2)(A)(v), 2252 note. 14 Osborne v. Ohio, 495 U.S. 103 (1990). 15 Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002). 16 Id. at 249; see also, id. at 242. 17 Id. at 253. 18 A subset of laws that prohibit ―fighting words‖ are laws that prohibit speech expressed with the intent to threaten. The Supreme Court has found that true threats may be punished without offending the constitution. See Virginia v. Black, 538 U.S. 343, 363 (2003)(finding that cross-burning is a particularly virulent form of intimidation that may be punished as a ―true threat‖). 19 Chaplinsky, 315 U.S. at 572. 20 Id. at 569. 21 Id. at 572. 22 Id. 23 403 U.S. 15, 20 (1971). 24 Id. 25 Id. at 26. 26 Id. 27 395 U.S. 444, 446 (1969)(per curiam). 28 Id. at 448. 29 See Odem v. Mississippi, 881 So.2d 940, 948 (Miss. Ct. App. 2004)(finding that complaints and shouts of profanity from the defendant rose to the level of ―fighting words‖ where the officer to whom he spoke did not initiate the conversation nor did the officer have the opportunity to walk away); see also Washington v. King, 145 P.3d 1224 (Wash. Ct. App. 2006)(noting that ―it is context that makes a threat ―true‖ or serious), Commonwealth v. Pike, 756 N.E.2d 1157, 1158-60 (Mass. App. Ct. 2001)(upholding the conviction of a woman for violation of her neighbor‘s civil rights where she posted signs in her yard accusing homosexuals of molesting young children and yelled insulting names as well as invitations to a physical fight because the words and conduct constituted ―fighting words‖). 30 Schenck v. United States, 249 U.S. 47, 52 (1919). 31 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also, Stewart v. McCoy, 537 U.S. 993 (2002) (Justice Stevens‘ statement accompanying denial of certiorari). 32 Watts v. United States, 394 U.S. 705, 708 (1969). See also, NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), cert. denied, 539 U.S. 958 (2003) (the ―Nuremberg Files‖ case); Virginia v. Black, 538 U.S. 343, 360 (2003)

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

29

(―Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.‖). 33 Virginia v. Black, 538 U.S. 343, 363 (2003). 34 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1989). The Court does not apply strict scrutiny to another type of content-based restrictions—restrictions on commercial speech, which is discussed below. 35 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) Discrimination against speech because of its message is presumed to be unconstitutional. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. Id. at 828-29. 36 The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the question ―whether, in cases where information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the unlawful acquisition, but the ensuing publication as well.‖ Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted communications (in this case a cell phone conversation) violates free speech where the person who publishes the material did not participate in the interception, and the communication concerns a public issue. 37 However, the Court did ―not rule out the possibility that, in a proper case, imposing civil sanctions for publication of the name of a rape victim might be ... overwhelmingly necessary to advance‖ a compelling state interest. Id. at 537. 38 Near v. Minnesota, 283 U.S. 697, 716 (1931). 39 Freedman v. Maryland, 380 U.S. 51, 57, 58 (1965) (―a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards‖); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (injunction sought by United States against publication of the Pentagon Papers denied). 40 Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial). Injunctions that are designed to restrict merely the time, place, or manner of a particular expression are subject to a less stringent application of First Amendment principles; see, ―Time, Place, and Manner Restrictions,‖ below. 41 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973); see also, Vance v. Universal Amusement Co., 445 U.S. 308, 315-316 (1980) (―the burden of supporting an injunction against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication‖). 42 See, Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 169-171 (1998). 43 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 571 n. 13. 44 Freedman, 380 U.S. at 58, 59. 45 Thomas v. Chicago Park District, 534 U.S. 316, 322-323 (2002). 46 Central Hudson, 447 U.S. at 571 n. 13. 47 Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004). 48 New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir. 1998), cert. denied, 525 U.S. 824 (1998); citing as examples, Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996); In re Search of Kitty‘s East, 905 F.2d 1367, 1371-72 & n.4 (10th Cir. 1990). 49 DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (a ―prior restraint is a content-based restriction on speech prior to its occurrence‖ (italics in original)). For the test regarding content-neutral injunctions, see the section on ―Time, Place, and Manner Restrictions,‖ below. 50 Bosley, supra footnote 47, at 930; Lemley and Volokh, supra footnote 42 (arguing that intellectual property should have the same First Amendment protection from preliminary injunctions as other speech). 51 Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 800 (1985). 52 Perry Education Assn. v. Perry Local Educators‘ Assn., 460 U.S. 37, 45 (1983). 53 Id. 54 Id. 55 Perry Education Assn. v. Perry Local Educators‘ Assn., 460 U.S. 37, 46 n.7 (1983). 56 Id. at 46. 57 Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009). 58 Perry Education Assn. v. Perry Local Educators‘ Assn., 460 U.S. 37, 46 (1983). 59 United States Postal Service v. Council of Greenburgh Civic Ass‘ns, 453 U.S. 114, 129-130 (1981). 60 United States v. Kokinda, 497 U.S. 720, 732 (1990).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

30

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

61

Id. at 727 (―regulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness‖). 62 Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009). 63 Greer v. Spock, 424 U.S. 828 (1976). 64 Adderley v. Forida, 385 U.S. 39 (1966) (holding that a sheriff could lawfully remove protesters from a county jail, because the property was closed to the public and the removal of the protesters served a security purpose). 65 Perry Educ. Ass‘n v. Perry Local Educators‘ Ass‘n, 460 U.S. 37 (1983). 66 For additional information on this subject, see CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen. 67 Frisby v. Schultz, 487 U.S. 474, 481 (1988). 68 Id. at 487. 69 Ward v. Rock Against Racism, 491 U.S. 781 (1989). 70 Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986). Although singling out ―adult‖ material might appear to be a content-based distinction, the Court in Renton said that regulations of speech are content-neutral if they ―are justified without reference to the content of the regulated speech.‖ 475 U.S. at 48 (emphasis in original). Zoning restrictions are justified as measures to ―prevent crime, protect the city‘s retail trade, maintain property values, and generally ‗protec[t] and preserv[e] the quality of [the city‘s] neighborhoods, commercial districts, and the quality of urban life,‘ not to suppress the expression of unpopular views.‖ Id. 71 Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). 72 United States v. Grace, 461 U.S. 171 (1983). 73 City of Ladue v. Gilleo, 512 U.S. 43 (1994). 74 Madsen v. Women‘s Health Center, Inc., 512 U.S. 753, 765 (1994). In this case, the Court held that the challenged injunction was content-neutral, even though it was directed at abortion protesters, because its purpose was to protect patients, not to interfere with the protesters‘ message. 75 Id. This is not ―prior restraint analysis,‖ which courts apply to content-based injunctions; see, ―Content-Based Restrictions,‖ supra. 76 Id. at 773. 77 519 U.S. 357 (1997). driveway entrances of such facilities‖—what the Court called ―fixed buffer zones.‖ It struck down a prohibition against demonstrating ―within fifteen feet of any person or vehicles seeking 78 530 U.S. 703, 707 (2000). 79 Id. at 714. 80 Id. at 722. 81 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). 82 San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 537 (1987). This is known as the ―O‟Brien test,‖ which was first formulated in the case United States v. O‘Brien, 391 U.S. 367, 382 (1968).. 83 Ward v. Rock Against Racism, 491 U.S. 781, 798-799 (1989). This case makes clear that, although both ―strict scrutiny‖ and the O‟Brien test for incidental restrictions require ―narrow tailoring,‖ ―the same degree of tailoring is not required‖ under the two; under the O‟Brien test, ―least-restrictive-alternative analysis is wholly out of place.‖ Id. at 798-799 n.6. It is also out of place in applying the Central Hudson commercial speech test. 84 Clark, 468 U.S. at 298. And, ―the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context.‖ United States v. Edge Broadcasting Co., 509 U.S. at 430. 85 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). 86 Erie v. Pap‘s A.M., 529 U.S. 277 (2000). 87 Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994), discussed under ―Radio and Television,‖ below. David Cole describes Turner as ―effectively giving bite to the O‟Brien standard.‖ He writes that, ―if the Court had applied the O‟Brien standard the way it applied that standard in O‟Brien, it should have upheld the ‗must carry‘ rule. The O‟Brien standard is extremely deferential.‖ The Perils of Pragmatism, LEGAL TIMES, July 25, 1994, at S27, S30. 88 Id. at 664. 89 Id. at 666. 90 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993). 91 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989) (emphasis in original). In Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 539 U.S. 654 (2003), Nike was sued for unfair and deceptive practices for allegedly false statements it made concerning the working conditions under which its products were manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted certioriari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left undecided was whether Nike‘s statements, though they concerned a matter of public debate and appeared in press releases and letters rather than in advertisements for its products, should be deemed ―‗commercial speech‘ because they might affect consumers‘ opinions about the business as a good

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Freedom of Speech and Press: Exceptions to the First Amendment

31

corporate citizen and thereby affect their purchasing decisions.‖ Id. at 657 (Stevens, J., concurring). Nike subsequently settled the case. 92 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952). 93 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. at 566 (1980). 94 See, Edge Broadcasting, 509 U.S. at 427. 95 Id. at 430. 96 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989). 97 The cases chosen for discussion included language which granted further insight into the Supreme Court‘s applications of the Central Hudson test. 98 See Cincinatti v. Discovery Network, Inc., 507 U.S. 510 (1993) (striking down a Cincinatti regulation that banned newsracks on public property if they distributed commercial publications); Edenfield v. Fane, 507 U.S. 761 (1993) (striking down a Florida law banning solicitation by certified public accountants); U.S. v. Edge Broadcasting, 509 U.S. 418 (1993) (upholding federal statutes that prohibit the broadcast of lottery advertising by a broadcaster licensed to a State that does not allow lotteries, while allowing such broadcasting by a broadcaster licensed to a State that sponsors a lottery); Ibanez v. Florida Board of Accountancy, 512 U.S. 136 (1994) (holding that the Florida Board of accountancy could not prohibit a Certified Public Accountant from stating that she was a certified public accountant in her advertisements); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (striking down 27 U.S.C. § 205(e), which prohibited beer labels from displaying alcohol content unless state law required the disclosure, because the regulatory scheme was irrational); Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)(upholding a rule that prohibited personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster). 99 535 U.S. 357, 367-68 (2002) (citations omitted). 100 Id. 101 Id. at 501. The nine justices were unanimous in striking down the law, which prohibited advertising the price of alcoholic beverages, but only parts of Justice Stevens‘ opinion for the Court were joined by a majority of justices. The quotations above, for example, are from Part IV of the Court‘s opinion, which was joined by only Justices Kennedy and Ginsburg besides Justice Stevens. 102 Id. at 503. 103 Id. at 508, citing Central Hudson, 447 U.S. at 566, n.9. 104 527 U.S. 173 (1999). 105 Edge Broadcasting. 106 527 U.S. at 190, 195. 107 533 U.S. 525 (2001). 108 Id. at 551. 109 Id. at 562. 110 Id. at 563. 111 Id. at 566. 112 Id. 113 Id. at 567. 114 Id. at 569. 115 Id. 116 535 U.S. 357 (2002). 117 Id. at 360. 118 Id. at 360-361. 119 Id. at 369, 371. 120 Id. at 371, 372. 121 Id. at 373. 122 Id. at 374. 123 Id. at 371. 124 487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 605 (2003), the Supreme Court held that a fundraiser who retained 85 percent of gross receipts from donors, but falsely represented that ―a significant amount of each dollar donated would be paid over to‖ a charitable organization, could be sued for fraud. ―So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on solicitors‘ fees per se, such [fraud] actions need not impermissibly chill protected speech.‖ Id. at 619. 125 487 U.S. 781, 796-797 (1988) (emphasis in original). 126 471 U.S. 626, 651, 652 n.14 (1985) (emphasis in original). 127 481 U.S. 465 (1987). 128 Id. at 480. 129 430 U.S. 705 (1977). 130 319 U.S. 624 (1943).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

32

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

131

418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986), the Court held that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. While a plurality opinion adhered to by four justices relied heavily on Tornillo, there was not a Court majority consensus as to rationale. 132 514 U.S. 334, 357 (1995). 133 515 U.S. 557, 581 (1995). 134 521 U.S. 457 (1997). 135 Id., 521 U.S. at 471, 472. The Court found that the marketing orders did not raise a First Amendment issue, but ―simply a question of economic policy for Congress and the Executive to resolve.‖ The Central Hudson test (see ―Commercial Speech,‖ above), therefore, was inapplicable. Id. at 474. 136 533 U.S. 405 (2001). 137 Id. at 413. 138 Id. at 411. 139 544 U.S. 550 (2005). 140 Id. at 559, 553. 141 Id. at 562. 142 Id. at 564-566. 143 New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). 144 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 145 Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). A federal district court noted that, in cases that involve a restriction of minors‘ access to sexually explicit material, ―the Supreme Court‘s jurisprudence does not require empirical evidence. Only some minimal amount of evidence is required.... ‖ Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998); aff‟d, 529 U.S. 803 (2000). By contrast, in cases not involving access of minors to sexually explicit material, the Supreme Court generally requires that the government, to justify a restriction even on speech with less than full First Amendment protection, ―must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.‖ Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (incidental restriction on speech). See also, Edenfield v. Fane, 507 U.S. 761, 770-77 1 (1993) (restriction on commercial speech); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (restriction on campaign contributions). 146 Id. In the case of content-based regulations, narrow tailoring requires that the regulation be ―the least restrictive means to further the articulated interest.‖ 147 Ginsberg v. New York, 390 U.S. 629, 631 (1968). 148 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Action for Children‘s Television v. Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). The Supreme Court has stated that, to be indecent, a broadcast need not have prurient appeal; ―the normal definition of ‗indecent‘ refers merely to nonconformance with accepted standards of morality,‖ Pacifica, 438 U.S. at 740. The FCC holds that the concept ―is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.‖ Id. at 732. The FCC applied this definition in a case in which the singer Bono said at the Golden Globe Awards that his award was ―f[***]ing brilliant.‖ In another case involving ―fleeting expletives,‖ however, the U.S. Court of Appeals for the Second Circuit held ―that the FCC‘s new policy regarding ‗fleeting expletives‘ is arbitrary and capricious under the Administrative Procedure Act.‖ Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444 (2d Cir. 2007). The Supreme Court, however, reversed the Second Circuit‘s decision, finding that the FCC‘s explanation of its decision was adequate; it left open the question whether censorship of fleeting expletives violates the First Amendment. Federal Communications Commission v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). Similarly, the FCC fined broadcast stations for broadcasting Janet Jackson‘s exposure of her breast for ninesixteenth of a second during a Super Bowl halftime show, but a federal court of appeals overturned the fine on non-constitutional grounds. CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). For additional information, including an analysis of whether prohibiting the broadcast of ―fleeting expletives‖ would violate the First Amendment, see CRS Report RL32222, Regulation of Broadcast Indecency: Background and Legal Analysis, by Kathleen Ann Ruane. 149 For additional information, see CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen. Restrictions on cable television intended to protect children are discussed in that report and also in this chapter under ―Radio and Television.‖ 150 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115 (1989); Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992). 151 521 U.S. 844 (1997).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Freedom of Speech and Press: Exceptions to the First Amendment 152

Id. at 874-875. American Civil Liberties Association v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), aff‟d, 217 F.3d 162 (3d Cir. 2000), vacated and remanded sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), aff‟d on remand, 322 F.3d 240 (3d Cir. 2003), aff‟d and remanded, 542 U.S. 656 (2004). See also, footnote 7 of this chapter. 154 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff‟d sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181, 198 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009). 155 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). 156 Bethel School District No. 463 v. Fraser, 478 U.S. 675 (1986). 157 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). 158 E.g., Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Romano v. Harrington, 725 F. Supp. 687 (E.D. N.Y. 1989). 159 Board of Education, Island Trees School District v. Pico, 457 U.S. 853, 864 (1982). The Court noted that ―nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools.‖ Id. at 871. 160 McConnell v. Federal Election Commission, 540 U.S. 93, 231-232 (2003). 161 127 S. Ct. 2618, 2624 (2007). 162 Id. at 2625. 163 Id. at 2636. 164 395 U.S. 367, 388 (1969). 165 438 U.S. 726, 729 (1978). 166 Id. at 748-749. In Action for Children‟s Television v. Federal Communications Commission (ACT III), 58 F.3d 654, 660 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996), the court of appeals, in upholding a ban on indecent broadcasts from 6 a.m. to 10 p.m., wrote: ―While we apply strict scrutiny to regulations of this kind regardless of the medium affected by them, our assessment of whether section 16(a) survives that scrutiny must necessarily take into account the unique context of the broadcast media.‖ See, ―Speech Harmful to Children,‖ supra. 167 Turner, 512 U.S. at 639. 168 Id. at 667-668. Attempting to apply this test, however, the Court found ―genuine issues of material fact still to be resolved‖ as to whether ―broadcast television is in jeopardy‖ and as to ―the actual effects of must-carry on the speech of cable operators and cable programmers.‖ It therefore remanded the case for further proceedings. On remand, the lower court upheld the must-carry rules, and the Supreme Court affirmed, finding ―that the mustcarry provisions further important governmental interests; and ... do not burden substantially more speech than necessary to further those interests.‖ Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180, 185 (1997). 169 518 U.S. 727 (1996). 170 Id. at 745. 171 Id. at 748. 172 Id. at 743. 173 Id. at 755. 174 Id. at 766. 175 529 U.S. 803 (2000). 176 South Dakota v. Dole, 483 U.S. 203, 206-207 (1987). 177 Perry v. Sindermann, 408 U.S. 593, 597 (1972) (striking down state university‘s refusal to renew teacher‘s contract because of his public criticism of the college administration). 178 468 U.S. 364 (1984). 179 See, id. at 400. 180 Rust v. Sullivan, 500 U.S. 173, 193 (1991). 181 Id. at 196. 182 Id. at 196. Thus, a grantee who accepts federal funds to operate a family planning clinic may be prohibited from using nonfederal funds to provide abortion counseling through the clinic, but may not be prohibited from using nonfederal funds to provide abortion counseling outside the clinic. 183 Id. at 213 (emphasis in original). 184 Id. at 200. 185 524 U.S. 569, 572 (1998). 186 Id. at 587. 187 Id. at 581. Justice Scalia, in a concurring opinion, claimed that this interpretation of the statute ―gutt[ed] it.‖ He believed that the statute ―establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional.‖ Id. at 590. 188 Id. at 585. 189 Id. at 588-589. 190 531 U.S. 533 (2001). 191 Id. at 541, 542. 153

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

33

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

34

Kathleen Ann Ruane

192

Id. at 544, 545, 546. 539 U.S. 194 (2003). 194 Id. at 203. 195 Id. 196 Id. at 205. 197 Id. at 211. 198 Id. at 212. 199 Id. at 213 (emphasis in original). 200 547 U.S. 47, 51 (2006). 201 Id. at 56. 202 Id. at 60. The Court stated that Congress‘s authority to directly require campus access for military recruiters comes from its Article I, section 8, powers to provide for the common defense, to raise and support armies, and to provide and maintain a navy. Id. at 58. 203 Id. at 60. 204 Id. at 64, 65. 205 Id at 67. The O‟Brien test is quoted in the text accompanying footnote 83, supra. 206 Id at 61, 62. Barnette and Wooley are cited, respectively, in footnote 130 and footnote 129, supra. 207 Id. at 63. The Court cited Hurley, supra footnote 133, and Tornillo, supra footnote 131131. 208 Id. at 65. 209 Id. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000). 210 Id. at 69. 211 391 U.S. 563, 568 (1968). 212 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). 213 Id., quoting Pickering, 391 U.S. at 568. 214 Pickering, 391 U.S. at 569-570. 215 416 U.S. 134, 140 (1974). 216 Id. at 162. 217 439 U.S. 410, 413 (1979). 218 461 U.S. 138 (1983). 219 Id. at 146-147. Subsequently, in Garcetti v. Ceballos, 547 U.S. at 418, the Court wrote that, if an employee did not speak as a citizen on a matter of public concern, then ―the employee has no First Amendment cause of action based on his or her employer‘s reaction to the speech.‖ See Connick, 461 U.S. at 147. 220 Id. at 154. 221 483 U.S. 378, 380 (1987). 222 Id. at 390-391. 223 See, e.g., Connick v. Myers, 461 U.S. at 152 (―Also relevant is the manner, time, and place in which the questionnaire was distributed.‖). 224 511 U.S. 661, 668 (1994). 225 Id. at 677 (emphasis in original). 226 Id. at 676, 677. 227 513 U.S. 454 (1995). 228 Id. at 466-468. 229 Id. at 477. 230 543 U.S. 77 (2004). 231 Id. at 84. 232 Id. 233 Id. at 80. 234 Garcetti, 547 U.S. at 421. 235 Id. 236 The Court cited Givhan for these points. The difference between Givhan and Ceballos was apparently that Givhan‘s complaints were not made pursuant to her job duties, whereas Ceballos‘ were. Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a government employee. See, 547 U.S. at 420-421. 237 Garcetti, 547 U.S. at 421. 238 518 U.S. 668, 670 (1996). 239 Id. at 673. 240 Id. at 685. 241 427 U.S. 347 (1976). 242 445 U.S. 507 (1980). 243 O‘Hare Truck Service, Inc. v. Northlake, 518 U.S. 712, 714 (1996). 244 Id. 245 Texas v. Johnson, 491 U.S. 397 (1989). 246 United States v. Eichman, 496 U.S. 310 (1990).

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

193

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Freedom of Speech and Press: Exceptions to the First Amendment 247

35

United States v. O‘Brien, 391 U.S. 367, 382 (1968). Id. at 383. 249 505 U.S. 377 (1992). 250 Texas v. Johnson, 491 U.S. at 417. 251 R.A. V., 505 U.S. at 384-385 (emphasis in original). 252 Id. at 386. 253 Id. at 391. 254 Id. at 396. 255 Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (emphasis added by the Court to its quotation of the statute). 256 Virginia v. Black, 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as ―a burning cross is not always intended to intimidate,‖ but may constitute a constitutionally protected expression of opinion. Id. at 365. 257 Id. at 363.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

248

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved. The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 2

REGULATION OF BROADCAST INDECENCY: BACKGROUND AND LEGAL ANALYSTS 

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY Two prominent television events placed increased attention on the Federal Communications Commission (FCC) and the broadcast indecency statute that it enforces. The airing of an expletive by Bono during the 2003 Golden Globe Awards, as well as the ―wardrobe malfunction‖ that occurred during the 2004 Super Bowl halftime show, gave broadcast indecency prominence in the 109th and 110th Congresses, and resulted in the enactment of P.L. 109-235 (2006), which increased the penalties for broadcast indecency by tenfold. Federal law makes it a crime to utter ―any obscene, indecent, or profane language by means of radio communication‖ (18 U.S.C. § 1464). Violators of this statute are subject to fines and imprisonment of up to two years, and the FCC may enforce this provision by forfeiture or revocation of a broadcaster‘s license. The FCC has found that, for material to be ―indecent,‖ it ―must describe or depict sexual or excretory organs or activities,‖ and ―must be patently offensive as measured by contemporary community standards for the broadcast medium.‖ The federal government‘s authority to regulate material that is ―indecent‖ but not obscene was upheld by the Supreme Court in Federal Communications Commission v. Pacifica Foundation, which found that prohibiting such material during certain times of the day does not violate the First Amendment. In 1992, Congress enacted P.L. 102-356 (47 U.S.C. § 303 note), section 16(a) of which, as interpreted by the courts, requires the FCC to prohibit ―indecent‖ material on broadcast radio and broadcast television from 6 a.m. to 10 p.m. Under P.L. 109-235, ―indecent‖ broadcasts are now subject to a fine of up to ―$325,000 for each violation or each day of 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated January 2010.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

38

Kathleen Ann Ruane

continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for any single act or failure to act.‖ Fines may be levied against broadcast stations, but not against broadcast networks. The FCC appears to have the statutory authority to fine performers as well (up to $32,500 per incident), but has taken the position that ―[c]ompliance with federal broadcast decency restrictions is the responsibility of the station that chooses to air the programming, not the performers.‖ The federal restriction on ―indecent‖ material applies only to broadcast media, and this stems from the fact that there are a limited number of broadcast frequencies available and that the Supreme Court, therefore, allows the government to regulate broadcast media more than other media. This chapter discusses the legal evolution of the FCC‘s indecency regulations, and provides an overview of how the current regulations have been applied. The final section of the report considers whether prohibiting the broadcast of ―indecent‖ words regardless of context would violate the First Amendment. This question arises because the Supreme Court in Pacifica left open the question whether broadcasting an occasional expletive, as in the Bono case, would justify a sanction.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

INTRODUCTION Two prominent television events placed increased attention on the Federal Communications Commission (FCC) and the broadcast indecency statute that it enforces.1 The airing of an expletive by Bono during the 2003 Golden Globe Awards, as well as the ―wardrobe malfunction‖ that occurred during the 2004 Super Bowl halftime show, gave broadcast indecency prominence in the 109th and 110th Congresses, and resulted in the enactment of P.L. 109-235 (2006), which increased the penalties for broadcast indecency by tenfold. Federal law makes it a crime to utter ―any obscene, indecent, or profane language by means of radio communication‖ (18 U.S.C. § 1464). Violators of this statute are subject to fines and imprisonment of up to two years, and the FCC may enforce this provision by forfeiture or revocation of a broadcaster‘s license. The FCC has found that, for material to be ―indecent,‖ it ―must describe or depict sexual or excretory organs or activities,‖ and ―must be patently offensive as measured by contemporary community standards for the broadcast medium.‖ The federal government‘s authority to regulate material that is ―indecent‖ but not obscene was upheld by the Supreme Court in Federal Communications Commission v. Pacifica Foundation, which found that prohibiting such material during certain times of the day does not violate the First Amendment. In 1992, Congress enacted P.L. 102-356 (47 U.S.C. § 303 note), section 16(a) of which, as interpreted by the courts, requires the FCC to prohibit ―indecent‖ material on broadcast radio and broadcast television from 6 a.m. to 10 p.m. Under P.L. 109-235, ―indecent‖ broadcasts are now subject to a fine of up to ―$325,000 for each violation or each day of continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for any single act or failure to act.‖ Fines may be levied against broadcast stations, but not against broadcast networks. The FCC appears to have the statutory authority to fine performers as well (up to $32,500 per incident), but has taken the position

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Regulation of Broadcast Indecency: Background and Legal Analysts

39

that ―[c]ompliance with federal broadcast decency restrictions is the responsibility of the station that chooses to air the programming, not the performers.‖ The federal restriction on ―indecent‖ material applies only to broadcast media, and this stems from the fact that there are a limited number of broadcast frequencies available and that the Supreme Court, therefore, allows the government to regulate broadcast media more than other media. It appears likely that a court would find that to apply the FCC‘s indecency restriction to cable or satellite media would violate the First Amendment.2 This chapter discusses the evolution of the FCC‘s indecency regulations, provides an overview of how the current regulations have been applied, and examines indecency legislation that was introduced in the 110th Congress. (The bill that increased penalties is the only such legislation that was enacted.) The final section of this chapter considers whether prohibiting the broadcast of ―indecent‖ words regardless of context would violate the First Amendment. This issue arises because the Supreme Court in Pacifica left open the question of whether broadcasting an occasional expletive, as in the Bono case, would justify a sanction.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

BACKGROUND On January 19, 2003, broadcast television stations in various parts of the country aired the Golden Globe Awards. During the awards, the singer Bono, in response to winning an award, said, ―this is really, really f[***]ing brilliant.‖3 In response to this utterance, the FCC received over 230 complaints alleging that the program was obscene or indecent, and requesting that the Commission impose sanctions on the licensees for the broadcast of the material in question.4 The Enforcement Bureau of the FCC issued a Memorandum Opinion and Order on October 3, 2003, denying the complaints and finding that the broadcast of the Golden Globe Awards including Bono‘s utterance did not violate federal restrictions regarding the broadcast of obscene and indecent material.5 The Bureau dismissed the complaints primarily because the language in question did not describe or depict sexual or excretory activities or organs. The Bureau noted that while ―the word ‗f[***]ing‘ may be crude and offensive,‖ it ―did not describe sexual or excretory organs or activities. Rather, the performer used the word ‗f[***]ing‘ as an adjective or expletive to emphasize an exclamation.‖6 The Bureau added that in similar circumstances it ―found that offensive language used as an insult rather than as a description of sexual or excretory activity or organs is not within the scope of the Commission‘s prohibition on indecent program content.‖7 The decision of the Enforcement Bureau was met with opposition from a number of organizations and Members of Congress, and an appeal was filed for review by the full Commission. FCC Chairman Michael Powell asked the full Commission to overturn the Enforcement Bureau‘s ruling.8 On March 18, 2004, the full Commission issued a Memorandum Opinion and Order granting the application for review and reversing the Enforcement Bureau‘s earlier opinion.9 The Commission found that the broadcasts of the Golden Globe Awards violated 18 U.S.C. 1464, but declined to impose a forfeiture on the broadcast licensees because the Order

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

40

Kathleen Ann Ruane

reverses Commission precedent regarding the broadcast of the ―F-word.‖ This decision is discussed in detail below. On February 1, 2004, CBS aired Super Bowl XXXVIII, with a halftime show produced by the MTV network. The show included performers singing and dancing provocatively, and ended with the exposure of the breast of one female performer. The network received numerous complaints regarding the halftime performance, and FCC Chairman Michael Powell initiated a formal investigation into the incident.10 On September 22, 2004, the FCC released a Notice of Apparent Liability for Forfeiture finding that the airing of the Super Bowl halftime show ―apparently violate[d] the federal restrictions regarding the broadcast of indecent material.‖11 The NAL imposes a forfeiture in the aggregate amount of $550,000 on Viacom Inc., the licensee or ultimate parent of the licensees with regard to whom the complaint was filed. 12 On March 15, 2006, the FCC issued a Forfeiture Order imposing a mandatory forfeiture in the amount of $550,000 on CBS for the airing of the 2004 Super Bowl halftime show. CBS appealed to the U.S. Court of Appeals for the Third Circuit, which, in 2008, invalidated the fine, but, in 2009, the Third Circuit‘s decision was vacated by the Supreme Court.13 This case is discussed in greater detail below.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

EVOLUTION OF THE FCC’S INDECENCY REGULATIONS Title 18 of the United States Code makes it unlawful to utter ―any obscene, indecent, or profane language by means of radio communication.‖14 Violators of this provision are subject to fines or imprisonment of up to two years. The Federal Communications Commission has the authority to enforce this provision by forfeiture or revocation of license. 15 The Commission‘s authority to regulate material that is indecent, but not obscene, was upheld by the Supreme Court in Federal Communications Commission v. Pacifica Foundation.16 In Pacifica, the Supreme Court affirmed the Commission‘s order regarding the airing of comedian George Carlin‘s ―Filthy Words‖ monologue.17 In that order, the Commission determined that the airing of the monologue, which contained certain words that ―depicted sexual and excretory activities in a patently offensive manner,‖ at a time ―when children were undoubtedly in the audience‖ was indecent and prohibited by 18 U.S.C. § 1464.18 Pursuant to the Court‘s decision, whether any such material is ―patently offensive‖ is determined by ―contemporary community standards for the broadcast medium.‖19 The Court noted that indecency is ―largely a function of context—it cannot be judged in the abstract.‖20 The Commission‘s order in the Pacifica case relied partially on a spectrum scarcity argument; i.e., that there is a scarcity of spectrum space so the government must license the use of such space in the public interest, and partially on ―principles analogous to those found in the law of nuisance.‖21 The Commission noted that public nuisance law generally aims to channel the offensive behavior rather than to prohibit it outright. For example, in the context of broadcast material, channeling would involve airing potentially offensive material at times when children are less likely to be in the audience. In 1987, the Commission rejected the spectrum scarcity argument as a sufficient basis for its regulation of broadcast indecency, but noted that it would continue to rely upon the validity of the public nuisance rationale, including channeling of potentially objectionable material.22 However, in its 1987 order, the Commission also stated that channeling based on a specific time of day was no longer a

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Regulation of Broadcast Indecency: Background and Legal Analysts

41

sufficient means to ensure that children were not in the audience when indecent material aired and warned licensees that indecent material aired after 10 p.m. would be actionable.23 The Commission further clarified its earlier Pacifica order, noting that indecent language was not strictly limited to the seven words at issue in the original broadcast in question, and that repeated use of those words was not necessary to find that material in question was indecent.24 The Commission‘s 1987 orders were challenged by parties alleging that the Commission had changed its indecency standard and that the new standard was unconstitutional. In Action for Children‟s Television v. Federal Communications Commission (ACT I), the United States Court of Appeals for the District of Columbia Circuit upheld the standard used by the Commission to determine whether broadcast material was indecent, but it vacated the Commission‘s order with respect to the channeling of indecent material for redetermination ―after a full and fair hearing of the times at which indecent material may be broadcast.‖25 Following the court‘s decision in Action for Children‟s Television (ACT I), a rider to the Commerce, Justice, State FY89 Appropriations Act required the FCC to promulgate regulations to ban indecent broadcasts 24 hours a day.26 The Commission followed the congressional mandate and promulgated regulations prohibiting all broadcasts of indecent material.27 The new regulations were challenged, and the United States Court of Appeals for the District of Columbia Circuit vacated the Commission‘s order.28 In so doing, the court noted that in ACT I it held that Commission ―must identify some reasonable period of time during which indecent material may be broadcast,‖ thus precluding a ban on such broadcasts at all times.29 In 1992, Congress enacted the Public Telecommunications Act of 1992, which required the FCC to promulgate regulations to prohibit the broadcasting of indecent material from 6 a.m. to midnight, except for broadcasts by public radio and television stations that go off the air at or before midnight, in which case such stations may broadcast indecent material beginning at 10 p.m.30 The Commission promulgated regulations as mandated in the act.31 The new regulations were challenged, and a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit subsequently vacated the Commission‘s order implementing the act and held the underlying statute unconstitutional.32 In its order implementing the act, the FCC set forth three goals to justify the regulations: (1) ensuring that parents have an opportunity to supervise their children‘s listening and viewing of over-the-air broadcasts; (2) ensuring the well being of minors regardless of supervision; and (3) protecting the right of all members of the public to be free of indecent material in the privacy of their homes.33 The court rejected the third justification as ―insufficient to support a restriction on the broadcasting of constitutionally protected indecent material,‖ but accepted the first two as compelling interests.34 Despite the finding of compelling interests in the first two, the court found that both Congress and the FCC had failed ―to tailor their efforts to advance these interests in a sufficiently narrow way to meet constitutional standards.‖35 Following the decision of the three-judge panel, the Commission requested a rehearing en banc.36 The case was reheard on October 19, 1994, and, on June 30, 1995, the full court of appeals held the statute unconstitutional insofar as it prohibited the broadcast of indecent material between the hours of 10 p.m. and midnight on non-public stations.37 In so doing, the court held that while the channeling of indecent broadcasts between midnight and 6 a.m. ―would not unduly burden the First Amendment,‖ the distinction drawn by Congress between public and non-public broadcasters ―bears no apparent relationship to the compelling

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

42

Kathleen Ann Ruane

government interests that [the restrictions] are intended to serve.‖38 The court remanded the regulations to the FCC with instructions to modify the regulations to permit the broadcast of indecent material on all stations between 10 p.m. and 6 a.m.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

CURRENT REGULATIONS Following the decision in ACT III, the Commission modified its indecency regulations to prohibit indecent broadcasts from 6 a.m. to 10 p.m.39 The modified regulations became effective August 28, 1995.40 These regulations have been enforced primarily with respect to radio broadcasts and thus have been applied more often to indecent language rather than to images.41 Under these regulations, broadcasts deemed indecent were subject to a forfeiture of up to $32,500 per violation,42 with the FCC‘s considering each utterance of an indecent word as a separate violation, rather than viewing the entire program as a single violation.43 Fines may be levied against broadcast stations, but not against broadcast networks. The FCC appears also to have the statutory authority to fine performers for uttering indecent words,44 but it has taken the position that ―[c]ompliance with federal broadcast decency restrictions is the responsibility of the station that chooses to air the programming, not the performers.‖45 On June 15, 2006, the President signed S. 193, 109th Congress, into law, and it became P.L. 109- 235, the Broadcast Decency Enforcement Act of 2005. This law increased the penalty for indecent broadcasts tenfold, to $325,000 for each violation, with a maximum of $3 million ―for any single act or failure to act.‖ This increased penalty may be levied against ―a broadcast station licensee or permittee; or ... an applicant for any broadcast license, permit, certificate, or other instrument or authorization issued by the Commission.‖ If the FCC were to change its policy and impose fines on performers, it could apparently do so only under the provision (which remains in effect) that authorizes forfeitures of up to $32,500 per violation.46 To determine whether broadcast material is in fact indecent, the Commission must make two fundamental determinations: (1) that the material alleged to be indecent falls within the subject matter scope of the definition of indecency—the material in question must describe or depict sexual or excretory organs or activities; and (2) that the broadcast is patently offensive as measured by contemporary community standards for the broadcast medium.47 If the material in question does not fall within the subject matter scope of the indecency definition, or if the broadcast occurred during the ―safe harbor‖ hours (between 10 p.m. and 6 a.m.), the complaint is usually dismissed. However, if the Commission determines that the complaint meets the subject matter requirements and was aired outside the ―safe harbor‖ hours, the broadcast in question is evaluated for patent offensiveness. The Commission notes that in determining whether material is patently offensive, the full context is very important, and that such determinations are highly fact- specific. The Commission has identified three factors that have been significant in recent decisions in determining whether broadcast material is patently offensive: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Regulation of Broadcast Indecency: Background and Legal Analysts

43

sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.48

A discussion of cases that address each of these factors follows.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Explicitness or Graphic Nature of Material Generally, the more explicit or graphic the description or depiction, the greater the likelihood that the material will be deemed patently offensive and therefore indecent. For example, the Commission imposed a forfeiture on a university radio station for airing a rap song that included a line depicting anal intercourse.49 In that case, the Commission determined that the song described sexual activities in graphic terms that were patently offensive and therefore indecent. Since the song was broadcast in the mid-afternoon, there was a reasonable risk that children were in the audience, thus giving rise to the Commission‘s action.50 Broadcasts need not be as graphic as the song in the above case to give rise to the imposition of an FCC forfeiture. Broadcasts consisting of double entendres or innuendos may also be deemed indecent if the ―sexual or excretory import is unmistakable.‖ The FCC issued a notice of apparent liability and imposed a forfeiture on several stations for airing a song that included the following lines: ―I whipped out my Whopper and whispered, Hey, Sweettart, how‘d you like to Crunch on my Big Hunk for a Million Dollar Bar? Well, she immediately went down on my Tootsie Roll and you know, it was like pure Almond Joy.‖51 The Commission determined that the material was indecent even though it used candy bar names to substitute for sexual activities. In one notice concerning the broadcast of the song, the Commission stated that ―[w]hile the passages arguably consist of double entendre and indirect references, the language used in each passage was understandable and clearly capable of specific sexual meaning and, because of the context, the sexual import was inescapable.‖52 The nature of the lyrics, coupled with the fact that the song aired between 6 a.m. and 10 a.m., gave rise to the imposition of a forfeiture.

Dwelling or Repetition of Potentially Offensive Material Repetition of and persistent focus on a sexual or excretory activity could ―exacerbate the potential offensiveness of broadcasts.‖ For example, the FCC issued a notice of apparent liability and imposed a forfeiture on a radio station that broadcast an extensive discussion of flatulence and defecation by radio personality ―Bubba, the Love Sponge.‖53 Though the broadcast did not contain any expletives, the Commission found that the material dwelt on excretory activities and therefore was patently offensive. While repetition can increase the likelihood that references to sexual or excretory activities are deemed indecent, where such references have been made in passing or are fleeting in nature, the Commission has found that the reference was not indecent even when profanity has been used.54 For example, the Commission determined that the following phrase—‖The hell I did, I drove mother-f[***]er, oh.‖—uttered by an announcer during a

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

44

Kathleen Ann Ruane

radio morning show, was not indecent.55 The Commission declined to take action regarding the broadcast because it contained only a ―fleeting and isolated utterance ... within the context of live and spontaneous programming.‖56 Certain fleeting references may, however, be found indecent where other factors contribute to the broadcast‘s patent offensiveness. For example, the Commission has imposed forfeitures on stations for airing jokes that refer to sexual activities with children.57

Pandering or Titillating Nature of Material

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In determining whether broadcast material is indecent, the Commission also looks to the purpose for which the material is being presented. Indecency findings generally involve material that is presented in a pandering or titillating manner, or material that is presented for the shock value of its language. For example, the Commission deemed a radio call-in survey about oral sex to be indecent based in part on the fact that the material was presented in a pandering and titillating manner.58 Whether a broadcast is presented in a pandering or titillating manner depends on the context in which the potentially indecent material is presented. Explicit images or graphic language does not necessarily mean that the broadcast is being presented in a pandering or titillating manner. For example, the Commission declined to impose a forfeiture on a television station for airing portions of a high school sex education class that included the use of ―sex organ models to demonstrate the use of various birth control devices.‖59 In dismissing the complaint, the Commission held that, ―[a]lthough the program dealt with sexual issues, the material presented was clinical or instructional in nature and not presented in a pandering, titillating, or vulgar manner.‖60

GOLDEN GLOBE AWARDS DECISION As noted above, on March 18, 2004, the Federal Communications Commission overturned an earlier decision by the Commission‘s Enforcement Bureau regarding the broadcast of the word ―f[***]ing‖ during the 2003 Golden Globe Awards. In the earlier decision, the Enforcement Bureau had found that the broadcast of the program including the utterance did not violate federal restrictions regarding the broadcast of obscene and indecent material.61 The Bureau dismissed the complaints primarily because the language in question did not describe or depict sexual or excretory activities or organs. In its March 18 Memorandum Opinion and Order, the full Commission concluded that the broadcast of the Golden Globe Awards did include material that violated prohibitions on the broadcast of indecent and profane material.62 In reversing the Bureau, the Commission determined that the ―phrase at issue is within the scope of our indecency definition because it does depict or describe sexual activities.‖63 Although the Commission ―recognize[d] NBC‘s argument that the ‗F-Word‘ here was used ‗as an intensifier,‘‖ it nevertheless concluded that, ―given the core meaning of the ‗F-Word,‘ any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition.‖64

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Regulation of Broadcast Indecency: Background and Legal Analysts

45

Upon finding that the phrase in question fell within the first prong of the definition of ―indecency,‖ the Commission turned to the question of whether the broadcast was patently offensive under contemporary community standards for the broadcast medium. The Commission determined that the broadcast was patently offensive, noting that ―[t]he ‗FWord‘ is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,‖ and that ―[t]he use of the ‗F-Word‘ here, on a nationally telecast awards ceremony, was shocking and gratuitous.‖65 The Commission also rejected ―prior Commission and staff action [that] have indicated that isolated or fleeting broadcasts of the ‗F-Word‘ such as that here are not indecent or would not be acted upon,‖ concluding ―that any such interpretation is no longer good law.‖66 The Commission further clarified its position, stating ―that the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.‖67 In addition to the determination that the utterance of the word ―f[** *]ing‖ during the Golden Globe Awards was indecent, the Commission also found, as an independent ground for its decision, that use of the word was ―profane‖ in violation of 18 U.S.C. 1464.68 In making this determination, the Commission cited dictionary definitions of ―profanity‖ as ―‗vulgar, irreverent, or coarse language,‘‖69 and a Seventh Circuit opinion stating that ―profanity‖ is ―‗construable as denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.‘‖70 The Commission acknowledged that its limited case law regarding profane speech has focused on profanity in the context of blasphemy, but stated that it would no longer limit its definition of profane speech in such manner. Pursuant to its adoption of this new definition of ―profane,‖ the Commission stated that, depending on the context, the ―‗F- Word‘ and those words (or variants thereof) that are as highly offensive as the ‗F-Word‘‖ would be considered ―profane‖ if broadcast between 6 a.m. and 10 p.m.71 The Commission noted that other words would be considered on a case-by-case basis.

SUPER BOWL HALFTIME SHOW DECISION As noted above, on September 22, 2004, the FCC released a Notice of Apparent Liability for Forfeiture imposing a $550,000 forfeiture on several Viacom-owned CBS affiliates for the broadcast of the Super Bowl XXXVIII halftime show on February 1, 2004, in which a performer‘s breast was exposed.72 The Commission determined that the show, which was aired at approximately 8:30 p.m. Eastern Standard Time, violated its restrictions on the broadcast of indecent material. In its analysis, the Commission determined that since the broadcast included a performance that culminated in ―on-camera partial nudity,‖ and thus satisfied the first part of the indecency analysis, further scrutiny was warranted to determine whether the broadcast was ―patently offensive as measured by contemporary community standards for the broadcast medium.‖73 The Commission found that the performance in question was ―both explicit and graphic,‖ and rejected the licensees‘ contention that since the exposure was fleeting, lasting only 19/32 of a second, it should not be deemed indecent.74 In determining whether the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

46

Kathleen Ann Ruane

material in question was intended to ―pander to, titillate and shock the viewing audience,‖ the Commission noted that the performer‘s breast was exposed after another performer sang, ―gonna have you naked by the end of this song.‖75 The Commission found that the song lyrics, coupled with simulated sexual activities during the performance and the exposure of the breast, indicated that the purpose of the performance was to pander to, titillate and shock the audience, and the fact that the actual exposure of the breast was brief, as noted above, was not dispositive.76 The Commission ordered each Viacom-owned CBS affiliate to pay the statutory maximum forfeiture of $27,500 for the broadcast, for a total forfeiture of $550,000. The forfeiture was imposed on the Viacom-owned affiliates because of Viacom‘s participation in and planning of the Super Bowl halftime show with MTV networks, another Viacom subsidiary.77 Following the issuance of the Notice of Apparent Liability for Forfeiture, the affiliates are ―afforded a reasonable period of time (usually 30 days from the date of the notice) to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture.‖78 CBS filed an opposition to the Notice of Apparent Liability on November 5, 2004. The opposition challenged the forfeiture on various grounds, including that the test for indecency was not met and that the forfeiture violates the First Amendment. On March 15, 2006, the FCC issued a Forfeiture Order imposing a mandatory forfeiture in the amount of $550,000 on CBS for the airing of the 2004 Super Bowl halftime show.79 CBS appealed to the U.S. Court of Appeals for the Third Circuit, which, on July 21, 2008, invalidated the fine, but, on May 4, 2009, the Supreme Court vacated the Third Circuit‘s decision.80 The court‘s decision is discussed in greater detail below.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

OTHER RECENT ENFORCEMENT ACTIONS In addition to the Order regarding the 2004 Super Bowl halftime show, the FCC issued several Notices of Apparent Liability for various television broadcasts occurring between February 2, 2002, and March 8, 2005.81 Of the six programs for which a forfeiture was proposed, two of the complaints were based on the use of ―indecent‖ language, two were based on sexually explicit images, and two programs were cited for both language and sexual innuendo.82 In determining whether a forfeiture was appropriate, the Commission applied the modified analysis first used in the Golden Globe Awards Order with respect to language that is deemed ―indecent,‖ and in the Super Bowl Halftime Show Order regarding sexually explicit imagery.83 In addition to the Commission‘s recent actions with respect to televised programming, the Commission had previously imposed forfeitures on a number of radio stations for broadcast indecency.84 We now discuss two of its more recent high-profile actions related to radio programming. Each of these actions resulted in a consent decree between the Commission and the broadcaster.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Regulation of Broadcast Indecency: Background and Legal Analysts

47

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Infinity Broadcasting On October 2, 2003, the Commission issued a Notice of Apparent Liability to Infinity Broadcasting for airing portions of the ―Opie & Anthony Show‖ during which the hosts conducted a contest entitled ―Sex for Sam‖ which involved couples having sex in certain ―risky‖ locations throughout New York City in an effort to win a trip.85 The couples, accompanied by a station employee, were to have sex in as many of the designated locations as possible. They were assigned points based on the nature of the location and the activities in which they engaged. The station aired discussions between the hosts of the show and the station employee accompanying the couples which consisted of descriptions of the sexual activities of the participating couples and the locations in which they engaged in sexual activities. One discussion involved an description of a couple apparently engaging in sexual activities in St. Patrick‘s Cathedral. The Commission determined that the broadcast made ―graphic and explicit references to sexual and excretory organs and activity‖ despite the fact that colloquial terms, rather than explicit or graphic terms, were used in the descriptions. The Commission found that ―[t]o the extent that the colloquial terms that the participants used to describe organs and activities could be described as innuendo rather than as direct references, they are nonetheless sufficient to render the material actionably indecent because the ‗sexual [and] excretory import‘ of those references was ‗unmistakable.‘‖86 The Commission also found that the hosts of the show ―dwelled at length on and referred repeatedly to sexual or excretory activities and organs,‖ and that ―the descriptions of sexual and excretory activity and organs were not in any way isolated and fleeting.‖87 On November 23, 2004, the FCC entered into a consent decree with Infinity regarding the Opie & Anthony NAL.88 Pursuant to the decree, Infinity, a subsidiary of Viacom, agreed to make a voluntary contribution to the United States Treasury in the amount of $3.5 million and to adopt a company-wide compliance plan for the purpose of preventing the broadcast of indecent material. As part of the company-wide plan, Viacom agreed to install delay systems to edit ―potentially problematic‖ live programming and to conduct training with respect to indecency regulations for all of its on-air talent and employees who participate in programming decisions.

Clear Channel Broadcasting On January 27, 2004, the Commission issued a Notice of Apparent Liability to Clear Channel Broadcasting for repeated airings of the ―Bubba, the Love Sponge‖ program which included indecent material.89 The Commission found that all the broadcasts in question involved ―conversations about such things as oral sex, penises, testicles, masturbation, intercourse, orgasms and breasts.‖90 The Commission determined that each of the broadcasts in question contained ―sufficiently graphic and explicit references,‖ which were generally repeated throughout the broadcast in a pandering and titillating manner. In one broadcast, the station aired a segment involving skits in which the voices of purported cartoon characters talk about drugs and sex.91 The skits were inserted between advertisements for Cartoon Network‘s Friday-night cartoons. The Commission determined

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

48

Kathleen Ann Ruane

that ―the use of cartoon characters in such a sexually explicit manner during hours of the day when children are likely to be listening is shocking and makes this segment patently offensive.‖92 The Commission also cited the ―calculated and callous nature of the stations‘ decision to impose this predictably offensive material upon young, vulnerable listeners‖ as ―weighing heavily‖ in its determination.93 On April 8, 2004, the Commission released another Notice of Apparent Liability against Clear Channel Communications for airing allegedly indecent material during the ―Howard Stern Show.‖94 For the first time, the Commission sought to impose separate statutory maximum forfeitures for each indecent utterance during the program in question, rather than imposing a single fine for the entire program.95 The Commission entered into a consent decree with Clear Channel on June 9, 2004. The decree requires Clear Channel to make a ―voluntary contribution‖ of $1.75 million to the United States Treasury and outlines ―a company-wide compliance plan for the purpose of preventing the broadcast over radio or television of material violative of the indecency laws.‖96 As part of the compliance plan, Clear Channel will ―conduct training on obscenity and indecency for all on-air talent and employees who materially participate in programming decisions, which will include tutorials regarding material that the FCC does not permit broadcasters to air.‖97 The plan also requires Clear Chanel to suspend any employee accused of airing, or who materially participates in the decision to air, obscene or indecent material while an investigation is conducted following the issuance of a Notice of Apparent Liability. Such employees will be terminated without delay if the NAL results in enforcement action by the FCC.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

RECENT SUPREME COURT AND APPEALS COURT DECISIONS Two major cases were decided by federal courts of appeals in 2007 and 2008. Both cases invalidated forfeiture orders the FCC had issued against broadcasters for transmitting fleeting indecent material over the airwaves. In April of 2009, the Supreme Court overturned the decision of the appeals court in the first case, and ordered the decision in the second case to be reconsidered.

Fox Television Stations, Inc. v. FCC The FCC had taken action against, among other broadcasts, two award shows, described in an Associated Press article as, ―a December 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase, ‗F—- ‘em,‘ and a December 10, 2003, Billboard awards show in which reality show star Nicole Richie said: ‗Have you ever tried to get cow s—- out of a Prada purse? It‘s not so f———simple.‘‖98 These incidents raised the same questions that the FCC‘s action against the Bono expletive raised: whether a fleeting isolated expletive is ―indecent‖ under federal law, and, if so, whether the First Amendment permits the FCC to enforce the law by punishing broadcasters for such utterances. On June 4, 2007, the U.S. Court of Appeals for the Second Circuit, in a 2-1 decision, found ―that the FCC‘s new policy regarding ‗fleeting expletives‘ represent[ed] a significant

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Regulation of Broadcast Indecency: Background and Legal Analysts

49

departure from positions previously taken by the agency and relied on by the broadcast industry.‖99 The court further found ―that the FCC ha[d] failed to articulate a reasoned basis for this change in policy. Accordingly, [the court held] that the FCC‘s new policy regarding ‗fleeting expletives‘ [was] arbitrary and capricious under the Administrative Procedure Act.‖100 Having overturned the FCC policy on statutory grounds, the court had no occasion to decide whether it also violated the First Amendment. It explained, however, why it was ―skeptical that the Commission can provide a reasonable explanation for its ‗fleeting expletive‘ regime that would pass constitutional muster.‖101 The final section of this chapter examines this aspect of the court‘s opinion. On April 28, 2009, the Supreme Court, in a 5-4 ruling, overturned the decision of the Second Circuit.102 The Court found that the policy shift of the FCC was ―entirely rational.‖103 The Court found that the Second Circuit had relied on an erroneous interpretation of Supreme Court precedent when measuring the adequacy of the FCC‘s reasoning for its policy shift. According to the Court, the Second Circuit had applied a heightened standard of review to agency decisions that effect changes in prior policy. The Second Circuit interpreted that Supreme Court precedent to require the agency to articulate ―why the new rule effectuates the statute as well or better than the old rule.‖104 The Supreme Court found no basis in its precedent or in the Administrative Procedure Act for such a requirement. The Court explained that the opinion upon which the Second Circuit had relied did not require agencies to articulate reasons for policy changes that were more substantial than those required to adopt a policy in the first instance. The precedent held, rather, that new actions required ―a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.‖105 The FCC need not have demonstrated that the reasons for its new policies were better than the reasons for the old one. It was sufficient for the agency to show that the new policy is permissible under the statute, there are good reasons for it, and the agency believes it to be better, ―which the conscious change of course adequately indicates.‖106 Applying this standard to the FCC‘s rule change, the Court found that the FCC‘s actions were not arbitrary or capricious. The FCC acknowledged that its actions represented a shift from prior policy. The Court also found the agency‘s reasons for its policy change were ―entirely rational,‖ because it was not unreasonable to treat literal and nonliteral uses of expletives in the same way. It was also reasonable, in the Court‘s estimation, to find even isolated utterances to fit within the definition of indecency. As a result, the Court upheld the FCC‘s new policy on enforcement of ―fleeting expletives.‖ The Court, however, declined to rule on the constitutionality of the policy.107

CBS Corp. v. FCC On July 21, 2008, the U.S. Court of Appeals for the Third Circuit issued a unanimous decision to invalidate the FCC‘s fine against CBS broadcasting station affiliates for the broadcast of the Super Bowl Halftime Show that included a brief instance of partial nudity.108 The court decided to invalidate the fine because the FCC had acted arbitrarily and capriciously when finding that the brief nudity was actionably indecent.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

50

Kathleen Ann Ruane

In its review of the FCC‘s previous actions in this area, the Court noted that the FCC has the power to regulate indecency over the broadcast airwaves, but for much of the FCC‘s history the agency maintained an exception for fleeting instances of indecency. 109 The Commission argued that its policy exempting fleeting instances of indecency over broadcast from enforcement applied only to fleeting indecent language and not to images.110 The FCC claimed that fleeting indecent images had always been subject to enforcement; therefore, there was no departure from the FCC‘s previous approach to sanctions regarding such images. As a result, the FCC argued that the agency did not have to articulate a reasoned basis for its shift in policy, and it provided none. The Court examined the FCC‘s claim that the agency had previously made the distinction between images and language and that indecent fleeting images had always been subject to FCC enforcement.111 The Court found those claims to be unfounded. In its review of the FCC‘s previous decisions, the court could find no distinction between the way the agency treated fleeting indecent language as opposed to indecent images.112 The court cited instances in which the FCC declined to issue fines for fleeting indecent images. In declining to institute enforcement actions, the agency had stated that the images were fleeting and covered by its policy of nonenforcement.113 The court decided, on that basis, that the FCC‘s decision to consider the fleeting indecent image broadcast during the Halftime Show to be actionable was a shift in the FCC‘s policy towards the enforcement against such images. Because the agency had decided to implement a policy shift, the agency was required to articulate a reasoned basis for doing so in order for the departure to be valid under the Administrative Procedure Act.114 As noted above, the FCC argued that its policy toward fleeting indecent images had not changed. Consequently, the FCC articulated no reason for the shift in policy identified by the court of appeals. Because the FCC provided no basis for its departure from previous enforcement practices, the Court held that the deviation from the prior policy of restraining from enforcement against fleeting images was arbitrary and capricious to the extent that it violated the APA.115 The fine, therefore, could not be imposed on CBS for two reasons. First, the underlying policy shift was invalid, having no reasoned basis. Second, even if the policy had a reasoned basis, the enforcement action against CBS represented the first time that the FCC had articulated its intention to take action against fleeting indecent images (assuming, as the Commission argued, that it had not done so in its Golden Globes decision). The new policy could not be applied retroactively to fine CBS in this case.116 The court did not consider whether a policy punishing fleeting indecent images over broadcast television would violate the First Amendment. The FCC petitioned the Supreme Court for certiorari.117 On May 4, 2009, the Court granted the petition, vacated the judgment, and remanded the case to the Third Circuit for further consideration in light of the Supreme Court‘s decision in FCC v. Fox Television Stations, Inc.118

Current Status The question now to be decided by the courts seems to be whether punishment of a single occurrence of an indecent image or word over a broadcast frequency is constitutional under the First Amendment. Justice Thomas, in his concurring opinion in Fox Television Stations,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Regulation of Broadcast Indecency: Background and Legal Analysts

51

Inc. v. FCC, indicated that he would be open to considering whether a rule that punishes the single occurrence of indecency is constitutional. It remains to be seen if the Second or Third Circuit Courts of Appeal will address the question of the rule‘s constitutionality on remand, thereby opening the question to consideration of the Supreme Court, should the Court choose to hear the case.

WOULD PROHIBITING THE BROADCAST OF ―INDECENT‖ WORDS REGARDLESS OF CONTEXT VIOLATE THE FIRST AMENDMENT?

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In 1978, in Federal Communications Commission v. Pacifica Foundation, the Supreme Court upheld, against a First Amendment challenge, an action that the FCC took against a radio station for broadcasting a recording of George Carlin‘s ―Filthy Words‖ monologue at 2 p.m.119 The Court has not decided a case on the issue of ―indecent‖ speech on broadcast radio or television since then, but it did cite Pacifica with approval in 1997, when, in Reno v. ACLU, it contrasted regulation of the broadcast media with regulation of the Internet.120 Nevertheless, the Court in Reno did not hold that Pacifica remains good law, and arguments have been made that the proliferation of cable television channels has rendered archaic Pacifica‘s denial of full First Amendment rights to broadcast media. Even if Pacifica remains valid, Pacifica did not hold that the First Amendment permits the ban either of an occasional expletive on broadcast media, or of programs that would not be likely to attract youthful audiences, even if such programs contain ―indecent‖ language. On these points, Justice Stevens wrote for the Court in Pacifica: It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction.... The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience.121

In a footnote to the last sentence of this quotation, the Court added: ―Even a prime-time recitation of Geoffrey Chaucer‘s Miller‘s Tale would not be likely to command the attention of many children.‖122 At the same time, Justice Stevens acknowledged that the Carlin monologue has political content: ―The monologue does present a point of view; it attempts to show that the words it uses are ‗harmless‘ and that our attitudes toward them are ‗essentially silly.‘ The Commission objects, [however,] not to this point of view, but to the way in which it is expressed.‖123 The Court commented: ―If there were any reason to believe that the Commission‘s characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words—First Amendment protection might be required.‖124 There appears to be some tension between this comment and the Court‘s remark about Chaucer, as any attempt to censor Chaucer would presumably also be based not on its ideas but on the way its ideas are expressed. But, as noted above, the Court‘s remark about Chaucer was a footnote to its comment that ―[t]he content of the program in which the language is

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

52

Kathleen Ann Ruane

used will also affect the composition of the audience.‖ Therefore, the difference that Justice Stevens apparently perceived between Chaucer and Carlin was that, even if both have literary, artistic, or political value, only the latter would be likely to attract a youthful audience. Arguably, then, Pacifica would permit the censorship, during certain hours, of the broadcast even of works of art that are likely to attract a youthful audience.125 If so, this would be contrary to the Court‘s opposition, in other contexts, to the censorship of works of art. The Court has held that even ―materials [that] depict or describe patently offensive ‗hard core‘ sexual conduct,‖ which would otherwise be obscene, may not be prohibited if they have ―serious literary, artistic, political, or scientific value.‖126 In addition, the ―harmful to minors‖ statutes of the sort that the Supreme Court upheld in Ginsberg v. New York generally define ―harmful to minors‖ to parallel the Supreme Court‘s definition of ―obscenity,‖ and thus prohibit distributing to minors only material that lacks serious value for minors.127 This suggests that, if the FCC or Congress prohibited the broadcast during certain hours of ―indecent‖ words regardless of context, the Court might be troubled by the prohibition‘s application to works with serious value, even though Pacifica allowed the censorship of Carlin‘s monologue, despite its apparently having serious value. Yet, Justice Stevens noted a distinction in Pacifica between a point of view and the way in which it is expressed, and, though a majority of the justices did not join the part of the opinion that drew this distinction, a majority of the justices, by concurring in Pacifica‘s holding, indicated that the political (or literary or artistic) content of Carlin‘s monologue did not prevent its censorship during certain hours on broadcast radio and television. Therefore, it appears that, in deciding the constitutionality of an FCC or a congressional action prohibiting the broadcasting, during certain hours, of material with ―indecent‖ words, the Court might be troubled by its application to works with serious value only if those works would, like Chaucer‘s, not be likely to attract a substantial youthful audience. In sum, the Court did not hold that the FCC could prohibit an occasional expletive, and did not hold that the FCC could prohibit offensive words in programs—even prime-time programs—that children would be unlikely to watch or listen to. The Court did not hold that the FCC could not take these actions, as the question whether it could was not before the Court. But the Court‘s language quoted above renders Pacifica of uncertain precedential value in deciding whether a ban, during certain hours, on the broadcast of ―indecent‖ words regardless of context would be constitutional. In the ―Filthy Words‖ monologue, as the Supreme Court described it, George Carlin ―began by referring to his thoughts about ‗the words you couldn‘t say on the public, ah, airwaves, um, the ones you definitely wouldn‘t say, ever.‘ He proceeded to list those words and repeat them over and over in a variety of colloquialisms.‖ The FCC, at the time, used essentially the same standard for ―indecent‖ that it uses today: ―[T]he concept of ‗indecent‘ is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs.‖128 Most of Carlin‘s uses of the ―filthy words,‖ it appears from reading his monologue, which is included as an appendix to the Court‘s opinion, seem designed to show the words‘ multiple uses, apart from describing sexual or excretory activities or organs. Nevertheless, ―the Commission concluded that certain words depicted sexual or excretory activities in a patently offensive manner.‖129 Therefore, one might argue that, even if, under Pacifica, the First Amendment does not protect, during certain hours, the use on broadcast media of words

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Regulation of Broadcast Indecency: Background and Legal Analysts

53

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

that depict sexual or excretory activities in a patently offensive manner, it nevertheless might protect the use of those same words ―as an adjective or expletive to emphasize an exclamation‖ (to quote the FCC Enforcement Bureau‘s opinion in the Bono case). A counterargument might be that, in Pacifica, the Court noted that ―the normal definition of ‗indecent‘ merely refers to nonconformance with accepted standards of morality.‖130 This suggests the possibility that the Court would have ruled the same way in Pacifica if the FCC had defined ―indecent‖ loosely enough to include the use of a patently offensive word ―as an adjective or expletive to emphasize an exclamation.‖ But this is speculative, as the Court did not so rule. Further, as noted above, Court emphasized the narrowness of its holding, noting that it had ―not decided that an occasional expletive ... would justify any sanction.‖ On what basis did the Court in Pacifica find that the FCC‘s action did not violate the First Amendment? In Part IV-C of opinion, which was joined by a majority of the justices, Justice Stevens wrote: [O]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve ―the public interest, convenience, and necessity.‖ Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but in the privacy of the home, where the individual‘s right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U.S. 728.... To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. Second, broadcasting is uniquely accessible to children, even those too young to read.... Bookstores and motion picture theaters ... may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the government‘s interest in the ―well-being of its youth‖ and in supporting ―parents‘ claim to authority in their own household‖ justified the regulation of otherwise protected expression.131

In sum, the Court held that, on broadcast radio and television, during certain times of day, certain material may be prohibited because (1) it is patently offensive and indecent, and (2) it threatens the well-being of minors and their parents‘ authority in their own household. This raises the question of the extent to which the Court continues to allow the government (1) to treat broadcast media differently from other media, and (2) to censor speech on the ground that it is patently offensive and indecent, or threatens the well-being of minors and their parents‘ authority in their own household.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

54

Kathleen Ann Ruane

Broadcast Media In Red Lion Broadcasting Co. v. FCC, which the Court cited in the above quotation from Pacifica, the Court upheld the FCC‘s ―fairness doctrine,‖ which ―imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.‖132 The reason that the Court upheld the imposition of the fairness doctrine on broadcast media, though it would not uphold its imposition on print media, is that ―[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.‖133 ―Licenses to broadcast,‖ the Court added, ―do not confer ownership of designated frequencies, but only the temporary privilege of using them. 47 U.S.C. § 301. Unless renewed, they expire within three years. 47 U.S.C. § 307(d). The statute mandates the issuance of licenses if the ‗public convenience, interest, or necessity will be served thereby.‘ 47 U.S.C. § 307(a).‖134 The Court in Red Lion then noted: It is argued that even if at one time the lack of available frequencies for all who wished to use them justified the Government‘s choice of those who would best serve the public interest ... this condition no longer prevails so that continuing control is not justified. To this there are several answers. Scarcity is not entirely a thing of the past. 135

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

With the plethora of cable channels today, has spectrum scarcity now become a thing of the past? In Turner Broadcasting System, Inc. v. FCC, the Court held that the scarcity rationale does not apply to cable television: [C]able television does not suffer from the inherent limitations that characterize the broadcast medium.... [S]oon there may be no practical limitation on the number of speakers who may use the cable medium. Nor is there any danger of physical interference between two cable speakers attempting to use the same channel. In light of these fundamental technological differences between broadcast and cable transmission, application of a more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation.136

One might argue that, if the scarcity rationale does not apply to cable television, then it should not apply to broadcast television either, because a person who because of scarcity cannot start a broadcast channel can start a cable channel.137 But the Court has not ruled on the question; in Turner it wrote: ―Although courts and commentators have criticized the scarcity rationale since its inception, we have declined to question its continuing validity as support for our broadcast jurisprudence, and see no reason to do so here.‖138 In 1987, however, the FCC abolished the fairness doctrine, on First Amendment grounds, noting that technological developments and advancements in the telecommunications marketplace have provided a basis for the Supreme Court to reconsider its holding in Red Lion. The FCC‘s decision was upheld by the U.S. Court of Appeals for the District of Columbia, and the Supreme Court declined to review the case. 139 The court of appeals did not rule on constitutional grounds, but rather concluded ―that the FCC‘s decision that the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Regulation of Broadcast Indecency: Background and Legal Analysts

55

fairness doctrine no longer served the public interest was neither arbitrary, capricious nor an abuse of discretion, and [we] are convinced that it would have acted on that finding to terminate the doctrine even in the absence of its belief that the doctrine was no longer constitutional.‖140 But, whether or not spectrum scarcity has become a thing of the past, it would apparently would not today justify governmental restrictions on ―indecent‖ speech. This is because, subsequent to the Court in Turner declining to question the applicability of the scarcity rationale to broadcast media, a plurality of justices noted, in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, that, though spectrum scarcity continued to justify the ―structural regulations at issue there [in Turner] (the ‗must carry‘ rules), it has little to do with a case that involves the effects of television viewing on children. Those effects are the result of how parents and children view television programming, and how pervasive and intrusive that programming is. In that respect, cable and broadcast television differ little, if at all.‖141 The plurality therefore upheld a federal statute that permits cable operators to prohibit indecent material on leased access channels. Thus, it appears that the Court today would not cite spectrum scarcity to justify restrictions on ―indecent‖ material on broadcast media, but it might cite broadcast media‘s pervasiveness and intrusiveness. Subsequent to Denver Area, in United States v. Playboy Entertainment Group, Inc., the Court held that cable television has full First Amendment protection; i.e., content-based restrictions on cable television receive strict scrutiny. 142 Thus, if, as the Court said in Denver Area, cable and broadcast media differ little, if at all, with respect to the regulation of ―indecent‖ material, and, if, as the Court said in Playboy, cable television receives strict scrutiny, then, arguably, broadcast media would also receive strict scrutiny with regard to restrictions on ―indecent‖ material. 143 It is possible, however, that, if cable and broadcast media differ little, then the Court might apply Pacifica to both broadcast and cable, rather than to neither.144 In any event, as noted above, even if the Court were to continue to apply Pacifica to restrictions on broadcast media, this does not necessarily mean that it would uphold a ban on the broadcast of ―indecent‖ language regardless of context, as Pacifica did not hold that an occasional expletive would justify a sanction.

Strict Scrutiny We now consider the analysis that the Court might apply if it chooses not to apply Pacifica in deciding the constitutionality of a ban on the broadcast of ―indecent‖ language regardless of context. The Court in Pacifica, as noted, offered two reasons why the FCC could prohibit offensive speech on broadcast media: ―First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but in the privacy of the home.... Second, broadcasting is uniquely accessible to children, even those too young to read,‖ and the government has an interest in the ―well-being of its youth‖and ―in supporting ‗parents‘ claim to authority in their own household.‘‖ The first of these reasons apparently refers to adults as well as to children. Ordinarily, when the government restricts speech, including ―indecent‖ speech, on the basis of its content, the restriction, if challenged, will be found constitutional only if it

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

56

Kathleen Ann Ruane

satisfies ―strict scrutiny.‖145 This means that the government must prove that the restriction serves ―to promote a compelling interest‖ and is ―the least restrictive means to further the articulated interest.‖146 The Court in Pacifica did not apply this test or any weaker First Amendment test, and did not explain why it did not. Its reason presumably was that the FCC‘s action restricted speech only on broadcast media. If, however, the Court were not to apply Pacifica in determining the constitutionality of a ban, during certain hours, on the broadcast of ―indecent‖ language regardless of context, then it would apparently apply strict scrutiny. If the Court were to apply strict scrutiny in making this determination, it seems unlikely that it would find the first reason cited in Pacifica—sparing citizens, including adults, from patently offensive or indecent words—to constitute a compelling governmental interest. The Court has held that the government may not prohibit the use of offensive words unless they ―fall within [a] relatively few categories of instances,‖ such as obscenity, fighting words, or words ―thrust upon unwilling or unsuspecting viewers.‖147 If the Court were to apply strict scrutiny in determining the constitutionality of a ban, during certain hours, on the broadcast of ―indecent‖ language regardless of context, it also might not find the second reason cited in Pacifica—protecting minors from patently offensive and indecent words and ―supporting ‗parents‘ claim to authority in their own household‘‖—to constitute a compelling governmental interest. When the Court considers the constitutionality of a restriction on speech, it ordinarily—even when the speech lacks full First Amendment protection and the court applies less than strict scrutiny—requires the government to ―demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.‖148 With respect to restrictions designed to deny minors access to sexually explicit material, by contrast, the courts appear to assume, without requiring evidence, that such material is harmful to minors, or to consider it ―obscene as to minors,‖ even if it is not obscene as to adults, and therefore not entitled to First Amendment protection with respect to minors, whether it is harmful to them or not. 149 In another case, a federal court of appeals, upholding the current statute that bans ―indecent‖ broadcasts from 6 a.m. to 10 p.m., noted that the Supreme Court has recognized that the Government‘s interest in protecting children extends beyond shielding them from physical and psychological harm. The statute that the Court found constitutional in Ginsberg sought to protect children from exposure to materials that would ―impair [their] ethical and moral development.... Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from a persistent exposure to sexually explicit material.‖

Action for Children‘s Television v. FCC, supra, 58 F.3d at 662 (brackets and italics supplied by the court). A dissenting judge in the case noted that, ―[t]here is not one iota of evidence in the record ... to support the claim that exposure to indecency is harmful—indeed, the nature of the alleged ‗harm‘ is never explained.‖ Id. at 671 (D.C. Cir. 1995) (Edwards, C.J., dissenting). A word used as a mere adjective or expletive, however, arguably does not constitute sexually oriented material.150 Therefore, if a court applied strict scrutiny to decide the constitutionality of a ban, during certain hours, on the broadcast of ―indecent‖ words regardless of context, then, in determining the presence of a compelling interest, the court might require the government to ―demonstrate that the recited harms are real, not merely

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Regulation of Broadcast Indecency: Background and Legal Analysts

57

conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.‖ This could raise the question, not raised in Pacifica, of whether hearing such words is harmful to minors. More precisely, it might raise the question of whether hearing such words on broadcast radio and television is harmful to minors, even in light of the opportunities for minors to hear such words elsewhere. If the government failed to prove that hearing certain words on broadcast radio or television is harmful to minors, then a court would not find a compelling interest in censoring those words and might strike down the law. It might still uphold the law, however, if it found that the law served the government‘s interest ―in supporting ‗parents‘ claim to authority in their own household,‘‖ and that this is a compelling interest independent from the interest in protecting the well-being of minors. In Ginsberg v. New York, the Court referred to the state‘s interest in the well-being of its youth as ―independent‖ from its interest in supporting ―parents‘ claim to authority in their own household to direct the rearing of their children.‖151 The holding in Ginsberg, however, did not turn on whether these interests are independent, and one might argue that they are not, because the government‘s interest in supporting parents lies in assisting them in protecting their children from harmful influences. If ―indecent‖ words are not a harmful influence, then, arguably, the government has no interest, sufficient to override the First Amendment, in supporting parents in their efforts to prevent their children‘s access to them. A judge has also argued that ―a law that effectively bans all indecent programming ... does not facilitate parental supervision. In my view, my right as a parent has been preempted, not facilitated, if I am told that certain programming will be banned from my ... television. Congress cannot take away my right to decide what my children watch, absent some showing that my children are in fact at risk of harm from exposure to indecent programming.‖152 If the government could persuade a court that a ban, during certain hours, on the broadcast of ―indecent‖ words regardless of context serves a compelling interest—either in protecting the well-being of minors or in supporting parents‘ claim to authority—the government would then have to prove that the ban was the least restrictive means to advance that interest. This might raise questions such as whether it is necessary to prohibit particular words on weekdays during school hours, solely to protect pre-school children and children who are home sick some days. In response to this question, the government could note that the broadcast in Pacifica was at 2 p.m. on a Tuesday, but was nevertheless considered a ―time[ ] of the day when there is a reasonable risk that children may be in the audience.‖153 More significantly, however, a court might find a ban too restrictive because it would prohibit the broadcast, between certain hours, of material, including works of art and other material with serious value, that would not attract substantial numbers of youthful viewers or listeners. In conclusion, it appears that, if a court were to apply strict scrutiny to determine the constitutionality of a ban on the broadcast of ―indecent‖ language regardless of context, then it might require the government to ―demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.‖ This would mean that the government would have to demonstrate a compelling governmental interest, such as that hearing ―indecent‖ words on broadcast radio and television is harmful to minors, despite the likelihood that minors hear such words elsewhere, or that banning ―indecent‖ words is necessary to support parents‘ authority in their own household. If the government could not demonstrate a compelling governmental interest, then the court might find the ban unconstitutional. Even if the government could demonstrate a compelling interest, a court might find the ban unconstitutional if it applied to material with

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

58

Kathleen Ann Ruane

serious value, at least if such material would not attract substantial numbers of youthful viewers or listeners. Whether a court would apply strict scrutiny would depend upon whether, in light of the proliferation of cable television, it finds Pacifica to remain applicable to broadcast media. If a court does find that Pacifica remains applicable to broadcast media, then the court would be faced with questions that Pacifica did not decide: whether, on broadcast radio and television during hours when children are likely to be in the audience, the government may prohibit an ―indecent‖ word used as an occasional expletive, or in material that would not attract substantial numbers of youthful viewers or listeners.

Second Circuit’s Dicta in Fox Television Stations, Inc. v. FCC, and the Supreme Court’s Dicta in Its Reversal of the Second Circuit

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

As noted at pages 16-18 of this chapter, on June 4, 2007, the Second Circuit, in a 2-1 decision, found ―that the FCC‘s new policy regarding ‗fleeting expletives‘ represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC‘s new policy regarding ‗fleeting expletives‘ is arbitrary and capricious under the Administrative Procedure Act.‖154 As also noted above, the Second Circuit, having overturned the FCC policy on statutory grounds, had no occasion to decide whether it also violated the First Amendment. In dicta, however, it explained why it was ―skeptical that the Commission can provide a reasonable explanation for its ‗fleeting expletive‘ regime that would pass constitutional muster.‖155 The court wrote that it was sympathetic to the Networks‘ contention that the FCC‘s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.... We also note that the FCC‘s indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the merit of that speech. It appears that under the FCC‘s current indecency regime, any and all uses of an expletive is presumptively indecent and profane with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were ―integral‖ to the work. In the licensing context, the Supreme Court has cautioned against speech regulations that give too much discretion to government officials.... Finally, we recognize that there is some tension in the law regarding the appropriate level of First Amendment scrutiny. In general, restrictions on First Amendment liberties prompt courts to apply strict scrutiny.... At the same time, however, the Supreme Court has also considered broadcast media exceptional.... Nevertheless, we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television.156

As noted on page 15 of this chapter, the Supreme Court reversed the Second Circuit‘s decision on statutory grounds. With respect to the First Amendment question, the Supreme Court wrote,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Regulation of Broadcast Indecency: Background and Legal Analysts

59

It is conceivable that the Commission‘s orders may cause some broadcasters to avoid certain language that is beyond the Commission‘s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material ―surely lie at the periphery of First Amendment concern,‖ Pacifica, 438 U.S., at 743 (plurality opinion of Stevens, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. 157

ACKNOWLEDGMENTS This chapter was originally written by Henry Cohen, Legislative Attorney.

End Notes

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1

The FCC‘s indecency regulations only apply to broadcast radio and television, and not to satellite radio or cable television. The distinction between broadcast and cable television arises in part from the fact that the rationale for regulation of broadcast media—the dual problems of spectrum scarcity and signal interference—do not apply in the context of cable. As a result, regulation of cable television is entitled to heightened First Amendment scrutiny. See Turner Broadcasting v. Federal Communications Commission, 512 U.S. 622 (1994). Cable television is also distinguished from broadcast television by the fact that cable involves a voluntary act whereby a subscriber affirmatively chooses to bring the material into his or home. See Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985). 2 See CRS Report RL33 170, Constitutionality of Applying the FCC‟s Indecency Restriction to Cable Television, by Henry Cohen. 3 See In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 18 F.C.C. Rcd. 19859 (2003). 4 Id. at 2. 5 Id. 6 Id. at 3. 7 Id. 8 ―FCC Chairman Seeks Reversal on Profanity,‖ Washington Post, January 14, 2004, at E01. 9 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, File No. EB-03-IH-01 10 (March 18, 2004). 10 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243435A1.pdf. 11 Complaints Against Various Television Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-001 1 (September 22, 2004) http://www.fcc.gov/eb/Orders/2004/FCC 209A1 .html. 12 Id. 13 CBS Corp. v. Federal Communications Commission, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, No. 08- 653 (U.S. May 4, 2009). 14 18 U.S.C. § 1464. ―Radio communication‖ includes broadcast television, as the term is defined as ―the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds.‖ 47 U.S.C. § 153(33). 15 47 U.S.C. § 503(b). 16 438 U.S. 726 (1978). 17 The United State Court of Appeals for the District of Columbia Circuit had reversed the Commission‘s order. See 556 F.2d 9 (D.C. Cir. 1977). The Commission appealed that decision to the Supreme Court, which reversed the lower court‘s decision. 18 438 U.S. at 732. 19 Id. 20 Id. at 742. 21 Id. at 731; see, In the Matter of a Citizen‟s Complaint Against Pacifica Foundation Station WBAI (FM), New York, New York, 56 F.C.C.2d 94 (1975). 22 In the Matter of Pacifica Foundation, Inc. d/b/a Pacifica Radio Los Angeles, California, 2 F.C.C. Rcd. 2698 (1987). Two other orders handed down the same day articulate the Commission‘s clarified indecency standard. See also In the Matter of the Regents of the University of California, 2 F.C.C. Rcd. 2703 (1987); In the Matter of Infinity Broadcasting Corporation of Pennsylvania, 2 F.C.C. Rcd. 2705 (1987).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

60

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

23

The Commission noted Arbitron ratings indicating that a number of children remain in the local audience well after 10 p.m. See 2 F.C.C. Rcd. 1698, ¶ 16. 24 2 F.C.C. Rcd. 2698, ¶¶ 12 and 15. 25 852 F.2d 1332, 1344 (1988). 26 P.L. 100-459, § 608. 27 Enforcement of Prohibitions Against Broadcast Obscenity and Indecency, 4 F.C.C. Rcd. 457 (1988). 28 Action for Children‟s Television v. Federal Communications Commission (ACT II), 932 F.2d 1504 (1991), cert. denied, 503 U.S. 913 (1992). 29 Id. at 1509. 30 P.L. 102-356, § 16, 47 U.S.C. § 303 note. 31 In the Matter of Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S. C. 1464, 8 F.C.C. Rcd. 704 (1993). 32 Action for Children‟s Television v. Federal Communications Commission, 11 F.3d 170 (D.C. Cir. 1993). 33 8 F.C.C. Rcd. at 705-706. 34 11 F.3d at 171. 35 Id. 36 Action for Children‟s Television v. Federal Communications Commission, 15 F.3d 186 (D.C. Cir. 1994). 37 Action for Children‟s Television v. Federal Communications Commission (ACT III), 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996). 38 58 F.3d at 656. 39 Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 10 F.C.C. Rcd. 10558 (1995); 47 C.F.R. 73.3999(b). Subsection (b) prohibits the broadcast of material which is obscene without any reference to time of day. Broadcast obscenity will not be discussed in this chapter. For more information on obscenity, see CRS Report 95- 804, Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen, and CRS Report 98-670, Obscenity, Child Pornography, and Indecency: Brief Background and Recent Developments, by Henry Cohen. 40 60 FR 44439 (August 28, 1995). 41 Enforcement actions based on televised broadcast indecency are rare. However, the Commission recently issued a Notice of Apparent Liability for the broadcast of indecent material during a televised morning news program. During the program, the show‘s hosts interviewed performers with a production entitled ―Puppetry of the Penis,‖ who appeared wearing capes but were otherwise nude. A performer‘s penis was exposed during the broadcast. See In the Matter of Young Broadcasting of San Francisco, Inc., File No. EB-02-IH-0786 (January 27, 2004). See also In the Matter of Complaints Against Various Licensees Regarding Their Broadcast of the Fox Television Network Program “Married by America” on April 7, 2003, File No. EB-03-IH-0 162 (October 12, 2004). 42 Under 47 U.S.C. § 503(b)(2)(A), the maximum fine per violation is $25,000. However, the maximum forfeiture amount was increased to $32,500 pursuant to the Debt Collection Improvement Act of 1996, P.L. 104-134, which amended the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, P.L. 101-410. See 47 C.F.R. § 1.80. 43 Regulations set a maximum forfeiture of $325,000 for any single act or failure to act, which arguably limits the forfeiture for a single broadcast. See 47 C.F.R. § 1.80. 44 47 U.S.C. § 503(b)(1)(D) provides that the FCC may impose a forfeiture penalty upon any ―person‖ who violates 18 U.S.C. § 1464, which makes it a crime to ―utter‖ indecent language. In addition, 47 U.S.C. § 503(b)(6)(B) provides that the FCC may not impose a forfeiture penalty on a person who does not hold a broadcast station license if the violation occurred more than one year prior to the date of issuance of the required notice or notice of apparent liability. This suggests that the FCC may fine a performer if the violation occurred within one year of such date. 45 Complaints Against Various Television Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-001 1 (September 22, 2004) http://www.fcc.gov/eb/Orders/2004/FCC 209A1 .html. 46 See note 42, supra. 47 See In the Matter of Industry Guidance on the Commission‟s Case Law Interpreting 18 U.S. C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, File No. EB-00-IH-0089 (April 6, 2001) http://www.fcc.gov/eb/Orders/2001/fcc01090.html. 48 Id. 49 Notice of Apparent Liability, State University of New York, 8 F.C.C. Rcd. 456 (1993). 50 Id. 51 Notice of Apparent Liability, KGB Incorporated, 7 F.C.C. Rcd. 3207 (1992). See also Great American Television and Radio Company, Inc., 6 F.C.C. Rcd. 3692 (1990); WIOD, Inc., 6 F.C.C. Rcd. 3704 (1989). 52 6 F.C.C. Rcd. 3692. 53 Notice of Apparent Liability, Citicasters Co., 13 F.C.C. Rcd. 22004 (1998).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Regulation of Broadcast Indecency: Background and Legal Analysts

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

54

61

The Commission has recently indicated that ―the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.‖ In the Matter of Complaints Against Various Broadcast Licensees Regarding the Airing of the “Golden Globe Awards” Program, File No. EB-03-IH-01 10 (March 18, 2004). See section entitled ―Golden Globe Awards Decision,‖ below. 55 L.M. Communications of South Carolina, Inc., 7 F.C.C. Rcd. 1595 (1992). 56 Id. 57 See Notice of Apparent Liability, Temple Radio, Inc., 12 F.C.C. Rcd. 21828 (1997); Notice of Apparent Liability, EZ New Orleans, Inc., 12 F.C.C. Rcd. 4147 (1997). 58 Notice of Apparent Liability, Rusk Corporation, Radio Station KLOL, 5 F.C.C. Rcd. 6332 (1990). 59 In the Matter of Application for Review of the Dismissal of an Indecency Complaint Against King Broadcasting Co., 5 F.C.C. Rcd. 2971 (1990). 60 Id. 61 Id. 62 The Commission declined to impose a forfeiture on the broadcast licensees named in the complaint because they were not ―on notice‖ regarding the new interpretations of the Commission‘s regulations regarding broadcast indecency and the newly adopted definition of profanity. The Commission also indicated that it will not use its decision in this case adversely against the licensees during the license renewal process. 63 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, File No. EB-03-IH-01 10 at 4 (March 18, 2004). 64 Id. Similarly, in March, 2006, the FCC decided that ―s[***]‖ has an ―inherently excretory connotation‖ and therefore could not be used from 6 a.m. to 10 p.m. See, @$#&*% Ken Burns! PBS Scrubbing G.I. Mouths With Soap, New York Observer, October 2, 2006, p. 1. 65 Id. at 5. 66 Id. at 6. See section entitled ―Dwelling or Repetition of Potentially Indecent Material,‖ above. 67 Id. 68 Id. at 7. Although in this case the Commission found that the broadcast in question was both indecent and profane, there are certain to be words that could be deemed ―profane,‖ but do not fit the Commission‘s definition of ―indecent.‖ Under the newly adopted definition of ―profanity,‖ many words could arguably be found ―profane‖ because they provoke ―violent resentment‖ or are otherwise ―grossly offensive,‖ but not be found ―indecent‖ because they do not refer to any sexual or excretory activity or organ or even ―inherently‖ have a sexual connotation, as the Commission found the phrase that Bono uttered to have. Presumably, it is these words that the Commission will consider on a caseby-case basis. 69 Id. at 7, citing Black‘s Law Dictionary 1210 (6th ed. 1990) and American Heritage College Dictionary 1112 (4th ed. 2002). 70 Id., citing Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972). 71 Id. 72 Complaints Against Various Television Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-001 1 (September 22, 2004) http://www.fcc.gov/eb/Orders/2004/FCC 209A1 .html. 73 Id. at ¶ 11. 74 Id. at ¶ 13. 75 Id. at ¶ 14. 76 Id. 77 Id. at ¶¶ 17 - 24. 78 47 C.F.R. § 1.80(f)(3). 79 In the Matter of Complaints Against Various Television Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, File No. EB-04-IH-001 1, FCC 06-19 (March 15, 2006). 80 CBS Corp. v. Federal Communications Commission, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, No. 08- 653 (U.S. May 4, 2009). 81 In the Matter of Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, FCC 06-17 (March 15, 2006). 82 Id. Also, three of the programs for which forfeitures were proposed were Spanish-language programs. 83 The Commission found violations, but declined to impose forfeitures with respect to several programs that were aired prior to the Golden Globe Awards Order, at a time when the Commission would not have taken enforcement actions against the isolated use of expletives. Id. at ¶¶ 100 - 137. 84 For a complete list of recent actions related to broadcast indecency, see http://www.fcc.gov/eb/broadcast/ obscind.html. 85 In the Matter of Infinity Broadcasting, et al., EB-02-IH-0685 (October 2, 2003). 86 Id. at 8. 87 Id. at 9. The Commission noted that the contest portion of the broadcast in question lasted over an hour and was reproduced in a 203-page transcript.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

62

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

88

See In the Matter of Viacom Inc., Infinity Radio Inc., et. al., FCC 04-268 (November 23, 2004) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-268A1.pdf. The decree also covers several other actions pending against Viacom-owned Infinity Radio stations and broadcast television stations, but does not cover the proceedings related to the Super Bowl halftime show discussed supra. 89 In the Matter of Clear Channel Broadcasting Licenses, Inc., et al., File No. EB-02-IH-0261 (January 27, 2004). 90 Id. at 4. 91 Id. at 5. 92 Id. at 6. 93 Id. 94 In the Matter of Clear Channel Broadcasting Licensees, File No. EB-03-IH—159 (April 8, 2004). 95 See Statement of Commissioner Michael J. Copps, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC245911A1.pdf, p. 2. 96 See In the Matter of Clear Channel Communications, Inc., FCC 04-128 (June 9, 2004) at http://hraunfoss.fcc.gov/ edocsjublic/attachmatch/FCC-04-128A1 .pdf. 97 Id. at 7. 98 Larry Neumeister, Appeals court panel grills government lawyer in indecency case, Associated Press State & Local Wire (December 20, 2006). 99 Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444, 447 (2d Cir. 2007), reversed and remanded, 129 S. Ct. 1800 (2009). 100 Id. 101 Id. at 462. 102 Federal Communications Commission v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). 103 Id. at 1812. 104 Id. at 1810 (discussing Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Autmobile Ins. Co., 463 U.S. 29, 43 (1983)). Justice Breyer, in dissent, disagreed with this interpretation of State Farm. He argued that, when an agency changes its rules, it must focus on the fact of the change and explaining the change and its basis, which is more than explaining why the new policy is a good one and in keeping with the statute. It includes answering why the change has occurred. In Justice Breyer‘s opinion, such a requirement does not create a heightened standard, but applies the same standard to different circumstances. According to Justice Breyer, the FCC‘s failure to adequately explain why it changed policy directions rendered the policy arbitrary and capricious. Id. at 1829. 105 Id. at 1810 (emphasis in original). 106 Id. at 1811. 107 Id. at 1819. In a concurring opinion, Justice Thomas suggested that the viability of the precedents supporting the constitutionality of the FCC‘s indecency policy may be in doubt. Id. at 1819-22. Justice Thomas therefore appears open to the reconsideration of these precedents. 108 CBS Corp. v. Federal Communications Commission, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, No. 08- 653 (U.S. May 4, 2009). For a discussion of the incidents giving rise to the FCC‘s forfeiture order, see the section entitled ―Superbowl Half Time Show Decision,‖ supra. 109 Id. at 174. 110 Id. 111 Id. at 176-184. 112 Id. at 184. 113 Id. at 184-185. 114 Id. at 188-189. 115 Id. at 189. 116 Id. Upon deciding that the FCC‘s new policy regarding fleeting images was invalid under the APA, the court was not obligated to reach the second question raised by the case, which was whether CBS had properly been held vicariously liable for the actions of the performers. The court chose, however, to address this question in dicta, and determined that, under two of the FCC‘s theories of vicarious liability, the fine would have been improperly imposed upon the broadcasters. As to a third FCC theory of vicarious liability, which was that the broadcasters had willfully violated the FCC‘s regulations by failing to take adequate precautionary measures, the court determined that the definition of ―willful‖ was unclear and remanded the question to the FCC for a decision on that issue. See CBS Corp. v. FCC, 535 F.3d 167, 189-209 (3d Cir. 2008). 117 Petition for Writ of Certiorari, CBS v. FCC, No. 08-653. 118 FCC v. CBS Corp., 129 S. Ct. 2176 (2009). 119 438 U.S. 726 (1978). The FCC‘s action was to issue ―a declaratory order granting the complaint,‖ and ―state that the order would be ‗associated with the station‘s license file,‘‖ which means that the FCC could consider it when it came time for the station‘s license renewal. Id. at 730. 120 521 U.S. 844, 868 (1997) (noting that ―the history of the extensive regulation of the broadcast medium‖ and ―the scarcity of available frequencies‖ are factors ―not present in cyberspace,‖ and striking down parts of the Communications Decency Act of 1996). The Court also cited Pacifica with approval in United States v.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Regulation of Broadcast Indecency: Background and Legal Analysts

63

Playboy Entertainment Group, Inc., 529 U.S. 803, 813-814 (2000), and in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002). 121 Pacifica, supra, 438 U.S. at 750. A federal court of appeals subsequently held unconstitutional a federal statute that banned ―indecent‖ broadcasts 24 hours a day, but, in a later case, the same court upheld the present statute, 47 U.S.C. § 303 note, which bans ―indecent‖ broadcasts from 6 a.m. to 10 p.m. Action for Children‘s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); Action for Children‘s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). 122 Id. at 750, n.29. 123 Id. at 746 n.22. These two sentences and the text accompanying the next footnote, although part of Justice Stevens‘ opinion, are in a part of the opinion (IV-B) joined by only two other justices. Every other quotation from Pacifica in this chapter was from a part of the opinion that a majority of the justices joined. 124 Id. at 746. 125 There also appears to be some tension between, on the one hand, Justice Stevens‘ distinction in Pacifica between a point of view and the way in which it is expressed, and, on the other hand, the Court‘s statement in Cohen v. California ―that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.‖ 403 U.S. 15, 26 (1971) (upholding the First Amendment right, in the corridor of a courthouse, to wear a jacket bearing the words ―F[***] the Draft‖). Arguably, Carlin‘s use of ―indecent‖ words not only served an emotive purpose, but served to indicate the precise words to whose censorship he was objecting. Yet Pacifica was decided after Cohen, which suggests that Cohen does not lessen the precedential value of Pacifica. 126 Miller v. California, 413 U.S. 15, 27, 24 (1973). In addition, in striking down parts of the Communications Decency Act of 1996, the Court expressed concern that the statute may ―extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.‖ Reno v. ACLU, supra, 521 U.S. at 878. And, in striking down a federal statute that prohibited child pornography that was produced without the use of an actual child, the Court expressed concern that the statute ―prohibits speech despite its serious literary, artistic, political, or scientific value.‖ Ashcroft v. Free Speech Coalition, 535 U.S. 234, 246 (2002). In neither of these cases, however, did the Court state that its holding turned on the statute‘s application to works of serious value. 127 390 U.S. 629 (1968). 128 Pacifica, supra, 438 U.S. at 73 1-732. 129 Id. at 732 (distinguishing ―indecent‖ from ―obscene‖ and ―profane‖ in 18 U.S.C. § 1464). 130 Id. at 740. 131 Id. at 748-750. 132 395 U.S. 367, 369 (1969). 133 Id. at 388. 134 Id. at 394. 135 Id. at 396. 136 512 U.S. 622, 639 (1994). In Turner, the Court held that the ―must carry‖ rules, which ―require cable television systems to devote a portion of their channels to the transmission of local broadcast television stations,‖ id. at 626, were content-neutral and therefore not subject to strict scrutiny. The Court remanded and ultimately upheld the rules. Turner Broadcasting System, Inc., 520 U.S. 180 (1997). 137 In the court of appeals decision upholding the current statute that bans ―indecent‖ broadcasts from 6 a.m. to 10 p.m., a dissenting judge wrote of ―the utterly irrational distinction that Congress has created between broadcast and cable operators. No one disputes that cable exhibits more and worse indecency than does broadcast. And cable television is certainly pervasive in our country.‖ Action for Children‘s Television v. FCC, supra, 58 F.3d at 671 (emphasis in original) (Edwards, C.J., dissenting). 138 512 U.S. at 638 (citation omitted). 139 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990). 140 Id. at 669. In Arkansas AFL-CIO v. FCC, 11 F.3d 1430 (8th Cir. 1993) (en banc), the court of appeals held that Congress had not codified the fairness doctrine and that the FCC‘s decision to eliminate it was a reasonable interpretation of the statutory requirement that licensees operate in the public interest. 141 518 U.S. 727, 748 (1996). The plurality added that cable television ―is as ‗accessible to children‘ as over-the-air broadcasting, if not more so,‖ has also ―established a uniquely pervasive presence in the lives of all Americans,‖ and can also ―‗confron[t] the citizen‘ in ‗the privacy of the home,‘ ... with little or no prior warning.‖ Id. at 744-745. Justice Souter concurred that ―today‘s plurality opinion rightly observes that the characteristics of broadcast radio that rendered indecency particularly threatening in Pacifica, that is, its intrusion into the house and accessibility to children, are also present in the case of cable television. . . .‖ Id. at 776.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

64

Kathleen Ann Ruane

142

529 U.S. 803, 813 (2000) (striking down a federal statute that required distributors to fully scramble or fully block signal bleed to non-subscribers to cable channels; ―signal bleed‖ refers to the audio or visual portions of cable television programs that non-subscribers to a cable channel may be able to hear or see despite the fact that the programs have been scrambled to prevent the non-subscribers from hearing or seeing them). 143 An earlier district court case held that Pacifica does not apply to cable television because of several differences between cable and broadcasting. For one, ―[i]n the cable medium, the physical scarcity that justifies content regulation in broadcasting is not present.‖ For another, as a subscriber medium, ―cable TV is not an intruder but an invitee whose invitation can be carefully circumscribed.‖ Community Television v. Wilkinson, 611 F. Supp. 1099 (D. Utah 1985), aff‟d, 800 F.2d 989 (10th Cir. 1986), aff‟d, 480 U.S. 926 (1987) (striking down Utah Cable Television Programming Decency Act). The court of appeals did not discuss the constitutional issue beyond stating that it agreed with the district court‘s reasons for its holding. 800 F.2d at 991. A summary affirmance by the Supreme Court, as in this case, is ―an affirmance of the judgment only,‖ and does not indicate approval of the reasoning of the court below. Mandel v. Bradley, 432 U.S. 173, 176 (1977). 144 See CRS Report RL33 170, Constitutionality of Applying the FCC‟s Indecency Restriction to Cable Television, by Henry Cohen, which concludes that ―it appears likely that a court would find that to apply the FCC‘s indecency restriction to cable television would be unconstitutional.‖ 145 Sable Communications of California v. Federal Communications Commission, 492 U.S. 115 (1989); Action for Children‘s Television v. FCC, supra, 932 F.2d at 1509. 146 Id. at 126. 147 Cohen v. California, supra, 403 U.S. at 19, 21. Under Pacifica, broadcast media do thrust words upon unwilling or unsuspecting viewers, but, if a court were to apply strict scrutiny to a ban on the broadcast of ―indecent‖ language regardless of context, then it would not be following Pacifica. 148

Turner Broadcasting, supra, 512 U.S. at 664 (incidental restriction on speech). See also, Edenfield v. Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial speech); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (restriction on campaign contributions). In all three of these cases, the government had restricted lessthanfully protected speech, so the Court did not apply strict scrutiny. Because offensive words are apparently entitled to full First Amendment protection (except under Pacifica and in the instances cited in Cohen v. California, quoted in the text above), it seems all the more likely that the Court, if it applied strict scrutiny instead of Pacifica to a challenge to a ban on the broadcast of ―indecent‖ words regardless of context, would require the government to demonstrate that harms it recites are real and that the ban would alleviate these harms in a direct and material way.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

149

Interactive Digital Software Association v. St. Louis County, Missouri, 329 F.3d 954, 959 (8 th Cir. 2003). The Supreme Court has ―recognized that there is a compelling interest in protecting the physical and psychological wellbeing of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards.‖ Sable, supra, 492 U.S. at 126. The Court has also upheld a state law banning the distribution to minors of ―so-called ‗girlie‘ magazines‖ even as it acknowledged that ―[i]t is very doubtful that this finding [that such magazines are ―a basic factor in impairing the ethical and moral development of our youth‖] expresses an accepted scientific fact.‖ Ginsberg v. New York, supra, 390 U.S. at 631, 641. ―To sustain state power to exclude [such material from minors],‖ the Court wrote, ―requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.‖ Id. at 641. Ginsberg thus ―invokes the much less exacting ‗rational basis‘ standard of review,‖ rather than strict scrutiny. Interactive Digital Software Association, supra, 329 F.3d at 959. A federal district court wrote: ―We are troubled by the absence of evidence of harm presented both before Congress and before us that the viewing of signal bleed of sexually explicit programming causes harm to children and that the avoidance of this harm can be recognized as a compelling State interest. We recognize that the Supreme Court‘s jurisprudence does not require empirical evidence. Only some minimal amount of evidence is required when sexually explicit programming and children are involved.‖ Playboy Entertainment Group, Inc. v. United States, 30 F. Supp.2d 702, 716 (D. Del. 1998), aff‟d, 529 U.S. 803 (2000). The district court therefore found that the statute served a compelling governmental interest, though it held it unconstitutional because it found that the statute did not constitute the least restrictive means to advance the interest. The Supreme Court affirmed on the same ground, apparently assuming the existence of a compelling governmental interest, but finding a less restrictive means that could have been used. 150 The full Commission‘s decision in the Bono case stated that ―any use of that word or a variation, in any context, inherently has a sexual connotation.‖ But this does not necessarily mean that it is sexually oriented enough to cause the courts to assume without evidence that it is harmful to minors. 151 Ginsberg, supra, 390 at 640, 639. See also, Action for Children‘s Television v. FCC, supra, 58 F.3d at 661. 152 Action for Children‘s Television v. FCC, supra, 58 F.3d at 670 (emphasis in original) (Edwards, C.J., dissenting). 153 Pacifica, supra, 438 U.S. at 732. 154 Fox Television Stations, supra note 99, 489 F.3d at 447. 155 Id. at 462. 156 Id. at 463-465. 157 Federal Communications Commission v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 3

OBSCENITY, CHILD PORNOGRAPHY, AND INDECENCY: BRIEF BACKGROUND AND RECENT DEVELOPMENTS 

Kathleen Ann Ruane

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY The First Amendment provides that ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖ The First Amendment applies to pornography, in general. Pornography, here, is used to refer to any words or pictures of a sexual nature. There are two types of pornography to which the First Amendment does not apply, however. They are obscenity and child pornography. Because these are not protected by the First Amendment, they may be, and have been, made illegal. Pornography and ―indecent‖ material that are protected by the First Amendment may nevertheless be restricted in order to limit minors‘ access to them.

OBSCENITY: BACKGROUND To be legally obscene, and therefore unprotected by the First Amendment, pornography must, at a minimum, ―depict or describe patently offensive ‗hard core‘ sexual conduct.‖1 The Supreme Court has created the three-part Miller test to determine whether a work is obscene. The Miller test asks (a) whether the ―average person applying contemporary community standards‖ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated January 2010.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

66

Kathleen Ann Ruane depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.2

In Pope v. Illinois, the Supreme Court clarified that ―the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards.‖ However, as for the third prong, ―[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.‖3 In Brockett v. Spokane Arcades, the Supreme Court held that material is not obscene if it ―provoke[s] only normal, healthy sexual desires.‖ To be obscene it must appeal to ―a shameful or morbid interest in nudity, sex, or excretion.‖4

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

OBSCENITY: RECENT DEVELOPMENTS The Communications Decency Act of 1996 (P.L. 104-104, § 507) expanded the law prohibiting interstate commerce in obscenity (18 U.S.C. § § 1462, 1465) to apply to the use of an ―interactive computer service‖ for that purpose. It defined ―interactive computer service‖ to include ―a service or system that provides access to the Internet.‖ 47 U.S.C. § 230(e)(2). These provisions were not affected by the Supreme Court‘s decision in Reno v. ACLU declaring unconstitutional two provisions of the CDA that would have restricted indecency on the Internet.5 In Reno, the Court noted, in dictum, that ―the ‗community standards‘ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.‖6 This suggested that, at least with respect to material on the Internet, the Court might replace the community standards criterion, except perhaps in the case of Internet services where the defendant makes a communication available only to subscribers and can thereby restrict the communities in which he makes a posting accessible. Subsequently, however, the Court held that the use of community standards does not by itself render a statute banning ―harmful to minors‖ material on the Internet unconstitutional.7

CHILD PORNOGRAPHY: BACKGROUND Child pornography is material ―that visually depict[s] sexual conduct by children below a specified age.‖8 It is unprotected by the First Amendment even when it is not obscene (i.e., child pornography need not meet the Miller test to be banned).9 The reason that child pornography is unprotected is that it ―is intrinsically related to the sexual abuse of children.... Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies.‖10

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity, Child Pornography, and Indecency: Brief Background and Recent…

67

Federal law bans interstate commerce (including by computer) in child pornography (18 U.S.C. §§ 2252, 2252A), defines ―child pornography‖ as ―any visual depiction‖ of ―sexually explicit conduct‖ involving a minor, and defines ―sexually explicit conduct‖ to include not only various sex acts but also the ―lascivious exhibition of the genitals or pubic area of any person.‖ 18 U.S.C. § 2256.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

CHILD PORNOGRAPHY: RECENT DEVELOPMENTS In 1994, Congress amended the child pornography statute to provide that ―lascivious exhibition of the genitals or pubic area of any person‖ ―is not limited to nude exhibitions or exhibitions in which the outlines of those areas were discernible through clothing.‖ 18 U.S.C. § 2252 note. Then, in the Child Pornography Prevention Act of 1996 (CPPA), Congress enacted a definition of ―child pornography‖ that included visual depictions that appear to be of a minor, even if no minor was actually used. 18 U.S.C. § 225 6(8). The statute thus banned visual depictions using adult actors who appear to be minors, as well as computer graphics and drawings or paintings done without any models. In Ashcroft v. Free Speech Coalition, the Supreme Court declared the CPPA unconstitutional to the extent that it prohibited pictures that were not produced with actual minors.11 Child pornography, to be unprotected by the First Amendment, must either be obscene or depict actual children engaged in sexual activity (including ―lascivious‖ poses), or actual children whose images have been ―morphed‖ to make it appear that the children are engaged in sexual activity. The Court observed in Ashcroft that statutes that prohibit child pornography that use real children are constitutional because they target ―[t]he production of the work, not the content.‖ The CPPA, by contrast, targeted the content, not the means of production. The government‘s rationales for the CPPA included that ―[p]edophiles might use the materials to encourage children to participate in sexual activity‖ and might ―whet their own sexual appetites‖ with it, ―thereby increasing ... the sexual abuse and exploitation of actual children.‖ The Court found these rationales inadequate because the government ―cannot constitutionally premise legislation on the desirability of controlling a person‘s private thoughts‖ and ―may not prohibit speech because it increases the chance an unlawful act will be committed ‗at some indefinite future time.‘‖ The government also argued that the existence of ―virtual‖ child pornography ―can make it harder to prosecute pornographers who do use real minors,‖ because, ―[a]s imaging technology improves ... it becomes more difficult to prove that a particular picture was produced using actual children.‖ This rationale, the Court found, ―turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech.‖ In response to Ashcroft, Congress enacted Title V of the PROTECT Act, P.L. 108-21 (2003), which prohibits any ―digital image, computer image, or computergenerated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.‖ It also prohibits ―a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that ... depicts a minor engaging in sexually explicit conduct,‖ and is obscene or lacks serious literary, artistic, political, or scientific value.12 It also makes it a crime to advertise, promote, present, distribute, or solicit any material in a manner that

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

68

Kathleen Ann Ruane

reflects the belief, or that is intended to cause another to believe, that the material is child pornography that is obscene or that depicts an actual minor.13 The Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248) amended 18 U.S.C. § 2257, which requires by producers of material that depicts actual sexually explicit conduct to keep records of every performers‘ name and date of birth; it also enacted 18 U.S.C. § 2257A, which requires essentially the same thing with respect to simulated sexual conduct. The Effective Child Pornography Prosecution Act of 2007 (P.L. 110-358, Title I) and the Enhancing the Effective Prosecution of Child Pornography Act of 2007 (P.L. 110358, Title II) expanded existing law by, among other things, making it applicable to intrastate child pornography violations that affect interstate or foreign commerce. P.L. 110-358 was signed into law on October 8, 2008.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

INDECENCY: BACKGROUND The Federal Communications Commission defines ―indecent‖ material as material that ―describe[s] or depict[s] sexual or excretory organs or activities‖ in terms ―patently offensive as measured by contemporary community standards for the broadcast media.‖14 Indecent material is protected by the First Amendment unless it constitutes obscenity or child pornography. Except on broadcast radio and television, indecent material that is protected by the First Amendment may be restricted by the government only ―to promote a compelling interest‖ and only by ―the least restrictive means to further the articulated interest.‖15 The Supreme Court has ―recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards.‖16 There are federal statutes in effect that limit, but do not ban, indecent material transmitted via telephone, broadcast media, and cable television.17 There are also many state statutes that ban the distribution to minors of material that is ―harmful to minors.‖ Material that is ―harmful to minors‖ under these statutes tends to be defined more narrowly than material that is ―indecent,‖ in that material that is ―harmful to minors‖ is generally limited to material of a sexual nature that has no serious value for minors. The Supreme Court has upheld New York‘s ―harmful to minors‖ statute. 18

INDECENCY: RECENT DEVELOPMENTS In 1997, the Supreme Court declared unconstitutional two provisions of the Communications Decency Act of 1996 that would have prohibited indecent communications, by telephone, fax, or e-mail, to minors, and would have prohibited use of an ―interactive computer service‖ to display indecent material ―in a manner available to a person under 18 years of age.‖19 This latter prohibition would have banned indecency from public (i.e., nonsubscription) websites. The CDA was succeeded by the Child Online Protection Act (COPA), P.L. 105-277 (1998), which differs from the CDA in two main respects: (1) it prohibits communication to minors only of ―material that is harmful to minors,‖ rather than material that is indecent, and

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity, Child Pornography, and Indecency: Brief Background and Recent…

69

(2) it applies only to communications for commercial purposes on publicly accessible websites. ―Material that is harmful to minors‖ is defined as material that (A) is prurient, as determined by community standards, (B) ―depicts, describes, or represents, in a manner patently offensive with respect to minors,‖ sexual acts or a lewd exhibition of the genitals or post-pubescent female breast, and (C) ―lacks serious literary, artistic, political, or scientific value for minors.‖ COPA never took effect because, in 2007, a federal district court found it unconstitutional and issued a permanent injunction against its enforcement; in 2008, the U.S. Court of Appeals affirmed, finding that COPA ―does not employ the least restrictive alternative to advance the Government‘s compelling interest‖ and is also vague and overbroad.20 In 2009, the Supreme Court declined to review the case. In 2003, at the Golden Globe Awards, the singer Bono, in response to winning an award, said, ―this is really, really f[***]ing brilliant.‖ The FCC found the word to be indecent, even when used as a modifier, because, ―given the core meaning of the ‗F-Word,‘ any use of that word or a variation, in any context, inherently has a sexual connotation.‖21 The question arises whether this ruling is consistent with the First Amendment, in light of the fact that the Supreme Court has left open the question whether broadcasting an occasional expletive would justify a sanction.22 In 2006, the FCC took action against four other television broadcasts that contained fleeting expletives, but on June 4, 2007, the U.S. Court of Appeals for the Second Circuit found ―that the FCC‘s new policy regarding ‗fleeting expletives‘ is arbitrary and capricious under the Administrative Procedure Act.‖23 The Supreme Court, however, reversed, finding that the FCC‘s explanation of its decision was adequate; it left open the question whether censorship of fleeting expletives violates the First Amendment. In 2008, the U.S. Court of Appeals for the Third Circuit overturned the FCC‘s fine against CBS broadcasting station affiliates for broadcasting Janet Jackson‘s exposure of her breast for nine- sixteenths of a second during a SuperBowl halftime show.24 The court found that the FCC had acted arbitrarily and capriciously in finding the incident indecent; the court did not address the First Amendment question. The Supreme Court, later, vacated and remanded the Third Circuit‘s decision in light of its ruling in Fox Television Stations, Inc. v. FCC, discussed above. 25

THE CHILDREN’S INTERNET PROTECTION ACT (CIPA) P.L. 106-554 (2000) CIPA restricts access to obscenity, child pornography, and material that is ―harmful to minors,‖ and so is discussed here separately. CIPA amended three federal statutes to provide that a school or library may not use funds it receives under these statutes to purchase computers used to access the Internet, or to pay the direct costs of accessing the Internet, and may not receive universal service discounts, unless the school or library enforces a policy to block or filter minors‘ Internet access to images that are obscene, child pornography, or harmful to minors; and enforces a policy to block or filter adults‘ Internet access to visual depictions that are obscene or child pornography. It provides, however, that filters may be disabled ―for bona fide research or other lawful purposes.‖ In 2003, the Supreme Court held CIPA constitutional.26 A plurality opinion acknowledged ―the tendency of filtering software to ‗overblock‘—that is, to erroneously

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

70

Kathleen Ann Ruane

block access to constitutionally protected speech that falls outside the categories that software users intend to block.‖ It found, however, that, ―[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.‖ The plurality also found that CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute ―simply insist[s] that public funds be spent for the purposes for which they were authorized.‖

ACKNOWLEDGMENTS This chapter was originally written by Henry Cohen, Legislative Attorney.

End Notes

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1

Miller v. California, 413 U.S. 15, 27 (1973). For additional information, see CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen. 2 Id. at 24 (citation omitted). 3 481 U.S. 497, 500 (1987). 4 472 U.S. 491, 498 (1984). 5 521 U.S. 844 (1997). 6 Id. at 877-878. 7 Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002). 8 New York v. Ferber, 458 U.S. 747, 764 (1982) (italics in original). For additional information, see CRS Report 95- 406, Child Pornography: Constitutional Principles and Federal Statutes, by Henry Cohen. 9 This means that child pornography may be banned even if does not appeal to the prurient interest, is not patently offensive, and does not lack literary, artistic, political, or scientific value. See Ferber, supra note 8, 458 U.S., at 764. 10 Ferber, supra note 8, 458 U.S., at 759-760. 11 535 U.S. 234 (2002). 12 To the extent that the prohibitions described in the two preceding sentences apply to non-obscene child pornography that was produced without the use of an actual child, they would apparently be unconstitutional under Ashcroft. 13 In United States v. Williams, 128 S. Ct. 1830 (2008), the Supreme Court upheld the constitutionality of this prohibition. It noted that, under the provision, ―an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.‖ Id. at 1839. The Court found that these activities are not constitutionally protected because ―[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection,‖ even ―when the offeror is mistaken about the factual predicate of his offer,‖ such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected. Id. at 1841, 1842, 1843. 14 In the Matter of Industry Guidance on the Commission‟s Case Law Interpreting 18 U.S. C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, File No. EB-00-IH-0089 (April 6, 2001). 15 Sable Communications of California v. Federal Communications Commission, 492 U.S. 115, 126 (1989). 16 Id. 17 47 U.S.C. § 223(b) (commercial dial-a-porn), 18 U.S.C. § 1464, 47 U.S.C. § 303 note (broadcast media), 47 U.S.C. §§ 531(e), 532(c)(2), 532(h), 559-56 1 (cable television). The Supreme Court declared section 561 unconstitutional. United States v. Playboy Entertainment Group, Inc. v. United States, 529 U.S. 803 (2000). 18 Ginsberg v. New York, 390 U.S. 629 (1968). 19 Reno v. American Civil Liberties Union, supra note 5. 20 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff‟d sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181, 198 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009). 21 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, File No. EB-03-IH-01 10 at 4 (March 18, 2004). For additional information, see CRS

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity, Child Pornography, and Indecency: Brief Background and Recent…

71

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Report RL32222, Regulation of Broadcast Indecency: Background and Legal Analysis, by Henry Cohen and Kathleen Ann Ruane. 22 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 750 (1978). 23 Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444, 447 (2d Cir. 2007), reversed and remanded, 129 S. Ct. 1800 (2009). 24 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). 25 FCC v. CBS Corp., 129 S. Ct. 2176 (2009). 26 United States v. American Library Association, 539 U.S. 194 (2003).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved. The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 4

OBSCENITY AND INDECENCY: CONSTITUTIONAL PRINCIPLES AND FEDERAL STATUTES 

Henry Cohen

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY The First Amendment provides: ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖ In general, the First Amendment protects pornography, with this term being used to mean any erotic material. The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. Consequently, they may be banned on the basis of their content, and federal law prohibits the mailing of obscenity, as well as its transport or receipt in interstate or foreign commerce. Most pornography is not legally obscene; to be obscene, pornography must, at a minimum, ―depict or describe patently offensive ‗hard core‘ sexual conduct.‖ The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. Pornography that is not obscene may not be banned, but may be regulated as to the time, place, and manner of its distribution, particularly in order to keep it from children. Thus, the courts have upheld the zoning and licensing of pornography dealers, as well as restrictions on dial-a-porn, nude dancing, and indecent radio and television broadcasting. Federal statutes, in addition to making it a crime to mail obscenity or to transport or receive it in interstate or foreign commerce, provide for criminal and civil forfeiture of real and personal property used in making obscenity pornography, and of the profits of obscenity—in some instances even when they were already used to pay a third party. In addition, obscenity crimes are included among the predicate offenses that may give rise to a violation of the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). The Internet has given rise to three federal statutes designed to protect minors from sexual material posted on it. The Communications Decency Act of 1996 makes it a crime 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated April 2009.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

74

Henry Cohen

knowingly to use a telecommunications device (telephone, fax, or e-mail) to make an obscene or indecent communication to a minor, or knowingly to use an interactive computer service to transmit an obscene communication to anyone or an indecent communication to a minor. In 1997, however, the Supreme Court held the inclusion of ―indecent‖ communications in this statute unconstitutional. In 1998, Congress, in response, enacted the less-broad Child Online Protection Act (COPA), but it was also held unconstitutional and never took effect. Finally, the Children‘s Internet Protection Act (CIPA), enacted in 2000, requires schools and libraries that accept federal funds to purchase computers or Internet access to block or filter obscenity, child pornography, and, with respect to minors, material that is ―harmful to minors.‖ Filters may be disabled, however, ―for bona fide research or other lawful purpose.‖ In 2003, the Supreme Court held CIPA constitutional.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

I. CONSTITUTIONAL PRINCIPLES To be constitutional, a federal statute must be enacted pursuant to a power of Congress enumerated in the Constitution and must not contravene any provision of the Constitution. Two powers enumerated in Article I, Section 8 of the Constitution give Congress the power to enact statutes regulating or banning pornography: the power ―To regulate Commerce with foreign Nations, and among the several States,‖ and the power ―To establish Post Offices and post Roads.‖ Thus, Congress may enact statutes, provided they do not contravene any provision of the Constitution, that regulate pornography that crosses state or national boundaries, is imported or exported, or is mailed. The provision of the Constitution that federal statutes regulating pornography are most likely to be in danger of contravening is the First Amendment‘s provision that ―Congress shall make no law ... abridging the freedom of speech, or of the press.‖1 Although pornography in general is protected by the First Amendment, two types of pornography— obscenity and child pornography—are not.2 Therefore, pornography that does not constitute obscenity or child pornography may ordinarily be regulated only with respect to its time, place, and manner of distribution.3 An outright ban on pornography other than obscenity or child pornography would violate the First Amendment unless it served ―to promote a compelling interest‖ and was ―the least restrictive means to further the articulated interest.‖4 Obscenity and child pornography, however, being without First Amendment protection, may be totally banned on the basis of their content, not only in the absence of a compelling governmental interest, but in the absence of any evidence of harm. Obscenity apparently is unique in being the only type of speech to which the Supreme Court has denied First Amendment protection without regard to whether it can cause harm. According to the Court, there is evidence that, at the time of the adoption of the First Amendment, obscenity ―was outside the protection intended for speech and press.‖5 Consequently, obscenity may be banned simply because a legislature concludes that banning it protects ―the social interest in order and morality.‖6

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

75

A. The Miller Test Most pornography is not legally obscene (i.e., most pornography is protected by the First Amendment). To be obscene, pornography must, at a minimum, ―depict or describe patently offensive ‗hard core‘ sexual conduct.‖7 The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. The Miller test asks: (a) whether the ―average person applying contemporary community standards‖ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.8

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In Pope v. Illinois, the Supreme Court clarified that ―the first and second prongs of the Miller test—appeal to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying contemporary community standards.‖9 However, as for the third prong, ―[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.‖10 When a federal statute refers to ―obscenity,‖ it should be understood to refer only to pornography that is obscene under the Miller standard, as application of the statute to other material would ordinarily be unconstitutional. However, narrowly drawn statutes that serve a compelling interest, such as protecting minors, may be permissible even if they restrict pornography that is not obscene under Miller.11 In Sable Communications of California, Inc. v. Federal Communications Commission, the Supreme Court recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. The government may serve this legitimate interest, but to withstand constitutional scrutiny, ―it must do so by narrowly drawn regulations without unnecessarily interfering with First Amendment freedoms.‖ It is not enough to show that the government‘s ends are compelling; the means must be carefully tailored to achieved those ends.12

In Sable, the Supreme Court applied these principles to the government‘s attempt to proscribe dial-a-porn; see, Section II. B., below. The Supreme Court has allowed one exception to the rule that obscenity, as defined by Miller, is not protected under the First Amendment. In Stanley v. Georgia, the Court held that ―mere private possession of obscene material‖ is protected. The Court wrote: Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one‘s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.13

Subsequently, however, the Supreme Court rejected the claim that under Stanley there is a constitutional right to provide obscene material for private use,14 or to acquire it for private The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

76

Henry Cohen

use.15 The right to possess obscene material does not imply the right to provide or acquire it, because the right to possess it ―reflects no more than ... the law‘s ‗solicitude to protect the privacies of the life within [the home].‘‖16

B. Zoning and Licensing of Pornography Dealers In Young v. American Mini Theatres, Inc., the Supreme Court held that ―[t]he mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.‖17 In Young, the Court upheld ordinances that required dispersal of ―adult‖ establishments; specifically, the ordinances provided that an adult theater could not be located within 1,000 feet of any two other ―regulated uses‖ (adult bookstores, cabarets, bars, hotels, etc.) or within 500 feet of a residential area. In Renton v. Playtime Theatres, Inc., the Court upheld an ordinance that required that adult theaters be concentrated in limited areas; it prohibited adult ―theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.‖18 In Young, the Court reasoned that what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, even though the determination of whether a particular film fits that characterization turns on the nature of its content.... The situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.19

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In Renton, the Court wrote: The ordinance by its terms is designed to prevent crime, protect the city‘s retail trade, maintain property values, and generally ―protec[t] and preserv[e] the quality of [the city‘s] neighborhoods, commercial districts, and the quality of urban life,‖ not to suppress the expression of unpopular views.... In short, the Renton ordinance is completely consistent with our definition of ―content-neutral‖ speech regulations as those that ―are justified without reference to the content of the regulated speech.‖20

In both Young and Renton, the Court found the ordinances in question to be narrow enough to affect only those theaters shown to produce the unwanted secondary effects, such as crime.21 In this respect they were unlike the regulations the Court struck down as overbroad in two other cases. In Erznoznik v. City of Jacksonville, the ordinance prohibited drive-in theaters from showing films containing nudity when the screen was visible from a public street.22 In Schad v. Mount Ephraim, the ordinance prohibited live entertainment from a broad range of commercial uses permitted in a commercial zone; the ordinance in this case was used to prosecute an adult bookstore that featured coin-operated booths that permitted customers to watch nude dancing.23 In Freedman v. Maryland, the Court struck down a statute that required the owner or lessee of a fil, prior to exhibiting a film, to submit the film to the Maryland State Board of Censors and obtain its approval.24 The Court held that, for such a statute to be constitutional, ―the burden of proving that the film is unprotected expression must rest on the censor,‖ and

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

77

the censor must, ―within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.... [T]he procedure must also assure a prompt final judicial decision.‖25 The Court cited a ―model‖ for a constitutional procedure: ―In Kingsley Books, Inc. v. Brown, 354 U.S. 436, we upheld a New York injunctive procedure designed to prevent the sale of obscene books.... The statute provides for a hearing one day after joinder of issue; the judge must hand down his decision within two days after termination of the hearing.‖26 In FW/PBS, Inc. v. Dallas, the Supreme Court considered a challenge to a city ordinance that regulated ―sexually oriented businesses through a scheme incorporating zoning, licensing, and inspections,‖ and prohibited ―individuals convicted of certain crimes from obtaining a license to operate a sexually oriented business for a specified period of years.‖27 The ordinance defined a ―sexually oriented business‖ as ―an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, escort agency, nude model studio, or sexual encounter center.‖28 The Court held that the licensing scheme

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

does not provide for an effective limitation on the time within which the licensor‘s decision must be made. It also fails to provide an avenue for prompt judicial review so as to minimize suppression of the speech in the event of a license denial. We therefore hold that the failure to provide these essential safeguards renders the ordinance‘s licensing requirement unconstitutional insofar as it is enforced against those businesses engaged in First Amendment activity.29

In City of Littleton v. Z.J. Gifts D-4, L.L.C., the Court upheld a city‘s ―adult business‖ licensing ordinance.30 The Court first rejected the city‘s argument that, because the Court, in FW/PBS, Inc. v. Dallas, had used the phrase ―prompt judicial review,‖ rather than ―prompt final judicial decision,‖ which it had used in Freedman, ―[t]he First Amendment, as applied to an ‗adult business‘ licensing scheme, demands only an assurance of speedy access to the courts, not an assurance of a speedy court decision.‖31 The Court noted, ―A delay in issuing a judicial decision, no less than a delay in obtaining access to a court, can prevent a licence from being ‗issued within a reasonable period of time.‘‖32 The Court held, however, that the city‘s ordinance satisfied the First Amendment‘s requirement of a prompt judicial decision. The Court noted that, in a case such as Freedman, involving ―a scheme with rather subjective standards and where a denial likely meant complete censorship,‖ there was a need ―for special procedural rules imposing special 2- or 3-day decisionmaking time limits.‖33 Littleton, however, involved a scheme that ―applies reasonably objective, nondiscretionary criteria unrelated to the content of the expressive materials,‖34 but related instead to matters such as whether the applicant had had an adult business license revoked or suspended and had timely paid taxes, fees, fines, or penalties. ―Where (as here and as in FW/PBS) the regulation simply conditions the operation of an adult business on compliance with neutral and nondiscretionary criteria ... and does not seek to censor content, an adult business is not entitled to an unusually speedy judicial decision of the Freedman type.... Of course, those denied licenses in the future remain free to raise special problems of undue delay in individual cases as the ordinance is applied.‖35

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

78

Henry Cohen

In Los Angeles v. Alameda Books, Inc., the Supreme Court reversed a grant of summary judgment that had struck down a municipal ordinance that prohibited ―the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.‖36 A federal district court had granted summary judgment and the Court of Appeals for the Ninth Circuit had affirmed on the ground ―that the city failed to present evidence upon which it could reasonably rely to demonstrate a link between multiple-use adult establishments and negative secondary effects.‖37 The Supreme Court reversed, finding that ―[t]he city of Los Angeles may reasonably rely on a study it conducted some years before enacting the present version of § 12.70(C) to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime.‖38 It therefore remanded the case so that the city would have the opportunity to demonstrate this at trial. The four-judge plurality opinion in Alameda Books ―held that a municipality may rely on any evidence that is ‗reasonably believed to be relevant‘ for demonstrating a causal connection between speech and a substantial, independent governmental interest,‖ such as reducing crime or maintaining property values.39 Justice Kennedy, whose concurring opinion was necessary for a majority, added that, not only must the city demonstrate that its ordinance ―has the purpose and effect of suppressing secondary effects‖; it must also demonstrate that it will leave ―the quantity and accessibility of speech substantially intact.‖40 The four dissenting justices found that ―the city has failed to show any causal relationship between the breakup policy and elimination or regulation of secondary effects,‖ and, therefore, that summary judgment had been properly granted.41

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

C. Nude Dancing The Supreme Court has twice upheld the application of laws banning public nudity to nudity in ―adult‖ entertainment establishments where the viewers are all consenting adults who have paid to see the dancers. In Barnes v. Glen Theatre, Inc., the Supreme Court held that the First Amendment does not prevent the government from requiring that dancers wear ―pasties‖ and a ―G-string‖ when they dance (nonobscenely) in such establishments.42 Indiana sought to enforce a state statute prohibiting public nudity against two such establishments, which asserted First Amendment protection. The Court found that the statute proscribed public nudity across the board, not nude dancing as such, and therefore imposed only an incidental restriction on expression. A statute that is intended to suppress speech will be upheld only if it serves a compelling governmental interest and is the least restrictive means to further that interest. By contrast, under United States v. O‟Brien, a statute that imposes an incidental restriction, like one that imposes a time, place, or manner restriction, will be upheld if it is narrowly tailored to further a substantial, but not necessarily compelling, governmental interest.43 There was no majority opinion in the case. Justice Rehnquist, joined by Justices O‘Connor and Kennedy, found the statute no more restrictive than necessary to further the governmental interest of ―protecting societal order and morality.‖44 Justice Souter found the relevant governmental interest to be ―combating the secondary effects of adult entertainment establishments,‖ such as prostitution, sexual assaults, and other criminal activity.45 The fifth Justice necessary to uphold the nude dancing prohibition, Justice Scalia, thought that the case

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity and Indecency: Constitutional Principles and Federal Statutes

79

raised no First Amendment issue at all, because the incidental restriction was on conduct, not speech, and ―virtually every law restricts conduct, and virtually any prohibited conduct can be performed for expressive purposes.‖46 Four Justices dissented, finding insufficient ―the plurality and Justice Scalia‘s simple references to the State‘s general interest in promoting societal order and morality.... The purpose of forbidding people to appear nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively consenting adults who paid money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates.‖47 This purpose is impermissible under the First Amendment. In Erie v. Pap‟s A.M., the Supreme Court again upheld the application of a statute prohibiting public nudity to an ―adult‖ entertainment establishment.48 Although there was again only a plurality opinion, this time by Justice O‘Connor, Parts I and II of that opinion were joined by five justices. These five adopted Justice Souter‘s position in Barnes, that the statute satisfied the O‟Brien test because it was intended ―to combat harmful secondary effects,‖ such as ―prostitution and other criminal activity.‖49 Justice Souter, however, though joining the plurality opinion, also dissented in part in Erie. He continued to believe that secondary effects were an adequate justification for banning nude dancing, but did not believe ―that the city has made a sufficient evidentiary showing to sustain its regulation,‖ and therefore would have remanded the case for further proceedings.50 He acknowledged his ―mistake‖ in Barnes in failing to make the same demand for evidence.51 The plurality opinion in Erie found that the effect of Erie‘s public nudity ban ―on the erotic message ... is de minimis‖ because Erie allows dancers to perform wearing only pasties and Gstrings.52 It may follow that ―requiring dancers to wear pasties and G-strings may not greatly reduce ... secondary effects, but O‟Brien requires only that the regulation further the interest of combating such effects,‖ not that it further it to a particular extent.53 Justice Scalia, this time joined by Justice Thomas, again took the view that, ―[w]hen conduct other than speech itself is regulated ... the First Amendment is violated only ‗[w]here the government prohibits conduct precisely because of its communicative attributes.‖54 He found, therefore, that the statute should be upheld without regard to ―secondary effects,‖ but simply as an attempt ―to foster good morals.‖55 Justice Stevens, dissenting in Erie and joined by Justice Ginsburg, wrote: ―Until now, the ‗secondary effects‘ of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protected speech. Indeed, the plurality opinion concludes that admittedly trivial advancements of a State‘s interest may provide the basis for censorship.‖56 It concludes, that is, that the O‟Brien ―test can be satisfied by nothing more than the mere possibility of de minimis effects on the neighborhood.‖57 The plurality in Erie did not address the question of whether statutes prohibiting public nudity could be applied to ban serious theater that contains nudity. In Barnes, Justice Souter wrote: ―It is difficult to see ... how the enforcement of Indiana‘s statute against nudity in a production of ‗Hair‘or ‗Equus‘ somewhere other than an ‗adult‘ theater would further the State‘s interest in avoiding harmful secondary effects.... ‖58

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

80

Henry Cohen

II. Federal Obscenity and Indecency Statutes A. Postal Service Provisions

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Sections 3008 and 3010 of Title 39 allow people to prevent mail that they find offensive from being sent to them. Section 3008 provides that a person who receives in the mail ―any pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative‖ may request the Postal Service to issue an order directing the sender to refrain from further mailings to the addressee, and the Postal Service must do so. If the Postal Service believes that a sender has violated such an order, it may request the Attorney General to apply to a federal court for an order directing compliance. The language of 39 U.S.C. § 3008 is broad enough to apply to any unwanted advertisement, regardless of content, as the Supreme Court indicated in upholding the constitutionality of the statute. ―We ... categorically reject,‖ the Court said, ―the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another.‖59 Section 3010 provides that any person may file with the Postal Service a statement ―that he desires to receive no sexually oriented advertisements through the mails.‖ The Postal Service shall make the list available, and ―[n]o person shall mail or cause to be mailed any sexually oriented advertisement to any individual whose name and address has been on the list for more than 30 days.‖ Section 3011 provides that, if the Postal Service believes that any person is violating section 3010, it may request the Attorney General to commence a civil action against such person in a federal district court. The court may employ various remedies to prevent future mailings. Violations of sections 3008 and 3010 are also subject to criminal penalties under 18 U.S.C. § 1737.

B. Dial-a-Porn The federal law concerning dial-a-porn is section 223(b) of the Communications Act of 1934, as amended, 47 U.S.C. § 223(b). Prior to April 1988, it banned both obscene and indecent dial-aporn in interstate commerce and foreign communications, but only if it involved persons under eighteen. Although pornography that is indecent but not obscene is protected by the First Amendment, restricting minors‘ access to pornography, even to nonobscene pornography, generally presents no constitutional problems, as minors do not have the same rights as adults under the First Amendment. Therefore, the pre-April 1988 version of section 223(b) apparently was constitutional. In April 1988, however, P.L. 100-297, § 6101, amended section 223(b) to ban obscene and indecent diala-porn in interstate and foreign communications, whether involving adults or children. In June 1989, the Supreme Court declared section 223(b) unconstitutional insofar as it applies to indecent messages that are not obscene.60 The Court noted ―that while the Government has a legitimate interest in protecting children from exposure to indecent dial-a-

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

81

porn messages, § 223(b) was not sufficiently narrowly drawn to serve that purpose and thus violated the First Amendment.‖61 ―[C]redit card, access code, and scrambling rules ... [would have] represented a ‗feasible and effective‘ way to serve the Government‘s compelling interest in protecting children.‖62 The government argued that these methods ―would not be effective enough,‖ but the Court found ―no evidence in the record ... to that effect.... ‖63 The Court concluded:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Because the statute‘s denial of adult access to telephone messages which are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages, we hold that the ban does not survive constitutional scrutiny. 64

The upshot of Sable was that Congress‘s 1988 extension to adults of the ban on dial-aporn that is indecent but not obscene resulted in federal law‘s not banning such dial-a-porn at all, even if used by minors. Section 223(b) after the decision banned dial-a-porn only if it was obscene. Therefore, in 1989, Congress enacted P.L. 101-166, known as the ―Helms Amendment,‖ which amended section 223(b) to ban indecent dial-a-porn, if used by persons under 18. Under the 1988 law, section 223(b) applied ―in the District of Columbia or in interstate or foreign communications‖; under the Helms Amendment, it applies to all calls ―within the United States.‖ The Helms Amendment also added section 223(c), which prohibits telephone companies, ―to the extent technically feasible,‖ from providing access to any dial-a-porn ―from the telephone of any subscriber who has not previously requested [it] in writing.... ‖ In order to enable telephone companies to comply with this provision, Federal Communications Commission regulations require dial-a-porn providers to give written notice to the telephone company that they are providing indecent communications. 47 C.F.R. § 64.20 1.65 The Helms Amendment was challenged as unconstitutional, but a federal court of appeals upheld it, and the Supreme Court declined to review the case.66 The court of appeals found that the word ―indecent‖ as used in the statute was not void for vagueness,67 that the statute was the least restrictive means to achieve a compelling governmental interest,68 and that the requirement that the dial-a-porn provider inform the telephone company that its message was indecent did not constitute prior restraint.

C. Obscenity Provisions at 18 U.S.C. §§ 1460-1470 Federal law contains no outright ban on all obscenity; it leaves this to state law. However, the following federal statutes prohibit, among other things, obscenity on federal land or in federal buildings, in the mail, on radio and television, in interstate or foreign commerce, and on interstate highways and railroads even when the obscene material is transported intrastate.

Section 1460 This section makes it a crime, ―in the special maritime and territorial jurisdiction of the United States or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States,‖ or ―in the Indian country as defined in

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

82

Henry Cohen

section 1151 of this title,‖ to sell or to possess with intent to sell, any obscene visual depiction.

Section 1461 This section declares to be ―nonmailable matter‖ any ―obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance,‖ and makes it a crime knowingly to mail non- mailable matter. This statute should be read to prohibit only what constitutionally may be prohibited.69 Section 1462 This section prohibits importation of, and interstate or foreign transportation of, ―any obscene, lewd, lascivious, or filthy‖ printed matter, film, or sound recording, ―or other matter of indecent character.‖ The Supreme Court has written that, if and when serious doubt is raised as to the vagueness of the terms used in section 1462, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ―hard core‖ sexual conduct given as examples in Miller v. California, ante, at 25.... Of course, Congress could always define other specific ―hard core‖ conduct.70

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In 1996, P.L. 104-104, § 507(a), amended 18 U.S.C. § 1462 to apply to any ―interactive computer service.‖

Section 1463 This section prohibits mailing matter, ―upon the envelope or outside cover or wrapper of which, and all postal cards, upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, or obscene character are written or printed or otherwise impressed or apparent.‖ Under this provision, ―language of an ‗indecent‘ character must be equated with language of an ‗obscene‘ character‖ (and does not include ―writing [on a post card] that a female runs around a dwelling house naked‖).71 Section 1464 This section provides, in full: Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. 72

This statute, unlike the others cited thus far, may be applied to language that is not obscene under Miller. This is because broadcasting has more limited First Amendment protection than other media. As the Supreme Court explained in Red Lion Broadcasting Co. v. Federal Communications Commission: Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. 73

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

83

.

In Federal Communications Commission v. Pacifica Foundation, the FCC had taken action against a radio station for broadcasting a recording of George Carlin‘s ―Filthy Words‖ monologue at 2 p.m., and the station had claimed First Amendment protection.74 The Supreme Court upheld the power of the FCC under § 1464 ―to regulate a radio broadcast that is indecent but not obscene.‖75 The Court cited two distinctions between broadcasting and other media: ―First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans ... confront[ing] the citizen, not only in public, but also in the privacy of the home ... ,‖ and ―Second, broadcasting is uniquely accessible to children.... ‖76 Nevertheless, the broadcast media have some First Amendment protection, and the Court emphasized the narrowness of its holding:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction.... The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience.... 77

Section 1464, as quoted above, refers to ―obscene, indecent, or profane language.‖ The Court in Pacifica noted that, to be indecent, a broadcast need not have prurient appeal; ―the normal definition of ‗indecent‘ merely refers to nonconformance with accepted standards of morality.‖78 The FCC holds that the concept ―is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.‖79 In 1988, Congress enacted P.L. 100-459, § 608, which required the FCC to promulgate regulations to ban indecent broadcasts 24 hours a day. The FCC did so, but the regulations never took effect because the court of appeals declared the ban unconstitutional because ―the Commission may not ban such broadcasts entirely.‖80 In 1992, Congress enacted P.L. 102356, § 16 of which required the FCC to promulgate regulations that prohibit broadcasting of indecent programming on radio and television from 6 a.m. to midnight, except for public radio and television stations that go off the air at or before midnight, which may broadcast such material beginning at 10 p.m. 47 U.S.C. § 303 note. In 1993, a three-judge panel of the U.S. Court of Appeals for the District of Columbia held the law unconstitutional, but, on June 30, 1995, the full court of appeals, by a 7-4 vote, overturned the panel and upheld the statute, except for its 10 p.m.- to-midnight ban imposed on non-public stations.81 The court of appeals found ―that the Government has a compelling interest in supporting parental supervision of what children see and hear on the public airwaves,‖82 and ―that the Government has an independent and compelling interest in preventing minors from being exposed to indecent broadcasts.‖83 The court found, in addition, that the statute used the least restrictive means to serve these interests.84 However, the court found that ―Congress has failed to explain what, if any, relationship the disparate treatment accorded certain public stations bears to the compelling Government interest—or to any other legislative value—that Congress sought to advance when it enacted section 16(a).‖85 The court therefore held ―that the section is unconstitutional insofar as it bars the broadcasting of indecent speech between the hours of 10:00 p.m. and midnight.‖86

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

84

Henry Cohen

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In 2003, on the broadcast of the Golden Globe Awards, the singer Bono said that his winning an award was ―f[***]ing brilliant.‖ The FCC Enforcement Bureau found that use of the word ―as an adjective or expletive to emphasize an exclamation‖ did not fall within the definition of ―indecent.‖ The Commission, however, overturned the Bureau, ruling that ―any use of that word or a variation, in any context, inherently has a sexual connotation.... ‖ The Commission also found that Bono‘s phrase was ―profane‖ under § 1464, defining ―profane‖ as ―those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.‖87 In 2006, the FCC took action against four other television broadcasts that contained fleeting expletives, but, in 2007, the U.S. Court of Appeals for the Second Circuit found ―that the FCC‘s new policy regarding ‗fleeting expletives‘ represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC‘s new policy regarding ‗fleeting expletives‘ is arbitrary and capricious under the Administrative Procedure Act.‖88 Having overturned the FCC policy on statutory grounds, the court had no occasion to decide whether it also violated the First Amendment. It explained, however, why it was ―skeptical that the Commission can provide a reasonable explanation for its ‗fleeting expletive‘ regime that would pass constitutional muster.‖89 The Supreme Court, however, reversed the Second Circuit‘s decision, finding that the FCC‘s explanation of its decision was adequate; it left open the question whether censorship of fleeting expletives violates the First Amendment.90 In 2008, the U.S. Court of Appeals for the Third Circuit issued a unanimous decision invalidating the FCC‘s fine against CBS broadcasting station affiliates for broadcasting Janet Jackson‘s exposure of her breast for nine-sixteenths of a second during a SuperBowl halftime show.91 The court found that the FCC had acted arbitrarily and capriciously in finding the incident indecent; the court did not address the First Amendment question.

Section 1465 This section, as amended by P.L. 109-248 (2006), § 506, makes it a crime knowingly to ―produce[ ] with the intent to transport. distribute, or transmit in interstate or foreign commerce,‖ or knowingly to ―transport[ ] or travel[ ] in, or use[ ] a facility or means of interstate or foreign commerce or an interactive computer service ... in or affecting commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy‖ material, ―or any other matter of indecent or immoral character.‖ Section 1465 should be read as limited by the Miller standard.92 The President‘s message that accompanied the original proposal that became P.L. 100-690 ( the 1988 amendment to this provision) states: The term ―facility of commerce‖ would include such things as the federal interstate highway system, federally numbered highways, and interstate railroads, even if such facility were used only intrastate. The term ―means of interstate commerce‖ would include motor vehicles, boats, and airplanes capable of carrying goods in interstate commerce. The new offense would be committed, for example, by transporting obscene material by truck via Interstate 95 from Richmond to Alexandria, Virginia, with the intent that at least part of it would then be sold to customers outside of Virginia.93

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

85

In 1994, in Memphis, Tennessee, Robert and Carleen Thomas, a husband and wife from Milpitas, California, were convicted and sentenced to prison under 18 U.S.C. § 1465 for transmitting obscenity, from California, over interstate phone lines through their membersonly computer bulletin board. The Sixth Circuit affirmed, holding that 18 U.S.C. § 1465 applies to computer transmissions.94 The defendants had also raised a First Amendment issue, arguing that they ―cannot select who gets the materials they make available on their bulletin boards. Therefore, they contend, BBS [bulletin board service] operators like Defendants will be forced to censor their materials so as not to run afoul of the standards of the community with the most restrictive standards.‖95 The court did not decide the issue because it found that, in this case, the defendants had transmitted only to members whose addresses they knew, so ―[i]f Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refused to give passwords to members in those districts, thus precluding the risk of liability.‖96 In 1996, P.L. 104-104, § 507(b), amended 18 U.S.C. § 1465 to apply to any ―interactive computer service.‖

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Section 1466 This section, as amended by P.L. 109-248 (2006), § 506, makes it a crime for any person ―engaged in the business of producing with intent to distribute or sell, or selling or transferring obscene matter‖ knowingly to ―receive[ ] or possess[ ] with intent to distribute any obscene [material] which has been shipped or transported in interstate or foreign commerce.‖ Offering to sell or transfer, at one time, two or more copies of any obscene publication, or a combined total of five, shall create a rebuttable presumption that the person so offering them is ―engaged in the business.‖ In other words, if the government proved that the defendant had offered to sell, at one time, two or more copies of any obscene publication, or a combined total of five, then the defendant would be deemed to be ―engaged in the business‖ unless he could prove otherwise. Section 1466A Section 504 of the PROTECT Act, P.L. 108-21 (2003), created this section, which makes it a crime knowingly to produce, distribute, receive, or possess, with or without intent to distribute, ―a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,‖ that depicts a minor engaging in sexually explicit conduct and is obscene or lacks serious literary, artistic, political, or scientific value. Section 1466A applies whether an actual minor is used or not, but covers only depictions of minors engaged in specified sexual activities, and not in lascivious exhibition of the genitals or pubic area. To the extent that § 1466A applies to non-obscene material produced without the use of an actual minor, it would be unconstitutional under Ashcroft v. Free Speech Coalition.97 Section 1467 This section provides for criminal forfeiture in obscenity cases. Specifically, it provides that a person convicted under the federal obscenity statute (18 U.S.C. §§ 1460-1469) shall forfeit to the United States (1) the obscene material, (2) property traceable to gross profits or other proceeds obtained from the obscene material, (3) property used or intended to be used to commit the offense. In 2006, P.L. 109-248, § 505(a), repealed subsections (b) through (n) of

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

86

Henry Cohen

section 1467 and made ―section 413 of the Controlled Substances Act (21 U.S.C. 853), with the exception of subsections (a) and (d),‖ applicable to the criminal forfeiture of property pursuant to section 1467. Section 505(b) of the 2006 amendment provided that any property subject to forfeiture pursuant to section 1467 may be forfeited to the United States in a civil case in accordance with the procedures set forth in 18 U.S.C. §§ 981-986.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Section 1468 This section, enacted in 1988, makes it a crime ―knowingly to utter[ ] obscene language or distribute[ ] any obscene matter by means of cable television or subscription services on television.‖ The section defines ―distribute‖ to include transmissions by ―wire, microwave, or satellite.‖ Similarly, 47 U.S.C. § 559, enacted in 1984, makes it a crime to ―transmit[ ] over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States.‖ The President‘s message that accompanied the original proposal that became section 1468 explained that the reason for its enactment was that ambiguities in Title 47 of the U.S. Code made it ―unclear under what circumstances, if any, the federal government could enforce [47 U.S.C. § 559].‖98 Section 1468 also provides that no provision of federal law is intended to preempt the power of the states, including their political subdivisions, ―to regulate the uttering of language that is obscene or otherwise unprotected by the Constitution or the distribution of matter that is obscene or otherwise unprotected by the Constitution.‖ There are also other statutes codified in title 47 of the U.S. Code that regulate obscenity and indecency on cable television; see below. Section 1469 This section creates a rebuttable presumption that an item produced in one state and subsequently located in another, or produced outside the United States and subsequently located in the United States, was transported in interstate or foreign commerce. This means that, if the government proves the change of location, then, unless the defendant shows that the allegedly obscene material had not been transported in interstate or foreign commerce, it would be deemed to have been so transported. Section 1470 This section, added by P.L. 105-314, § 401 (1998), makes it a crime to use the mail or interstate or foreign commerce knowingly to transfer obscene matter to a person under 16, knowing that such person is under 16.

D. Cable Television In addition to 18 U.S.C. § 1468 and 47 U.S.C. § 559 (discussed above under ―Section 1468‖), both of which prohibit obscenity on cable television, various provisions in the Communications Act of 1934, codified in title 47 of the U.S. Code, regulate obscenity and indecency on cable television. In 1994, in Turner Broadcasting System v. Federal Communications Commission, which did not involve obscenity or indecency, the Supreme Court held that cable television is

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity and Indecency: Constitutional Principles and Federal Statutes

87

entitled to full First Amendment protection.99 It wrote in Turner: ―In light of these fundamental technological differences between broadcast and cable transmission, application of the more relaxed standard of scrutiny, adopted in Red Lion and other broadcast cases is inapt when determining the First Amendment validity of cable regulation.‖100 In 1996, in Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, a plurality of the Justices retreated from the Court‘s position in Turner. They wrote: ―The Court‘s distinction in Turner, ... between cable and broadcast television, relied on the inapplicability of the spectrum scarcity problem to cable.... While that distinction was relevant in Turner to the justification for structural regulations at issue there (the ‗must carry‘ rules), it has little to do with a case that involves the effects of television viewing on children.‖101 In Part II of the Denver Consortium opinion, a plurality (four justices) upheld § 10(a) of the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 532(h), which permits cable operators to prohibit indecent material on leased access channels.102 In upholding § 10(a), the Court, citing Pacifica, noted that cable television ―is as ‗accessible to children‘ as over-the-air broadcasting,‖ has also ―established a uniquely pervasive presence in the lives of all Americans,‖ and can also ―‗confron[t] the citizen‘ in ‗the privacy of the home,‘... with little or no prior warning.‖103 Applying something less than strict scrutiny, the Court concluded ―that § 10(a) is a sufficiently tailored response to an extraordinarily important problem.‖104 It also found that ―the statute is not impermissibly vague.‖105 In Part III of Denver Consortium, a majority (six justices) struck down § 10(b) of the 1992 Act, 47 U.S.C. § 532(j), which required cable operators, if they do not prohibit such programming on leased access channels, to segregate it on a single channel and block that channel unless the subscriber requests access to it in writing. In this part of the opinion, the Court appeared to apply strict scrutiny, finding ―that protection of children is a ‗compelling interest,‘‖ but ―that, not only is [§ 10(b)] not a ‗least restrictive alternative,‘ and is not ‗narrowly tailored‘ to meet its legitimate objective, it also seems considerably ‗more extensive than necessary.‘‖106 In Part IV, which only three justices joined, the Court struck down § 10(c), 42 U.S.C. § 531 note, which permitted cable operators to prohibit indecent material on public access channels. Without specifying the level of scrutiny they were applying, the justices concluded ―that the Government cannot sustain its burden of showing that § 10(c) is necessary to protect children or that it is appropriately tailored to secure that end.‖107 Another relevant statute concerning cable television is 47 U.S.C. § 544(d)(1), which provides that a franchising authority and a cable operator may specify, in granting or renewing a franchise, ―that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States.‖ In addition, 47 U.S.C. § 544(d)(2)(A) provides: ―In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during a period selected by that subscriber.‖ The Communications Decency Act of 1996, P.L. 104-104, which is known primarily for its provisions regulating computer-transmitted indecency, also contained provisions concerning cable television. Section 504 added § 640 to the Communications Act of 1934, 47 U.S.C. § 560, which provides:

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

88

Henry Cohen Upon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it.

This section includes no restriction on the type of material that a subscriber may request to have blocked. Section 505 added § 641, 47 U.S.C. § 561, which provides:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

(a) In providing sexually explicit adult programming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber does not receive it. (b) Until a multichannel video programming distributor complies with the requirement set forth in subsection (a), the distributor shall limit the access of children to the programming referred to in that subsection by not providing such programming during the hours of the day (as determined by the [Federal Communications] Commission) when a significant number of children are likely to be viewing it.

In 2000, the Supreme Court declared § 505 unconstitutional, making clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based speech restrictions on cable television.108 The Court noted that ―[t]he purpose of § 505 is to shield children from hearing or seeing images resulting from signal bleed,‖ which refers to images or sounds that come through to non- subscribers, even though cable operators have ―used scrambling in the regular course of business, so that only paying customers had access to certain programs.‖109 Section 505 requires cable operators to implement more effective scrambling—to fully scramble or otherwise fully block programming so that non-subscribers do not receive it—or to ―time channel,‖ which, under an F.C.C. regulation meant to transmit the programming only from 10 p.m. to 6 a.m. ―To comply with the statute,‖ the Court noted, ―the majority of cable operators adopted the second, or ‗time channeling,‘ approach.110 The effect ... was to eliminate altogether the transmission of the targeted programming outside the safe harbor period [6 a.m. to 10 p.m.] in affected cable service areas. In other words, for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so.‖111 The Court also noted that ―[t]he speech in question was not thought by Congress to be so harmful that all channels were subject to restriction. Instead, the statutory disability applies only to channels ‗primarily dedicated to sexually-oriented programming.‘‖112 ―Since § 505 is a content-based speech restriction,‖ the Court wrote, ―it can stand only if it satisfies strict scrutiny.... If a statute regulates speech based on content, it must be narrowing tailored to promote a compelling Government interest.... If a less restrictive alternative would serve the Government‘s purpose, the legislature must use that alternative.‖113 The Court did not explicitly say in this case that protecting children from sexually oriented signal bleed is a compelling interest, but would ―not discount the possibility that a graphic image could have a negative impact on a young child.‖114 Instead, it addressed the question of whether § 505 constituted the least restrictive means to advance that interest. The Court noted that there is ―a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

89

capacity to block unwanted channels on a household-by-household basis.... [T]argeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners.... ‖115 Furthermore, targeted blocking is already required—by § 504 of the CDA, which, as noted above, requires cable operators, upon request by a cable service subscriber, to, without charge, fully scramble or otherwise fully block audio and video programming that the subscriber does not wish to receive. ―When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government‘s obligation to prove that the alternative will be ineffective to achieve its goal. The Government has not met that burden here.‖116 The Court concluded, therefore, that § 504, with adequate publicity to parents of their rights under it, constituted a less restrictive alternative to § 505. One additional provision of the CDA affected cable television: § 506 amended 47 U.S.C. §§ 531(e) and 532(c)(2) to permit cable operators to refuse to transmit ―obscenity, indecency, or nudity‖ on public access and leased access channels.117

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

E. The Communications Decency Act of 1996 The Communications Decency Act of 1996 (CDA) is Title V of the Telecommunications Act of 1996, P.L. 104-104. This chapter has previously noted amendments the act made to 18 U.S.C. §§ 1462 and 1465, and provisions relating to cable television that it added to Title 47 of the U.S. Code. This section of the report examines § 502 of the act, which would have limited indecent material transmitted by telecommunications devices and interactive computer services, and Reno v. American Civil Liberties Union, the Supreme Court decision holding it unconstitutional.118 Section 502 rewrote 47 U.S.C. § 223(a) and added subsections (d) through (h) to 47 U.S.C. § 223. It did not amend subsections (b) or (c), which restrict commercial dial-a-porn services (see Section II. B., above). In Reno, the Supreme Court struck down § 223(a) in part and § 223(d) in whole.

47 U.S.C. § 223(a) Prior to its amendment by § 603 of the PROTECT Act, P.L. 108-21 (2003), § 223(a)(1 )(A) made it a crime, by means of a telecommunications device, knowingly to transmit a communication that is ―obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person.‖ Prior to its amendment by § 603 of the PROTECT Act, § 223(a)(1)(B) made it a crime, by means of a telecommunications device, knowingly to transmit a communication that is ―obscene or indecent, knowing that the recipient of the communication is under 18 years of age.... ‖ Section 223(a)(2) makes it a crime knowingly to permit any telecommunications facility under one‘s control to be used for any activity prohibited by § 223(a)(1) with the intent that it be used for such activity.119 Although the CDA defines ―telecommunications,‖120 it does not define ―telecommunications device.‖ However, it provides in § 223(h)(1)(B) that the term ―does not include the use of an interactive computer service.‖121 Thus, it appears that § 223(a)(1)(A) and (B) are intended to apply to communications, by telephone, fax machine, or computer, that are sent to particular individuals, not those that can be accessed by multiple users.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

90

Henry Cohen

In Reno v. American Civil Liberties Union, the Supreme Court declared § 223(a)(1)(B) unconstitutional insofar as it applies to ―indecent‖ communications. Section 603 of the PROTECT Act amended § 223(a)(1)(A) by substituting ―or child pornography‖ for ―lewd, lascivious, filthy, or indecent.‖ Thus, § 223(a)(1)(A) now bans only obscenity and child pornography, both of which are unprotected by the First Amendment. Section 223(a)(1)(A) thereby no longer raises the constitutional issue raised by ApolloMedia Corp. v. Reno.122 Section 603 of the PROTECT Act amended § 223(a)(1)(B) by substituting ―child pornography‖ for ―indecent,‖ so that it too now bans only obscenity and child pornography, and no longer raises the constitutional issue that gave rise to Reno v. American Civil Liberties Union.123

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

47 U.S.C. § 223(d) Prior to its amendment by § 603 of the PROTECT Act, § 223(d) made it a crime knowingly to use ―an interactive computer service to send to a specific person or persons under 18 years of age, or ... to display in a manner available to a person under 18 years of age, any ... communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.... ‖ (italics added) This prohibition seems equivalent to a prohibition of ―indecent‖ material, but § 223(d) does not use the word ―indecent,‖ a fact of which the Supreme Court took note in Reno when it held § 223(d) unconstitutional.124 Section 603 of the PROTECT Act amended § 223(d)(1) by substituting ―is obscene or child pornography‖ for the words italicized above. Section 223(d) thus no longer raises the constitutional issue that gave rise to Reno v. American Civil Liberties Union. Reno v. American Civil Liberties Union The Supreme Court found in this case that ―the CDA is a content-based blanket restriction on speech.... ‖125 As such, it may be found constitutional only if it serves ―to promote a compelling interest‖ and is ―the least restrictive means to further the articulated interest.‖126 As for whether the CDA promotes a compelling interest, although the Court referred to ―the legitimacy and importance of the congressional goal of protecting children from harmful materials,‖127 it suggested that there may be less of a governmental interest in protecting older children from indecent material—at least such material as had artistic or educational value.128 As for whether the CDA is the least restrictive means to further the governmental interest, the Court found that ―the Government [failed] to explain why a less restrictive provision would not be as effective as the CDA.‖129 The CDA‘s ―burden on adult speech,‖ the Court held, ―is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.‖130 ―[T]he Government may not ‗reduc[e] the adult population ... to ... only what is fit for children.‘‖131 Could Congress reenact the CDA be reenacted in a narrower form that would be constitutional? The Supreme Court did not say, but it did not foreclose the possibility. It wrote: The arguments in this Court have referred to possible alternatives such as requiring that indecent material be ―tagged‖ in a way that facilitates parental control of material coming into The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

91

their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet— such as commercial web sites—differently from others, such as chat rooms. 132

F. Child Online Protection Act

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

On October 21, 1998, President Clinton signed into law the Omnibus Appropriations Act for FY1999 (P.L. 105-277), title XIV of which is the Child Online Protection Act (COPA), 47 U.S.C. § 231. COPA was an attempt to enact a constitutional version of the CDA. It has never taken effect, however, because a federal district court issued a preliminary injunction against its enforcement pending trial. The preliminary injunction was affirmed on appeal, most recently by the Supreme Court, which, in 2004, remanded the case for trial.133 In 2007, a federal district court found COPA to be unconstitutional and issued a permanent injunction against its enforcement; in 2008, the U.S. Court of Appeals for the Third Circuit affirmed, and, in 2009, the Supreme Court declined to review the case.134 COPA differs from the CDA in two main respects: (1) it prohibits communication to minors only of material that is ―harmful to minors,‖ rather than material that is indecent, and (2) it applies only to communications for commercial purposes on publicly accessible websites. It defines ―material that is harmful to minors‖ as pictures or words that— (A)the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.135

A communication is deemed to be for ―commercial purposes‖ if it is made in the regular course of a trade or business with the objective of earning a profit; a communication need not propose a commercial transaction to be deemed to be for ―commercial purposes.‖ Requiring a viewer to use a credit card, or to verify his age, to gain access to material on the Internet would constitute a defense to prosecution. In light of the Supreme Court‘s decision in Reno, is COPA constitutional? The fact that COPA makes exceptions for messages with serious literary, artistic, political, or scientific value for minors, and that it applies only to commercial websites, makes it more likely than the CDA to be upheld. Nevertheless it may well, like the CDA, be found to ―suppress[ ] a large amount of speech that adults have a constitutional right to receive and to address to one another.‖136 This is because a website that is freely accessible, but is deemed ―commercial‖ because it seeks to make a profit through advertisements, would apparently have to stop making its website freely accessible, or, in the alternative, would have to remove all words and pictures that might be deemed ―harmful to minors‖ ―by the standards of the community most likely to be offended by the message.‖137

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

92

Henry Cohen

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

COPA was scheduled to take effect on November 20, 1998, but a coalition of 17 civil liberties groups filed suit challenging it, and, on November 19, Judge Reed of the federal district court in Philadelphia, finding that there was a likelihood that the plaintiffs would prevail, issued a temporary restraining order against enforcement of the law. On February 1, 1999, he issued a preliminary injunction against enforcement pending a trial on the merits. The preliminary injunction applies to all Internet users (not just the plaintiffs in this case) and provides that, even if the law is ultimately upheld, the Administration may not prosecute online speakers retroactively. On June 22, 2000, the U.S. Court of Appeals for the Third Circuit upheld the preliminary injunction, as it was ―confident that the ACLU‘s attack on COPA‘s constitutionality is likely to succeed on the merits.‖138 On May 13, 2002, the Supreme Court vacated the Third Circuit‘s opinion and remanded the case for further proceedings. It did not, however, remove the preliminary injunction against enforcement of the statute. On March 6, 2003, the Third Circuit again affirmed the district court‘s preliminary injunction, and, on June 29, 2004, the Supreme Court also affirmed the preliminary injunction, and it remanded the case for trial. On March 22, 2007, a federal district court found COPA to be unconstitutional and issued a permanent injunction against its enforcement; on July 22, 2008, the Third Circuit affirmed. We now consider these seven opinions in turn. In issuing the preliminary injunction, the district court found that ―[i]t is clear that Congress has a compelling interest in the protection of minors, including shielding them from materials that are not obscene by adult standards.‖139 It also found, however, that ―it is not apparent to this Court that the defendant can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to this material.‖140 This is because ―[t]he record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors‘ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or website operators.‖141 In addition, the sweeping category of forms of content that are prohibited—―any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind‖ (emphasis added [by the court])—could have been less restrictive of speech on the Web and more narrowly tailored to Congress‘ goal of shielding minors from pornographic teasers if the prohibited forms of content had included, for instances, only pictures, images, or graphic image files, which are typically employed by adult entertainment websites as ―teasers.‖ In addition, perhaps the goals of Congress could be served without the imposition of possibly excessive and serious criminal penalties, including imprisonment and hefty fines, for communicating speech that is protected as to adults or without exposing speakers to prosecution and placing the burden of establishing an affirmative defense on them instead of incorporating the substance of the affirmative defenses in the elements of the crime.142

On appeal, the Third Circuit affirmed on a different ground: because the standard by which COPA gauges whether material is ―harmful to minors‖ is based on identifying ―contemporary community standards‖ the inability of Web publishers to restrict access to their websites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.143

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity and Indecency: Constitutional Principles and Federal Statutes

93

This is because it results in communications available to a nationwide audience being judged by the standards of the community most likely to be offended. Applying strict scrutiny, the Third Circuit concluded that, though ―[i]t is undisputed that the government has a compelling interest in protecting children from material that is harmful to them, even if not obscene by adult standards,‖144 the government ―may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations.‖145 The Supreme Court held that COPA‘s ―use of ‗community standards‘ to identify ‗material that is harmful to minors‘ ... does not render the statute facially unconstitutional‖— it ―does not by itself render the statute substantially overbroad for purposes of the First Amendment.‖146 Although there were five separate opinions in the case, eight of the nine justices favored remanding the case to the Third Circuit to consider whether the act was nevertheless unconstitutional. Only Justice Stevens dissented, as only he believed that the use of community standards was a sufficient problem to warrant an affirmance of the Third Circuit‘s opinion. The Court‘s statement that COPA‘s use of community standards does not by itself render the statute unconstitutional implies that COPA‘s use of community standards may nevertheless prove a factor among others that renders the statute unconstitutional. Justice Thomas, however, despite writing the opinion for the Court, including the by itself language quoted above, wrote, in a section of the opinion joined only by Chief Justice Rehnquist and Justice Scalia, ―that any variance caused by the statute‘s reliance on community standards is not substantial enough to violate the First Amendment.‖147 Justice Thomas also commented: ―If a publisher wishes for its material to be judged only by the standards of particular communities [and not by the most puritanical community], then it need only take the simple step of utilizing a medium [a medium other than the Internet] that enables it to target the release of its materials into those communities.‖148 Justice Stevens responded that the Court should ―place the burden on parents to ‗take the simple step of utilizing a medium that enables‘ ... them to avoid this material before requiring the speaker to find another forum.‖149 Justice Kennedy, in a concurring opinion joined by Justices Souter and Ginsburg, found that ―[w]e cannot know whether variation in community standards renders the act substantially overbroad without first assessing the extent of speech covered and the variations in community standards with respect to that speech.‖150 Justice Kennedy believed that, before an assessment could be made, the Third Circuit should consider such questions as how much material COPA prohibits, how much the standard of the most puritanical community in the nation differ from standards of other communities, ―what it means to evaluate Internet material ‗as a whole,‘‖ and the number of venues in which the government could prosecute violations of the act.151 Justices O‘Connor and Breyer wrote separate concurring opinions. Justice O‘Connor agreed with Justice Kennedy that the plaintiffs had failed ―to demonstrate substantial overbreadth due solely to the variation between local communities,‖152 and Justice Breyer, to avoid a First Amendment problem, would have construed the phrase ―community standard‖ in the statute to mean a national standard. On remand, the Third Circuit again affirmed the district court‘s preliminary injunction. It held ―that the following provisions of COPA are not narrowly tailored to achieve the Government‘s compelling interest in protecting minors from harmful material and therefore fail the strict scrutiny test: (a) the definition of ‗material that is harmful to minors,‘ ... (b) the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

94

Henry Cohen

definition of ‗commercial purposes,‘... and (c) the ‗affirmative defenses‘ available to publishers, which require the technological screening of users for the purpose of age verification.‖153 As for the definition of ―material that is harmful to minors,‖ the court found that the requirement that material be judged ―as a whole‖ in determining whether it was designed to appeal to the prurient interests of minors and to lack serious value for minors meant ―that each individual communication, picture, image, exhibit, etc. be deemed ‗a whole‘ by itself,‖ rather than in context.154 Yet ―one sexual image, which COPA may proscribe as harmful material, might not be deemed to appeal to the prurient interest of minors if it were to be viewed in the context of an entire collection of Renaissance artwork.‖155 The court also found the word ―minor‖ in the definition of ―material that is harmful to minors‖ to be ―not narrowly drawn to achieve the statute‘s purpose,‖ because it precludes Web publishers from knowing whether ―an infant, a five- year old, or a person just shy of age seventeen ... should be considered in determining whether the content of their website has ‗serious ... value for [those] minors‘‖ or ―will trigger the prurient interest, or be patently offensive with respect to those minors.... ‖156 As for the definition of ―commercial purposes,‖ the court was ―satisfied that COPA is not narrowly tailored to proscribe commercial pornographers and their ilk, as the Government contends, but instead prohibits a wide range of protected expression.‖157 As for the affirmative defense available to publishers, the court found that it ―will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content.... ‖158 The Third Circuit also found that voluntary ―blocking and filtering techniques ... may be substantially less restrictive than COPA in achieving COPA‘s objective of preventing a minor‘s access to harmful material.‖159 Finally, it held ―that the plaintiffs will more probably prove at trial that COPA is substantially overbroad, and therefore, we will affirm the District Court on this independent ground as well.‖160 In 2004, the Supreme Court, by a 5-4 vote, affirmed the preliminary injunction and remanded the case for trial. The Court, in an opinion by Justice Kennedy, found that the district court had not abused its discretion in granting a preliminary injunction, because the government had failed to show that proposed alternatives to COPA would not be as effective in accomplishing its goal. The Court did not address the Third Circuit‘s conclusions that various terms used in COPA rendered it unconstitutional. The primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because ―[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at the source.‖161 In addition filters may be more effective than COPA because ―a filter can prevent minors from seeing all pornography, not just [the 60% of all Internet] pornography posted to the Web from America,‖ and filters ―can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web.‖162 Furthermore, ―[m]ore and better filtering alternatives may exist than when the District Court entered its findings,‖ and ―a congressionally appointed commission issued a report that found that filters are more effective than [age] verification screens.‖163 Nevertheless, the Court‘s ―opinion does not foreclose the District Court from concluding, upon a proper showing by the Government that meets the Government‘s constitutional burden as defined in this opinion, that COPA is the least restrictive alternative available to accomplish Congress‘ goal.‖164

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity and Indecency: Constitutional Principles and Federal Statutes

95

Justice Breyer, in his dissent, found that COPA‘s ―burden on protected speech ... is no more than modest,‖ as it would limit ―legally obscene material, and very little more.‖165 Further, COPA ―does not censor the material it covers,‖ but merely ―requires providers of the ‗harmful to minors‘ material to restrict minors‘ access to it by verifying age.‖166 Justice Breyer then wrote that blocking and filtering software is not a less restrictive alternative because ―it is part of the status quo,‖ and ―[i]t is always less restrictive to do nothing than to do something.‖167 In addition, Breyer asserted, ―filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision.‖168 (The majority opinion countered that Congress ―may act to encourage the use of filters,‖ and ―[t]he need for parental cooperation does not automatically disqualify a proposed less restrictive alternative.‖169) Justice Breyer also noted ―four serious inadequacies‖ of filters, and found that COPA‘s application to ―60% percent of the Internet‘s commercial pornography‖ is not ―insignificant.‖170 Justice Breyer‘s dissent was joined by two other justices, and Justice Scalia wrote a separate dissent, claiming that ―harmful-tominors‖ material is not protected by the First Amendment. Upon remand, the district court, as noted above, found COPA to be unconstitutional.171 The grounds for its decision were that ―COPA is not narrowly tailored to Congress‘ compelling interest,‖ the Attorney General ―failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest,‖ and ―COPA is impermissibly vague and overbroad.‖172 The court found COPA to be overinclusive, which means that it prohibited ―more speech than is necessary to further Congress‘ compelling interest,‖ as it ―covers more than just commercial pornographers‖ and ―applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors.‖173 The court also found COPA to be underinclusive, as it does not apply to ―a significant amount of sexually explicit material on the Internet which originates from outside of the United States,‖ which is one reason, the court found, that COPA would not be not as effective as alternatives, such as filters, would be in achieving its ends.174 In 2008, the Third Circuit affirmed, finding that COPA ―does not employ the least restrictive alternative to advance the Government‘s compelling interest‖ and is also vague and overbroad.175 In 2009, the Supreme Court declined to review the case.

G. Children's Internet Protection Act The Children‘s Internet Protection Act (CIPA), P.L. 106-554 (2000), 114 Stat. 2763A335, amended three federal statutes to provide that a school or library may not use funds it receives under these statutes to purchase computers used to access the Internet, or to pay the direct costs of accessing the Internet, and may not receive universal service discounts (other than for telecommunications services), unless the school or library enforces a policy ―that includes the operation of a technology protection measure‖ that blocks or filters minors‘ Internet access to visual depictions that are obscene, child pornography, or ―harmful to minors‖; and that blocks or filters adults‘ Internet access to visual depictions that are obscene or child pornography.176 The sections of CIPA (1711 and 1712) that require schools and libraries to block or filter if they use federal funds for computers or for Internet access, provide that the blocking or

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

96

Henry Cohen

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

filtering technology may be disabled ―to enable access for bona fide research or other lawful purpose.‖ The section of CIPA (1721) that requires schools and libraries to block or filter if they receive universal service discounts, provides that the blocking or filtering technology may be disabled ―during use by an adult, to enable access for bona fide research or other lawful purpose.‖ Sections 1711, 1712, and 1721 all contain identical definitions of ―minor,‖ ―obscene,‖ ―child pornography,‖ and ―harmful to minors. They define a ―minor‖ as a person under 17. They define ―obscene‖ to have the meaning given such term in18 U.S.C. § 1460, but that section does not define ―obscene.‖177 In the absence of a statutory definition, the courts will no doubt apply the Miller test to define the word. Sections 1711, 1712, and 1721 all define ―child pornography‖ to have the meaning given such term in 18 U.S.C. § 2256. That section defines ―child pornography‖ as any ―visual depiction‖ of ―sexually explicit conduct‖ that is or appears to be of a minor, and defines ―sexually explicit conduct‖ as various ―actual or simulated‖ sexual acts or the ―lascivious exhibition of the genitals or pubic area of any person.‖ Child pornography need not be obscene under the Miller test; it is unprotected by the First Amendment even if it does not appeal to the prurient interest, is not patently offensive, and does not lack serious literary, artistic, scientific, or political value. Sections 1711, 1712, and 1721 define ―material that is harmful to minors‖ as any communication that— (i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.178

In United States v. American Library Association, a three-judge federal district court unanimously declared CIPA unconstitutional and enjoined its enforcement insofar as it applies to libraries.179 CIPA, like the CDA but unlike COPA, authorizes the government to appeal directly to the Supreme Court, and the government did so. In 2003, the Supreme Court reversed the district court, finding CIPA constitutional.180 The decision included a four-justice plurality opinion by Chief Justice Rehnquist, concurring opinions by Justices Kennedy and Breyer, and dissenting opinions by Justices Stevens and Souter (the latter joined by Justice Ginsburg). The plurality noted that ―Congress may not ‗induce‘ the recipient [of federal funds] ‗to engage in activities that would themselves be unconstitutional.‘‖181 The plurality therefore viewed the question before the Court as ―whether [public] libraries would violate the First Amendment by employing the filtering software that CIPA requires.‖182 Does CIPA, in other words, effectively violate library patrons‘ rights? The plurality concluded that it does not. In so concluding, the plurality found that ―Internet access in public libraries is neither a ‗traditional‘ or a ‗designated‘ public forum,‖183 and that therefore it would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.184 This means that the government did not have to

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity and Indecency: Constitutional Principles and Federal Statutes

97

demonstrate that CIPA serves a compelling interest (though Justice Kennedy in his concurrence noted that ―all Members of the Court appear to agree‖ that it does185) or that CIPA does so by the least restrictive means (the district court had found ―that less restrictive alternatives to filtering software would suffice to meet Congress‘ goals‖186). The plurality acknowledged ―the tendency of filtering software to ‗overblock‘—that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block.‖187 It found, however, that, ―[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.‖188 The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance—in other words, does it violate public libraries‘ rights by requiring them to limit their freedom of speech if they accept federal funds? The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute ―simply insist[s] that public funds be spent for the purposes for which they were authorized.‖189 ―CIPA does not ‗penalize‘ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress‘ decision not to subsidize their doing so.‖190 In effect, then, the plurality seemed to view CIPA as raising no First Amendment issue other than the possible one of overblocking, which it found the statute to deal with adequately by its disabling provisions. Justice Kennedy, concurring, noted that, ―[i]f some libraries do not have the capacity to unblock specific websites or to disable the filter or if it is shown that an adult user‘s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.‖191 Justice Breyer would have applied ―a form of heightened scrutiny,‖ greater than rational basis scrutiny but ―more flexible‖ than strict scrutiny, to assess CIPA‘s constitutionality.192 He would ask ―whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives.‖193 Applying this test, he concurred that CIPA is constitutional. Justice Stevens found CIPA unconstitutional because of its ―vast amount of ‗overblocking,‘‖ which he found not cured by the disabling provisions, because ―[u]ntil a blocked site or group of sites is unblocked, a patron is unlikely to know what is being hidden and therefore whether there is any point in asking for the filter to be removed.‖194 Justice Souter said that he would not ―dissent if I agreed with the majority of my colleagues ... that an adult library patron could, consistently with the act, obtain an unblocked terminal simply for the asking.... But the Federal Communications Commission, in its order implementing the act, pointedly declined to set a federal policy on when unblocking by local libraries would be appropriate under the statute.... Moreover, the District Court expressly found that ‗unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries.‘‖195 Further, ―the statute says only that a library ‗may‘ unblock, not that it must.‖196

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

98

Henry Cohen

H. Dot Kids Internet Domain The Dot Kids Implementation and Efficiency Act of 2002, P.L. 107-317, 47 U.S.C. § 941, directs the National Telecommunication and Information Administration (NTIA), which is an agency in the Department of Commerce, to establish a ―new domain‖ ―that provides access only to material that is suitable for minors and not harmful to minors.‖ The statute‘s definition of ―harmful to minors‖ is essentially the same as COPA‘s.197 Its definition of ―suitable for minors‖ is ―not psychologically or intellectually inappropriate for minors‖ and ―serves (i) the educational, informational, intellectual, or cognitive needs of minors; or (ii) the social, emotional, or entertainment needs of minors.‖ The URL for the new domain is http://www.kids.us; that site lists 22 websites that use the new domain.

I. Misleading Domain Names on the Internet This provision, 18 U.S.C. § 2252B, which was enacted as § 521 of the PROTECT Act, P.L. 108- 21 (2003), was placed in the child pornography statute, but it concerns obscenity and ―harmful to minors‖ material, and not child pornography, except to the extent that obscenity or ―harmful to minors‖ material may also be child pornography. It makes it a crime knowingly to use a misleading domain name on the Internet with the intent to deceive a person into viewing material that is obscene, or with the intent to deceive a minor into viewing material that is ―harmful to minors.‖ It defines ―harmful to minors‖ to parallel the Miller test for obscenity, as applied to minors.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

J. Misleading Words or Digital Images on the Internet This provision, 18 U.S.C. § 2252C, which was created by § 703 of the Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248 (2006), was placed in the child pornography statute, but it concerns obscenity and ―harmful to minors‖ material, and not child pornography, except to the extent that obscenity or ―harmful to minors‖ material may also be child pornography. It makes it a crime to knowingly embed words or digital images into the source code of a website with the intent to deceive a person into viewing material that constitutes obscenity, or with the intent to deceive a minor into viewing material that is ―harmful to minors.‖ It defines ―harmful to minors‖ as defined in section 2252B (the statute described immediately above under ―I. Misleading Domain Names on the Internet‖).

K. Sexually Oriented Spam Section 5(d) of the CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701 et seq., P.L. 108-187,198 makes it a crime to send to a ―protected computer‖ (which as defined in section 3 of the statute effectively means any computer) a commercial e-mail ―that includes sexually oriented material,‖ unless (1) ―the recipient has given prior affirmative consent to receipt of the message,‖ or (2) the e-mail includes in its subject heading ―the marks or notices prescribed by

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes

99

the [Federal Trade] Commission,‖ or (3) ―the matter in the message that is initially viewable to the recipient includes only‖— (i) to the extent required or authorized pursuant to paragraph (2), any such marks or notices; (ii) the information required to be included in the message pursuant to subsection (a)(5); and (iii) instructions on how to access, or a mechanism to access, the sexually oriented material.

Item (i) apparently should refer to paragraph (3) rather than paragraph (2). If read to refer to paragraph (3), then it would mean that the FTC-prescribed marks and notices may be in the body of the e-mail instead of in the subject heading. They may be in the body of the e-mail, however, only if the sender complies with items (ii) and (iii). Item (ii) refers to subsection (a)(5), which requires all spam to provide: (i) clear and conspicuous identification that the message is an advertisement or solicitation; (ii) clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and (iii) a valid physical postal address of the sender.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Item (iii) apparently means that the body of the e-mail may contain a link to sexually oriented material, but may not contain sexually oriented material itself. The Federal Trade Commission issued a final rule, effective May 19, 2004, requiring that sexually oriented spam ―exclude sexually oriented material from the subject heading ... and include in the subject heading the phrase ‗SEXUALLY-EXPLICIT:‘ in capital letters as the first nineteen (19) characters at the beginning of the subject line.‖199 The rule also requires— that the content of the message that is initially viewable by the recipient when the message is opened by any recipient and absent any further actions by the recipient, include only the following information: (i) the phrase ―SEXUALLY-EXPLICIT:‖ in a clear and conspicuous manner; (ii) clear and conspicuous identification that the message is an advertisement or a solicitation; (iii) clear and conspicuous notice of the opportunity of a recipient to decline to receive further commercial electronic mail messages from the sender; (iv) a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that ... a recipient may use to submit ... a reply ... requesting not to receive future commercial electronic mail messages from the sender.... ‖

L. Video Voyeurism The Video Voyeurism Prevention Act of 2004, P.L. 108-495,18 U.S.C. § 1801, makes it a misdemeanor—but only ―in the special maritime and territorial jurisdiction of the United States,‖ as that phrase is defined at 18 U.S.C. § 7—for a person, having ―the intent to capture

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

100

Henry Cohen

an image of a private area of an individual without their consent.... knowingly [to do] so in circumstances in which the individual has a reasonable expectation of privacy.‖ A ―private area‖ refers to ―naked or undergarment clad genitals, pubic area, buttocks, or female breast [below the top of the areola].‖ To ―capture an image‖ means ―to videotape, photograph, film, record by any means, or broadcast,‖ with ―broadcast‖ meaning ―electronically transmit.‖

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

M. RICO The Federal Racketeer Influenced and Corrupt Organizations Act (RICO) was amended in 1984 to add the obscenity crimes specified in 18 U.S.C. §§ 1461-1465 to the definition of ―racketeering activity‖ in 18 U.S.C. § 1961(1)(B). RICO makes it a crime for any person employed by or associated with any ―enterprise‖ engaged in or affecting interstate or foreign commerce to participate in the affairs of the enterprise ―through a pattern of racketeering activity.‖ 18 U.S.C. § 1962(c). A ―pattern of racketeering activity‖ means at least two acts of racketeering activity within ten years (excluding any period of imprisonment). 18 U.S.C. § 1961(5). Thus, if a person engages in two such activities, including the obscenity offenses specified, he is subject to prosecution under RICO in addition to, or instead of, prosecution for the particular activities. RICO also provides for criminal forfeiture (18 U.S.C. § 1963), and its criminal forfeiture provision has been used in obscenity prosecutions; see Alexander v. United States, infra. In Fort Wayne Books, Inc. v. Indiana, the Supreme Court held that pretrial seizure, under the Indiana RICO statute, of books or other expressive materials, was unconstitutional.200 Although probable cause to believe that a person has committed a crime is sufficient to arrest him, ―probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.‖201 This presumption of First Amendment protection ―is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding.‖202 The Federal RICO statute, in any event, does not provide for pretrial seizure.203 In Fort Wayne Books, the Court did, however, uphold the constitutionality of including obscenity violations among the predicate offenses under a RICO statute. The Court rejected the argument ―that the potential punishments available under the RICO law are so severe that the statute lacks a ‗necessary sensitivity to first amendment rights.‘‖204 Further, the Court held that such obscenity violations need not be ―affirmed convictions on successive dates ... in the same jurisdiction as that where the RICO charge is brought.‖205 The fact that the violations need not be affirmed convictions means that the obscenity violations may be proved as part of the RICO prosecution; no ―warning shot‖ in the form of a prior conviction for obscenity is required. ―As long as the standard of proof is the proper one with respect to all the elements of the RICO allegation—including proof, beyond a reasonable doubt, of the requisite number of constitutionally-proscribable predicate acts—all of the relevant constitutional requirements have been met.‖206 The fact that the predicate offenses need not be convictions in the same jurisdiction as that where the RICO charge is brought means that the predicate offenses can be violations which were based on community standards different from those of the jurisdiction where the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity and Indecency: Constitutional Principles and Federal Statutes

101

RICO charge is brought.207 ―But, as long as, for example, each previous obscenity conviction was measured by the appropriate community‘s standard, we see no reason why the RICO prosecution—alleging a pattern of such violations—may take place only in a jurisdiction where two or more such offenses have occurred.‖208 In Alexander v. United States, the Supreme Court addressed a question it had left open in Fort Wayne Books: whether there are First Amendment limitations to RICO forfeitures of assets that consist of expressive materials that are otherwise protected by the First Amendment.209 The defendant in the case had been found guilty of selling four magazines and three videotapes that were obscene, and, on that basis, had been convicted under RICO. He was sentenced to six years in prison, fined $100,000, and ordered to pay the cost of prosecution, incarceration, and supervised release. He was also ordered to forfeit all his wholesale and retail businesses, including more than a dozen stores and theaters dealing in sexually explicit material, all the assets of these businesses (i.e., expressive materials, whether or not obscene), and almost $9 million. The government chose to destroy, rather than sell, the expressive material. The Supreme Court rejected the argument that the forfeiture of expressive materials constitutes prior restraint, as the forfeiture order ―does not forbid petitioner from engaging in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities.‖210 Consequently, the Court analyzed the forfeiture ―under normal First Amendment standards,‖ and could see no reason why, ―if incarceration for six years and a fine of $100,000 are permissible forms of punishment under the RICO statute, the challenged forfeiture of certain assets directly related to petitioner‘s racketeering activity is not.... [T]he First Amendment does not prohibit either stringent criminal sanctions for obscenity offenses or forfeiture of expressive materials as punishment for criminal conduct.‖211 The Court did, however, remand the case to the court of appeals to decide whether the forfeiture constituted an ―excessive fine‖ under the Eighth Amendment. The same day, in another case, the Court held that the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property imposed by criminal statutes.212

N. Wiretaps 18 U.S.C. § 2516(1)(i) authorizes federal judges to approve ―the interception of wire or oral communications‖ to collect evidence of violations of the federal obscenity statute (18 U.S.C. §§ 1460-1469). Section 201 of the PROTECT Act, P.L. 108-21 (2003), amended 18 U.S.C. § 2516(1)(c) to provide the same authorization with respect to child pornography crimes.

O. The Customs Service Provision This statute, which is codified at 19 U.S.C. § 1305, prohibits importation of, among other things, obscene material, and provides, upon the appearance of any such material at a customs office, for its civil forfeiture. P.L. 100-690, § 7522(e),213 amended 19 U.S.C. § 1305 to coordinate seizure by customs officers with criminal prosecutions under 18 U.S.C. § 1462. As

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

102

Henry Cohen

the message of the President that accompanied the original proposal that became P.L. 100690 explained, ―While most obscene material seized by the Customs Service is forfeited under section 1305, some is of such a nature that it is referred for criminal prosecution as a violation of 18 U.S.C. 1462, importation of obscene material.... ‖214 The amendment to section 1305 provides: [W]henever the Customs Service is of the opinion that criminal prosecution is appropriate or that further criminal investigation is warranted in connection with allegedly obscene material seized at the time of entry, the appropriate customs officer shall immediately transmit information concerning such seizure to the United States Attorney of the district of the addressee‟s residence....

The amendment then sets forth the subsequent procedures to be followed by the U.S. Attorney.

End Notes

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1

Despite its mentioning only ―Congress,‖ the First Amendment applies equally to all branches of the federal government and the states. Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979). 2 Child pornography is material that visually depicts sexual conduct by children. New York v. Ferber, 458 U.S. 747, 764 (1982). It is unprotected by the First Amendment even when it is not legally obscene; i.e., child pornography need not meet the Miller test to be banned. For additional information, see CRS Report 95-406, Child Pornography: Constitutional Principles and Federal Statutes, by Henry Cohen. 3 In Frisby v. Schultz, 487 U.S. 474, 481 (1988), the Supreme Court noted: ―The State may ... enforce regulations of the time, place, and manner of expression which are content-neutral [i.e. , ―are justified without reference to the content of the regulated speech,‖ Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48 (1986) (emphasis in original)], are narrowly tailored to serve a significant [not necessarily a compelling] government interest, and leave open ample alternative channels of communication [but need not necessarily be the least restrictive means to further the government interest].‖ 4 Sable Communications of California v. Federal Communications Commission, 492 U.S. 115, 126 (1989). 5 Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting, wrote: ―[T]here is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment.‖ Id. at 514. 6 Id. at 485. 7 Miller v. California, 413 U.S. 15, 27 (1973). 8 Id. at 24 (citation omitted). In Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1984), the Court struck down a state statute to the extent that it defined ―prurient‖ as ―that which incites lasciviousness or lust.‖ The Court held that a publication was not obscene if it ―provoked only normal, healthy sexual desires.‖ To be obscene it must appeal to ―a shameful or morbid interest in nudity, sex, or excretion.‖ In Manual Enterprises v. Day, 370 U.S. 478, 480 (1962), the Court indicated that photographs of nude male models, although they appealed to the prurient interest and lacked literary, scientific, or other merit, were not patently offensive merely because they were aimed at homosexuals. In Jenkins v. Georgia, 418 U.S. 153, 160 (1974), the Court held that the film ―Carnal Knowledge‖ was not obscene, writing: ―Even though questions of appeal to the ‗prurient interest‘ or of patent offensiveness are ‗essentially questions of fact,‘ it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‗patently offensive.‘‖ In Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), Justice Stewart, concurring, noted that ―criminal laws in this area are constitutionally limited to hard-core pornography, which he would not attempt to define. Then followed his famous remark: ―But I know it when I see it, and the motion picture involved in this case is not that.‖ The motion picture was a French film called ―Les Amants‖ (―The Lovers‖). 9 481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105 (1974), the Court noted that a ―community‖ was not any ―precise geographic area,‖ and suggested that it might be less than an entire state. In Jenkins v. Georgia, supra note 8, 418 U.S. at 157 (1974), the Court approved a ―trial court‘s instructions directing jurors to apply ‗community standards‘ without specifying what ‗community.‘‖ 10 Justice Scalia concurred in the result in Pope v. Illinois, but wrote: ―[I]n my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Obscenity and Indecency: Constitutional Principles and Federal Statutes

103

found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled ‗reasonable man‘ is of little help in the inquiry, and would have to be replaced with, perhaps, the ‗man of tolerably good taste‘—a description that betrays the lack of an ascertainable standard.... I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no arguing about taste, there is no use litigating about it.‖ Id. at 504-505. 11 In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 749-750 (1978), the Supreme Court, upholding the power of the Federal Communications Commission to regulate a radio broadcast that was ―indecent‖ but not obscene, wrote: We held in Ginsberg v. New York, 390 U.S. 629, that the government‘s interest in the ―well-being of its youth‖ and in supporting ―parents‘ claim to authority in their own household‖ justified the regulation of otherwise protected expression. Id., at 640 and 639. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.In Reno v. American Civil Liberties Union, 521 U.S. 844, 878 (1997), the Supreme Court suggested that the strength of the government‘s interest in protecting minors may vary depending upon the age of the minor, the parental control, and the artistic or educational value of the material in question. 12 492 U.S. 115, 126 (1989) (citations omitted). It might appear that regulations could be ―narrowly drawn‖ or ―carefully tailored‖ without being the ―least restrictive means‖ to further a governmental interest. But Sable, on the same page, also uses the latter phrase (quoted above in the text accompanying note 4), and the Court has elsewhere made clear that the ―narrow tailoring‖ required for content-based restrictions is more stringent than that required for time, place, and manner restrictions (see, note 3, supra), where ―least-restrictivealternative analysis is wholly out of place.‖ Ward v. Rock Against Racism, 491 U.S. 781, 798-799 n.6 (1989). 13 394 U.S. 557, 565, 568 (1969). The Court has held that there is no right even to private possession of child pornography. Osborne v. Ohio, 495 U.S. 103 (1990). 14 United States v. Reidel, 402 U.S. 351 (1971). 15 United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973). 16 Id. at 127. See, Edwards, Obscenity in the Age of Direct Broadcast Satellite: A Final Burial for Stanley v. Georgia(?), a National Obscenity Standard, and Other Miscellany, 33 William and Mary Law Review 949 (1992). 17 427 U.S. 50, 62 (1976). 18 475 U.S. 41, 43 (1986). 19 Young, supra note 17, at 71-72 n.35. 20 Renton, supra note 18, at 48 (emphasis in original). 21 427 U.S. at 71; 475 U.S. at 52. 22 422 U.S. 205 (1975). 23 452 U.S. 61 (1981). 24 380 U.S. 51 (1965). 25 Id. at 5 8-59. 26 Id. at 60. 27 493 U.S. 215, 220-221 (1990). 28 Id. at 220. 29 Id. at 229. A type of business that the ordinance covered that did not engage in First Amendment activity was adult motels, which the ordinance defined as motels that rented rooms for less than 10 hours. Inclusion of these motels was challenged on two grounds: (1) that the city had ―violated the Due Process Clause by failing to produce adequate support for its supposition that renting rooms for less than 10 hours results in increased crime or other secondary effects,‖ and (2) ―that the 10-hour limitation on the rental of motel rooms places an unconstitutional burden on the right to freedom of association.... ‖ Id. at 236-237. The Court rejected both arguments. As for the first, it found ―it reasonable to believe that shorter rental time periods indicate that the motels foster prostitution.‖ Id. at 236. As for the second, it found that the associations ―that are formed from the use of a motel room for less than 10 hours are not those that have ‗played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.‘‖ Id. at 237. 30 541 U.S. 774 (2004). 31 Id. at 780. 32 Id. at 781. 33 Id. at 782. 34 Id. at 783. 35 Id. at 784. Similarly, a ―content-neutral time, place, and manner regulation of the use of a public forum‖ need not ―adhere to the procedural requirements set forth in Freedman.‖ Thomas v. Chicago Park District, 534 U.S. 316, 322 (2002). 36 535 U.S. 425, 429 (2002). 37 Id. at 430. 38 Id.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

104

Henry Cohen

39

Id. at 438. Id. at 449. 41 Id. at 460. 42 501 U.S. 560 (1991). 43 391 U.S. 367 (1968). 44 Barnes, supra note 42, at 568. 45 Id. at 582. 46 Id. at 576 (emphasis in original). 47 Id. at 590-59 1 (White, J., dissenting, joined by Justices Marshall, Blackmun, and Stevens). 48 529 U.S. 277 (2000). 49 Id. at 292, 291. 50 Id. at 310-311. 51 Id. at 316. 52 Id. at 294. The plurality said that, though nude dancing is ―expressive conduct‖ [which ordinarily means it would be entitled to full First Amendment protection], ―we think that it falls only within the outer ambit of the First Amendment‘s protection.‖ Id. at 289. The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Id. at 294. In United States v. Playboy Entertainment Group, Inc., infra note 108, 529 U.S. at 826, however, the Court wrote that it ―cannot be influenced ... by the perception that the regulation in question is not a major one because the speech is not very important.‖ 53 Id. at 301. 54 Id. at 310. 55 Id. 56 Id. at 317-318. 57 Id. at 324. Justice Stevens also wrote that the plurality was ―mistaken in equating our secondary effects cases with the ‗incidental burdens‘ doctrine applied in cases such as O‟Brien.... The incidental burdens doctrine applies when speech and non-speech elements are combined in the same course of conduct‖[internal quotation marks omitted], whereas secondary effects ―are indirect consequences of protected speech.‖ Id. 58 Barnes, supra note 42, 501 U.S. at 585 n.2. 59 Rowan v. Post Office Department, 397 U.S. 728, 738 (1970). 60 Sable Communications of California, Inc. v. F.C.C., supra note 4, 492 U.S. 115 (1989). 61 Id. at 126. 62 Id. at 128. 63 Id. 64 Id. at 131. 65 Section 223(b) provides that a person found guilty of knowingly communicating obscene dial-a-porn ―shall be fined in accordance with title 18 of the United States Code, or imprisoned not more than two years, or both.‖ Title 18, § 3571, provides for fines of up to $250,000 for individuals and up to $500,000 for organizations. A person found guilty of knowingly communicating indecent dial-a-porn ―shall be fined not more than $50,000 or imprisoned not more than six months, or both.‖ Section 223(b) also provides for additional fines. 66 Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992). 67 The court noted that the word has been ―defined clearly‖ by the Federal Communications Commission, in the dial-aporn context, ―as the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium.‖ 938 F.2d at 1540. The court noted that this definition tracks the one quoted in the text accompanying note 79, infra. Id. at 1541. 68 Id. at 1541-1543; see, text accompanying note 4, supra. 69 See, United States v. Merrill, 746 F.2d 458 (9th Cir. 1984), cert. denied, 469 U.S. 1165 (1985). 70 United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973). 71 United States v. Keller, 259 F.2d 54, 57, 58 (3d Cir. 1958). 72 This statute dates back to section 326 of the Communications Act of 1934, 48 Stat. 1091, which is why it refers only to ―language‖ (and not pictures) and to ―radio‖ (and not television). The term ―radio,‖ however, today includes broadcast television; i.e., television transmitted over radio waves. In dictum, the Supreme Court quoted the FCC with approval as noting that ―the televising of nudes might well raise a serious question of programming contrary to 18 U.S.C. § 1464.... ‖ Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 741 n.16 (1978) (not addressing whether nudes are ―language‖ under § 1464). ―Radio communication‖ is defined for purposes of Title 47, U.S. Code, to mean ―the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds.... ‖ 47 U.S.C. § 153(33) (emphasis added). 73 395 U.S. 367, 388 (1969). In this case, the Supreme Court upheld the constitutionality of the Federal Communication Commission‘s ―fairness doctrine,‖ which required broadcast media licensees to provide coverage of controversial issues of interest to the community and to provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

40

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes 74

438 U.S. 726 (1978). Id. at 729. 76 Id. at 748-749. 77 Pacifica, supra, note 74, 438 U.S. at 750. A federal court of appeals subsequently held unconstitutional a federal statute that banned ―indecent‖ broadcasts 24 hours a day, but, in a later case, the same court upheld the present statute, 47 U.S.C. § 303 note, which bans ―indecent‖ broadcasts from 6 a.m. to 10 p.m. Action for Children‘s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); Action for Children‘s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). 78 Pacifica, supra, note 74, 438 U.S. at 740. 79 Id. at 732. See, note 67, supra. 80 Action for Children‘s Television v. Federal Communications Commission (ACT II), 932 F.2d 1504, 1509 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992). 81 Action for Children‘s Television v. Federal Communications Commission (ACT III), 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). 82 Id. at 661. 83 Id. at 663. 84 The court wrote: ―While we apply strict scrutiny to regulations of this kind regardless of the medium affected by them, our assessment of whether section 16(a) survives that scrutiny must necessarily take into account the unique context of the broadcast media.‖ Id. at 660. Chief Judge Edwards, in his dissent, wrote: ―This is the heart of the case, plain and simple,‖ as ―[t]he majority appears to recognize that section 16(a) could not withstand constitutional scrutiny if applied against cable television operators.‖ Id. at 671. 85 Id. at 668. 86 Id. at 669. Note that the court struck down the 10 p.m.-to-midnight ban not because it failed strict scrutiny under the First Amendment, but because it applied only to non-public stations. Chief Judge Edwards, in his dissent, commented that ―the majority appears to invite Congress to extend the 6 a.m. to midnight ban to all broadcasters, without exception.‖ Id. at 670 n. 1. 87 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the ―Golden Globe Awards‖ Program, File No. EB-03-IH-0110 (March 18, 2004). For additional information, including an analysis of whether prohibiting the broadcast of ―indecent‖ words regardless of context would violate the First Amendment, see CRS Report RL32222, Regulation of Broadcast Indecency: Background and Legal Analysis, by Henry Cohen and Kathleen Ann Ruane. 88 Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444, 447 (2d Cir. 2007). 89 Id. at 462. 90 Federal Communications Commission v. Fox Television Stations, Inc., No. 07-582 (U.S. Apr. 28, 2009). 91 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). 92 See, United States v. Alexander, 498 F.2d 934, 935-936 (2d Cir. 1974). 93 H.R. Doc. No. 100-129, 100th Cong., 1st Sess. 78 (1987). 94 United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied, 519 U.S. 820 (1996). The court cited another conviction under 18 U.S.C. § 1465 for computer pornography—this one by an Air Force court. United States v. Maxwell, 42 M.J. 568 (A.F.Ct.Crim. App. 1995). 95 Id. at 711. In Reno v. American Civil Liberties Union, supra note 11, the Supreme Court noted that ―the ‗community standards‘ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.‖ In Ashcroft v. American Civil Liberties Union, infra note 133, the Supreme Court held that the use of community standards to assess ―harmful to minors‖ material on the Internet is not by itself unconstitutional. 96 Id. 97 535 U.S. 234 (2002). 98 H.R. Doc. No. 100-129, supra note 93, at 93. 99 512 U.S. 622 (1994). 100 Id. at 639. 101 518 U.S. 727, 748 (1996). 102 The Cable Communications Policy Act of 1984, P.L. 98-549, had required cable operators to provide leased access and public access channels free of operator editorial control. 47 U.S.C. §§ 53 1(e), 532(c)(2). These two provisions were amended in 1996 by § 506 of the Communications Decency Act to permit cable operators to refuse to transmit ―obscenity, indecency, or nudity.‖ 103 Denver Consortium, supra, note 101, 518 U.S. at 744-745. 104 Id. at 743. 105 Id. at 753. 106 Id. at 755. 107 Id. at 766. Two other justices concurred in the judgment that § 10(c) is invalid, but for different reasons. 108 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). 109 Id. at 806. 75

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

105

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

106

Henry Cohen

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

110

Id. They may have done so because fully blocking or fully scrambling ―appears not be economical‖ (id. at 808) or because the technology is imperfect and cable operators attempting to fully block or fully scramble might have still been ―faced with the possibility of sanctions for intermittent bleeding‖ (id. at 821). 111 Id. at 806-807. 112 Id. at 812. 113 Id. at 813. 114 Id. at 826. This suggests the possibility that the Court might not find a compelling interest in shielding older children from sexually oriented material. The Court rejected another interest as compelling: ―Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.‖ Id. at 825. 115 Id. at 815. 116 Id. at 816. 117 Justice Kennedy, in the only footnote to his concurring and dissenting opinion in Denver Consortium, wrote that the constitutionality of the amendments made by § 506, ―to the extent they differ from the provisions here [§§ 10(a) and 10(c) of the 1992 Act], is not before us.‖ 518 U.S. at 782. 118 Reno, supra, note 11, 521 U.S. 844 (1997). The CDA also prohibits the transmission to minors of obscene material, and the Supreme Court, without a written opinion, affirmed the decision of a three-judge federal district court that rejected a claim that this prohibition is unconstitutionally overbroad. Nitke v. Gonzales, 413 F. Supp. 2d 262 (S.D.N.Y. 2005), aff‟d, 547 U.S. 1015 (2006). 119 In ApolloMedia Corp. v. Reno, 19 F. Supp. 2d 1081, 1084 (N.D. Cal. 1998), aff‟d, 526 U.S. 1061 (1999), the plaintiff sought to enjoin enforcement of § 223(a)(1)(A) and § 223(a)(2) ―on the grounds that ..., to the extent that they prohibit ‗indecent‘ communications made ‗with an intent to annoy,‘ [they] are impermissibly overbroad and vague.... ‖ The three-judge court denied the plaintiff‘s request because it found that ―the provisions regulate only ‗obscene‘ communications.‖ The Supreme Court affirmed without a written opinion. The plaintiffs reportedly had appealed because they believed that the fact that the word ―indecent‖ was in the statute could have a chilling effect on indecent nonobscene expression, even if the law was not enforceable against such expression. 120 Section 3 of P.L. 104-104 added to 47 U.S.C. § 153 the following definition of ―telecommunications‖: ―the transmission, between or among points specified by the user, of information of the user‘s choosing, without change in the format or content of the information as sent and received.‖ The conference report adds that this information includes ―voice, data, image, graphics, and video.‖ 121 Section 230(f)(2) defines ―interactive computer service‖ as ―any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.‖ 122 See note 118, supra. 123 Section 223(a)(1)(C) makes it a crime for a person, in interstate or foreign communications, to ―make[ ] a telephone call or utilize[ ] a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person.... ‖ Section 223(h)(1) was amended by P.L. 109-162, § 113 (2005) to define ―telecommunications device,‖ as used in section 223(a)(1)(C), to ―include[ ] any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet.... ‖ 124 See, Reno, supra note 11, 521 U.S. at 871. 125 Id. at 868. 126 Sable, supra note 4. 127 Reno, supra note 11, 521 U.S. at 849. 128 See, id. at 878. The Court wrote: ―[A] parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material ‗indecent‘ or ‗patently offensive,‘ if the college town‘s community thought otherwise.‖ Id. 129 Id. at 879. 130 Id. at 874. 131 Id. at 875. 132 Id. at 879. 133 American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), aff‟d, 217 F.3d 162 (3d Cir. 2000), vacated and remanded sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), aff‟d on remand, 322 F.3d 240 (3d Cir. 2003), aff‟d and remanded, 542 U.S. 656 (2004). 134 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff‟d sub nom. American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009). 135 Despite the fact that only the first prong of this test refers to ―community standards,‖ community standards are also to be used in applying the second prong. See the Supreme Court‘s first decision in Ashcroft v. ACLU, supra note 133, 535 U.S. at 576, n.7.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Obscenity and Indecency: Constitutional Principles and Federal Statutes 136

Reno, supra note 11, 521 U.S. at 874. Id. at 877-878. 138 Id., 217 F.3d at 166. 139 Id., 31 F. Supp. 2d at 495. 140 Id. at 497. 141 Id. 142 Id. 143 Id., 217 F.3d at 166. 144 Id. at 173. 145 Id. at 179. 146 Ashcroft, supra note 133, 535 U.S. 564, 585 (2002) (emphasis in original). 147 Id. 148 Id. at 583. 149 Id. at 606 n.2. 150 Id. at 597. 151 Id. at 600. 152 Id. at 589. 153 322 F.3d 240, 251 (3d Cir. 2003) (emphasis in original). 154 Id. at 252. 155 Id. at 253. 156 Id. at 254. 157 Id. at 257. 158 Id. at 259. 159 Id. at 265. 160 Id. at 271. 161 Ashcroft, supra note 133, 542 U.S. at 667. 162 Id. at 667, 668 163 Id. at 671-672. 164 Id. at 673. 165 Id. at 678. 166 Id. at 682. 167 Id. at 684. 168 Id. at 685. 169 Id. at 669. 170 Id. at 687. 171 American Civil Liberties Union v. Gonzales, supra note 134, 478 F. Supp. 2d 775. 172 Id. at 777-778. 173 Id. at 810. 174 Id. 175 American Civil Liberties Union v. Mukasey, supra note 134, 534 F.3d at 198. 176 Section 1711 amends Title III of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 6801 et seq. Section 1712 amends section 224 of the Museum and Library Services Act, 20 U.S.C. § 9134, which is part of the Library Services and Technology Act (LSTA), which is Title II of the Museum and Library Services Act. Section 1721 amends section 254(h) of the Communications Act of 1934, 47 U.S.C. § 254(h), which establishes the ―universal service discount,‖ or ―E-rate,‖ for schools and libraries. Only sections 1712 and 1721 (insofar as it applies to libraries) were at issue in the case before the three-judge district court and the Supreme Court. 177 Nor does any other section of the U.S. Code, except 20 U.S.C. § 952(l), which defines it for purposes of grants by the National Endowment for the Arts, and does so in a manner that parallels the Miller test, except that it does not apply community standards to the determination of whether material is patently offensive. 178 This three-part test is similar to that of the Child Online Protection Act, 47 U.S.C. § 231(e), but three differences are that CIPA applies only to visual depictions, whereas COPA applies also to words; CIPA does not, like COPA, provide that the determinations of prurience and patent offensiveness (see note 135, supra) be made in accordance with the views of ―the average person applying contemporary community standards‖; and CIPA does not, like COPA, allow a visual depiction of a ―post-pubescent female breast‖ to be found harmful to minors. 179 201 F. Supp. 2d 401 (E.D. Pa. 2002). The district court struck down § 1712(a)(2), which concerns LSTA funds, and § 1721(b) which concerns E-rate discounts for libraries. The provisions affecting schools were not challenged. 180 539 U.S. 194 (2003). 181 Id. at 203. 182 Id. 137

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

107

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

108

Henry Cohen

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

183

Id. at 205. The district court had found ―that when the government provides Internet access in a public library, it has created a designated public forum,‖ and that ―content-based restrictions on speech in a designated public forum are most clearly subject to strict scrutiny when the government opens a forum for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics, while selectively excluding particular speech whose content it disfavors.‖ 201 F. Supp. 2d 401, 457, 460 (E.D. Pa. 2002). 184 The reason the plurality found that Internet access in public libraries is not a public forum is that ―[a] public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for authors of books to speak. It provides Internet access, not to ‗encourage a diversity of views from private speakers,‘ but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.‖ Id. at 206. 185 Id. at 215. 186 Id. at 207 n.3. 187 Id. at 208. The three-judge court had found that ―At least tens of thousands of pages of the indexable Web are overblocked by each of the filtering programs evaluated by experts in this case, even when considered against the filtering companies‘ own category definitions. Many erroneously blocked pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies‘ category definitions, such as ‗pornography‘ or ‗sex.‘‖ 201 F. Supp. 2d at 449. 188 Id. at 209. 189 Id. at 211. For additional information on the issue of unconstitutional conditions, see CRS Report 95-8 15, Freedom of Speech and Press: Exceptions to the First Amendment, by Henry Cohen. 190 Id. at 212. 191 Id. at 215. 192 Id. at 216, 218. 193 Id. at 217. 194 Id. at 222, 224. Justice Stevens quoted from the district court opinion: ―[T]he search engines that software companies use for harvestings are able to search text only, not images. This is of critical importance, because CIPA, by its own terms, covers only ‗visual depictions.‘‖ Id. at 221. 195 Id. at 232-233. 196 Id. at 233. 197 See, text accompanying note 135, supra. 198 ―CAN-SPAM‖ is an acronym for ―Controlling the Assault of Non-Solicited Pornography and Marketing.‖ 199 69 Fed. Reg. 21024 (2004), 16 C.F.R. Part 316; http://www.ftc.gov/opa/2004/04/adultlabel.htm. 200 489 U.S. 46 (1989). 201 Id. at 66. 202 Id. at 67. 203 Id. at 67 n.13. 204 Id. at 57. 205 Id. at 61. 206 Id. 207 This could be the case even in a RICO prosecution based on predicate offenses in a different part of the same state, as the relevant community may be an area less than the entire state. See, Hamling v. United States, 418 U.S. 87, 105 (1974). 208 489 U.S. at 62. Although the Court uses the word ―conviction‖ in this sentence, there appears to be no reason why a RICO prosecution could not be based on a violation in another jurisdiction that had not previously been prosecuted in that jurisdiction. In such a case, the prosecution would have to prove beyond a reasonable doubt that the laws (including, in an obscenity case, the community standards) of the state where the predicate offense occurred had been violated. 209 509 U.S. 544 (1993). 210 Id. at 550-551. 211 Id. at 554-555. 212 Austin v. United States, 509 U.S. 602 (1993). 213 Subsection (e) apparently should have been ―(d),‖ as there is no ―(d)‖ following ―(c).‖ 214 H.R. Doc., supra note 93, at 82.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 5

MILITARY PERSONNEL AND FREEDOM OF RELIGIOUS EXPRESSION: SELECTED LEGAL ISSUES



R. Chuck Mason and Cynthia Brougher

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY The First Amendment of the U.S. Constitution provides the freedom to individuals to exercise their religious beliefs without governmental interference, and simultaneously prohibits government actions that benefit followers of one faith over another. At times, when government actions would otherwise burden individuals‘ religious exercise, the government makes efforts to accommodate the religious practice. However, accommodation of religion to prevent violations of the Free Exercise Clause must be carefully considered in order to prevent violation of the Establishment Clause. The tension between the clauses has been illustrated in a number of military scenarios in recent years. For example, the U.S. Army recently allowed the first Sikh in more than 25 years to graduate from the officer basic training program without sacrificing the articles of his faith, allowing the officer to maintain his unshorn hair, beard, and to wear a turban. In another example, announcements that the Obama administration is reviewing the military‘s current ―don‘t ask, don‘t tell‖ policy regarding homosexual servicemembers have raised several questions about the impact a new policy would have on chaplains whose religious background does not support homosexuality. This chapter provides an overview of the requirements of the First Amendment related to military personnel‘s religious exercise. It analyzes current constitutional and statutory requirements regarding religious exercise, and provides a framework for how Congress and the courts might consider future issues that arise related to servicemembers‘ religious exercise. Specifically, the report examines the limitations placed on servicemembers in uniform in the exercise of their religious beliefs. It also examines the role of military 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated April 2010.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

110

R. Chuck Mason and Cynthia Brougher

chaplains and the legal challenges associated with publicly funding religious personnel. The report analyzes efforts by Congress and the Department of Defense to address the constitutional concerns that are raised by these issues.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

INTRODUCTION The First Amendment of the U.S. Constitution provides the freedom to individuals to exercise their religious beliefs without governmental interference, and simultaneously prohibits government actions that benefit followers of one faith over another. At times, when government actions would otherwise burden individuals‘ religious exercise, the government makes efforts to accommodate the religious practice. However, accommodation of religion to prevent violations of the Free Exercise Clause must be carefully considered in order to prevent violation of the Establishment Clause. One of the premier examples of the tension between the religion clauses is accommodation of the religious exercise of military personnel, particularly in the limitations on personnel in uniform and the provision of military chaplains. The tension between the clauses has been illustrated in a number of military scenarios in recent years. For example, the U.S. Army recently allowed the first Sikh in more than 25 years to graduate from the officer basic training program without sacrificing the articles of his faith. The Army granted an exemption from the uniform policy, allowing the officer to maintain his unshorn hair, beard, and to wear a turban as required by his faith.1 Some argue that allowing exemptions to the uniform policy diminishes esprit de corps and may weaken military effectiveness. Others assert that the exemptions allow for more individuals to serve in the military at a time when the forces have been stretched thin with the ongoing conflicts. They assert that it furthers an important public policy goal of ensuring that servicemembers of all faiths are an integral part of American military life and affirms the military‘s role as an assimilative national institution which has historically served to counter prejudice. In another example, announcements that the Obama administration is reviewing the military‘s current ―don‘t ask, don‘t tell‖ policy regarding homosexual servicemembers have raised several questions about the impact a new policy would have on chaplains whose religious background does not support homosexuality. Some argue that chaplains, as religious leaders, may be protected from providing support to homosexual servicemembers as a matter of conscience, similar to protections for doctors who have religious objections to abortions. Clergy and spiritual leaders traditionally benefit from heightened protection from claims of discrimination or unequal treatment of others, but it is also important to note that the military operates under a unique set of rules in contrast to the civilian society in which doctors and clergy may be afforded heightened conscience protections. This chapter provides an overview of the requirements of the First Amendment related to military personnel‘s religious exercise. It analyzes current constitutional and statutory requirements regarding religious exercise, and provides a framework for how Congress and the courts might consider future issues that arise related to servicemembers‘ religious exercise. Specifically, the report examines the limitations placed on servicemembers in uniform to exercise their religious beliefs. It also examines the role of military chaplains and the legal challenges associated with public funding for religious personnel. The report

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

111

analyzes efforts by Congress and the Department of Defense to address the constitutional concerns that are raised by these issues.

ACCOMMODATION OF RELIGIOUS PRACTICES GENERALLY Religious exercise is protected by a number of different laws and regulations. Primarily, the protections and limitations on religion are based upon the Establishment Clause and Free Exercise Clause of the First Amendment. In addition to the First Amendment‘s religion clauses, the Religious Freedom Restoration Act (RFRA) supplements the standard of review of burdens on individuals‘ religious exercise to provide heightened protection not offered by the constitutional standard. Furthermore, the Department of Defense (DOD) has promulgated regulations addressing religious exercise in the military.

First Amendment Religious Freedoms

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The First Amendment of the U.S. Constitution provides that ―Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....‖2 These clauses are known respectively as the Establishment Clause and the Free Exercise Clause. Together, the clauses counterbalance the interests of individuals to practice their religious beliefs with a prohibition on government involvement in religion. At times, situations arise in which some government action would infringe upon an individual‘s religious exercise, but any corrective action that the government might take would raise concerns of establishment.3

Free Exercise Protections Historically, the Free Exercise Clause protected individual exercise under a heightened standard of review for government actions that allegedly interfered with a person‘s free exercise of religion.4 The U.S. Supreme Court reinterpreted that standard in 1990. Since then, the Court has held that the Free Exercise Clause never ―relieve[s] an individual of the obligation to comply with a valid and neutral law of general applicability.‖5 Under this interpretation, the constitutional baseline of protection was lowered, meaning that laws that do not specifically target religion or do not allow for individualized assessments are not subject to heightened review under the Constitution. In doing so, the Court indicated that individuals‘ right to freely exercise their religion exists only to the extent that they can do so while complying with laws that do not target religious exercise and apply generally to the population. In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), which statutorily reinstated the standard of protection of heightened scrutiny for federal government actions interfering with a person‘s free exercise of religion.6 RFRA provides that a statute or regulation of general applicability may lawfully burden a person‘s exercise of religion only if it (1) furthers a compelling governmental interest and (2) uses the least restrictive means to further that interest.7 This standard is sometimes referred to as strict scrutiny analysis. The Supreme Court has held that in order for the government to prohibit exemptions to generally applicable laws, the government must ―demonstrate a compelling interest in uniform

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

112

R. Chuck Mason and Cynthia Brougher

application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program.‖8

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Establishment Clause Considerations The constitutional understanding of the Establishment Clause is more complicated than the relatively straightforward rule for the Free Exercise Clause. The Court has used a variety of different tests to determine whether a particular government action violates the Establishment Clause. Historically, the primary test used to evaluate claims under the Establishment Clause is known as the tripartite test, often referred to as the Lemon test, derived from Lemon v. Kurtzman.9 Under this test, a law (1) must have a secular purpose, (2) must have a primary effect that neither advances nor inhibits religion, and (3) must not lead to excessive entanglement with religion.10 Although the Lemon test is the one commonly employed by the Court, it has been criticized by some Justices who have applied the test in different ways. One examination focuses on whether the government has endorsed religion. The government is prohibited ―from making adherence to a religion relevant in any way to a person‘s standing in the political community.‖11 Another application of the Lemon test focuses on neutrality as the governing principle in Establishment Clause challenges. Under this interpretation, the essential element in evaluating challenges under the Lemon test is whether or not the government act is neutral between religions and between religion and nonreligion.12 In addition to the Lemon test, the Court has used two other tests to evaluate Establishment Clause claims. One test considers whether coercion is threatening religious freedom and forbids the government from acting in a way that may coerce support or participation in religious practices.13 Another test permits government acts that involve religion if the Court finds that the religious element has played a part in the history of the nation, or as the Court has phrased it, has become ―part of the fabric of our society.‖14 The applicability of these tests often varies, and multiple tests may be applied in the same case. Constitutionally Permissible Accommodations of Religion In some cases, particularly those discussed later in this chapter, the religion clauses cannot be considered in isolation from each other. The Supreme Court has considered a long line of cases involving issues that arise where these two clauses intersect, often referred to as permissive accommodation of religion. The Court‘s approach to governmental accommodations of religion has developed over the past sixty years. Accommodation cases typically ask whether a government action that facilitates an individual‘s religious exercise in order to comport with the Free Exercise Clause can be considered an unconstitutional support of religion under the Establishment Clause. These situations often arise in the context of religious expression in schools, which is the subject of many of the cases that illustrate the requirements of accommodation. It is important to remember, however, that while the general principles of the analysis would remain the same, the military and schools both have unique characteristics that distinguish them from accommodations offered to society at large. The Supreme Court has indicated that the framework of analysis depends on the unique needs of the particular context in which the issue arises. In the military context, this means that the Supreme Court has recognized that military decisions are entitled to a higher level of deference so that the military may maintain order and discipline within its ranks.15

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

113

In 1948 and 1952, the Court decided two similar cases related to accommodations of religion with different outcomes, illustrating the distinction between permissible accommodations and unconstitutional accommodations. In McCollum v. Board of Education, the Court held that a program which allowed religious education teachers to teach in public schools on a weekly basis was unconstitutional. Four years later, in Zorach v. Clauson, the Court held that students could be released at their parents‘ request in order to receive religious instruction outside of the public schools. The Court distinguished between the cases because of the nature of the accommodation. In McCollum, the religious education occurred in public school classrooms during the public school day and students who opted not to receive religious instruction did not receive any alternative instruction during that time. In Zorach, the religious instruction occurred without the use of public school resources and allowed nonparticipating students to receive other secular instruction during the released-time program. It may be of interest to note that in a concurring opinion to a later case related to religious exercise in public schools expounded on the constitutionality of the military chaplaincy.16 That concurrence noted that two factors were present in the accommodation of servicemembers‘ religious exercise that were not relevant in typical public prayer cases. First, membership in the military causes servicemembers to be isolated from their religious communities and opportunities for separate personal religious exercises for extended periods of time.17 Second, religious services offered by military chaplains are not forced upon members of the military, and those who opt not to participate are not subjected to the exercises, nor punished for non-participation.18 The Court has decided other accommodations cases arising in other contexts, including labor laws, tax laws, and zoning laws. These cases provide several significant understandings regarding permissible accommodations. The Court has held that a valid accommodation must remain neutral in its accommodation of individual religious exercise19 and that the accommodation must meet a burden that is imposed directly on religious exercise.20 Overall, the Court appears generally to regard accommodations as constitutional if they balance the interests of the various parties involved in the controversy and do not benefit individuals with religious objections at the expense of individuals who are not claiming religious objections. These rules reflect the line that the Court has drawn between permissible and unconstitutional accommodations: the government may only accommodate or facilitate, not favor or promote, religious exercise.

DOD Policy The Department of Defense has implemented a series of directives and instructions addressing various aspects of religious practices within the armed services. A DOD Directive ―establishes policy, delegates authority, and assigns responsibilities‖ with respect to a particular issue within the DOD.21 A DOD Instruction may also establish policy and assign responsibilities, but the scope is limited to a ―functional area assigned in the Head of an OSD [Office of the Secretary of Defense] Component‘s chartering DoDD [Department of Defense Directive].‖ 22 However, a DOD Instruction, when issued in accordance with a previously published directive, ―implements policy established in a DoDD by providing general procedures for carrying out that policy.‖23 The overarching policy, reflected in the various

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

114

R. Chuck Mason and Cynthia Brougher

DOD Instructions and Directives discussed below, is to accommodate the free exercise of religion when it will not have an adverse impact on mission accomplishment, military readiness, unit cohesion, standards, or discipline.

DOD Instruction 1300.17—Accommodation of Religious Practices within the Military Services The DOD Instruction 1300.17 ―[p]rescribes policy, procedures, and responsibilities for the accommodation of religious practices in the Military Services.‖ 24 The instruction states that the ―U.S. Constitution proscribes Congress from enacting any law prohibiting the free exercise of religion‖ and indicates that the DOD ―places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.‖ Therefore, the established DOD policy is that ―requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on mission accomplishment, military readiness, unit cohesion, standards, or discipline.‖25 Procedures accompanying the instruction establish five factors that should be considered, in accordance with rules prescribed by the Secretary of the Military Department concerned, when determining whether to grant a request for the accommodation of religious practices.26 The factors are:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1. The importance of military requirements in terms of mission accomplishment, military readiness, unit cohesion, standards, and discipline. 2. The religious importance of the accommodation to the requester. 3. The cumulative impact of repeated accommodations of a similar nature. 4. Alternative means available to meet the requested accommodation. 5. Previous treatment of the same or similar requests, including treatment of similar requests made for other than religious reasons.27 The procedures address the ability of servicemembers to wear items of religious apparel while in uniform, specifically referencing the authority contained in 10 U.S.C. § 774, discussed infra.28 Religious apparel items include ―articles of clothing worn as part of the doctrinal or traditional observance of the religious faith practiced by the [servicemember].‖29 However, hair and grooming practices required or observed by religious groups are not included in the definition of religious apparel items.30 Jewelry bearing religious inscriptions or otherwise indicating affiliation or belief are not covered by the instruction, rather the wearing of such items are subject to regulations applicable to jewelry that is not of a religious nature.31 The statute includes two exceptions to the general rule allowing servicemembers to wear items of religious apparel. If the item interferes with the ability of the servicemember to perform military duties or if the item is not neat and conservative, it may prohibited. The four factors to be utilized in determining if the apparel interferes with military duties are as follows: 1. Impairs the safe and effective operation of weapons, military equipment, or machinery.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

115

2. Poses a health or safety hazard to the servicemember wearing the religious apparel and/or others. 3. Interferes with the wear or proper function of special or protective clothing or equipment. 4. Otherwise impairs the accomplishment of the military mission.32 The ―neat and conservative‖ exception, in the context of wearing a military uniform, is addressed by identifying acceptable items of religious nature as those that: 1. Are discreet, tidy, and not dissonant or showy in style, size, design, brightness, or color. 2. Do not replace or interfere with the proper wear of any authorized article of the uniform. 3. Are not temporarily or permanently affixed or appended to any authorized article of the uniform. 33

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

It appears that application of the various factors could differ based on the parties involved in the assessment. While it may be possible that the decision whether to accommodate a religious practice would not be uniform across the military services, the underlying DOD policy is to grant the request when accommodation will not have an adverse impact on mission accomplishment, military readiness, unit cohesion, standards, or discipline.

DOD Instruction 1325.06—Handling Dissident and Protest Activities among Members of the Armed Forces While not specific to freedom of religion, the DOD Instruction 1325.06 establishes policy and provides procedures for handling dissident and protest activities by servicemembers.34 The instruction reiterates it is DOD policy that a servicemember ‘s ―right of expression should be preserved to the maximum extent possible in accordance with the constitutional and statutory provisions ... and consistent with good order and discipline and the national security.‖35 Thus, the military commander is responsible for utilizing ―calm and prudent judgment‖ in balancing the rights of servicemembers against the need to prohibit actions that ―would destroy the effectiveness of his or her unit.‖36 Procedures provide guidance to military commanders related to specific types of actions/activities. For example, commanders are authorized to place establishments off-limits when activities occurring there include, ―counseling [servicemembers] to refuse to perform duty or desert; pose a significant adverse effect on [servicemember‘s] health, morale, or welfare; or otherwise present a clear danger to the loyalty, discipline, or morale of a member or military unit.‖37 Additional guidance is provided with respect to on and off-post demonstrations; specifically prohibiting participation when violence is a likely result, or when participation may present a clear danger to the loyalty, discipline, or morale of the troops.38 Arguably, the most relevant provision in the procedures, found in Section 8.a., addresses explicitly prohibited activities. Servicemembers ―must not actively advocate supremacist doctrine, ideology, or causes, including those that advance, encourage, or advocate illegal discrimination based on race, creed, color, sex, religion, ethnicity, or national origin or that advance, encourage, or advocate the use of force, violence, or criminal activity or otherwise advance efforts to deprive individuals of their civil rights.‖39 While the prohibition does not

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

116

R. Chuck Mason and Cynthia Brougher

explicitly prohibit the exercise of any specific religion, it may be argued that a religion advocating a supremacist doctrine, ideology, or cause, or the use of force, violence, or criminal activity would be prohibited under this Instruction. The procedures stress that the ―functions of command include vigilance about the existence of such activities; active use of investigative authority to include a prompt and fair complaint process; and use of administrative powers such as counseling, reprimands, orders, and performance evaluations‖ to deter servicemembers from participating in prohibited activities.40 Further, military commanders are authorized to ―employ the full range of administrative and disciplinary actions, including administrative separation or appropriate criminal action‖ against servicemembers that participate in prohibited activities.41

RESTRICTIONS ON PERSONNEL IN UNIFORM

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Goldman v. Weinberger In 1986, the U.S. Supreme Court, in Goldman v. Weinberger, 42 addressed a constitutional challenge of a regulation concerning wearing of the uniform. Captain S. Simcha Goldman, an Air Force officer, challenged an Air Force regulation prohibiting servicemembers from wearing headgear while indoors. The regulation stated that ―[headgear] will not be worn ... [while] indoors except by armed security police in the performance of their duties.‖43 Goldman, an Orthodox Jew and ordained rabbi, argued that the regulation, as applied to him, ―prohibits religiously motivated conduct‖ by prohibiting him from wearing a yarmulke.44 Prior to 1981, Goldman had not been prohibited from wearing a yarmulke while on duty as a clinical psychologist. He avoided controversy when wearing his yarmulke on base by remaining close to his duty station and wearing a service cap over the yarmulke while outdoors. Only after testifying as a defense witness as part of a court-martial, at which the opposing counsel complained about the yarmulke, was Goldman ordered by his commanding officer to not violate the regulation when outside of the hospital. After Goldman‘s attorney filed a complaint with the General Counsel of the Air Force, the commanding officer then revised the order prohibiting Goldman from wearing the yarmulke even while in the hospital. Goldman also received a formal letter of reprimand and was warned that failure to obey the regulation could subject him to court-martial. Additionally, a recommendation endorsing Goldman‘s application to extend his term of active duty service was revoked and substituted with a negative recommendation.45 As a result of the alleged retribution, Goldman sued the Secretary of Defense and others, claiming that the application of the Air Force regulation preventing him from wearing his yarmulke ―infringed on his First Amendment freedom to exercise his religious beliefs.‖46 The United States District Court for the District of Columbia temporarily enjoined47 enforcement of the regulation, and after a full hearing on the issue permanently enjoined the Air Force from prohibiting Goldman from wearing the yarmulke while in uniform.48 The case was appealed to the Court of Appeals for the District of Columbia Circuit, which reversed the order of the lower court.49 The court of appeals determined that the ―appropriate level of scrutiny of a military regulation that clashes with a constitutional right is neither strict scrutiny nor rational basis,‖ but rather the regulation ―must be examined to determine whether

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

117

‗legitimate military ends are sought to be achieved‘ and whether it is ‗designed to accommodate the individual right to an appropriate degree.‘‖50 The court ultimately concluded that the interest in uniformity required the strict enforcement of the regulation.51 Goldman appealed the decision of the court of appeals to the U.S. Supreme Court, arguing that the wrong standard was applied and that the because the regulation prohibits religiously motivated conduct, it should be held to a higher level of scrutiny. The Court stated that in the context of the current case, ―when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.‖52 The Court continued, ―military authorities have been charged by the Executive and Legislative Branches with carrying out our Nation‘s military policy. ‗[Judicial] deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.‘‖53 The Court looked to the ―considered professional judgment of the Air Force‖ to discern ―that that traditional outfitting of personnel in standardized uniform encourages the subordination of personal preferences and identities in favor or the overall group mission.‖54 The Court acknowledged that the Air Force promulgated the regulation to develop the ―necessary habits of discipline and unity,‖ but also noted that ―military commanders may in their discretion permit visible religious headgear and other such apparel in designated living quarters.‖55 However, Goldman asserted ―that the Free Exercise Clause of the First Amendment requires the Air Force to make an exception to its uniform dress requirements for religious apparel unless the accouterment create a ‗clear danger‘ of undermining discipline and esprit de corps.‖56 Goldman also argued that expert testimony established that ―religious exceptions to [the regulation] are in fact desirable and will increase morale by making the Air Force a more humane place.‖57 The Court was not swayed by this argument, stating that the opinion of expert witnesses ―is quite beside the point‖ and that the appropriate military officials ―are under no constitutional mandate to abandon their considered professional judgment.‖58 The Court continued, ―[t]he Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and we hold that those portions of the regulations challenged here reasonably and evenhandedly regulate dress in the interest of the military‘s perceived need for uniformity.‖ 59 The Court ultimately concluded that the First Amendment did not prohibit application of the regulation to Goldman even though the effect was to restrict the wearing of the yarmulke while in uniform as required by his religious beliefs.

10 U.S.C. § 774—Religious Apparel: Wearing While in Uniform In 1987, shortly after the decision in Goldman v. Weinberger, Congress added Section 774 to Title 10 of the United States Code providing that, with limited exceptions, ―a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member‘s armed force.‖60 The statute creates two categories of exceptions: (1) items that would interfere with the performance of the military duties; and (2) apparel that is not neat and conservative.61 Further, the statute directs the Secretary concerned with prescribing

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

118

R. Chuck Mason and Cynthia Brougher

regulations in accordance with the stated exceptions.62 In the Conference Report accompanying the legislation, the conferees noted that ―the Congress has been extremely sensitive to the needs of the armed forces for uniformity, safety, good order, and discipline, and has carefully balanced those needs in light of the right of service members to freedom of religion, as well as the need to avoid governmental establishment of religion.‖63

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

DOD Instruction 1334.01—Wearing of the Uniform The wearing of uniforms by current and former members of the armed forces is controlled by DOD Instruction 1334.01. The instruction limits when and where current members of the armed forces may wear the uniform, as well as establishes policy on wearing of the uniform by former members.64 There are five specific prohibitions applicable to current members, three of which contain a subjective element and two that are explicit prohibitions. Current members are generally prohibited from wearing the uniform: (1) ―during or in connection with furthering political activities, private employment or commercial interests, when an inference of official sponsorship for the activity or interest may be drawn‖; 65 (2)―when participating in activities such as unofficial public speeches, interviews, picket lines, marches, rallies or any public demonstration, which may imply Service sanction of the cause‖; 66 and (3) ―when wearing of the uniform may tend to bring discredit upon the Armed Forces.‖67 Additionally, current members are explicitly prohibited from wearing the uniform when ―specifically prohibited by regulations of the Department concerned.‖68 However, this prohibition may contain a subjective element depending on how the regulation has been drafted. For example, servicemembers may be authorized to wear uniforms to and from duty, but be prohibited from exiting their vehicles while driving to and from work unless it is an emergency.69 Under a regulation of this type, determining whether something is an emergency may have a subjective or discretionary component. The last prohibition, and most explicit, prohibits current members from wearing uniforms: at any meeting or demonstration that is a function of, or sponsored by an organization, association, movement, group, or combination of persons that the Attorney General of the United State has designated, under Executive Order 10450 as amended ... as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others the rights under the Constitution of the United States, or as seeking to alter the form of Government of the United States by unconstitutional means.70

Arguably, this instruction, much like the DOD policy with respect to dissident activities discussed above, could be applicable to a religious organization. If a religious organization were designated by the Attorney General as ―totalitarian, fascist, communist, or subversive,‖ a servicemember would be prohibited from wearing a uniform at a meeting or demonstration of, or sponsored by, the organization. Therefore, a servicemember could ultimately violate the policy against participating in dissident activities and the uniform policy by attending a gathering while wearing the uniform. The wearing of the uniform by former members of the armed forces is addressed by the instruction in permissive terms, rather than like the prohibitions applicable to current

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

119

members. The policy is that former members, who served honorably and whose most recent service was terminated under honorable conditions, may wear the uniform while participating in two general categories: (1) military funerals, memorial services, weddings, and inaugurals; and (2) parades on national or state holidays; or other parades or ceremonies of a patriotic nature in which U.S. military units are taking part.71 In all other instances, former members of the armed forces are prohibited from wearing the uniform. 72

PROVISION OF RELIGIOUS SERVICES TO MILITARY PERSONNEL The military chaplaincy raises other issues of accommodation of religious practices in the military. The chaplaincy is a fairly unique institution in the context of religious freedom analysis because it is a government funded program with the specific purpose of providing religious services to members of the U.S. military. Although courts have not invalided the chaplaincy as a violation of religious freedoms so far, there have been indications that some specific operations of the chaplaincy may raise constitutional concerns.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Constitutionality of the Military Chaplaincy: Katcoff v. Marsh In 1985, the U.S. Court of Appeals for the Second Circuit decided the only direct constitutional challenge to the military chaplaincy, Katcoff v. Marsh.73 Although later cases have challenged how the chaplaincy is administered, Katcoff considered whether the mere existence of the military chaplaincy violated the Establishment Clause. The Second Circuit held that the chaplaincy did not violate the Establishment Clause, but concluded that specific practices of the chaplaincy may not be constitutional.74 The Second Circuit noted that the Supreme Court upheld the constitutionality of legislative chaplains offering prayers at legislative sessions under the rationale that the practice was a part of American history and had been woven into the fabric of our society. The Court had reasoned that the legislative chaplaincy had an ―unbroken history of more than 200 years.‖75 Arguments have been made that the legislative chaplaincy is distinct from the military chaplaincy, meaning that the Supreme Court‘s analysis of the legislative chaplaincy does not control the outcome of cases challenging the military chaplaincy. Thus, the Second Circuit examined the challenge under other constitutional tests. The court indicated that the military chaplaincy would fail under the Lemon test‘s requirements, but recognized that the Establishment Clause concerns must be balanced by other constitutional considerations, including the Free Exercise Clause.76 The court held that the military chaplaincy was a constitutional means of accommodating servicemembers‘ religious exercise rights under the Free Exercise Clause. Because members of the military have been removed from their religious communities, the court explained that the government had interfered with their ability to exercise their religious beliefs.77 Accordingly, the military chaplaincy, although unconstitutional if examined solely under the Establishment Clause, alleviated the burden imposed by the military on servicemembers‘ religious exercise. The court reinforced this balance favoring the accommodation of servicemembers‘ religious exercise by noting the importance of the interests of the War Powers Clause78 of the U.S.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

120

R. Chuck Mason and Cynthia Brougher

Constitution, which required the court to give significant deference to Congress in military affairs. The court explained that ―when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved ... in favor of deference to the military‘s exercise of discretion.‖79 Thus, the court determined that because the chaplaincy serves as an accommodation to alleviate a burden on religion imposed by the government and because the military is entitled to deference in a reasonable policy to ensure that servicemembers are adequately treated to maintain military order, the chaplaincy is a permissive accommodation of religion by the government.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Challenges to the Specific Components of the Military Chaplaincy Although the legal debate over the constitutionality of the chaplaincy program has appeared settled since Katcoff, later cases address whether specific practices of the chaplaincy program in various branches of the military comport with constitutional requirements. Among the issues considered by lower courts are the employment and hiring practices for military chaplains and the role of religious pluralism in chaplains‘ practices. One of the most recent and illustrative challenges to the specific practices of the military chaplaincy was Larsen v. U.S. Navy, a federal district court case decided in 2007.80 In Larsen, three non-liturgical Protestant ministers challenged the Navy‘s hiring practices for the chaplaincy as violations of the First Amendment. The ministers alleged that the Navy‘s previous and current hiring practices were inadequate to meet constitutional requirements related to religious exercise of servicemembers. The court rejected the challenge to the earlier hiring policy, which divided the chaplaincy into thirds (Roman Catholic, Protestant liturgical, and non-liturgical Christian and Special Worship), as moot.81 The court did consider the constitutionality of the Navy‘s hiring practice that was in place at the time of the lawsuit, however, and ultimately held that it was a constitutionally permissible form of religious accommodation under the First Amendment. The Navy hiring policy at issue in Larsen was described as faith group-neutral and designed to take ―the best qualified candidates, regardless of denomination.‖82 The policy considers several factors in determining the composition of the chaplaincy: the breadth of locations where Navy personnel serve; the unique circumstances of Naval service, which involves personnel isolated on ships sailing all over the world; the various fucntions and tasks of chaplain officers outside of religious services including assistance to those of other faith groups and even no faith groups; the need to keep accession, promotion, and retention in line with other naval communities; the need to prevent shortages of qualified clergy; the need to maintain capacity to respond to events requiring quick access to chaplains from different faith groups not stationed on site, such as terror attacks; and the need to consider administrative necessities in managing an all-volunteer corps.83

In considering the constitutional claims related to this policy, the district court noted that typically First Amendment analysis does not defer to the government‘s rationale, but also noted that the Supreme Court has indicated that the military is separate from civilian society

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

121

and that military actions are to receive higher deference than similar issues arising in a civilian context.84 Notably, one Supreme Court opinion recognized that certain actions in the military context may appear to be constitutionally suspect, but a military policy that favors the group‘s mission over personal practices is ―paramount.‖85 The district court in Larsen framed its decision as one which fit in the so-called ‗joints‘ of the religion clauses, ―in the space between the constitutional command against practices respecting an establishment of religion and the command against practices which prohibit the free exercise thereof.‖86 The plaintiffs assertions also recognized the need to accommodate the religious exercise of servicemembers, but based their challenge on the manner in which that accommodation should be offered. The court disagreed with the plaintiffs‘ claim that, because the military had a compelling interest in accommodating servicemembers‘ religious exercise, the military therefore was required to accommodate.87 Rather, it interpreted the challenge as one that could be resolved constitutionally through permissive accommodation instead of mandatory accommodation. As such, the court rejected the claim that the chaplaincy must be narrowly tailored to specifically provide for all servicemembers‘ religious needs. Applying the Goldman standard for deference to military decisions, the Larsen court held that the Navy‘s policy for hiring was ―constitutionally sound‖ because it served legitimate military ends by advancing the Navy‘s mission of national defense and because it accommodated individual religious exercise to ―an appropriate degree.‖88 In reaching its conclusion, it considered the Navy‘s claim that ―it would be impossible in any given military unit or community to provide a chaplain for each faith group represented by its members‖ and agreed that a ―relaxed hiring approach, which ignores faith group identifiers, seems reasonable and justified.‖89 Under one suggested alternative hiring policy, the chaplaincy would be directly related to the religious demographics of the Navy. The Larsen court found this alternative to be ―flawed because it confuses religious demographics with religious need.‖90 Such a plan would mean that the Navy (or another military branch) would have to spend a significant portion of resources monitoring the appropriate representation and distribution of chaplains for its servicemembers stationed around the world. Among the problems the court recognized were the difficulty in addressing ―the complexities and variations of religious worship among religions generally and between individual parishioners specifically‖ and the assumption that chaplains of one denomination could not serve the religious needs of servicemembers of other denominations.91 In upholding the Navy‘s policy to use chaplains without a strict quota system or proportional representation, the court indicated further adherence to the constitutional principle that religious accommodations are permissible if they broadly facilitate opportunities to alleviate burdens imposed upon individual religious exercise. Other cases have addressed the specific policies of the chaplaincy as well, but very few have resulted in decisions on the merits. Often, these cases have been resolved on procedural grounds (e.g., the plaintiff lacked standing or the defendant was not a state actor). One controversial issue which remains open for judicial interpretation is whether military chaplains can be required to endorse pluralism in their practice. Chaplains are required to hold worship services, but the military does not dictate the content of such services.92 This allows chaplains to follow their own religious backgrounds and allows the military to avoid dictating religious policy, both consistent with the First Amendment. However, a tension arises because the chaplaincy requires that religious services take a pluralistic approach to

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

122

R. Chuck Mason and Cynthia Brougher

some extent, so that any servicemember may be assisted by an available chaplain, regardless of denomination. A 2006 federal appellate decision resolved a challenge to this issue on procedural grounds, but the question remains an important issue in the debate over religious freedom in the military.93

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

DOD Policy It is DOD policy, established in the DOD Directive 1304.19, that the Chaplaincies of each military department exist for three purposes: (1) to ―advise and assist commanders in the discharge of their responsibilities to provide for the free exercise of religion in the context of military service as guaranteed by the Constitution‖; (2) to ―assist commanders in managing Religious Affairs‖; and (3) to ―serve as the principal advisors to commanders for all issues regarding the impact of religion on military operations.‖94 Further, it is the DOD policy that the Chaplaincies shall serve a ―religiously diverse population‖ and that religious ministry professionals cooperate in providing ―comprehensive religious support to all authorized individuals‖ within the military commands.95 In support of the policy, DOD Instruction 1304.28 provides guidance for the appointment of chaplains for the military departments.96 The instruction requires that the Secretaries of the military departments ensure that individuals appointed as chaplains meet the prescribed ―minimum professional and educational qualifications.‖97 Prior to being considered for an appointment to serve as a chaplain, a religious ministry professional must provide an endorsement from a qualified religious organization verifying, among many things, that the individual ―is willing to function in a pluralistic environment ... and is willing to support directly and indirectly the free exercise of religion by all members of the Military Services, their family members, and other persons authorized to be served by the military chaplaincies.‖98 Further, applicants for appointment as chaplains must affirm that they will ―abide by applicable laws, and all applicable regulations, directives, and instructions of the Department of Defense, and of the Military Department that grades the appointment.‖99 Of particular note, in 2007, the DOD implemented a change to the instruction concerning the potential nexus between religion and terrorism.100 Any individual or religious organization may be removed from or rejected from participating in the chaplain program if: (1) ―the individual is under indictment or has been convicted of a terrorism related offense, or other offense threatening national or economic security‖; or ―the religious organization appears on the annual State Department list of Foreign Terror Organizations.‖101 The instruction provides procedures for the removal of chaplains from the service for loss of ecclesiastical endorsement;102 however, the instruction does not state if those procedures, rather than the standard administrative separation procedures, would apply to an individual removed from the chaplaincy due to indictment or conviction of terrorism related offense. The Armed Forces Chaplains Board, established by the DOD Instruction 5120.08, serves the purpose of making recommendations on ―religious, ethical, and moral matters‖ for the military services to the Secretary of Defense.103 The Board consists of the Chief and active Deputy Chief of Chaplains from each of the three military departments: Army, Navy, and Air Force.104 In addition to making recommendations on the ―[p]rocurement, professional standards, requirements, training, and assignment of military chaplains,‖ the Board advises

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

123

the Secretary of Defense on the ―[p]rotection of the free exercise of religion according to Amendment I to the Constitution of the United States.‖105

End Notes

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1

―1st Sikh in decades graduates Army officer school,‖ USA Today, March 22, 2010, available at http://www.usatoday.com/news/religion 2 U.S. Const. Amend. I. For discussion of the constitutional and statutory standards of review used in relation to the free exercise clause, see CRS Report RS22833, The Law of Church and State: General Principles and Current Interpretations, by Cynthia Brougher. 3 Cutter v. Wilkinson, 544 U.S. 709, 719 (2005) (―While the two Clauses express complementary values, they often exert conflicting pressures.‖); Walz v. Tax Commission of City of New York, 397 U.S. 664, 668-69 (1970) (―The Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.‖). 4 See Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). 5 Employment Div., Oregon Dep‘t of Human Resources v. Smith, 494 U.S. 872, 879 (1990). 6 P.L. 103-141, 103d Cong., 1st Sess. (November 16, 1993); 42 U.S.C. § 2000bb et seq. When RFRA was originally enacted, it applied to federal, state, and local government actions, but the Supreme Court later ruled that its application to state and local governments was unconstitutional under principles of federalism. City of Boerne v. Flores, 521 U.S. 407 (1997). 7 42 U.S.C. § 2000bb-1(b). In some instances, RFRA may be preempted by another federal law. See S.Rept. 103111, at 12-13 (1993) (stating that ―nothing in this act shall be construed as affecting religious accommodation under title VII of the Civil Rights Act of 1964‖). 8 Gonzales v. O Centro Espirita Beneficente Unaio Do Vegetal, 546 U.S. 418, 435-437 (2006). 9 Lemon v. Kurtzman, 403 U.S. 602 (1971). 10 Id. at 612-13. While the first two prongs of the test are self-explanatory, the Court noted that the third prong prohibited ―an intimate and continuing relationship‖ between government and religion as a result of the law. Id. at 621- 22. 11 Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O‘Connor, J., concurring). This application of the Lemon test forbids ―government endorsement or disapproval of religion,‖ noting that ―endorsement sends a message to nonadherents that they are outsiders ... and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.‖ Id. at 688. 12 Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968). 13 This test is typically invoked in the school setting because of the impressionability of those affected by possible acts of establishment. See Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). 14 Marsh v. Chambers, 463 U.S. 783, 792 (1983). 15 See Rostker v. Goldberg, 453 U.S. 57 (1981). See also Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) (―The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judicary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.‖); Parker v. Levy, 417 U.S. 733, 758 (1974) (―while the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.‖); Katcoff v. Marsh, 755 F.2d 223, 233 (2d Cir. 1985) (―Those who want the individual liberty embodied in our Bill of Rights must be willing to make sacrifices for it. One of these is the duty of a soldier to obey military orders and forego many of the freedoms that he would otherwise enjoy as a civilian.‖). 16 School District of Abington Township v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring). 17 Id. at 297-98. 18 Id. 19 See Estate of Thornton v. Caldor, 472 U.S. 703 (1985); Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987); Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994). 20 See Texas Monthly v. Bullock, 489 U.S. 1 (1989). 21 Department of Defense, DoD Directives Program, DOD Instruction 5025.01, Enclosure 4 (October 28, 2007). 22 Id. 23 Id. 24 Department of Defense, Accommodation of Religious Practices Within the Military Services, DOD Instruction 1300.17 (February 10, 2009). 25 Id. at § 4. 26 Id. at Enclosure. 27 Id. at Enclosure, § 1.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

124

R. Chuck Mason and Cynthia Brougher

28

Id. at Enclosure § 5. Id. at § 3b. 30 Id. 31 Id. 32 Id. at Enclosure § 5. 33 Id. at § 3a. 34 Department of Defense, Handling Dissident and Protest Activities Among Members of the Armed Forces, DOD Instruction 1325.06, § 1.b. (November 27, 2009). 35 Id. at § 3.b. 36 Id. at §§ 3.c. and 3.d. 37 Id. at Enclosure 3, § 2. 38 Id. at Enclosure 3, § 5 & 6. 39 Id. at Enclosure 3 § 8.a. 40 Id. at Enclosure 3 § 8.c. 41 Id. 42 Goldman v. Weinberger, 475 U.S. 503 (1986). 43 AFR 35-10, para. 1-6.h(2)(f) (1980) (AFR 35-10 has subsequently been replaced by Air Force Instruction (AFI) 36- 2903, which contains Table 2.9, Religious Apparel Waivers). 44 Goldman v. Weinberger, 475 U.S. at 506. 45 Id. at 505. 46 Id. at 506. 47 Goldman v. Secretary of Defense, 530 F.Supp. 12 (1981). 48 Goldman v. Secretary of Defense, 29 Empl. Prac. Dec. P 32,753 (1982). 49 Goldman v. Secretary of Defense, 236 U. S. App. D. C. 248, 734 F.2d 1531 (1984). 50 Goldman v Weinberger, 475 U.S. at 506 (citing Goldman v. Secretary of Defense, 734 F.2d at 1540). 51 Id. at 506. 52 Id. at 507. 53 Id. at 508 (citing Rostker v. Goldberg, 453 U.S. 57, 70 (1981)). 54 Id. at 508. 55 Id. at 509. 56 Id. (emphasis in original). 57 Id. 58 Id. 59 Id. at 510. 60 P.L. 100-180, 101 Stat. 1086 (December 4, 1987). 61 10 U.S.C. § 774(b). 62 10 U.S.C. § 774(c). 63 U.S. Congress, National Defense Authorization Act For Fiscal Years 1988 and 1989, Conference Report to accompany H.R. 1748, 100th Cong., 1st Sess., (1987), H. Conf. Rpt. 100-446 (Washington: GPO, 1987), p. 638. 64 Department of Defense, Wearing of the Uniform, DOD Instruction 1334.01, § 1 (October 26, 2005). 65 Id. at § 3.1.2 (emphasis added). 66 Id. at § 3.1.3 (emphasis added) (an exception to this prohibition exists if a servicemember receives authorization from the Chairman of the Joint Chiefs or a Commander of a Combatant Command to participate in the event). 67 Id. at § 3.1.4 (emphasis added). 68 Id. at § 3.1.5. 69 For a discussion related to proposed U.S. Navy working uniforms regulations, see http://www.navytimes.com/news/ 2008/12/navy _uniform _faq_121508w/ 70 DOD Instruction 1334.01, § 3.1.1. 71 Id. at § 3.2. 72 Id. at § 3.2.3 ( Medal of Honor holders, however, may wear the uniform at their pleasure except under the prohibitions applicable to current members of the armed forces. Id. at § 3.3). 73 755 F.2d 223 (2d Cir. 1985). 74 Id. 75 Id. at 232 (citing Marsh v. Chambers, 463 U.S. 783 (1983)) (internal quotations omitted). 76 Id. at 232 (―If the current Army chaplaincy were viewed in isolation, there could be little doubt that it would fail to meet the Lemon v. Kurtzman conditions. ... However, neither the Establishment Clause nor statutes creating and maintaining the Army chaplaincy may be interpreted as if they existed in a sterile vacuum.‖). 77 Id. at 234. 78 U.S. CONST. art. I, § 8. 79 Id. (citing Rostker v. Goldberg, 453 U.S. 57 (1981)). 80 486 F. Supp.2d 11 (D.D.C. 2007).

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

29

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Military Personnel and Freedom of Religious Expression: Selected Legal Issues

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

81

125

Id. at 24. Whether the Navy ever used the so-called Thirds Policy was a fact disputed among the parties, but the court held that the issue was moot because the policy was not in place at the time of the lawsuit and the plaintiffs did ―not allege that the Navy plans to reinstate its challenged Thirds Policy.‖ Id. 82 Id. at 24-25 (internal quotations omitted). 83 Id. at 25-26 (internal quotations omitted). 84 Id. at 26 (citing Parker v. Levy, 417 U.S. 733 (1974) and Goldman v. Weinberger, 475 U.S. 503 (1986)). 85 See Goldman, 475 U.S. at 511 (Stevens, J., concurring). 86 Id. at 30. 87 Id. at 31. 88 Id. at 33-34 (internal quotations omitted). 89 Id. at 34 (internal quotations omitted). 90 Id. at 35. 91 Id. at 35-3 6. 92 See 10 U.S.C. § 3547(a); 10 U.S.C. § 603 1(a); 10 U.S.C. § 8547(a). 93 See Veitch v. England, 471 F.3d 124 (D.C. Cir. 2006). 94 Department of Defense, Appointment of Chaplains for the Military Departments, DOD Directive 1304.19, § 4.1 (June 11, 2004). 95 Id. at § 4.2. 96 Department of Defense, Guidance for the Appointment of Chaplains for the Military Departments, DOD Instruction 1304.28 (June 11, 2004). 97 Id. at § 5.2. 98 Id. at § 6.1.2. 99 Id. at § 6.4.2. 100 Our research did not reveal a specific justification for the change in policy. However, in September of 2003, a Muslim military chaplain was arrested and accused of espionage while ministering to Islamic inmates at Guantanamo Bay. Shortly after the arrest, on October 14, 2003, the Senate Committee on the Judiciary, Subcommittee on Terrorism, Technology and Homeland Security held a hearing titled ―Terrorism: Radical Islamic Influence of Chaplaincy of the U.S. Military and Prisons.‖ Questions were raised during the hearing regarding the DOD‘s policy on qualifications and recognition of chaplains for the military services. Ultimately, the chaplain was never court-martialed for the alleged offenses and he subsequently resigned his commission in the U.S. Army. (See ―Convictions Dropped for Muslim Chaplain at Guantánamo Bay,‖ The New York Times, April 14, 2004, available at http://www.nytimes.com/2004/04/ 15/national/15MUSL.html?pagewanted=1). This series of events may have lead to the change in the DOD policy requiring the separation of chaplains indicted on terrorism related charges. 101 Id. at § 6.8. 102 Id. at § 6.5. 103 Department of Defense, Armed Forces Chaplains Board, DOD Instruction 5120.08, § 3 (August 20, 2007). 104 Id. at § 5.1.1. (the United States Marine Corps is a component of the Department of the Navy, and as such, is represented on the Armed Forces Chaplains Board by the Department of the Navy designee). 105 Id. at § 5.1.2.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved. The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 6

LEGAL STANDING UNDER THE FIRST AMENDMENT’S ESTABLISHMENT CLAUSE 

Cynthia Brougher

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY The Establishment Clause of the First Amendment to the U.S. Constitution provides that ―Congress shall make no law respecting an establishment of religion.‖ The Establishment Clause prohibits government actions that would provide preferential treatment of one religion over another or preferential treatment of religion generally over nonreligion. Alleged violations under the Establishment Clause must meet a threshold requirement known as standing, the legal principle that governs whether an individual is the proper party to raise an issue before the courts. Standing is a constitutional principle that serves as a restraint on the power of federal courts to render decisions. Under general standing rules that apply to any case, an individual must have an individualized interest that has actually been harmed under the law or by its application that can be redressed by the lawsuit in order to bring that case to court. In some instances, such as the Establishment Clause, an individual may wish to challenge a governmental action that injures the individual as a member of society. The individual may assert that injury as a citizen dissatisfied with a governmental action, as a taxpayer dissatisfied with a governmental expenditure, or as a citizen dissatisfied with treatment of other citizens. The U.S. Supreme Court has construed the requirements to raise such cases narrowly, and individuals seeking to litigate such alleged injuries must meet both constitutional and prudential standing requirements. The Court has made some exceptions to the general rules of standing and specifically allowed taxpayer standing for certain claims arising under the Establishment Clause. Under the Flast exception to the general prohibition on taxpayer standing, taxpayers may raise 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated September 2009.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

128

Cynthia Brougher

challenges of actions exceeding specific constitutional limitations (such as the Establishment Clause) taken by Congress under Article I‘s Taxing and Spending Clause. The Court has maintained its narrow interpretation of this exception, refusing to extend it to permit taxpayer lawsuits challenging executive actions or taxpayer lawsuits challenging actions taken under powers other than taxing and spending. This chapter analyzes the constitutional issues associated with standing, specifically related to cases arising under the Establishment Clause. It provides a background on the doctrine of standing, including the U.S. Supreme Court‘s interpretation of various types of standing, including standing to sue as a citizen, as a taxpayer, and on behalf of another party. It also examines the current standing rules related to the Establishment Clause and the implications of the Court‘s 2007 decision in Hein v. Freedom From Religion Foundation, which further limited the circumstances under which Establishment Clause challenges could be brought. The report also discusses Salazar v. Buono, an Establishment Clause case scheduled for arguments before the Court in October 2009. The Establishment Clause of the First Amendment to the U.S. Constitution provides that ―Congress shall make no law respecting an establishment of religion.... ‖1 The Establishment Clause prohibits government actions that would provide preferential treatment of one religion over another or preferential treatment of religion generally over nonreligion.2 Alleged violations of the Establishment Clause must meet a threshold requirement known as standing, the legal principle that governs whether a particular individual is the proper party to raise an issue before the courts. This chapter analyzes the constitutional issues associated with standing, specifically related to cases arising under the Establishment Clause. It provides a background on the doctrine of standing, including the U.S. Supreme Court‘s interpretation of various types of standing, such as standing to sue as a citizen, as a taxpayer, and on behalf of another party. It also examines the current standing rules related to the Establishment Clause and the implications of the Court‘s 2007 decision in Hein v. Freedom From Religion Foundation, which further limited the circumstances under which Establishment Clause challenges could be brought. The report also discusses Salazar v. Buono, an Establishment Clause case scheduled for arguments before the Court in October 2009.

LEGAL ISSUES RELATED TO STANDING GENERALLY Standing is a constitutional principle that serves as a restraint on the power of federal courts to render decisions.3 Under general standing rules that apply to any case, an individual must have an individualized interest that has actually been harmed under the law or by its application to bring that case to court. 4 As a principle, standing ―focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.‖5 In some instances, such as the Establishment Clause, an individual may wish to challenge a governmental action that injures the individual as a member of society. The individual may assert that injury as a citizen dissatisfied with a governmental action, as a taxpayer dissatisfied with a governmental expenditure, or as a citizen dissatisfied with treatment of other citizens. The U.S. Supreme Court has construed the requirements to raise

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Legal Standing under the First Amendment‘s Establishment Clause

129

such cases narrowly, and individuals seeking to litigate such alleged injuries must meet both constitutional and prudential standing requirements.

Citizen Standing The Supreme Court has held that individuals generally do not have standing to sue based solely on their status as citizens with a grievance against a government action.6 In Schlesinger v. Reservists Committee to Stop the War, an association of officers and enlisted members of the Reserves and several individual members of the association alleged that Members of Congress who serve in the Reserves while also serving in Congress were acting in violation of the U.S. Constitution‘s prohibition on ―holding any Office under the United States‖ while also serving as a Member of Congress.7 The Reservists Committee asserted their claims on the basis that as citizens and taxpayers, they were injured by the threat that simultaneous service created ―the possibility of undue influence by the Executive Branch, in violation of the concept of independence of Congress implicit in Art. I of the Constitution.‖8 The Court held that the committee lacked standing to raise the claim.9 The Court also held that the alleged injury was abstract, speculative, and generalized, and therefore was not a litigable matter for the courts to decide under the standing principles of the U.S. Constitution.10

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Taxpayer Standing Similar to the Court‘s refusal to recognize standing based merely on status as a citizen in opposition of a government action, the Court generally has not recognized standing for claims that challenge government actions based an alleged injury to a taxpayer because of the expenditure of tax revenue. The Court, however, has allowed a narrow exception to this general rule against taxpayer standing and has permitted certain Establishment Clause cases to proceed under taxpayer standing (as discussed later in this chapter).11 In Frothingham v. Mellon, one of the first cases to address taxpayer standing, the Court dismissed a case brought by a taxpayer claiming that disbursements of federal money to a program alleged to be unconstitutional would injure her as a taxpayer. 12 The taxpayer alleged that she would be injured because her taxes would be raised in the future to support the unconstitutional appropriation of federal funds. The Court held that a taxpayer‘s ―interest in the moneys of the Treasury ... is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded‖ for the taxpayer to have standing on the matter.13 The Court noted that a party seeking to litigate a government action ―must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement and not merely that he suffers in some indefinite way in common with people generally.‖14 The Court later noted a need for clarification regarding whether the refusal to grant taxpayer standing was a constitutional determination or a policy consideration that would be considered as a matter of prudential standing (discussed in the following paragraph).15 The Court provided a two-part test that a taxpayer must meet in order to have standing under

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

130

Cynthia Brougher

constitutional requirements. First, the taxpayer must be challenging a government action under the congressional power provided by the Taxing and Spending Clause of the Constitution.16 Second, the taxpayer must show that the government action ―exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress.‖17 The Court has continued to apply this standard in taxpayer cases.18

Prudential Standing In addition to the baseline constitutional requirements for standing, individuals seeking to litigate a governmental action in court must also have prudential standing. The Court has held that other factors may call for the courts to refuse to hear certain cases. That is, a court may determine that an individual lacks standing ―under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.‖19 The Court has identified three general prudential rules for standing: (1) the individual‘s interest injured by the government action must fall within the zone of interest arguably protected by the constitutional or statutory provision in question;20 (2) the individual may not litigate generalized grievances shared by a large group of individuals;21 and (3) the individual generally may not assert the interest of another to challenge a government action.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

CONGRESS’S ROLE IN STANDING REQUIREMENTS Occasionally, however, Congress has provided statutory grounds under some circumstances that would entitle citizens to sue the government if a government action adversely affected them.22 An individual would have standing in such instances if the individual suffered an injury-in-fact and if the interest he or she seeks to protect is arguably within the zone of interests protected or regulated by the statute in question.23 Thus, although standing is generally understood as a constitutional principle, Congress may facilitate standing through statutory creations of interests, which may allow individuals who could not qualify under the constitutional requirements to bring their cases to court. Although constitutional standing requirements cannot be waived or amended by statutory action, Congress retains the ability to confer standing by removing prudential constraints on judicial review.24 The Court has limited the extent to which taxpayers have standing under the constitutional requirements, but if a statute provides individuals an entitlement that is later denied, the Court has recognized an injury to such individuals.25 Under such circumstances, the Court has held that the injury ―is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.‖26

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Legal Standing under the First Amendment‘s Establishment Clause

131

STANDING IN ESTABLISHMENT CLAUSE CASES

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The general rules regarding standing to challenge governmental actions are designed to ensure that courts are addressing actual cases that can be resolved by the judicial system. However, in some circumstances, individuals may seek to challenge governmental actions for which neither those individuals nor any other individuals could meet standing requirements. Indeed, the Supreme Court has noted that in some instances ―it can be argued that if [someone with a generalized grievance] is not permitted to litigate this issue, no one can do so.‖27 Generally, the Court has noted, ―lack of standing within the narrow confines of Art. III jurisdiction does not impair the right to assert [one‘s] views in the political forum or at the polls.‖28 However, the ability of individuals to effect change through political and democratic means does not eliminate all cases where a large group of individuals would be affected by the challenged governmental action. In particular, the Court has specifically allowed taxpayer standing for claims arising under the Establishment Clause. Under the Flast exception to the general prohibition on taxpayer standing, taxpayers may raise challenges of actions exceeding specific constitutional limitations (such as the Establishment Clause) taken by Congress under Article I‘s Taxing and Spending Clause.29 The Court has maintained its narrow interpretation of this exception, refusing to extend it to permit taxpayer lawsuits challenging executive actions or taxpayer lawsuits challenging actions taken under powers other than taxing and spending.30 These exceptions, the Court has explained, result because the Establishment Clause is a constitutional limit on the government‘s ability to act. According to the Court, the framers of the Constitution feared abuse of governmental power that might result in favoring one religion over another.31 It is difficult to imagine circumstances in which potential abuses of the Establishment Clause could be enforced without this exception.

Litigation Arising under the Taxing and Spending Clause Although the Court in Frothingham held that taxpayers generally could not challenge the constitutionality of federal statutes, the Court later lowered the barrier to taxpayer standing for such lawsuits. In 1968, a group of taxpayers challenged the constitutionality of funding dispersed under the Elementary and Secondary Education Act of 1965. The lawsuit, known as Flast v. Cohen, alleged that federal funds were being used to support education in religious schools in violation of the First Amendment.32 In its decision, the Court noted that Frothingham had generally addressed the issue of taxpayer standing, but also noted that the strict limitation in Frothingham raised debate over whether the prohibition was constitutionally required or a judicial policy consideration.33 The Court held that there was ―no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs.‖34 The Court distinguished Frothingham‘s general prohibition on taxpayer standing, noting that the taxpayer in Frothingham was challenging a federal statute as a violation of the Tenth Amendment, which reserves certain powers for the states rather than the federal government.35 As a result, the taxpayer could not suffer a direct injury by such an action. 36

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

132

Cynthia Brougher

The Court clarified the requirements for taxpayer standing in Flast based on this distinction. It held that ―it is both appropriate and necessary to look to the substantive issues ... to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.‖37 In other words, for a taxpayer to have standing to challenge a government action, that action must be sufficiently related to the taxpayer‘s interest (i.e., his or her tax dollars). The Court explained that taxpayers challenging government actions related to the Establishment Clause would meet its two-part test for standing under Flast. First, the Court found that ―the challenged program involves a substantial expenditure of federal tax funds.‖38 Second, the Court noted the constitutional history of the Establishment Clause and concern during the drafting of the Constitution that the Establishment Clause would be necessary to prevent abuse of the taxing and spending power in favor of one religion over another or religion generally over nonreligion. Thus, the Court held that Establishment Clause challenges could be brought by individuals acting based on their status as taxpayers because the Establishment Clause is a ―specific constitutional limitation upon the exercise of Congress of the taxing and spending power.‖39 The Court‘s decision in Flast does not guarantee all taxpayers the right to challenge any government action under the Establishment Clause, though. Other cases have addressed the more specific considerations regarding standing of taxpayers to challenge government actions under the Establishment Clause. For example, the Court has recognized a more direct injury to local taxpayers regarding local expenditures than cases raised by federal taxpayers regarding federal expenditures.40 Under this rule, the Court has allowed a taxpayer to challenge public funding of transportation to parochial schools as a violation of the Establishment Clause.41 Standing to challenge actions related to the Establishment Clause is not always recognized in non-federal actions, though. The Court refused to recognize standing for a taxpayer seeking to challenge a state statute that required daily Bible reading at public schools.42 In that case, there was ―no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school.‖43 The Court also noted that there was ―no assertion that she was injured or even offended thereby or that she was compelled to accept, approve or confess agreement with any dogma or creed or even to listen when Scriptures were read.‖44 The Court concluded that ―it is apparent that the grievance which it is sought to litigate here is not a direct dollars-and-cents injury but is a religious difference‖ and denied standing to the claimant.45

Litigation Arising under the Property Clause The Court has refused to extend taxpayer standing to individuals or organizations seeking to challenge executive actions that are undertaken under legislation authorized by the Property Clause.46 In Valley Forge Christian College v. Americans United for Separation of Church and State, the Court held that an organization of taxpayers did not have standing to challenge the transfer of property to a religiously affiliated college as an unconstitutional government action under the Establishment Clause.47 Congress had authorized the Secretary of Health, Education, and Welfare to dispose ―of surplus real property ‗for school, classroom, or other educational use.‘‖48 Under that

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Legal Standing under the First Amendment‘s Establishment Clause

133

authority, the Secretary conveyed a tract of land declared to be surplus property to Valley Forge Christian College. The college acquired the property without making any financial payment and with certain conditions attached to the conveyance, which required the property to be used for educational purposes for 30 years.49 Following the Flast standard, the Court held that Americans United did not have standing because the action they were challenging was an action by an executive agency and was authorized by legislation under the Property Clause, rather than the Taxing and Spending Clause. The Court explained its decision for maintaining limits on standing based on the need for some limits on the exercise of the judicial power to preserve the balance of power between the three branches of government.50 The Court rejected the argument that ―the Establishment Clause demands special exceptions from the requirement that a plaintiff allege distinct and palpable injury to himself ... that is likely to be redressed if the requested relief is granted.‖51 Rather, the Court held that the Establishment Clause deserved no more protection than other constitutional provisions, and that to permit federal courts to consider alleged constitutional errors by the government without a direct injury to the claimant would conflict with the principles guiding the proper role of the judiciary in the government.52 The Court noted that its conclusion in Valley Forge was not a ―retreat from our earlier holdings that standing may be predicated on noneconomic injury.‖53 Rather, the Court emphasized that the litigants in this particular case had not ―alleged an injury of any kind, economic or otherwise, sufficient to confer standing,‖ noting that they could show no geographic or other link to the land at issue in the case.54

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Litigation of Issues Raised on Behalf of Another Individual The Court has also limited Establishment Clause cases because the litigants lacked prudential standing. In Elk Grove Unified School District v. Newdow, a father challenged the policy of his daughter‘s school district that required each class to recite the Pledge of Allegiance daily. 55 The lawsuit alleged that mandating the Pledge of Allegiance including the words ―under God‖ violated the Establishment Clause. The Court held that Newdow, as the child‘s non-custodial parent under California law, did not have the standing required to sue on her behalf.56 In this case, the Court ruled that Newdow was prohibited from litigating the issue by requirements of prudential standing, specifically the general prohibition on third-party standing and lawsuits on behalf of other individuals.57 There is an exception to the prudential standing requirements concerning the rights of minors, which provides that the parent of a child generally may sue on the child‘s behalf. However, under California law, only the parent with sole legal control over the child may bring a suit on her behalf.58 Because the father was not the custodial parent, the Court held that he could not litigate his objection on his daughter‘s behalf.

Litigation Related to Executive Branch Actions The Court‘s decision in Hein v. Freedom From Religion Foundation in 2007 has raised questions regarding the future range of eligible litigants seeking to challenge government

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

134

Cynthia Brougher

actions under the Establishment Clause. In Hein, a group of taxpayers challenged the constitutionality of events held for programs under the White House Office of Faith-Based and Community Initiatives, an executive office created in 2001 to remove barriers to religious and community groups seeking federal assistance.59 It is significant to note that Hein was a plurality opinion, rather than a majority opinion, indicating that the Court has varied interpretations of the principles of standing related to the Establishment Clause. The Court held that the taxpayers did not have standing under the Flast standard. In Flast, the Court conferred standing for taxpayers who were challenging expenditures ―funded by a specific congressional appropriation and were dispersed ... pursuant to a direct and unambiguous congressional mandate.‖60 In contrast, the taxpayers in Hein were not challenging ―any specific congressional action or appropriation; nor [were they asking] the Court to invalidate any congressional enactment or legislatively created program as unconstitutional.‖61 Rather, the expenditures challenged in Hein were ―general appropriations to the Executive Branch to fund its day-to-day activities‖ and ―resulted from executive discretion, not congressional action.‖62 The Hein plurality opinion emphasized the Court‘s history of interpreting taxpayer standing narrowly and its strict requirement that some ―logical nexus‖ exist between the taxpayers and the action being challenged. 63 The opinion noted that the Court previously had recognized taxpayer standing to challenge expenditures administered by executive officials.64 However, it distinguished that decision because it ―involved a program of disbursement of funds pursuant to Congress‘ taxing and spending powers that Congress had created, authorized, and mandated.‖65 In Hein, the taxpayers had not challenged a specific statute as a violation of the Establishment Clause and thus failed the Flast standing requirements. The Court held that the expenditures by the Executive Branch alleged to violate the Establishment Clause could be treated differently than legislative actions. The Hein opinion noted the broad impact that a decision to the contrary would have, stating that ―because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation, or speech—to Establishment Clause challenge by any taxpayer in federal court.‖66 The opinion also elaborated on its separation of powers rationale for narrow taxpayer standing rules. According to Hein, the ―relaxation of standing requirements is directly related to the expansion of judicial power, and lowering the taxpayer standing bar to permit challenges of purely executive actions would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.‖67 In other words, if the Court were to broaden taxpayer standing requirements, individual litigants could effect changes in the courts rather than through the national political process. The Hein decision has had a notable impact on Establishment Clause litigation. Many recent Establishment Clause lawsuits have challenged Executive Branch programs that provide funding to religious organizations. The Hein decision has left the probability of reaching the merits in such lawsuits uncertain. Several courts have dismissed such lawsuits, ruling that the litigants lacked standing in light of Hein.68 Other litigants have voluntarily dropped their lawsuits, expecting that Hein would cast skepticism on their standing to bring the case. However, some lawsuits have proceeded successfully. 69

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Legal Standing under the First Amendment‘s Establishment Clause

135

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

FUTURE DEVELOPMENTS: SALAZAR V. BUONO In October 2009, the Court will hear arguments in Salazar v. Buono, an Establishment Clause case involving the display of a large cross that stands on the Mojave National Preserve in California, which is managed by the National Park Service (NPS).70 The cross display had been erected by the Veterans of Foreign Wars (VFW) as ―a memorial to fallen service members‖ in 1934.71 NPS denied a request to erect a Buddhist shrine near the cross in 1999, leading to controversial debate over whether the cross is constitutional under the Establishment Clause.72 After NPS indicated that the cross would be removed to avoid constitutional problems, Congress passed legislation that prohibited the use of federal funds to remove the cross73 and passed additional legislation that designated the cross and adjoining land as a national memorial to World War I veterans.74 In 2001, a former employee (Frank Buono) of the preserve filed a lawsuit alleging that the cross display violated the Establishment Clause, particularly because the cross was displayed on public property on which displays of other religious symbols were not also permitted. Buono ―does not generally object to displays of crosses, but instead has only the ideological objection that public lands on which crosses are displayed should also be public fora on which other persons may display other symbols.‖75 The district court held the display on public land to be a violation of the Establishment Clause and issued an injunction that prohibited the government from permitting the display.76 Congress subsequently enacted legislation directing the conveyance of approximately one acre of land on which the cross was displayed to the VFW.77 In a second lawsuit challenging that land transfer, the U.S. Court of Appeals for the 9th Circuit held that the transfer of land did not cure the Establishment Clause violation and that the transfer could not ―be validly executed without running afoul of the injunction.‖78 The court reasoned that ―carving out a tiny parcel of property in the midst of this vast Preserve ... will do nothing to minimize the impermissible governmental endorsement.‖79 The 9th Circuit noted, but did not adopt, the U.S. Court of Appeals for the 7th Circuit‘s presumption in a previous case that transfer of land with a religious symbol was sufficient to avoid an Establishment Clause violation.80 The 9th Circuit reasoned that precedent related to public displays of religious symbols indicated a need for fact-specific analysis of such displays rather than adoption of a presumption as the 7th Circuit did.81 Buono raises two issues for the Court to consider: (1) whether a person who objects to the lack of an open forum for displays rather than the display itself has standing to litigate such a lawsuit, and (2) whether it was proper for the 9th Circuit to invalidate the statute ordering the transfer of the land. Because a litigant must have standing to pursue a lawsuit, the Court will address the second issue regarding the effect of the transfer of the land only if it finds that Buono has standing to sue. It appears that Buono‘s standing to sue in this case may be open to question. The transfer of land occurred under the Property Clause rather than the Taxing and Spending Clause, and Buono does not appear to have a specific legal interest in the land at issue or other related individualized injury. In Valley Forge, the Court held that taxpayers do not have standing to challenge government transfers of land used by private parties for religious purposes.82 Thus, the case could possibly be dismissed for lack of standing to challenge land transfers under the Property Clause.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

136

Cynthia Brougher

Furthermore, some may question whether Buono has suffered a legally recognized individualized injury as a result of the cross display. The Court has recognized standing for litigants claiming injury based on non-economic harms (e.g., environmental, aesthetic, etc.), particularly in environmental cases where the litigant‘s enjoyment of a park or recreational area is threatened by pollution or other action. 83 Even in such cases, whatever harm might be alleged, regardless of whether it has a financial or psychological effect, must affect the person claiming the injury directly.84 The Court‘s previous holdings regarding third-party standing suggest that Buono may lack standing on these grounds as well. In this case, it appears that he is acting on behalf of others who may want to erect a different religious display on the land. As a former employee, Buono may have a generalized interest in the operation of the preserve, but because Buono has testified that he is not offended by a religious symbol being displayed on public property, he may not appear to the Court to be personally harmed by the display.85

End Notes 1

U.S. Const. amend. I. See Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968). 3 See U.S. Const. art. III, § 2, cl. 1. 4 There are generally three constitutionally required elements to standing: (1) the individual must have personally suffered an actual or threatened injury; (2) the injury must be fairly traced to the challenged action; and (3) the injury must be likely to be redressed by a favorable decision. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-6 1 (1992). 5 Flast v. Cohen, 392 U.S. 83, 99 (1968). ―When standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case.‖ Id. at 99-100. 6 See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). 7 Id. at 209 (internal quotations omitted). 8 Id. at 212 (internal citations omitted). 9 Id. at 209 (internal citations omitted). 10 See id. at 217. ―The Court has previously declined to treat ‗generalized grievances‘ about the conduct of Government as a basis for taxpayer standing.‖ Id. (citing Flast v. Cohen, 392 U.S. 83 (1968)). The Court noted its earlier ruling in another case brought under the Incompatibility Clause, which held that private individuals must show actual or imminent danger of a direct injury resulting from the government action challenged, not ―merely a general interest common to all members of the public.‘‖ Id. at 219 (citing Ex parte Levitt, 302 U.S. 633 (1937)). 11 See Flast, 392 U.S. 83 (1968). 12 Frothingham v. Mellon, 262 U.S. 447 (1923). 13 Id. at 487. 14 Id. at 488. 15 See Flast, 392 U.S. at 92 (―confusion has developed as commentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled.‖). 16 Id. at 102. 17 Id. at 102-03. 18 See, e.g., United States v. Richardson, 418 U.S. 166 (1974) (denying standing to a taxpayer attempting to challenge the secret nature of Central Intelligence Agency expenditures because the challenge would be an improper attempt to litigate generalized grievances); Schlesinger, 418 U.S. 208 (denying standing to taxpayers attempting to challenge simultaneous service of Members of Congress in the Armed Forces Reserves because the challenge was not brought under the Taxing and Spending Clause). 19 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979). 20 See Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 153 (1970). 21 See Richardson, 418 U.S. at 173-76.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

2

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Legal Standing under the First Amendment‘s Establishment Clause

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

22

137

See, e.g., Endangered Species Act, P.L. 93-205, § 11(g), 16 U.S.C. § 1540(g). The Administrative Procedure Act provides for judicial review of agency actions. See 5 U.S.C. § 702 (―person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.‖). 23 See Association of Data Processing Service Organization, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). 24 See Federal Election Commission v. Akins, 524 U.S. 11, 20 (1998) (―Nor do we agree ... that Congress lacks the constitutional power to authorize federal courts to adjudicate this lawsuit. Article III, of course, limits Congress‘ grant of judicial power to ‗cases‘ or ‗controversies.‘ That limitation means that respondents must show, among other things, an ‗injury in fact‘....‖) (FEC). 25 See, e.g., Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982). 26 FEC, 524 U.S. at 25. 27 Richardson, 418 U.S. at 179. 28 Id. 29 See Flast, 392 U.S. at 105. 30 See Valley Forge Christian College, 454 U.S. 464 (1982) (refusing to allow a taxpayer challenge of government transfer of property to a sectarian institution without charge because the action was taken by an executive agency exercising power under the Property Clause); Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007) (refusing to allow a taxpayer challenge of activities of the White House Office of Faith-Based and Community Initiatives because the funding was made through discretionary executive spending). 31 See Flast, 392 U.S. at 103-04. 32 Flast, 392 U.S. 83. 33 Id. at 92-94. 34 Id. at 101. 35 Id. at 91. 36 Id. at 92. 37 Id. at 102. 38 Id. at 103. 39 Id. at 104. 40 See Crampton v. Zabriskie, 101 U.S. 601, 609. See also Frothingham, 262 U.S. at 486 (―The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.‖). 41 See Everson v. Board of Education, 330 U.S. 1 (1947). 42 Doremus v. Board of Education, 342 U.S. 429 (1952). 43 Id. at 433. 44 Id. at 432. 45 Id. at 434. 46 U.S. Const. art. IV, § 3, cl. 2 (―The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.‖). 47 454 U.S. 464 (1982). 48 Id. at 467 (quoting the Federal Property and Administrative Services Act of 1949, 63 Stat. 387, as amended, 40 U.S.C. § 484(k)(1)). 49 Id. at 468. 50 Id. at 472-76. 51 Id. at 488 (quotations and citations omitted). 52 Id. at 48 8-89. 53 Id. at 486. 54 Id. at 486-87 (―Their claim that the Government has violated the Establishment Clause does not provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court. The federal courts were simply not constituted as ombudsmen of the general welfare.‖). 55 Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). 56 Id. at 16-18. 57 See also Allen, 468 U.S. at 751. 58 See Newdow v. U.S. Congress, 313 F.3d 500, 502 (9th Cir. 2002). 59 Hein, 551 U.S. at 592-94. 60 Id. at 604. 61 Id. at 605. 62 Id. 63 Id. at 605-09. 64 See id. at 606-07 (discussing Bowen v. Kendrick, 487 U.S. 589 (1988) (holding that taxpayers had standing to challenge a federal statute that authorized federal grants to religious organizations)).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

138

Cynthia Brougher

65

Id. at 607 (internal quotations omitted). Id. at 610. 67 Id. at 611. 68 Pedreira v. Kentucky Baptist Homes for Children, Inc., 553 F. Supp. 2d 853 (2008); Hinrichs v. Speaker of the House of Representatives of the Indiana General Assembly, 506 F.3d 584 (7th Cir. 2007). 69 Americans United for Separation of Church and State v. Prison Fellowship Ministries, 509 F.3d 406 (2007). 70 See Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008), cert. granted, 77 USLW 3243 (U.S. Feb. 23, 2009). 71 Id. 72 For a legal analysis of the constitutionality of public displays of religious symbols, see CRS Report RS22223, Public Display of the Ten Commandments and Other Religious Symbols, by Cynthia Brougher. 73 P.L. 106-554, § 133, 114 Stat. 2763 (2000). 74 P.L. 107-117, § 823 7(a), 115 Stat. 2278 (2002). 75 Petition for a Writ of Certiorari (No. 08-472) at 9, Salazar v. Buono, cert. granted, 129 S.Ct. 1313 (2009). A copy of the petition is available at http://www.scotusblog.com/wp/wp-content/uploads/2009/02/08-472_pet.pdf. 76 Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002), aff‟d, 371 F.3d 543 (9th Cir. 2004). 77 P.L. 108-87, § 8121, 117 Stat. 1100. 78 Buono v. Kempthorne, 527 F.3d 758, 783 (9th Cir. 2008). 79 Id. 80 Id. at 779, fn 13. 81 See McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005); Van Orden v. Perry, 545 U.S. 677 (2005). 82 See Valley Forge Christian College, 454 U.S. 464. 83 See United States v. SCRAP, 412 U.S. 669 (1973) (recognizing standing for alleged injury based on harm to local environment and resources used and enjoyed by litigants); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (requiring concrete plans of future visits to the site of the challenged action to indicate a direct and imminent injury to the litigant sufficient to meet standing requirements). 84 See, e.g., American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (explaining that distress or dislike of a challenged action is insufficient to confer standing and recognizing standing if the litigant can demonstrate that the action has led him or her to alter behavior accordingly); Saladin v. Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987) (claims of constitutional violations are insufficient to establish standing and must be accompanied by ―a personal injury suffered as a consequence of the violation beyond the psychological consequences of observing the conduct with which he or she disagrees‖). 85 Petition for a Writ of Certiorari, Salazar v. Buono, 77 U.S.L.W. 3467 (No. 08-472).

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

66

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 7

THE CONSTITUTIONALITY OF REGULATING CORPORATE EXPENDITURES: A BRIEF ANALYSIS OF THE SUPREME COURT RULING IN CITIZENS UNITED V. FEC 

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY In a 5-to-4 ruling, the Supreme Court in Citizens United v. FEC invalidated two provisions of the Federal Election Campaign Act (FECA), codified at 2 U.S.C. § 44 1b. It struck down the longstanding prohibition on corporations using their general treasury funds to make independent expenditures, and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which amended FECA, prohibiting corporations and labor unions from using general treasury funds for ―electioneering communications.‖ The Court determined that these restrictions constitute a ―ban on speech‖ in violation of the First Amendment. In so doing, the Court overruled its earlier holdings in Austin v. Michigan Chamber of Commerce, finding that it provided no basis for allowing the government to limit corporate independent expenditures. The Court also overruled the portion of its decision in McConnell v. FEC upholding the facial validity of Section 203, finding that the McConnell Court relied on Austin. The Court, however, upheld the disclaimer and disclosure requirements in Sections 201 and 311 of BCRA as applied to the movie that Citizens United produced and the advertisements it planned to run promoting the movie. According to the Court, while they may burden the ability to speak, disclaimer and disclosure requirements ―impose no ceiling on campaignrelated activities.‖



This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated January 2010.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

140

L. Paige Whitaker

As a result of the Court‘s ruling, it appears that federal campaign finance law does not limit corporate and, most likely, labor union use of their general treasury funds to make independent expenditures for any communication expressly advocating election or defeat of a candidate, including broadcast and cablecast communications made immediately prior to an election. Corporations and unions may still establish PACs, but are only required to use PAC funds in order to make contributions to candidates, parties, and other political committees.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

BACKGROUND Citizens United, a nonprofit Internal Revenue Code Section 501(c)(4) tax-exempt corporation, produced a 90-minute documentary regarding a presidential candidate, thenSenator Hillary Clinton. The group released the film in theaters and on DVD, and planned to make it available through video-on-demand. In addition, Citizens United planned to fund three broadcast and cable television advertisements to promote the movie. Concerned that both the film and its ads would be prohibited under the Federal Election Campaign Act (FECA),1 which imposes civil and criminal penalties, Citizens United filed suit in U.S. district court. Specifically, the group sought a preliminary injunction to enjoin the Federal Election Commission (FEC) from enforcing Sections 203, 201, and 311 of the Bipartisan Campaign Reform Act of 2002 (BCRA).2 These provisions of law amended the Federal Election Campaign Act (FECA) in order to regulate ―electioneering communications.‖ BCRA defines ―electioneering communication‖ as any broadcast, cable, or satellite transmission made within 30 days of a primary or 60 days of a general election (sometimes referred to as the ―blackout periods‖) that refers to a candidate for federal office and is targeted to the relevant electorate.3 Section 311 of BCRA, known as the disclaimer provision, codified at 2 U.S.C. § 441d, requires electioneering communications to include a statement identifying the funding source of the communication. Section 201, codified at 2 U.S.C. § 434, requires any person who spends more than $10,000 on electioneering communications in a year to file disclosure statements with the FEC. Section 203, codified at 2 U.S.C. § 441b, prohibits corporate and labor union treasury funds from being spent for electioneering communications. The group argued that Section 203 of BCRA violated the First Amendment on its face and as applied to its movie and advertisements. In addition, Citizens United maintained that Sections 201 and 311, requiring disclosure and identification of funding sources, were unconstitutional as applied to the television ads. In a 2003 decision, McConnell v. FEC,4 the Supreme Court upheld the constitutionality of Sections 203, 201, and 311 in a facial challenge. In a 2007 decision, FEC v. Wisconsin Right to Life, Inc. (WRTL II),5 the Supreme Court limited the applicability of Section 203 by ruling that the prohibition could not constitutionally apply to advertisements that may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, and that such ads are not the functional equivalent of express advocacy.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis…

141

LOWER COURT OPINION The U.S. District Court for the District of Columbia denied the request by Citizens United for a preliminary injunction, finding that the BCRA provisions in question had previously been upheld by the Supreme Court as regulation that does not unconstitutionally burden First Amendment free speech rights.6 Likewise, the court found that the group‘s asapplied claim would also fail on the merits because the movie did not focus on legislative issues, but instead took a position on the candidate‘s character, qualifications, and fitness for office, thereby falling within the FEC‘s regulatory definition of an electioneering communication.7 The court concluded that Supreme Court precedent upholding Section 203 applied to Citizens United to the extent that it prohibited the group from funding electioneering communications that constituted the functional equivalent of express advocacy. The court also found that BCRA‘s disclosure requirements were constitutional. Citizens United appealed. BCRA provides that if an action is brought to challenge the constitutionality of any of its provisions, a final decision from the district court shall be reviewable only by direct appeal to the U.S. Supreme Court. 8 The U.S. Supreme Court heard oral argument in Citizens United v. FEC on March 24, 2009, and re-argument on September 9. For the re-argument, the Court ordered the parties to file supplemental briefs addressing whether the Court should overrule its earlier holdings in Austin v. Michigan Chamber of Commerce,9 upholding the constitutionality of a state statute prohibiting corporate campaign expenditures, and the portion of its decision in McConnell v. FEC10 upholding the facial validity of Section 203 of BCRA.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUPREME COURT RULING Summary In a 5-to-4 ruling, the Supreme Court in Citizens United v. FEC11 invalidated two provisions of the Federal Election Campaign Act (FECA), codified at 2 U.S.C. § 441b. It struck down the longstanding prohibition on corporations using their general treasury funds to make independent expenditures,12 and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which amended FECA, prohibiting corporations from using their general treasury funds for ―electioneering communications.‖13 The Court determined that these prohibitions constitute a ―ban on speech‖ in violation of the First Amendment.14 In so doing, the Court overruled its earlier holding in Austin v. Michigan Chamber of Commerce,15 finding that it provided no basis for allowing the government to limit corporate independent expenditures; and the portion of its decision in McConnell v. FEC16 upholding the facial validity of Section 203 of BCRA, finding that the McConnell Court relied on Austin.17 The Court, however, upheld the disclaimer and disclosure requirements in Sections 201 and 311 of BCRA as applied to the movie that Citizens United produced and the broadcast advertisements it planned to run promoting the movie.18 According to the Court, while they may burden the ability to speak, disclaimer and disclosure requirements ―impose no ceiling on campaign-related activities.‖19

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

142

L. Paige Whitaker

It does not appear that the Court‘s ruling in Citizens United affects the validity of Title I of BCRA,20 which generally bans the raising of soft, unregulated money by national parties and federal candidates or officials, and restricts soft money spending by state parties for ―federal election activities.‖

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Analysis Writing for the Court,21 Justice Kennedy began consideration of the case by examining whether Citizens United‘s claim, that the corporate expenditure prohibition was unconstitutional as applied to its film, could be resolved on other, narrower grounds. Disputing Citizens United‘s contention that the prohibition, codified at 2 U.S.C. § 441b, does not apply because its film does not qualify as an ―electioneering communication,‖ the Court found that the message of the film was the functional equivalent of express advocacy. 22 As explained by the Court in FEC v. Wisconsin Right to Life (WRTL II), a communication is the functional equivalent of express advocacy ―only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.‖23 Applying that standard, the Supreme Court determined that there is no reasonable interpretation of the film other than an appeal to vote against then-Senator Clinton for President. The movie is a ―feature-length negative advertisement that urges viewers to vote against Senator Clinton for President,‖ and therefore, the Court concluded, triggers the applicability of § 441b.24 Rejecting Citizens United‘s argument that video-on-demand has a lower risk of distorting the political process than television ads, the Court cautioned that the judiciary must decline to make determinations as to which modes of communication are preferred for particular types of messages and speakers. Such determinations, the Court cautioned, would require protracted litigation and risk chilling protected speech.25 In response to Citizens United‘s request for the Court to carve out an exception to § 441b‘s expenditure prohibition for nonprofit corporate political speech funded primarily by individuals, the Court determined that such a holding would result in courts making ―intricate case-by-case determinations,‖ an interpretation it also declined to adopt.26 Accordingly, the Court concluded that it could not resolve the case on a narrower ground without chilling political speech that is ―central to the meaning and purpose of the First Amendment.‖27 The First Amendment to the U.S. Constitution provides that ―Congress shall make no law ... abridging the freedom of speech.‖28 Citing several of its precedents that have invalidated restrictions on First Amendment free speech—such as laws requiring permits and impounding royalties—the Court contrasted those restrictions with the ―outright ban‖ on speech imposed by § 441b, which also imposes criminal penalties.29 Furthermore, the Court determined that even though FECA permits a corporation to establish a political action committee (PAC) in order to make expenditures, § 441b nonetheless constitutes a complete ban on the speech of a corporation. ―A PAC is a separate association from the corporation,‖ the Court observed, and allowing a PAC to speak does not ―somehow‖ translate into allowing a corporation to speak.30 Enumerating the ―onerous‖ and ―expensive‖ reporting requirements associated with PAC administration, the Court announced that even if a PAC could permit a corporation to speak, ―the option to form a PAC does not alleviate the First Amendment problems associated with § 441b.‖31 In addition, in view of the fact that a PAC must comply with such

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis…

143

burdensome restrictions ―just to speak,‖ the Court found that a corporation may not have sufficient time to establish a PAC in order to communicate its views in a given campaign.32 As a law that bans free speech, the Court explained that it is subject to a ―strict scrutiny‖ analysis, requiring the government to demonstrate that the restriction ―furthers a compelling interest and is narrowly tailored to achieve that interest.‖33 Employing that analytical framework, the Court first observed that in its jurisprudence, it has previously determined ―that First Amendment protection extends to corporations.‖34 Furthermore, the Court noted, this protection has been extended in its holdings to political speech. Quoting from its 1978 decision in First National Bank of Boston v. Bellotti, the Court announced, ―[u]nder the rationale of these precedents, political speech does not lose First Amendment protection ‗simply because its source is a corporation.‘‖35 ―The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‗natural persons.‘‖36 Examining whether the prohibition furthers a compelling governmental interest, the Court noted that in its landmark 1976 decision, Buckley v. Valeo, it found that while large campaign contributions create a risk of quid pro quo candidate corruption, large independent expenditures do not. In Buckley, the Court noted, it ―emphasized that ‗the independent expenditure ceiling ... fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process.‘‖37 Indeed, the Court remarked, if the ban on corporate and labor union independent expenditures had been challenged in the wake of Buckley, ―it could not have been squared with the reasoning and analysis of that precedent.‖38 Less than two years after its decision in Buckley, the Court decided a case that ―reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker‘s corporate identity.‖39 In Bellotti, the Court struck down as unconstitutional a state law prohibiting corporate independent expenditures related to referenda. It is important to note that Bellotti did not consider the constitutionality of a ban on corporate independent expenditures to support candidates,40 but if it had, the Court announced, such a restriction would have also been unconstitutional in order to be consistent with the main tenet of the Bellotti decision, ―that the First Amendment does not allow political speech restrictions based on a speaker‘s corporate identity.‖41 According to the Court, it was not until its 1990 decision, Austin v. Michigan Chamber of Commerce, that it squarely evaluated the constitutionality of a direct restriction on independent expenditures for political speech in a candidate election.42 In Austin, the Court upheld a Michigan state law prohibiting and imposing criminal penalties on corporate independent expenditures that supported or opposed any candidate for state office. ―To bypass Buckley and Bellotti, the Austin Court identified a new governmental interest in limiting political speech: an antidistortion interest.‖43 In Austin, the Court identified a compelling governmental interest in preventing ―the corrosive and distorting effects of immense aggregations of wealth ... accumulated with the help of the corporate form,‖ with ―little or no correlation to the public‘s support for the corporation‘s political ideas.‖44 As a result, the Court in Citizens United faced ―conflicting lines of precedent.‖45 One did not allow for restrictions on political speech that were based on the corporate identity of the speaker, while the other did. Rejecting the antidistortion rationale that it had relied upon in Austin, the Court announced that it could not support the ban on corporate independent expenditures.46

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

144

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

According to the Court, the antidistortion rationale would have the ―dangerous‖ and ―unacceptable‖ result of permitting Congress to ban the political speech of media corporations.47 Although media corporations are currently exempt from the federal ban on corporate expenditures, the Court announced that upholding the antidistortion rationale would allow their speech to be restricted, which First Amendment precedent does not support.48 In addition, the Court determined that the Austin precedent ―interferes with the ‗open marketplace‘ of ideas protected by the First Amendment,‖ permitting the speech of millions of associations of citizens—many of them small corporations without large aggregations of wealth—to be banned.49 Accordingly, the Supreme Court overruled its holding in Austin v. Michigan Chamber of Commerce and the portion of its decision in McConnell v. FEC upholding the facial validity of Section 203 of BCRA, finding that the McConnell Court relied on Austin.50 In so doing, the Court invalidated not only Section 203 of BCRA, but also § 44 1b‘s prohibition on the use of corporate treasury funds for communications expressly advocating election or defeat of a federal candidate.51 The Court upheld the disclaimer and disclosure requirements in Sections 201 and 311 of BCRA as applied to the movie that Citizens United produced and the broadcast advertisements it planned to run promoting the movie.52 According to the Court, while they may burden the ability to speak, disclaimer and disclosure requirements ―impose no ceiling on campaign-related activities,‖53 and ―do not prevent anyone from speaking.‖54 Citizens United argued that the disclosure requirements could deter donations to the organization because donors may fear retaliation. In response, the Court, relying on its holding in McConnell v. FEC, reiterated that such requirements would be unconstitutional as applied to an organization if there were a reasonable probability that its donors would be subject to threats, harassment or reprisals. In this case, however, the Court found that Citizens United offered no evidence of such threats.55

Dissent In a strongly worded dissent, Justice Stevens criticized the Court‘s opinion, arguing that its decision to overrule Austin v. Michigan Chamber of Commerce and to find Section 203 of BCRA facially unconstitutional was made ―only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring the rules of judicial restraint.‖56 The dissent disagreed with the Court‘s conclusion that the avoidance of corruption and its appearance does not justify the regulation of corporate expenditures in candidate elections. Rather, the dissenting justices would have upheld the regulation because ―the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules.‖57

IMPACT ON FEDERAL CAMPAIGN FINANCE LAW In brief, before the Court‘s ruling, corporations and labor unions were prohibited from using their general treasury funds to make expenditures for communications expressly

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis…

145

advocating election or defeat of a clearly identified federal candidate.58 In addition, 30 days before a primary and 60 days before a general election, corporations and unions were prohibited from using general treasury funds to finance electioneering communications.59 However, corporations and labor unions were permitted to use political action committees (PACs), financed with regulated contributions from employees or members, to make independent expenditures for express advocacy communications and to fund electioneering communications within the restricted time periods.60 As a result of the Court‘s ruling, it appears that federal campaign finance law does not restrict corporate and, most likely, labor union61 use of their general treasury funds to make independent expenditures for any communication expressly advocating election or defeat of a candidate, including broadcast and cablecast communications made immediately prior to an election.62 Corporations and unions may still establish PACs, but are only required to use PAC funds in order to make contributions to candidates, parties, and other political committees.

End Notes 1

See 2 U.S.C. § § 431 et seq. P.L. 107-155. This law is also known as ―McCain-Feingold,‖ in reference to the principal Senate sponsors of the legislation. 3 2 U.S.C. § 441b(b)(2). 4 540 U.S. 93 (2003). 5 551 U.S. 449 (2007). 6 Citizens United v. FEC, 530 F. Supp. 2d 274, 278-79 (D.D.C. 2008). 7 See 11 C.F.R. § 114.15(b). 8 See P.L. 107-155, § 403, 116 Stat. 113. 9 494 U.S. 652 (1990). 10 540 U.S. 93 (2003). 11 No. 08-205, slip op. (U.S. Jan. 21, 2010). 12 See id. at 20-51. 13 See id. 14 Id. at 22. 15 494 U.S. 652 (1990). 16 540 U.S. 93 (2003). 17 See Citizens United, slip op. at 50. For further discussion of McConnell v. FEC and Austin v. Michigan Chamber of Commerce, see CRS Report RL3 0669, The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny, by L. Paige Whitaker. 18 See id. at 50-57. 19 Id. (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976)). 20 See 2 U.S.C. § 441i(a). 21 Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts, and Justices Scalia and Alito. Justice Thomas joined the majority opinion with the exception of the part upholding the disclaimer and disclosure requirements. The part upholding the disclaimer and disclosure requirements was joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor. Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito. Justice Scalia wrote a concurring opinion, joined by Justice Alito and in part, by Justice Thomas. Justice Stevens filed an opinion concurring in part and dissenting in part, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas wrote an opinion concurring in part and dissenting in part. 22 See Citizens United, slip op. at 7-8 (citing McConnell, 540 U.S. at 206). 23 Id. at 7 (quoting FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)). 24 Id. at 7-8. 25 See id. at 9. 26 Id. at 12. 27 Id. 28 U.S. CONST. amend. I.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

2

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

146

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

29

Citizens United, slip op. at 20. According to the Court, the following actions would constitute a felony under § 441b: the Sierra Club running an ad within 60 days of a general election exhorting the public to disapprove of a Congressman who supports logging in national forests; the National Rifle Association publishing a book urging the public to vote for the challenger to an incumbent U.S. Senator who supports a handgun ban; and the American Civil Liberties Union creating a website telling the public to vote for a presidential candidate because of the candidate‘s defense of free speech. Such prohibitions, the Court concluded, ―are classic examples of censorship.‖ Id. at 21. 30 Id. 31 Id. 32 Id. at 22. 33 Id. at 23 (quoting Wisconsin Right to Life, 551 U.S. at 464 (opinion of Roberts, C.J.)) 34 Id. at 25-26 (citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14) (citing Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977); Time, Inc. v. Firestone, 424 U.S. 448 (1976); Doran v. Salem Inn, Inc., 422 U.S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U.S. 374 (1967); New York Times Co. v. Sullivan, 376 U.S. 254; Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y., 360 U.S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622; Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Board, 502 U.S. 105 (1991); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989); Florida Star v. B. J. F., 491 U.S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6 (1970)). 35 Id. at 25-26 (quoting Bellotti, 435 U.S. at 784). 36 Id. at 26 (quoting Bellotti, 435 U.S. at 776). 37 Id. at 29. 38 Id. (citing Wisconsin Right to Life, 551 U.S. at 487 (opinion of Scalia, J.)) 39 Id. at 30. 40 See id. at 31. 41 Id. 42 See id. 43 Id. 44 Id. at 31-32. 45 Id. at 32. 46 See id. at 33. 47 Id. at 35. 48 See id. at 35-36. 49 Id. at 38. 50 See id. at 50. Referencing Justice Scalia‘s concurrence in Wisconsin Right to Life, the Court agreed with the conclusion that ―Austin was a significant departure from ancient First Amendment principles,‖ and held ―that stare decisis does not compel the continued acceptance of Austin.‖ Id. at 1 (quoting Wisconsin Right to Life, 551 U.S. at 449 (Scalia, J. concurring in part and concurring in judgment)). 51 Upholding the constitutionality of this statute, the Court found, would suppress speech ―in the realm where its necessity is most evident: in the public dialogue preceding a[n] ... election.‖ Id. at 56. 52 See id. at 50-57. 53 Id. at 51 (quoting Buckley, 424 U.S. at 64). 54 Id. (quoting McConnell, 540 U.S. at 201). 55 See id. at 54-55 (quoting McConnell, 540 U.S. at 198). 56 Id. at 89-90 (Stevens, J., dissenting). 57 Id. at 90 (Stevens, J., dissenting). The dissent further argued that the majority‘s rejection of the principle that corporate spending needs to be limited ―elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.‖ Id. (Stevens, J., dissenting) (quoting Bellotti, 435 U.S. at 817, n. 13 (White, J., dissenting). 58 See 2 U.S.C. § 441b(a). 59 See 2 U.S.C. § 441b(b). 60 See 2 U.S.C. § 441b(b)(2)(C). 61 Although the issue before the Court was limited to the application of 2 U.S.C. § 441b to Citizens United, a corporation, the reasoning of the opinion would also appear likely to apply to labor unions. ―The text and

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis…

purpose of the First Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.‖ Citizens United, slip op. at 5 (Roberts, C.J., concurring). In addition to impacting federal campaign finance law, it appears that the Court‘s ruling in Citizens United v. FEC may also affect numerous state laws prohibiting corporate expenditures. See, e.g., Ian Urbina, Consequences for State Laws in Court Ruling, N.Y. TIMES, Jan. 23, 2010.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

62

147

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved. The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 8

TESTIMONY OF LAURENCE H. TRIBE, HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY, HEARING ON ―THE FIRST AMENDMENT AND CAMPAIGN FINANCE REFORM AFTER CITIZENS UNITED‖

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Laurence H. Tribe* Mr. Chairman and Members of the Committee, I am grateful for your invitation to testify on an issue vital to the integrity of our democracy and to government of the people, by the people, and for the people. I appear as a representative of no institution or group but simply as someone who loves this country and its Constitution, having studied, taught and written about constitutional law for over 40 years, to students as varied as President Obama, Chief Justice Roberts, and Solicitor General Kagan, each of whom has, of course, played some role in arguing, deciding, or responding publicly to, the momentous decision of the United States Supreme Court in Citizens United. I should add that I appear not as someone who reflexively rejects the application of the First Amendment to corporate speech but, on the contrary, as one who has strongly supported the First Amendment claims of corporate entities like the bank in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), and like the non-profit advocacy group, Massachusetts Citizens for Life, in FEC v. MCFL, 479 U.S. 238 (1986), the two primary precedents on which the Supreme Court majority in Citizens United purported to rely. Indeed, I think that the statute as applied to Citizens United‘s release of the film Hillary in theaters, on DVD, through video-on-demand, and in promotional ads – assuming (doubtfully) that the statute should even have been construed as applicable on those facts – would violate the First Amendment, making analysis of the statute‘s facial validity (and thus its validity in the context of ordinary business corporations) wholly unnecessary, as the four dissenters noted. *

Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard University Law School (title listed for identification purposes only).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

150

Laurence H. Tribe

In that regard, I would draw an important distinction for First Amendment purposes between for-profit business corporations, with respect to which I believe the statute is constitutionally supportable, and MCFL-like advocacy groups that happen to be incorporated, with respect to which I believe it is not. Finally, I appear as someone whose initial response to Citizens United, see http://www.scotusblog.com/2010/01/what-should-congress-do-about-citizens-united/, although highly critical of the majority‘s methodology in reaching out so broadly and with so little respect for Congress or for its own precedents, was more measured in assessing the likely impact, as a practical matter, of this latest in the Court‘s series of decisions dismantling the architecture of campaign finance reform. I was, for example, at least somewhat reassured by the reminder in the majority opinion that, although ―26 States do not restrict independent expenditures by for-profit corporations,‖ the ―Government does not claim that these expenditures have corrupted the political process in those States.‖ (Slip op. at 41.) But the majority‘s notion of what constitutes ―corruption‖ turns out, on examination, to be so crabbed and unrealistic as to be uninformative, as the dissenting opinion persuasively demonstrates. (Slip op. at 56 – 70.) Beyond that, reassurances based on how the world looked to corporations before Citizens United are of necessarily limited relevance in the post-Citizens United world, a world in which the expectations shaped by the legal culture are bound to shift as that culture assimilates the New Politico-Corporate Order. Moreover, the stakes are vastly greater when we are speaking about elections that determine the composition of the U.S. House, the U.S. Senate, and the White House than when we focus on state and local elections alone. And the corporate resources at hand are truly staggering: The Fortune 100 companies, for instance, earned revenues of $13.1 trillion during the last election cycle. See Supp. Brief for Appellee in Citizens United at 17. One danger is that business corporations, armed with treasuries of almost unimaginable magnitude, may choose to deploy what is essentially other people‘s money in strategic ways that can critically reshape the political landscape of the entire Nation. Such corporations are not necessarily limited to any particular geographical region and so could prowl the country to find a House district or a Senatorial race in which their now unlimited expenditures might swing the balance. Democratic strategist Steve Hildebrand has been quoted as saying, ―No question, if you are looking at a strategy about how you buy a Senate seat, where is the cheapest place to go? The rural states, where $5 million can buy you a Senate seat and is nothing for a company like ExxonMobil.‖ There are, of course, business considerations that might deter any number of companies from taking full advantage of the opportunities opened up by Citizens United. At least when the money behind a controversial political ad can be readily traced to its corporate source – which may well require more effective disclosure laws, as I‘ll indicate below – those who launched it might alienate customers they can ill-afford to turn away. But, depending on the magnitude of the potential gains discounted by the improbability of achieving them with a given political communication, that might be a gamble worth taking – especially to companies strongly affected by the regulatory environment in the financial, insurance, health care, or energy sectors, among others. To be sure, none of us can be certain that Citizens United will unleash dangers this extreme, but the risks seem real enough to take very seriously. The situation would be strikingly different if the First Amendment, rightly understood, truly put us in this awful box. Following the Constitution does sometimes entail hard choices

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Testimony of Laurence H. Tribe, House of Representatives Committee…

151

and unpleasant consequences. But it would be passing strange if the First Amendment, so central to our system of self-government, compelled us to choose between free speech and democratic integrity. In my view, the First Amendment imposes no such dilemma. For the more closely I have studied the opinions in Citizens United and reflected not just on the decision‘s likely consequences but on its dubious reasoning, the more I have found myself agreeing with virtually every point made in the masterful dissent of Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor. I cannot improve on the concluding sentences of their painstakingly thorough 90-page dissection of the majority and concurring opinions: ―At bottom, the Court‘s opinion is . . . a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.‖ It is no secret, of course, that the only thing that changed between the Court‘s decision in McConnell v. FEC, 540 U.S. 93, 204-07 (2003), which upheld the McCain-Feingold ban on independent electioneering communications by corporations, and the decision in Citizens United, which struck down the identical ban, was the retirement of Justice O‘Connor and the appointment of Justice Alito in her stead. I was present when Justice O‘Connor reflected on that reality a week ago Tuesday at a conference at Georgetown Law School. The sorrow was evident behind the twinkle in her eye when she quipped, ―Gosh, I step away for a couple of years and there‘s no telling what‘s going to happen.‖ The majority could point to no changed circumstances in the world outside the Court to justify its radical departure from principles of stare decisis. Those principles of respect for precedent are principles that nobody views as absolute, but they cannot be cast aside on grounds as flimsy as those offered by the Citizens United majority without enormous cost to our legal institutions and indeed to the rule of law itself. As I‘ve said, I agree almost completely with Justice Stevens‘ dissenting analysis of what did happen in this case and of what it is likely to mean. I certainly agree with him that the ―Court‘s . . . approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the [First] Amendment was meant to serve.‖ (Slip op. dissent at 85.) My only reservation – and it‘s an important one – is with the pessimism reflected in his next sentence, in which his dissent forecast that the Court‘s decision ―will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.‖ What I hope to accomplish in my testimony today is to show that ―limited measures to protect against corporate domination‖ in fact remain possible and worth enacting even in the constitutional universe constructed by the five majority justices in Citizens United. I intend to show that, despite the blow they struck against the interests of ordinary citizens and genuine self- government, they did not entirely foreclose meaningful avenues of legislative relief short of constitutional amendment.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

152

Laurence H. Tribe

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1. LIMITING FOREIGN INFLUENCE OVER AMERICAN ELECTIONS To explore those avenues, a good place to begin is with a matter around which considerable confusion has swirled since the announcement of the Court‘s decision: the ability of Congress in the wake of Citizens United to limit the influence of foreign citizens and entities over the political process here in America. The majority opinion written by Justice Kennedy was deliberately opaque, if not entirely silent, on that question. It specifically said: ―We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation‘s political process [because] Section 441b‖ – the provision under consideration in Citizens United – ―is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders.‖ (Slip op. at 47). Parenthetically, it‘s worth noting the irony of that cautious and restrained approach to a question the Court didn‘t decide because it didn‘t have to decide it in order to dispose of the case before it. Such considerations of judicial modesty certainly didn‘t deter the justices in the Court‘s majority from deciding all manner of questions they had no need to reach on the facts and procedural history of the case before them, as Justice Stevens showed conclusively. Citizens United left no doubt that the Roberts Court is quite willing not only to overturn decades of settled precedent but also to decide a case ―on a basis relinquished [in the lower courts], not included in the questions presented to [it] by the litigants, and argued [before the Court] only in response to the Court‘s [own] invitation.‖ (Slip op. dissent at 4.) Be that as it may, the Court affirmatively chose to leave unanswered the burning question whether its otherwise wide-ranging holding would reach far enough to sweep away legislative measures designed to limit foreign infiltration into American elections, federal and state. Strongly suggesting that the holding could indeed reach that far was the logic of the majority‘s entire analysis, an analysis that proceeded from a freshly minted principle that legislatures may never limit speech based on the speaker‘s identity. That is a principle that Justice Stevens decisively demolished (Slip op. dissent at 28-34), but it‘s a principle without which the majority‘s reasoning falls of its own weight. Assuming the Court means to proceed coherently, it‘s difficult to see exactly how it could explain a decision upholding legislation that excludes from participation in American political campaigns ads (whether positive or negative) distinguished solely on the basis that they were composed, produced, disseminated, or financed by entities subject to significant influence from abroad – legislation that by definition would limit speech based on the identity of who is responsible for that speech. On the other hand, if as Oliver Wendell Holmes famously observed, ―the life of the law is not logic but experience,‖ then the dry logic that drove the Court‘s decision in Citizens United might well give way to other considerations. Four members of the Citizens United majority – all but Justice Thomas – joined with all four dissenters in upholding McCain-Feingold‘s disclaimer and disclosure provisions, provisions that, as Justice Stevens observed, presuppose the ―insight that the identity of speakers is a proper subject of regulatory concern.‖ (Slip op. dissent at 30 n.47.) In nonetheless purporting to leave open the authority of Congress to limit electioneering speech based on the foreign identity of those influencing it, the majority pointedly referenced the statute already on the books in 2 U.S.C. § 441e(a)(1) providing that foreign nationals may not directly or indirectly make contributions or independent expenditures in connection with a U.S. election. And, at least hinting that its decision might

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Testimony of Laurence H. Tribe, House of Representatives Committee…

153

have been different if the speech of corporations dominated or strongly influenced by noncitizens was at stake, the majority went out of its way – as I observed above – to note that the statute it struck down was ―not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders.‖ (Slip op. at 47(italics added)). Indeed, the majority twice underscored the central place of the citizen/foreigner distinction in its holding: At the heart of the opinion was this sentence: ―If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.‖ (Slip op. 33 (italics added).) And the majority underscored the point by noting that it was striking down legislation under which ―certain disfavored associations of citizens – those that have taken on the corporate form – are penalized for engaging in [otherwise protected] political speech.‖ (Slip op. 40 (italics added).) Although dissenters sometimes exaggerate the reach of a majority opinion in an effort to dislodge votes or pave the way for future overruling by arguing that the sky is falling, Justice Stevens and his three dissenting colleagues in Citizens United carefully avoided reading the majority opinion as requiring Congress to leave foreign-influenced corporations alone. On the contrary, the dissent went out of its way to treat the majority‘s explicit decision to leave the matter open as an ―acknowledge[ment] that Congress might be allowed to take measures aimed at ‗preventing foreign individuals or associations from influencing our Nation‘s political process.‘‖ (Slip op. dissent at 33 n.51.). Treating that acknowledgement as tantamount to a ―confess[ion] that [its] categorical approach to speaker identity is untenable,‖ id., the dissent went on to reinforce its supposition that one or more justices in the majority would vote with the four dissenters to uphold a ban on campaign expenditures by foreigninfluenced corporations. The dissent stressed how inconsistent any contrary result would be with the premises of the Constitution‘s Framers, obsessed as they were with the influence of those without any real stake in America‘s welfare. That was an obsession reflected in our Constitution‘s explicit ban on the acceptance of any foreign ―present, Emolument, Office, or Title . . . without the Consent of the Congress‖ by anyone ―holding any Office of Profit or Trust under [the United States].‖ Article I, § 9, Cl. 8. It is one thing to affirm that aliens are entitled to fundamental human rights, including the protections of habeas corpus, see Boumediene v. Bush, 128 S.Ct. 2229 (2008), and quite another to abandon more than two centuries of history by protecting the ―right‖ of aliens to use the assets amassed in a corporate form to influence the outcome of American elections. So imagine, for example, congressional legislation that would expand upon the existing § 441e by prohibiting all political advertising, including but not limited to electioneering communications, produced or substantially funded by any corporation more than some minimal percentage (say, 5%) of whose equity is held by foreign nationals, as in the legislation that Rep. John Hall of New York has introduced (H.R. 4517, “Freedom From Foreign-Based Manipulation in American Elections Act of 2010”), or by any entity incorporated outside the U.S. or controlled by a foreign government – a restriction that would obviously reach a broad swath of the largest corporate players in the political game. What would be the likely outcome, before the Supreme Court as currently composed, of a First Amendment challenge to such legislation, assuming that Congress were to take care to build a factual record focused on the way in which foreign interests have come to influence elections in the United States? Even the day after Citizens United was decided, I would have guessed,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

154

Laurence H. Tribe

both from what the dissent said about the matter and from the majority‘s references to U.S. citizens, that such legislation would probably, even if not unanimously, be upheld. Today, the basis for such a guess is considerably strengthened. I have in mind the awkward moment during the recent State of the Union Address when Justice Alito visibly mouthed the words ―Not true.‖ I‘m not particularly interested in the debate over whether the President overstepped when he criticized the Court to its face or whether the Justice overstepped when he evinced a response. No doubt the Justice assumed the cameras were trained elsewhere; he wasn‘t asking the global TV audience to read his lips. Rather, I‘m focusing on what it is that Justice Alito was (perhaps inadvertently) revealing that he regarded as untrue. Maybe he was just disagreeing with President Obama‘s observation that the Court had ―reversed a century of law‖ in its Citizens United ruling. Much more likely, however, given the context and the timing, was that Justice Alito regarded the President as mistaken in predicting that the Court‘s holding would stand in the way of laws aimed at excluding foreign influence from American elections. On that question, Justice Alito is surely the expert – not because he knows his Constitution better than the President, no slouch when it comes to that subject, but because Justice Alito knows what Justice Alito thinks better than anyone else could possibly know it. Add his vote to that of the four dissenters, and you get at least five votes to protect against the evil the President forecast when he spoke of American elections being ―bankrolled by . . . foreign entities‖ rather than being ―decided by the American people.‖ It‘s commonly said that, in our republic, politics should stop at the water‘s edge. That has been taken to mean that we should act as ―one Nation indivisible‖ when we speak overseas. But it might be turned around to mean in addition that forces and finances from overseas shouldn‘t be permitted to influence our elections – any more than foreigners, even those who reside here, are permitted to vote in those elections. So Congress should take Justice Alito at his quietly but distinctly spoken word and should proceed at once to enact legislation having the design and purpose of guarding against such foreign influence. Such a law could take as its starting point the text of §441e and the current FEC regulation prohibiting foreign nationals from participating in the formal ―decision-making process‖ of anyone‘s ―electionrelated activities,‖ 11 CFR 110.20(i), although it would obviously have to be broader in reach. That would seem to be a perfect place for Congress to begin limiting the deleterious impact of the change the Court wrought and to take up President Obama‘s concluding call on ―Democrats and Republicans to pass a bill that helps correct some of these problems.‖

2. AUTHORIZING STATES TO PROTECT THEIR ELECTIONS FROM OUT-OF-STATE INFLUENCE But Congress should not stop there. For one thing, as Justice Stevens observed in his dissent, the problems created by the Court‘s opinion extend to state as well as federal elections. Twenty-six of the 50 states don‘t restrict ―independent expenditures by for-profit corporations.‖ (Slip op. at 41). The other 24 states do, and any of the 50 states might well wish to address the growing problem of corporate influence in judicial elections in particular. Some 39 states hold such elections and, according to a group called ―Justice at Stake Campaign,‖ state supreme court candidates alone raised over $205 million between 2000 and

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Testimony of Laurence H. Tribe, House of Representatives Committee…

155

2009, more than twice as much as in the preceding decade. In the recent case of Caperton v. Massey Coal Co., 556 U.S. ___ (2009), a 5-4 majority of the Court ―accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption.‖ (Slip op. dissent at 68.) ―At a time when concerns about the conduct of [state] judicial elections have reached a fever pitch,‖ Justice Stevens warned, the majority‘s ruling in Citizens United ―unleashes the floodgates of corporate and union general treasury spending in these races.‖ (Slip op. dissent at 70). It‘s possible, as he noted, that motions to recuse under Caperton ―will catch some of the worst abuses,‖ id., but ―[t]his will be small comfort to those States that, after [Citizens United], may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.‖ Id. It‘s not entirely clear to me, however, that Citizens United goes quite that far in tying legislative hands. Suppose that a State were to conclude that, in structuring its own judiciary, it wishes to retain elections as a means of ensuring greater judicial accountability to the State‟s own citizens and residents. Many have come to doubt the consistency of that goal with the equally important, and perhaps even more important, goal of ensuring judicial independence. But imagine a State that is unconvinced of the arguments Justice O‘Connor and others have made for abandoning competitive head-to-head elections as a means of choosing state and local judges and moving instead toward merit selection, perhaps supplemented by retention elections. Such a State might nonetheless be concerned to limit the category of those who may affect judicial selection – as well as the selection of all others for public office – to those eligible to vote in that State, a category that would exclude, at the very least, corporations domiciled in other states or largely owned by out-of-state residents. As Justice Stevens noted in his Citizens United dissent, ―[i]n state elections, even domestic corporations may be ‗foreign‘-controlled in the sense that they are incorporated in another jurisdiction and primarily owned and operated by out-of-state residents.‖ (Slip op. dissent at 75 n.70.) If a State were to act on that view by barring electioneering expenditures by out-of-state corporations, whether ―foreign‖ in the sense of §441 e or ―foreign‖ only in the sense of being external to the State, a good argument could be made that it would not be the First Amendment that would stand in its way but the Commerce Clause and its correlative principle that States may not, without the consent of Congress, discriminate against or unduly burden out- of-state businesses and residents. If indeed that would be the constitutional objection, then Congress might take a leaf from the book of insurance regulation, where federal law ever since the McCarran-Ferguson Act of 1945 has permitted States to exclude out-of-state interference and competition. See 15 U.S.C. § 1011 et seq. See Prudential Co. v. Benjamin, 328 U.S. 408 (1946) (upholding congressional power to authorize such state action). In the health care field, many have come to think that this federal legislative permission to Balkanize the country has been unwise and is part of the problem rather than the solution. But what‘s good for health insurance may not be so good for electoral democracy. Thus I think Congress should at least consider including, in its legislation protecting U.S. elections from foreign influence, a provision permitting states to protect their own elections, judicial and otherwise, from the influence of out- of-state corporate (and perhaps non-corporate) money.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

156

Laurence H. Tribe

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

3. BARRING CORPORATE ELECTIONEERING BY GOVERNMENT CONTRACTORS Another important corporate category that virtually invites congressional regulation under the Commerce Clause in the electoral context, both with respect to federal elections and perhaps also with respect to state elections, is the category of corporations (and indeed individuals) doing business with government, whether through formal contractual arrangements or in other ways that make the ―pay to play‖ concern a particularly salient one. Again drawing on the Stevens dissent not as a source of critique of the Citizens United holding, with which we are all stuck for the foreseeable future, but as a source of ideas for permissible legislative responses, I would call attention to his point that ―some corporations have affirmatively urged Congress to place limits on their electioneering communications‖ because they ―fear that officeholders will shake them down for supportive ads, that they will have to spend increasing sums on elections in an ever-escalating arms race with their competitors, and that public trust in business will be eroded.‖ (Slip op. dissent at 78.) What can be done after Citizens United about a ―system that effectively forces corporations to use their shareholders‘ money both to maintain access to, and to avoid retribution from, elected officials?‖ Id. One promising answer was suggested in The Washington Post on January 26 by Yale Law Professors Bruce Ackerman and Ian Ayres. They cited a 2008 Government Accountability Office study finding that nearly 75% of the 100 largest publicly traded firms are federal contractors. If one were to include state contractors in the picture, the percentage would obviously be higher still. Ackerman and Ayres point out that federal contractors already are not permitted to ―directly or indirectly . . . make any contribution of money or other things of value‖ to ―any political party, committee, or candidate,‖ a provision arguably barring ―Big Pharma from launching a media campaign in favor of a candidate who supports its special deals, thereby ‗indirectly providing‘ the candidate something ‗of value.‘‖ But, as Ackerman and Ayres note, the statute as currently written ―doesn‘t cover the case in which contractors threaten to spend millions to oppose senators and representatives who refuse their excessive demands.‖ As the Yale professors argue, ―[t]he same anti-corruption rationale that may prohibit contractors from spending millions in favor of candidates requires a statutory prohibition on a negative advertising blitz.‖ Although the professors don‘t spell out the affirmative basis of congressional authority to shield those who contract with government in this way, it is important to note that the power Congress would be exercising is not just the power to attach strings to its spending under Article I, §8, Cl.1, but the considerably broader power to regulate commerce under Article I, §8, Cl.8. The significance of that point is twofold. First, it shows that Congress has just as much power to protect businesses that contract with state and local authorities under this rationale as it has to protect businesses that contract with federal authorities. And second, restrictions imposed in order to protect the integrity and voluntariness of commercial transactions are not burdened by requirements of nexus and proportionality that limit the ability of Congress to attach strings to federal spending in order to do indirectly what it could not do directly. The existing contractor statute, Ackerman and Ayres report, ―has never been seriously challenged.‖ Of course, post-Citizens United, it would be – as would the broadened statute

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Testimony of Laurence H. Tribe, House of Representatives Committee…

157

they recommend, and the even broader statute (extended to all government contracts, not just federal contracts) that I recommend. But there is sound reason to suppose that the Court as currently composed would uphold such a statute against a First Amendment attack, doing so on the analogy of the Supreme Court decisions upholding the Hatch Act of 1939, 53 Stat. 1147, which prohibited federal employees from expressly endorsing candidates in political advertisements, broadcasts, ―campaign literature, or similar material‖ and from playing an active role in political campaigns. U.S. Civil Service Commission v. Letter Carriers, 413 U.S. 548 (1973); United Public Workers v. Mitchell, 330 U.S. 75 (1947). The rationale accepted by the Court in those cases was that such prohibitions, although nominally restricting their liberty, actually protected the employees in question from being pressured into speaking on behalf of candidates or causes they did not wish to support (or against candidates or causes they did not wish to oppose). The government interest at stake there – as in the proposals advanced by Professors Ackerman and Ayer and in the still broader measure I would favor – is the long-recognized interest in protecting those who participate in commerce from being coerced into speech with which they may not agree as a condition of engaging in the contractual or other commercial arrangements they wish to undertake. It is similar to the interest the Supreme Court has insisted on protecting, see Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (requiring return of portion of mandatory fee used by union to subsidize political and ideological activity to which individual objects), in the context of unions, which Citizens United frees from the same McCainFeingold restraints that had restricted corporations prior to that decision. See also U.S. v. United Foods, 533 U.S. 405 (2001) (striking down rule compelling producers to pay fees to support advertising campaign they had not agreed to fund as part of regulatory scheme). To be sure, this interest (as vindicated in Abood and United Foods) has a ―freedom of personal conscience‖ dimension that is absent when money is being extracted from a corporation, but it would be one irony too far for the Court that decided Citizens United, carrying the equation of corporations with human individuals to an extreme, to treat these precedents as inapposite on the ground that corporations are too impersonal to have a legally cognizable interest in protection from being pressured into going along ideologically to get along economically. That is indeed a cognizable interest – an interest in ―unfettered commerce‖ – and it is one that applies to all employees and contractors, corporate and otherwise, regardless of the level of government with which they do business. This is clearly a broad avenue of possible regulation that merits careful exploration by Congress and factfinding that would support the governmental interest behind any new restrictions on corporate or union political expenditures.

4. IMPROVING THE PROTECTION OF UNCONSENTING SHAREHOLDERS As applied to business corporations, the core problem addressed by ―pay-to-play‖ regulation of the sort considered above is, of course, the problem posed when for-profit corporations are in effect compelled to use their shareholders‘ money for causes that neither they nor their shareholders might actually support. But even where corporate management fully supports the causes for which the board of directors or others running the business opt to make independent electioneering expenditures, the problem of coerced and potentially

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

158

Laurence H. Tribe

dissenting shareholders remains. The Citizens United majority recognized that problem – how could it not? – but responded by insisting that there is ―little evidence of abuse that cannot be corrected by shareholders ‗through the procedures of corporate democracy.‘‖ (Slip op. at 46 (internal source omitted).) The dissent made short shrift of that argument, noting how ineffectual have been ―the rights of shareholders to vote and to bring derivative suits for breach of fiduciary duty.‖ (Slip op. dissent at 87.) Moreover, as the dissent noted, ―[m]ost American households that own stock do so through intermediaries such as mutual funds and pension plans, . . , which makes it more difficult both to monitor and to alter particular holdings.‖ Id. at 88. That the majority was unconvinced obviously makes it an uphill battle to build a congressional response on this platform, but Congress may take some comfort from the ―little evidence‖ remark and may proceed to build a stronger evidentiary record. Or, and with greater promise of success, Congress may build on the universal recognition that existing shareholder remedies are of limited value by requiring shareholder pre-approval of some categories of electioneering expenses and/or creating a new federal cause of action for dissenting shareholders of publicly traded for-profit companies, arming those who sue under this new cause of action with both procedural and substantive tools that can reduce the dangers that unwilling shareholders will be compelled to subsidize speech with which they disagree. The new federal cause of action could be structured to (1) give dissenting shareholders greater incentive to bring meritorious suits by providing that, if a court is persuaded that a challenged corporate electioneering expenditure (not only during the narrow time windows specified in McCain-Feingold but at any time) clearly was not justified by the corporation‘s business interests, the officers responsible for making the expenditure would (a) not only have to restore to the corporation‟s coffers an amount equal to the improper expenditure (b) but also be personally liable to the victorious shareholders in an amount equal to double or treble what they would be obliged to return to the treasury, and to pay as well the attorneys‟ fees incurred by the winning shareholders and possibly statutory damages to boot. To deter purely vexatious litigation, those bringing manifestly meritless suits could be appropriately sanctioned. As I conceive it, the new law should (2) relax the degree of deference afforded to boards and managers by the “business judgment rule,” at least in cases where electioneering expenditures are made (either directly or through a contribution to an electioneering entity) from the corporation‟s treasury without the specific prior assent of a majority of the voting shares. The new law could, as well, (3) shift the burden of proof of business purpose from the shareholders to the corporation whenever such expenditures are made without an explicit and public affirmation by the corporation‟s CEO that making those expenditures from the corporation‟s general treasury funds rather than from a political PAC advances the business purposes of the corporation, an affirmation that would also serve to notify the viewers of the corporate electioneering communication that what they are seeing reflects a self-interested business decision rather than some public-spirited informational offering.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Testimony of Laurence H. Tribe, House of Representatives Committee…

159

5. STRENGTHENING DISCLAIMER AND DISCLOSURE REQUIREMENTS

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

With the sole exception of Justice Thomas, who deemed insufficient the prospect of asapplied challenges to disclosure and disclaimer rules in circumstances where a substantial risk of harassment can be shown, the Court was unanimous in stressing the importance of corporate transparency in candidate elections and in affirming the facial constitutionality of congressional measures mandating full disclosure of the identity of the corporate funding sources of communications making express reference to candidates for federal office. Simply by way of illustration, Rep. Leonard Boswell‘s proposed ―Corporate Propaganda Sunshine Act,‖ H.R. 4432, would require publicly-traded companies to disclose in filings with the SEC money used to influence public opinion rather than to promote their products and services. Such disclosure requirements must be crafted in order simultaneously to achieve transparency and yet respect the First Amendment rights of individuals to speak anonymously even in the context of election campaigns. Among the kinds of disclosure requirements I would be inclined to favor would be rules designed to prevent circumvention of existing disclosure laws through the creation of ―shell‖ corporations into which for-profit companies might funnel campaign expenditures – think, for example, of domestic oil companies hiding behind a ―Citizens for Better Energy Options‖ organization, or British or European pharmaceutical companies hiding behind a ―Better Health Through Science‖ front group. I would also favor ―stand-by-your-ad‖ obligations for the corporate officers, including the CEO, of for-profit corporations responsible for directly or indirectly funding, producing, or disseminating particular electioneering communications. Thus, in addition to making the absence of a specific public certification by the CEO that strictly business considerations justified funding the communication from the corporate treasury (rather than from a PAC) serve as the trigger to shift the burden of proof from complaining shareholders to management, I would mandate such a certification as a matter of SEC regulation of the corporation involved.

6. TIGHTENING ANTI-COORDINATION RULES I found somewhat ominous the observation by the Citizens United majority that―Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.‖ (Slip op. at 43.) Whoa! Some justices have from time to time hinted that the functional equivalence, from their First Amendment perspective, of direct contributions and truly independent expenditures might lead them to strike down limits on the former rather than uphold limits on the latter. For now, at least, I would proceed on the premise that this view will not gain ascendancy in the foreseeable future and that the willingness to uphold various contribution limits (and, in the context of corporate contributions, the willingness to uphold flat prohibitions) as consistent with the First Amendment will persist. On that premise, we should be safe in regarding Citizens United as tying the legislature‘s hands only with respect to truly independent corporate expenditures and in assuming that expenditures ―coordinated‖ with candidates for public office may still be treated as the equivalent of donations and thus restricted.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

160

Laurence H. Tribe

My understanding is that the FEC‘s rules for determining which expenditures are coordinated as opposed to independent are ambiguous and loophole-ridden to the point of being barely worthy of the label ―rules.‖ Congress should not wait until the FEC is a fully staffed and effectively functioning body before itself specifically codifying criteria for determining what counts as an ―independent‖ expenditure. And those criteria, once enacted into law, should almost certainly include a requirement that the CEO of any corporation substantially funding a supposedly independent ad or other communication mentioning a candidate (with or without the ―magic words‖ urging a vote for or against that candidate) swear on pain of perjury that no coordination has taken place.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

7. PUBLIC FINANCING POSSIBILITIES Finally, of course, it remains possible in theory to redesign the election system as a whole in ways calculated to offset the influence of large contributors and big spenders, corporate as well as individual. The underlying idea of all such redesign is to reduce the imbalance not by restricting or capping Big Money but by balancing it with Little Money, fighting fire with fire, battling the speech of corporate and moneyed interests with more speech by ordinary citizens. Most notable among the public financing initiatives is the ―Fair Elections Now Act‖ (S. 752 and H.R. 1826) introduced by Senators Durbin (D-Ill.) and Specter (D-Pa.) in the Senate and by Reps. Larson (D-Conn.) and Jones (R-N.C.) in the House. The Act would make candidates for federal office eligible for public funding if they raised enough donations below $100 each and agreed not to accept large contributions or to permit coordinated expenditures from any source. The public funding would include a base operating budget and continued matching of small contributions from the Fair Elections Fund at a rate of $4 in public money for every $1 privately raised. Other legislation pending in Congress (H.R. 726, the ―Citizen Involvement in Campaigns Act‖), would be paid for by a refundable federal tax credit that citizens could use to make their own contributions to federal candidates. Professors Bruce Ackerman and David Wu of Yale Law School made a similar proposal in The Wall Street Journal on January 27, 2010 (―How to Counter Corporate Speech‖). However promising any of these possibilities might be – and their political viability seems to me very much in doubt – it would be extremely difficult for them to raise enough public money to offset the problem posed by genuinely independent corporate (and union) expenditures of the sort unleashed, with or without ―magic words‖ urging a vote for or against a candidate, by the Citizens United ruling. Public funding of campaigns, whatever its promise, thus is not an antidote to the flood of corporate speech that some fear the Court‘s latest decision might unleash unless Congress acts and acts promptly. And the need for expeditious action should be underscored: It is at least theoretically possible that, unless Congress responds effectively to Citizens United before the November 2010 elections in one or more of the ways suggested here, large business interests, including those based abroad or funded with money from overseas, will so affect the outcome of the forthcoming campaigns for the House and Senate that the lawmakers sworn in next January will have been preselected with a view to their opposition to these very reforms. Should that occur, it will then be too late to make the changes needed to hold back the potential corporate flood.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 9

TESTIMONY OF MONICA YOUN, COUNSEL AT THE BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, BEFORE THE COMMITTEE ON THE JUDICIARY, HEARING ON ―THE FIRST AMENDMENT AND CAMPAIGN FINANCE REFORM AFTER CITIZENS UNITED‖

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Monica Youn The Brennan Center for Justice at New York University School of Law thanks the Committee for holding this hearing on the First Amendment and Campaign Finance Reform After Citizens United and for the invitation to testify. Since its creation in 1995, the Brennan Center has focused on fundamental issues of democracy and justice, including research and advocacy to enhance the rights of voters and to reduce the role of money in our elections. That work takes on even more urgency after the United States Supreme Court‘s decision in Citizens United v. Federal Election Commission on January 21, 2010. Citizens United rivals Bush v. Gore for the most aggressive intervention into politics by the Supreme Court in the modern era. Indeed, Bush v. Gore affected only one election; Citizens United will affect every election for years to come. By largely ignoring the central place of voters in the electoral process, the Citizens United majority shunned the First Amendment value of protecting public participation in political debate. To restore the primacy of voters in our elections and the integrity of the electoral process, the Brennan Center strongly endorses four steps to take back our democracy:    

Promote public funding of political campaigns1 Modernize voter registration2 Demanding accountability through consent and disclosure3 Advance a voter-centric view of the First Amendment.4

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

162

Monica Youn

This five-vote majority on the Supreme Court has imposed a radical concept of the First Amendment, and used it to upend vital protections for a workable democracy. We must push back against this distorted version of the Constitution. We must insist on a true understanding of the First Amendment as a charter for a vital and participatory democracy. And there are other values in the Constitution, too, that justify strong campaign laws – values such as the central purpose of assuring effective self-governance. The Court blithely asserts that unlimited corporate spending poses no threat of corruption. That is simply not the case. We urge, above all, that this Committee build a record to expose the actual workings of the campaign finance system. Such a record is vital for the public's understanding, and even more to make clear to Justices in future litigation that a strong record undergirds strong laws.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

1. THE POLITICAL STAKES OF CITIZENS UNITED Last week, the Supreme Court‘s decision in Citizens United v. FEC undermined 100 years of law that restrained the role of special interests in elections. By holding – for the first time – that corporations have the same First Amendment rights to engage in political spending as people, the Supreme Court re-ordered the priorities in our democracy – placing special interest dollars at the center of our democracy, and displacing the voices of the voters. There is reason to believe that future elections will see a flood of corporate spending, with the real potential to drown out the voices of every-day Americans. As Justice Stevens warned in his sweeping dissent, American citizens ―may lose faith in their capacity, as citizens, to influence public policy‖5 as a result. After news of the Citizens United ruling sent shock waves through political, legal, and news media circles throughout the nation, some commentators took a jaundiced view, arguing, in essence, that since the political system is already awash in special-interest dollars, this particular decision will have little impact.6 It is undoubtedly true that heretofore, corporations have engaged in large-scale spending in federal politics –primarily through political action committees (―PACs‖) and through more indirect means such as lobbying and nonprofit advocacy groups.7 However, the sums spent by corporations in previous elections are miniscule in comparison to the trillions of dollars in corporate profits that the Supreme Court has now authorized corporations to spend to influence the outcome of federal elections. The difference, in short, changes the rules of federal politics. Prior to Citizens United, a corporation that wished to support or oppose a federal candidate had to do so using PAC funds – funds amassed through voluntary contributions from individual employees and shareholders who wished to support the corporation‘s political agenda. Such funds were subject to federal contribution limits and other regulations. Now however, the Citizens United decision will allow corporations that wish to directly influence the outcome of federal elections to draw from their general treasury funds, rather than PAC funds, to support or oppose a particular candidate. This difference is significant enough to amount to a difference in kind rather merely a difference in degree, as demonstrated by the following: 

In the 2008 election cycle, the nation‘s largest corporation, Exxon-Mobil, formed a PAC that collected approximately $700,000 in individual contributions.8 Thus,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU…



163

Exxon-Mobil was limited to spending this amount on advertisements directly supporting or opposing a federal candidate. During the same 2008 election, ExxonMobil‘s corporate profits totaled more than $80 billion. 9 Thus, Citizens United frees this one corporation to increase its direct spending in support or opposition to federal candidates by more than 100,000 fold. During the 2008 election cycle, all winning congressional candidates spent a total of $861 million on their campaigns – less than one percent of Exxon-Mobil‘s corporate profits over the same period.10

Furthermore, corporations have demonstrated that they are willing to spend vast sums of money to influence federal politics. Since corporations have been banned from contributing to candidates and restricted in their campaign spending, their political spending has generally taken the form of lobbying.    

In the same year that it was able to raise only $700,000 for its federal PAC, Exxon Mobil spent $29 million on lobbying.11 In 2008, the average expenditures in a winning Senate race totaled $7.5 million and $1.4 million for the House.12 The health care industry in 2009 spent approximately $1 million per day to lobby Congress on health care reform.13 During the 2008 election, all congressional candidates spent a total of $1.4 billion on their campaigns.14 This is only 26 percent of the $5.2 billion corporations spent on lobbying during the same two-year period.15

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Thus, merely by diverting a fraction of their political spending budgets from lobbying to direct campaign advocacy, corporations could easily outspend the candidates themselves by a factor of many multiples. The same is true even if one factors in party spending: 



The single largest lobbying organization – the U.S. Chamber of Commerce – spent more than $144 million in lobbying, grassroots efforts, and advertising in 2009, compared to $97.9 million spent by the RNC and $71.6 million spent by the DNC.16 Thus, this single corporate-backed trade association is able to outspend the national committees of both political parties combined. According to The Atlantic‘s Marc Ambinder, the Chamber‘s 2009 spending included electioneering in the Virginia and Massachusetts off-year elections, as well as ―sizeable spending on advertising campaigns in key states and districts aimed at defeating health care, climate change, and financial reform legislation.‖17

Even corporations that are reluctant to throw their hat into the ring of political spending may find themselves drawn into the fray just to stay competitive in the influence-bidding arms race this decision creates.18 Indeed, despite the campaign finance regulations that – until Citizens United – attempted to protect our democracy against overt influence-peddling, there are numerous examples to demonstrate that absent such safeguards, special interests will attempt to use all means at their disposal to insure favorable legislative treatment.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

164

Monica Youn

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.



In 2006, the FEC levied a $3.8 million fine—the agency‘s largest in history—against mortgage giant Freddie Mac for illegally using corporate treasury funds to raise over $3 million for members of the House subcommittee that had regulatory authority over that corporation. Approximately 90% of those funds directly benefited the chair of the subcommittee.19

Moreover, corporate campaign ads may be a much more effective route than lobbying for corporations to pressure elected officials to comply with their agendas. Even the most aggressive lobbying effort cannot exert the same direct political pressure on an elected official that a campaign expenditure can. Such corporate campaigning impacts the political survival of elected officials in a way that mere lobbying cannot. An elected official might hesitate to oppose a corporation on a particular piece of legislation if she knows that the corporation could unleash a multimillion attack ad blitz in her next reelection campaign. Such an example came before the Court just last year in Caperton v. Massey Coal Co. 20 In that case, the Supreme Court recognized that large independent expenditures can create actual and apparent bias in the context of judicial elections. In Caperton, the CEO of a coal company with $50 million at stake in a case before the West Virginia Supreme Court spent almost $3 million dollars in independent expenditures in support of that candidate‘s campaign. Writing for the majority, Justice Kennedy, wrote that such large expenditures— expenditures which exceeded the combined expenditures of both candidate committees by $1 million— had ―a significant and disproportionate influence on the electoral outcome‖ and created a ―serious, objective risk of actual bias.‖21 In Citizens United, the Supreme Court has handed corporate special interests a loaded weapon – whether they ever fire the weapon is, arguably, beside the point. There is every reason to believe that the threat of corporate funded campaign attack ads is likely to distort policy priorities and to allow special interests to dominate federal politics. Perhaps even more profoundly, the Court in Citizens United has given the stamp of constitutional approval to corporate electioneering. The Court has invited corporations into elections, telling them that they have a First Amendment right to spend their vast resources to try to influence the outcome of an election. If even a few major corporations with stakes in current policy battles take the Court up on its invitation, the resulting wave of special interest money could undermine the foundations of our democracy.

2. THE ROBERTS COURT’S ―DEREGULATORY TURN‖ The limits on corporate campaign spending at issue in Citizens United represent the fourth time challenges to campaign finance laws have been argued before the Roberts Court, and the fourth time the Roberts Court majority has struck down such provisions as unconstititional.22 As Professor Richard Hasen has explained, this ―deregulatory turn‖ represents an about-face – by contrast, the Rehnquist Court had generally taken a deferential approach to campaign finance reform regulations enacted by federal and state lawmakers.23 However, now that Chief Justice Roberts and Justice Alito have replaced Chief Justice Rehnquist and Justice O‘Connor on the Supreme Court, the newly constituted majority has moved with stunning haste to dismantle decades-old safeguards intended to limit the effect of

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU…

165

special interest money in politics. Indeed, as Justice Stevens wryly noted, ―The only relevant thing that has changed since Austin and McConnell is the composition of this Court.‖24 With Citizens United, the current Supreme Court‘s majority‘s hostility to campaign finance law has become apparent to even the most casual observer. At oral argument in Citizens United, Justice Antonin Scalia exemplified the majority‘s unwarranted suspicion of long-standing campaign finance reform safeguards, assuming in his questions that such safeguards represented nothing more than incumbent self-dealing:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Congress has a self-interest. I mean, we – we are suspicious of congressional action in the First Amendment area precisely because we – at least I am – I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don‘t think so.25

Justice Kennedy also speculated during oral argument that ―the Government [could] silence[] a corporate objector‖ who wished to protest a particular policy during an election cycle.26 Similarly, in the Citizens United opinion, Justice Kennedy simply assumed, without any factual basis, that Congress‘ motives were invidious, stating of the law at issue, ―[i]ts purpose and effect are to silence entities whose voices the Government deems to be suspect.‖27 And Chief Justice Roberts famously expressed his impatience with campaign finance safeguards, striking down regulations on corporate electioneering in the Federal Election Commission v. Wisconsin Right to Life decision, saying ―Enough is enough.‖28 The Court has used its skepticism of congressional motives – based not on facts or a record below but on the instincts of a majority of justices – to justify its utter lack of deference to legislative determinations in this arena. Such a cavalier dismissal of Congress‘ carefully considered legislation ignores the years of hearings, record, debate and deliberation involved in creating these reforms. Unfortunately, Citizens United will not be the Roberts Court‘s last word on the issue. Seeking to take advantage of the majority‘s deregulatory agenda, the same coalition of corporate-backed groups that filed the Citizens United lawsuit have launched an armada of constitutional challenges to state and federal reforms, now advancing rapidly toward the Supreme Court.29 These challenges include attacks on public financing systems, campaign finance disclosure requirements, ―pay-to-play‖ restrictions on government contractors and lobbyists, and ―soft money‖ restrictions on political parties and political action committees. Challengers seek to use the First Amendment as a constitutional ―trump card‖ to strike down any reform that attempts to mitigate special interest domination of politics. Several of these challenges will be ripe for decision by the Supreme Court within the year. This Committee has an important role to play in helping to create a factual record that would correct unfounded assumptions about money and politics embedded in the Court‘s decisions, and could be useful in defending both new and existing reforms against judicial overreaching. In addition, we urge the Committee to endorse several reforms to counter the impact of Citizens United – supporting public financing of congressional and presidential elections; enacting federal voter registration modernization legislation; and enacting federal legislation that requires shareholder approval for corporate political spending, as well as effective disclosure of such spending.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

166

Monica Youn

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

3. SURVIVING STRICT SCRUTINY: CREATING A RECORD FOR REFORM Legislative repair of our system of campaign finance safeguards will be extraordinarily challenging because the Court has awarded its deregulatory agenda the imprimatur of the First Amendment. Since the Court has granted corporate political spending First Amendment protection, it has now indicated that it will treat restrictions on such corporate political spending as burdens on political speech, justifying the application of strict scrutiny. This standard requires that if a challenged regulation is to pass constitutional muster, the government must demonstrate that it be ―narrowly‖ tailored to advance a ―compelling state interest.‖ This is a high bar to meet – indeed, as Professor Gerald Gunther famously noted , such a non-deferential standard of review is often considered ―‘strict‘ in theory and fatal in fact.‖30 However, campaign finance reform laws have survived the application of strict scrutiny in the past,31 and will continue to survive even the skepticism of the Roberts Court if one key condition is realized: an adequate factual record evidencing the real threat to democracy that stems from special interest domination of politics as well as the efficacy of campaign finance reform regulations in mitigating such threats. It was the absence of such a developed factual record that allowed the majority in Citizens United to enact into constitutional doctrine their own untested assumptions about money in politics. In Citizens United, the Supreme Court took the relatively narrow case before it – whether the 90 minute video-on-demand Hillary: The Movie should be deemed a corporate campaign advertisement or not – and drastically expanded the issue, requesting reargument on the constitutionality of decades-old restrictions on the use of corporate treasury funds to directly support or oppose candidates. Moreover, the Court required parties and amici to brief these broad issues on an expedited basis, allowing them no time to develop and present a factual record regarding the influence of money in politics. Accordingly, as was pointed out by BCRA‘s congressional sponsors, in deciding this landmark case, the Court lacked a developed factual record on key factual issues, including (1) whether corporate independent expenditures posed similar risks of corruption as direct corporate donations to parties and candidates;32 (2) whether disclosure requirements can adequately ensure that voters and shareholders can track the uses and abuses of money in politics; and (3) what benefits and burdens have resulted from the real-world functioning of campaign finance regulations.33 Rather than remanding to the district court for development of these central factual issues, the majority simply enacted its own assumptions about political and financial behavior into law, as we explain at greater length below. The Brennan Center urges this Committee – perhaps jointly with other interested Committees – to hold hearings to create a record demonstrating how the Supreme Court majority has distorted the political reality of how money in politics threatens to erode democratic values. Making such a record – and shining the public spotlight on the faulty assumptions that underlie the Court‘s deregulatory agenda – would prove valuable for the defense of existing reforms and the enactment of new democratic safeguards, for the development of constitutional doctrine, and for the public‘s understanding of money in politics. While Congress cannot directly repair the damage done by the Court‘s distortion of the First Amendment, hearings like those we suggest could provide a critical forum to

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU…

167

demonstrate that the approach taken by this Court is a dead-end for democracy and to point a better way forward.

A. Connecting the Dots between Corporate Political Spending and Corruption In oral argument in Citizens United, Justice Alito noted that: [M]ore than half the States, including California and Oregon, Virginia, Washington State, Delaware, Maryland, [and] a great many others, permit independent corporate expenditures for just these purposes? Now have they all been overwhelmed by corruption? A lot of money is spent on elections in California; has – is there a record that the corporations have corrupted the political process there?34

The Citizens United majority did not wait for these questions to be answered. Instead of remanding to a lower court for a factual determination on the nexus between corporate independent expenditures and political corruption, the Citizens United majority simply assumed that ―independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.‖35 By reaching this conclusion, the Supreme Court has constitutionally enshrined what Senator John McCain has described as the Court‘s ―extreme naïveté‖36 regarding the influence of corporate money in politics. Even in the absence of a developed factual record, examples from the real world of money and politics cast doubt upon the Court‘s premature conclusion:

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.









In a 2006 house election in California, a group headed by Indian gaming tribes spent $404,323 in independent expenditures in support of the successful candidate. This independent expenditure by a single special-interest group equaled 29% of the total expenditures made by the candidate herself.37 Also in California, Intuit, a software corporation that distributes the ―Turbo Tax‖ software program funneled $1 million through a group called the Alliance for California Tomorrow, which spent the $1 million on independent expenditures in support of a state controller who opposed the creation of a free-on-line tax preparation program for California residents.38 The candidate himself spent only slightly more than $2 million on his own campaign.39 In a 2000 Michigan senate race, Microsoft used the Chamber of Commerce to fund $250,000 in attack ads against a candidate. Because the tax code does not require trade organizations such as the Chamber to disclose the identity of its donors, Microsoft‘s involvement in the election would be unknown but for a newspaper article that exposed its contribution.40 There is also ample reason to believe that in states that allow corporate independent expenditures, this loophole is used to circumvent contribution limits. For example, independent expenditures skyrocketed after California enacted contribution limits for the first time. According to a report by the state‘s Fair Political Practices Commission, in the six years after the enactment of these limits, independent

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

168

Monica Youn expenditures increased by 6,144% in legislative races and 5,502% in statewide races.41

Fortunately, the Court has left a door open for Congress to craft narrow regulation over corporate expenditures so long as such regulation is based on a strong factual showing of the relationship between such expenditures and corruption. Despite its assumption regarding corruption and independent expenditures, the Court in Citizens United indicated that it would be ―concern[ed]‖ ―[i]f elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle.‖42 Thus, a potential response to Citizens United is for Congress to convene hearings to investigate the link between corporate independent expenditures and the creation of political debt. There is precedent for such a record. As demonstrated by the Court‘s decisions in McConnell v. Federal Election Commission43 and Caperton, the Supreme Court is willing to find that corporate political spending and independent expenditures can lead to actual or apparent corruption where there is a strong factual record demonstrating such a connection. In McConnell, the court upheld Congress‘s soft money ban because of the strong record of softmoney influence peddling created by Congress in enacting BCRA. Similarly, in Caperton, the Court, shocked by the sordid factual record before it, was unable to deny that large independent expenditures can give rise to corruption. A developed factual record demonstrating the clear connections between corporate political spending and corruption of our elected officials can inject some much-needed reality into the Court‘s naïve view of money in politics.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

B. Demanding Accountability through Consent and Disclosure Another troubling assumption adopted by the Citizens United majority is the adequacy of disclosure laws to safeguard democratic values against subversion. Justice Kennedy‘s argument that limits on corporate political spending are unnecessary is premised upon his unsupported assumption that disclosure laws allow both the electorate and corporate shareholders make informed decisions and give proper weight to different speakers and messages. With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation‘s political speech advances the corporation‘s interest in making profits, and citizens can see whether elected officials are ―‗in the pocket‘ of so-called moneyed interests.‖ The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.44

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU…

169

Unfortunately, Justice Kennedy‘s vision of transparency and free flow of information bears no relation to what occurs in real life.45 In fact, in today‘s political environment, corporations regularly hide behind false names to disguise their true identity and agenda: 



In a recent Colorado election, a group called ―Littleton Neighbors Voting No,‖ spent $170,000 to defeat a restriction that would have prevented Wal-Mart from coming to town. Another group called ―Littleton Pride‖ spent $35,000 in support of the prohibition. When the disclosure reports for these groups were filed, however, voters discovered that ―Littleton Neighbors‖ was not a grassroots organization but a front for Wal-Mart —the group was, in fact, exclusively funded by Wal-Mart. Behind a grassroots facade, Wal-Mart was able to outspend ―Littleton Pride,‖ a true grassroots group, by a 5:1 ratio.46 As the record in McConnell demonstrated, corporations commonly veil their political expenditures with misleading names —the ―The Coalition-Americans Working for Real Change‖ was a business organization opposed to organized labor and ―Citizens for Better Medicare‖ was funded by the pharmaceutical industry.47

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The majority‘s assumption that corporate political spending must be disclosed to shareholders or the public at large is similarly incorrect. Under current laws regulating corporations, nothing requires corporations to disclose to shareholders whether funds are being used to fund politicians or ballot measures, or how the political money is being spent. 48 In short, corporate managers could be using shareholder funds for political spending, without the knowledge or consent of investors.

1. Giving Shareholders a Voice The Brennan Center has proposed a remedy to this disclosure gap in our recently-issued report Corporate Campaign Spending: Giving Shareholders a Voice.49 We suggest two specific reforms: first, require managers to obtain authorization from shareholders before making political expenditures with corporate treasury funds; and second, require managers to report corporate political spending directly to shareholders. These requirements will increase corporate accountability by placing the power directly in the hands of the shareholders, thereby ensuring that shareholders‘ funds are used for political spending only if that is how the shareholders want their money spent. Moreover, the disclosure requirement serves valuable information interests, leaving shareholders better able to evaluate their investments and voters better-equipped to deliberated choices at the polls. The report includes model legislation toward to effectuate the proposed reforms, and we urge Congress to consider this legislation as soon as possible. 2. Empowering Voters through Disclosure After the Supreme Court‘s decision in Citizens United, the importance of disclosure to the health of our democracy cannot be overstated. Unfortunately, there is currently a sustained and unrelenting wave of legal challenges aimed at eliminating disclosure of independent expenditures. Indeed, the New York Times recently quoted the attorneys who brought the Citizens United suit as stating that disclosure was their next target in a ten-year strategy to eliminate campaign finance regulations.50 The Supreme Court has already granted

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

170

Monica Youn

certiorari in Doe v. Reed, a case brought by the same lawyers who brought Citizens United, and the case will be fully briefed this spring.51 Although that case, which involves the disclosure of ballot petition signatures, does not implicate campaign finance disclosures directly, the plaintiffs advance a broad conception of a right to anonymous speech which would clearly undermine campaign finance disclosure regimes. To be sure, Citizens United upheld BCRA‘s disclosure requirements against the plaintiffs‘ challenge, and expressly affirmed the importance of disclosure as a means of ―‘provid[ing] the electorate with information‘ about the sources of election-related spending.‖52 Even while upholding these disclosure requirements, however, the majority opinion dropped several hints that could provide opponents of disclosure with a roadmap to a successful constitutional challenge to these laws. First, the Court sent a subtle message that evidence of harassment or retaliation might be a sufficient foundation for a successful challenge to disclosure laws.53 The majority specifically remarked that examples of harassment against contributors to various initiatives were ―cause for concern,‖ but noted that Citizens United had demonstrated no record of harassment. However, to strike down valuable disclosure laws on constitutional grounds in order to guard against harassment would be using ―a sledgehammer rather than a scalpel.‖54 A better tailored approach would use more robust anti-harassment laws to protect the constitutional interests of both contributors and the public at large. Second, the Court sent a worrying signal for supporters of disclosure in holding that requiring corporations to form a PAC for corporate political expenditures was so burdensome as to constitute a ban on political speech.55 Many of the PAC restrictions that the Court found to be unconstitutionally burdensome – appointing a treasurer, keeping records, and making detailed reports of expenditures – are nothing more than disclosure requirements under another name. The Court assumed the existence of an unconstitutional burden despite the absence of any factual record demonstrating any ―chill‖ or other harm. Using this same rationale, the Court could potentially find that compliance with disclosure laws is burdensome in practice and therefore unconstitutional as applied, while upholding the principle of disclosure in theory. A vision of the First Amendment which privileges secrecy and anonymity over transparency and accountability has no place in our representative democracy. To defend existing laws and enact new reforms, a factual record is needed. Specifically, we must push back against arguments that disclosure requirements chill speech as a matter of course, or are necessarily unduly burdensome.

C. Combating the Majority’s Myth of Government Censorship Finally, as indicated by Justices Scalia and Kennedy‘s questions at oral argument, the Citizens United majority appears to be under the impression that the true purpose of campaign finance disclosure laws is to silence potential critics who might otherwise be able to use corporate resources to criticize governmental policy and decisionmakers. The censorship we now confront is vast in its reach. The Government has ―muffle[d] the voices that best represent the most significant segments of the economy.‖ And ―the electorate

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU…

171

[has been] deprived of information, knowledge and opinion vital to its function.‖ By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. 56

Not surprisingly, the Court cites no evidentiary basis whatsoever for its conclusions on government censorship. Accordingly, there is no support for the Court‘s assumption that regulations on corporate political spending had in any way ―silenced‖ any corporation from effectively expressing its ―opinions‖ regarding any policy, candidate, or any other matter. As Justice Stevens wryly notes in dissent: While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.57

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In short, the majority bases its censorship analysis on nothing other than the personal views of five justices. Congress can play an important role by developing a factual record regarding the means available to corporations seeking to advance a political agenda, short of direct electoral support for or opposition to a particular candidate. Moreover, Congress can combat the myth that campaign finance regulations are means for incumbent politicians to insulate themselves against challengers. Indeed, as Solicitor General Kagan pointed out at oral argument and as a Brennan Center study has demonstrated, the available evidence shows that campaign finance reforms such as contribution limits and public financing appear to benefit challengers rather than incumbents.58

4. ENHANCING FIRST AMENDMENT VALUES BY EMPOWERING VOTERS A. Public Funding of Political Campaigns The Court in Citizens United reaffirmed that ―it is our law and our tradition that more speech, not less, is the governing rule.‖59 The Court thus reiterated the ―more speech‖ principle on which the Court upheld the presidential public financing system in Buckley v. Valeo. The Buckley Court broadly approved of public funding programs, finding that they represent a governmental effort, ―not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.‖60 By making it possible for candidates to run a viable, competitive campaign through grassroots outreach alone, public funding programs decrease the need for deep-pocketed supporters. Candidates can proudly run ―clean‖ elections, leaving voters assured that their interests – rather than special interests – will be faithfully represented. Public funding programs also have the potential to promote meaningful electoral participation by a diverse range of citizens. Systems that award multiple matching funds for small contributions, like that proposed in the Fair Elections Now Act, introduced by Rep.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

172

Monica Youn

John Larson, as well as the public financing system in New York City, amplify the voices of actual citizens, and can be an effective counterbalance to unrestrained corporate spending. Moreover, by encouraging candidates to seek donations from a large number of voters, such programs encourage broad participation in the election process. Ever since public financing systems were enacted, they have faced constitutional challenges brought by those who claim that their First Amendment rights are violated when the state awards funds to qualified publicly-financed candidates.61 Courts, agreeing that public financing furthers First Amendment values, have consistently upheld such systems against constitutional challenge.62 Recently, however, a new slew of challenges have been launched. These new challenges claim that the Roberts Court‘s 2008 decision in Davis v. FEC, 128 S.Ct. 2759 (2008), has cast doubt on this previously well-settled area of the law. As a result, lawsuits challenging the public funding programs in Connecticut and Arizona are pending before the Second and Ninth Circuits respectively; and two new challenges were recently launched in Wisconsin, once again by the same opponents of reform who brought the Citizens United lawsuit.63

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

B. Voter Registration Modernization Bringing new eligible voters into the political process is another ―more speech‖ solution to Citizens United. This can be accomplished by bringing our voter registration system into the 21st century, an initiative which, in the words of Attorney General Eric Holder, would ―remove the single biggest barrier to voting in the United States.‖64 Indeed, if today‘s system were modernized, it could bring as many as 65 million eligible Americans into the electoral system permanently – while curbing the potential for fraud and abuse. Voter registration modernization (―VRM‖) necessitates that the government automatically and permanently register all eligible citizens, and provide failsafe mechanisms to ensure same-day registration. A bipartisan coalition actively supports federal VRM legislation, and states from around the country are currently moving to implement the idea. A dozen states have already adopted internet registration; at least nine have implemented parts of automated registration; eight others have permanent registration; and another eight have Election Day registration. Voter registration modernization would help us live up to our ideal of being a nation governed with the consent of the governed. We should aspire to get as close to full registration of eligible voters as possible. If enacted, voter registration modernization could be the most significant voting measure since the Voting Rights Act.

CONCLUSION – ADVANCING A VOTER-CENTRIC VIEW OF THE FIRST AMENDMENT Perhaps the most troubling aspect of Citizens United – worse than its political implications, worse than its aggressive deregulatory stance – is that the Court embraces a First Amendment where voters are conspicuously on the sidelines. At the start of the Citizens United opinion, Justice Kennedy correctly noted that ―The right of citizens to inquire, to hear,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU…

173

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

to speak, and to use information to reach consensus is a precondition to enlightened selfgovernment and a necessary means to protect it.‖65 As the opinion proceeded, however, it became evident that the majority was in fact taking a myopic view of campaign finance jurisprudence, one that focuses exclusively on campaigns – candidates, parties and corporate interests – at the expense of the voting citizenry.66 The Court‘s ultimate judgment held, in effect, that whatever interest is willing to spend the most money has a constitutional right to monopolize political discourse, no matter what the catastrophic result to democracy. This aspect of Citizens United – like many others – constitutes a break with prior constitutional law. The Court has long recognized that ―constitutionally protected interests lie on both sides of the legal equation.‖67 Accordingly, our constitutional system has traditionally sought to maintain a balance between the rights of candidates, parties, and special interests to advance their own views, and the rights of the electorate to participate in public discourse and to receive information from a variety of speakers.68 It is crucial that this Committee, and Congress, recognize the Roberts Court‘s one-sided view of the First Amendment as a distortion – one which threatens to erode First Amendment values under the guise of protecting them. In truth, our constitutional jurisprudence incorporates a strong First Amendment tradition of deliberative democracy – an understanding that the overriding purpose of the First Amendment is to promote an informed, empowered, and participatory electorate. This is why our electoral process must be structured in a way that ―build(s) public confidence in that process,‖ thereby ―encouraging the public participation and open discussion that the First Amendment itself presupposes.‖69 In this post-Citizens United era, a robust legislative response will be critical. It is similarly imperative, however, that we reframe our constitutional understanding of the First Amendment value of deliberative democracy. In the longer term, reclaiming the First Amendment for the voters will be the best weapon against those who seek to use the ―First Amendment‖ for the good of the few, rather than for the many.

End Notes 1

Frederick A.O. Schwarz Jr., Public Financing of Races: If It Can Make It There..., ROLL CALL, Jan. 28, 2010, available at http://www.rollcall.com/issues 2 VOTER REGISTRATION MODERNIZATION: COLLECTED BRENNAN CENTER REPORT AND PAPERS (The Brennan Center for Justice 2009), http://brennan.3cdn.net/329ceaa2878946ba17 kwm6btu6r.pdf. Upon request, the Brennan Center is happy to provide hard copies of the report to this Committee and other members of Congress. 3 Ciara Torres-Spelliscy, CORPORATE CAMPAIGN SPENDING: GIVING SHAREHOLDERS A VOICE (The Brennan Center for Justice 2010), http://brennan.3cdn.net/0a5e2516f40c2a33f6 3cm6ivqcn.pdf. Upon request, the Brennan Center is happy to provide hard copies of the report to this Committee and other members of Congress. 4 Monica Youn, Giving Corporations an Outsized Voice in Elections, THE L.A. TIMES, Jan. 10, 2010, available at http://www.latimes.com/news/opinion/commentary/la-oe-youn10-2010jan10,0,1203910.story. 5 Citizens United, No. 08–205, Slip op. at 81 (Jan. 21, 2010) (Stevens, J., dissenting). 6 See, e.g., Nathaniel Persily, The Floodgates Were Already Open, SLATE, Jan 25, 2010, available at http://www.slate.com/id/2242558/; Joseph Sandler and Neil Reiff, Beware the Fortunetellers, THE NAT‘L LAW J., Feb. 1, 2010, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202439595364. 7 VICTORIA MCGRANE, Lobbyists on pace for record year, POLITICO, Dec. 22, 2009, available at http://www.politico.com/news/stories/1209/30882.html. 8 Statistics on Exxon Mobile, Corp.‘s Political Spending, Center for Responsive Politics, http://www.opensecrets.org/orgs/summary.php?cycle=A&type=P&id=D000000129.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

174

Monica Youn

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

9

Exxon Mobile, Corp., 2008 Annual Report 16 at 38 (2009), available at http://www.exxonmobil.com/Corporate/Files/news pub sar 2008.pdf. 10 CORPORATE DEMOCRACY: POTENTIAL FALLOUT FROM A SUPREME COURT DECISION ON CITIZENS UNITED, available at http://www.commoncause.org/atf/cf/{fb3c17e2-cdd1-4df6-92bebd4429893665}/CORPORATEDEMOCRACY.PDF. 11 Statistics on Exxon Mobile, Corp.‘s Lobbying Efforts, Center for Responsive Politics, http://www.opensecrets.org/lobby/clientsum.php?year=2008&lname=Exxon+Mobil&id=. 12 Statistics on Average Cost of Congressional Races in 2008, Center for Responsive Politics, http://www.opensecrets.org/bigpicture/stats.php?cycle=2008&Type=W&Display=A. 13 LEGISLATING UNDER THE INFLUENCE (Common Cause 2009), available at http://www.commoncause.org/atf/cf/%7Bfb3c17e2-cdd1-4df6-92bebd4429893665%7D/COMMONCAUSE HEALTHCAREREPORT2009-1.PDF. 14 Statistics on Total Cost of Congressional Races in 2008, Center for Responsive Politics, http://www.opensecrets.org/bigpicture/stats.php?cycle=2008&Type=A&Display=T. 15 LEGISLATING UNDER THE INFLUENCE, supra n.13. 16 Marc Ambinder, The Corporations Already Outspend The Parties, THE ATLANTIC, Feb. 1, 2010, available at http://politics 17 Id. 18 Supplemental Brief of the Committee for Economic Development as Amicus Curiae in Support of Appellee, Citizens United v. FEC, No. 08-205 at 10-16 (2009), available at http://www.fec.gov/law/litigation united sc 08 ced supp brief amici.pdf. 19 Jim Drinkard, Freddie Mac to Pay Record $3.8 M to Settle FEC Allegations, USA TODAY, April, 18, 2006, available at http://www.usatoday.com/money 20 129 S.Ct. 2252 (2009). 21 Id. at 2264-65. Justice Kennedy – the author of both the Caperton opinion and the Citizens United opinion – attempts to distinguish the holding of Caperton as irrelevant to the question raised in Citizens United: whether independent expenditures have the potential to corrupt elected officials. He claims that the holding of Caperton was limited to the context of judicial elections, where a litigant possesses a ―due process right to a fair trial before an unbiased judge.‖ Citizens United, Slip op. at 44. Justice Kennedy‘s reasoning, however, is patently unconvincing. As Justice Stevens‘ dissent pointed out, in Caperton, the Court recognized that ―some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.‖ Id. at 69 (Stevens, J., dissenting). If an independent expenditure campaign could create ―bias‖ in an elected judge, then there is no reason to believe that an identical independent expenditure campaign could not create equivalent ―bias‖ if deployed on behalf of a legislative candidate. Although Justice Kennedy is willing to uphold litigants‘ due process to an unbiased judge, he gives no weight whatsoever to the electorate‘s constitutional interests in elected officeholders who have not been bought and paid for with special interest dollars. 22 Randall v. Sorrell, 548 U.S. 230 (2006); FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007); Davis v. FEC, 128 S.Ct. 2759 (2008). 23 Richard L. Hasen, Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 MINN. L. REV. 1064, 1064 (2008). 24 Citizens United, Slip op. at 23 (Stevens, J., dissenting). 25 Transcript of Oral Argument at 50-51, Citizens United, No. 08–205 (Sept. 12, 2009). 26 Id. at 52. 27 Citizens United, Slip op. at 23. 28 See 551 U.S. at 478. 29 See David Kirkpatrick, A Quest to End Spending Rules for Campaigns, N.Y. TIMES, Jan. 25, 2010, at A11, available at http://www.nytimes.com/2010/01/25/us/politics see also Marcia Coyle, Opinion Roils Dozens of Cases, THE NAT‘L LAW J., Feb. 1, 2010; Mike Scarcella, D.C. Circuit's First Shot at Citizens United, THE NAT‘L LAW J., Feb. 1, 2010. 30 Gerald Gunther, The Supreme Court 1971 Term – Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972). 31 As Professor Adam Winkler has pointed out, in cases between 1990 and 2003, where strict scrutiny was applied to campaign finance laws, such laws survived the application of strict scrutiny in 24 percent of cases. Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VANDERBILT L. REV. 793, 845 (2006). 32 Although Justice Kennedy‘s opinion claims that the 100,000 page factual record in McConnell v. Federal Election Commission contains no evidence of ―quid pro quo‖ corruption, and only ―scant evidence‖ that independent expenditures even ingratiate, Citizens United, Slip op. at 45 (citing McConnell v. Federal Election Comm., 251 F.Supp.2d 176, 555–557 (D.D.C. 2003) (opinion of Kollar-Kotelly, J)), this claim is somewhat disingenuous. However voluminous the factual record in McConnell, that case is not on point since

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Testimony of Monica Youn, Counsel at the Brennan Center for Justice at NYU…

175

it focused on two different issues – the constitutionality of restrictions on ―soft money‖ contributions to political parties and the use of so-called ―sham issue ads‖ to circumvent regulations on corporate electioneering. 33 Supplemental Brief of Amici Curiae Senator John McCain, Senator Russell Feingold, Former Representative Christopher Shays, and Former Representative Martin Meehan in Support of Appellee, Citizens United v. FEC, No. 08-205 at 9-10 (2009), available at http://www.fec.gov/law/litigation 34 Transcript of Oral Argument at 50. 35 Citizens United, Slip. Op. at 45. 36 See Reid Wilson, Supreme Court Sharply Questions Ban on Corporate Spending, THE HILL, Sept. 9, 2009, available at http://thehill.com/homenews/campaign/57887-court-sharply-questions-ban-on-corporatespending. 37 CALIFORNIA FAIR POLITICAL PRACTICES COMMISSION, INDEPENDENT EXPENDITURES: THE GIANT GORILLA IN CAMPAIGN FINANCE 40 (2008), available at http://www.fppc.ca.gov/ie/IEReport2.pdf. 38 See Campaign Finance Reports for Intuit and Alliance for California Tomorrow, available at http: //calaccess.ss.ca.gov/default.aspx; Dennis J. Ventry Jr., Intuit Uses Clout to Stymie State Innovation, SACRAMENTO BEE, Oct. 6, 2009, available at http://www.sacbee.com/1190/story/2233219.html. 39 Campaign Finance Reports for Tony Strickland‘s Candidate Committee, available at http:/ /calaccess.ss.ca.gov/Campaign/Candidates/Detail.aspx?id=1005462&session=2005. 40 HIDDEN RIVERS ( Center for Political Accountability 2006), available at http:/ /www.politicalaccountability.net/index.php?ht=a/GetDocumentAction/i/932 at 13; JOHN R. WILKE, Microsoft Is Source of „Soft Money‟ Funds Behind Ads in Michigan‟s Senate Race, WALL STREET JOURNAL, Oct. 16, 2000. 41 CALIFORNIA FAIR POLITICAL PRACTICES COMMISSION, supra n. 38. 42 Citizens United, Slip Op. at 45. 43 540 U.S. 93 (2003). 44 Citizens United, Slip Op. at 55 (citations omitted). 45 For example, independent expenditures – the very type of political expenditures unleashed by Citizens United – are underreported in most states. As one report explained, ―holes in the laws – combined with an apparent failure of state campaign-finance disclosure agencies to administer effectively those laws – results in the poor public disclosure of independent expenditures. The result is that millions of dollars spent by special interests each year to influence state elections go essentially unreported to the public.‖ Linda King, INDECENT DISCLOSURE PUBLIC ACCESS TO INDEPENDENT EXPENDITURE INFORMATION AT THE STATE LEVEL 4 (National Institute of Money in Politics 2007), https://www.policyarchive.org /bitstream/handle/ 10207/ 5807/200708011.pdf?sequence=1. 46 Def.‘s Response Br. to Pls.‘s Mot. for Summary Judgment, Sampson v. Coffman, 06-cv-01858 at 43-44 (D. Co. 2007) (Dkt. #34). 47 See 540 U.S. at 128, 197. 48 See Jill Fisch, The “Bad Man” Goes to Washington: The Effect of Political Influence on Corporate Duty, 75 FORDHAM L. REV. 1593, 1613 (2006) (―Political contributions are generally not disclosed to the board or shareholders, nor are political expenditures generally subject to oversight as part of a corporation‘s internal controls.‖). 49 See Torres-Spelliscy, supra n. 3. 50 See Kirkpatrick, supra n.28. 51 Doe v. Reed, 586 F.3d 671 (9th Cir. 2009), cert. granted, __ S.Ct.__, 2010 WL 144074 (2010) (No. 09-559). 52 Citizens United, Slip op. at 52 (quoting Buckley v. Valeo, 424 U. S. 1, 66 (1976)). 53 Id. at 54-55. 54 Id. at 7 (Stevens, J., dissenting). 55 Id. at 21. 56 Citizens United, Slip. Op. at 38-39 (citations omitted). 57 Id. at 90 (Stevens, J., dissenting). 58 See Transcript of Oral Argument at 50-51; Ciara Torres-Spelliscy, Kahlil Williams, Dr. Thomas Stratmann, ELECTORAL COMPETITION AND LOW CONTRIBUTION LIMITS (The Brennan Center for Justice 2009). To aid legal development in this area, Brennan Center will release two scholarly reports this spring: the first will focus on the real-world impact of public financing systems upon competitiveness, diversity, and fundraising behavior; and the second will provide an in-depth analysis of the New York City multiple matching funds system, the nation‘s longest running and most successful public financing program. We hope that these two reports will provide valuable substance to the policy debates surrounding the benefits of campaign finance reform, and we would welcome Congressional hearings on these issues. 59 Citizens United, Slip Op. at 45. 60 Buckley, 424 U.S. at 92-93. 61 Matching fund provisions, that disburse additional money to participating candidates when they are targeted by independent expenditures or high spending opponents, have been particularly targeted. These mechanisms,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

176

Monica Youn

usually known as matching funds, are used to incentive participation in public financing programs while still preserving public monies. 62 See North Carolina Right to Life Comm. Fund v. Leake, 524 F.3d 427 (4th Cir. 2008), cert. denied by Duke v. Leake, 129 S.Ct. 490 (Nov. 3, 2008) (affirming denial of preliminary injunction against North Carolina‘s public financing system for appellate judicial elections); Daggett v. Comm‟n on Governmental Ethics & Election Practices, 205 F.3d 445 (1st Cir. 2000) (upholding Maine‘s Clean Election Act); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552 (8th Cir. 1996) (upholding Minnesota‘s public funding system for elections); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 38 (1st Cir. 1993) (upholding Rhode Island‘s public funding system). 63 Matching fund provisions were struck down at the district court level in Connecticut and in Arizona. See Green Party v. Garfield, 648 F. Supp. 2d 298 (D. Conn. Aug. 27, 2009), argued (2d Cir. Jan. 13, 2010); McComish v. Brewer, No. CV-08-1550 (D. Ariz. Jan. 20, 1010), appeal docketed (9th Cir. Jan. 26, 2010). In Wisconsin, recently-filed lawsuits challenge the mechanism by which Wisconsin's program distributes money to participants and the reporting requirements of the system. Wisconsin Right to Life v. Brennan, 09-cv-764 (W.D. Wi. 2009); Koschnick v. Doyle, 09-cv-767 (W.D. Wi. 2009). 64 Eric Holder, Attorney General, Remarks at the Brennan Center for Justice Brennan Legacy Awards Dinner on Indigent Defense Reform (Nov. 16, 2009), http://www.justice. 65 Citizens United, Slip Op. at 23. 66 The Court‘s central concern was that ―[t]he Government ha[d] ‗muffle[d] the voices that best represent the most significant segments of the economy.‘‖ Id. at 38. See also id. at 35-37 (finding differential treatment of media corporations and other corporations troubling); 38-40 (worrying that ―smaller corporations may not have the resources‖ to lobby elected officials like larger corporations); 43 (―‘It is well understood that a substantial and legitimate reason, if not the only reason . . . to make a contribution . . . is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.‘‖ (quoting Kenndy, J., dissenting in McConnell, 540 U. S. at 297)). 67 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring); see also United States v. Int‟l Union United Auto. Workers, 352 U.S. 567, 590 (1957) (noting ―delicate process‖ of reconciling labor union‘s rights with value in promoting ―active, alert responsibility of the individual citizen in a democracy‖). 68 See, e.g., Shrink Missouri, 528 U.S. at 390 (balancing candidate‘s and political committee‘s claims with threat that ―the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance‖); Federal Election Commission v. Mass. Citizens for Life, 479 U.S. 238, 25758 & n.10 (1986) (balancing nonprofit organization‘s interests with importance of protecting ―the integrity of the marketplace of political ideas‖ necessary for citizens to ―develop their faculties‖); Federal Election Commission v. National Right to Work Comm., 459 U.S. 197, 560 (1982) (balancing corporate interests against the value of promoting ―the responsibility of the individual citizen for the successful functioning of that process‖). 69 Shrink Missouri, 528 U.S. at 400.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

In: The First Amendment: Select Issues Editor: Rhonda L. Ferro

ISBN: 978-1-61728-987-3 © 2010 Nova Science Publishers, Inc.

Chapter 10

THE CONSTITUTIONALITY OF CAMPAIGN FINANCE REGULATION: BUCKLEY V. VALEO AND ITS SUPREME COURT PROGENY 

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY Political expression is at the heart of First Amendment activity and the Supreme Court has granted it great deference and protection. However, according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely free political marketplace is not required by the First Amendment — nor is it desirable — because without reasonable regulation, corruption will result. Most notably, the Buckley Court ruled that the spending of money in campaigns, whether as a contribution or an expenditure, is a form of ―speech‖ protected by the First Amendment. The Court upheld some infringements on free speech, however, in order to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption. In Buckley, the Supreme Court considered the constitutionality of the Federal Election Campaign Act of 1971 (FECA), requiring political committees to disclose campaign contributions and expenditures and limiting, to various degrees, the ability of persons and organizations to make contributions and expenditures. While First Amendment freedoms and campaign finance regulation present conflicting means of attempting to preserve the integrity of the political process, the Court resolved this conflict in favor of the First Amendment interests and subjected any regulation burdening free speech and free association to ―exacting scrutiny.‖ Under this standard of review, a court will evaluate whether the government‘s interests in regulating are compelling, examine whether the regulation burdens and outweighs



This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated November 2008.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

178

L. Paige Whitaker

First Amendment liberties, and inquire as to whether the regulation is narrowly tailored to serve the government‘s interests. If a regulation meets all three criteria, a court will uphold it. This chapter first discusses the key holdings enunciated by the Supreme Court in Buckley, including those upholding reasonable contribution limits, striking down expenditure limits, upholding disclosure reporting requirements, and upholding the system of voluntary presidential election expenditure limitations linked with public financing. It then examines the Court‘s extension of Buckley in several subsequent cases, evaluating them in various regulatory contexts: contribution limits (California Medical Association v. FEC; Citizens Against Rent Control v. Berkeley; Nixon v. Shrink Missouri Government PAC; FEC v. Beaumont); expenditure limits (First National Bank of Boston v. Bellotti; FEC v. Massachusetts Citizens for Life; Austin v. Michigan Chamber of Commerce; FEC v. National Right to Work; Colorado Republican Federal Campaign Committee (Colorado I) v. FEC; FEC v. Colorado Republican Federal Campaign Committee (Colorado II); FEC v. Democratic Senatorial Campaign Committee; FEC v. National Conservative Political Action Committee; Randall v. Sorrell); disclosure requirements (Buckley v. American Constitutional Law Foundation; Brown v. Socialist Workers „74 Campaign Committee; FEC v. Akins; McIntyre v. Ohio Elections Commission); and political party soft money and electioneering communication restrictions (McConnell v. FEC; Wisconsin Right to Life, Inc. v. FEC (WRTL II)).

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

INTRODUCTION Campaign finance regulation invokes two conflicting values implicit in the application of the First Amendment‘s guarantee of free political speech and association. On the one hand, political expression constitutes ―core‖ First Amendment activity, which the Supreme Court grants the greatest deference and protection in order to ―assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.‖1 On the other hand, according to the Court in its landmark 1976 decision, Buckley v. Valeo,2 an absolutely free ―political marketplace‖ is neither mandated by the First Amendment, nor is it desirable, because when left uninhibited by reasonable regulation, corruptive pressures undermine the integrity of political institutions and undercut public confidence in republican governance. In other words, although the Court reveres the freedoms of speech and association, it has upheld infringements on these freedoms in order to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption. Case law subsequent to Buckley further illustrates that neither the freedom of speech and association nor the government‘s regulatory powers are absolute. Accordingly, Supreme Court campaign finance holdings embody the doctrinal tension between striking a reasonable balance between protecting the liberty interests in free speech and association, on the one hand, and upholding campaign finance regulation enacted with the intent to encourage political debate while protecting the election process from corruption, on the other. The Court appears to uphold First Amendment infringements by campaign finance regulation only insofar as the regulation is deemed necessary to preserve the very system of representative democracy that unregulated First Amendment freedoms purport to insure.3

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

179

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In Buckley, the Court reviewed the constitutionality of the Federal Election Campaign Act of 1971 (FECA),4 requiring political committees to disclose political contributions and expenditures, and limited to various degrees, the ability of natural persons and organizations to make political contributions and expenditures. While First Amendment freedoms and campaign finance regulation present conflicting means of preserving the integrity of the democratic political process, the Court resolved this conflict in favor of First Amendment interests and subjected any regulation burdening free speech and free association activities to ―exacting scrutiny.‖ Under this standard of review, the Court evaluates whether the state‘s interests in regulation are compelling, examines whether the regulation burdens and outweighs First Amendment liberties, and inquires whether the regulation is narrowly tailored to further its interest. If a regulation meets all three criteria, the Court will uphold it. This chapter discusses the critical holdings and rationales enunciated by the Buckley Court and then examines the Court‘s extension of Buckley in subsequent cases. Buckley‘s extensions are evaluated in various regulatory contexts: contribution limits, expenditure limits, disclosure requirements, and political party spending and electioneering communication restrictions. When discussing the Court‘s rationale in each case, facts relevant to a regulator are highlighted: the object of regulation (e.g., a corporation, labor union, or natural person); the asserted liberty interest (e.g., freedom of speech or association); the asserted regulatory interest (e.g., deterring corruption); the triggers of the regulatory interests (e.g., political advantages gained by assuming the corporate form); the means by which the regulator obtained those interests (e.g., limiting campaign contributions); the extent to which the regulation burdened First Amendment liberties (e.g., completely prohibiting expenditures above a certain dollar amount); and the scope of regulation (e.g., whether the regulation was ―narrowly tailored‖ to serve the compelling governmental interests).

BUCKLEY V. VALEO In Buckley v. Valeo, the Supreme Court considered the constitutionality of the Federal Election Campaign Act of 1971 (FECA), as amended in 1974,5 and the Presidential Election Campaign Fund Act.6 The Court upheld the constitutionality of certain statutory provisions, including (1) contribution limitations to candidates for federal office,7 (2) disclosure and record-keeping provisions,8 and (3) the system of public financing of presidential elections.9 The Court found other provisions unconstitutional, including (1) expenditures limitations on candidates and their political committees,10 (2) the $1,000 limitation on independent expenditures,11 (3) expenditure limitations by candidates from their personal funds,12 and (4) the method of appointing members to the Federal Election Commission.13 In general, the Court struck down expenditure limitations, but upheld reasonable contribution limitations, disclosure requirements,14 and voluntary spending limits linked with public financing provisions. In considering the constitutionality of these statutes, the Buckley Court applied the standard of review known as ―exacting scrutiny,‖ a standard applied by a court when presented with regulations that burden core First Amendment activity. Exacting scrutiny requires a regulation to be struck down unless it is narrowly tailored to serve a compelling governmental interest.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

180

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Contribution and Expenditure Limits When analyzing First Amendment claims, a court will generally first determine whether the challenged government action implicates ―speech‖ or ―associational activity‖ guaranteed by the First Amendment. Most notably, the Buckley Court held that the spending of money, whether in the form of contributions or expenditures, is a form of ―speech‖ protected by the First Amendment. A number of principles contributed to the Court‘s analogy between money and speech. First, the Court found that candidates need to amass sufficient wealth to amplify and effectively disseminate their message to the electorate.15 Second, restricting political contributions and expenditures, the Court held, ―necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today‘s mass society requires the expenditure of money.‖16 The Court then observed that a major purpose of the First Amendment was to increase the quantity of public expression of political ideas, as free and open debate is ―integral to the operation of the system of government established by our Constitution.‖17 From these general principles, the Court concluded that contributions and expenditures facilitated this interchange of ideas and could not be regulated as ―mere‖ conduct unrelated to the underlying communicative act of making a contribution or expenditure.18 However, according to the Court, contributions and expenditures invoke different degrees of First Amendment protection.19 Recognizing contribution limitations as one of FECA‘s ―primary weapons against the reality or appearance of improper influence‖ on candidates by contributors, the Court found that these limits ―serve the basic governmental interest in safeguarding the integrity of the electoral process.‖20 Thus, the Court concluded that ―the actuality and appearance of corruption resulting from large financial contributions‖ was a sufficient compelling interest to warrant infringements on First Amendment liberties ―to the extent that large contributions are given to secure a quid pro quo from [a candidate.]‖21 Short of a showing of actual corruption, the Court found that the appearance of corruption from large campaign contributions also justified these limitations.22 Reasonable contribution limits, the Court noted, leave ―people free to engage in independent political expression, to associate [by] volunteering their services, and to assist [candidates by making] limited, but nonetheless substantial [contributions].‖23 Further, a reasonable contribution limitation does ―not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties.‖24 Finally, the Court found that the contribution limits of FECA were narrowly tailored insofar as the act ―focuses precisely on the problem of large campaign contributions.‖25 On the other hand, the Court determined that FECA‘s expenditure limits on individuals, political action committees (PACs), and candidates imposed ―direct and substantial restraints on the quantity of political speech‖ and were not justified by an overriding governmental interest.26 The Court rejected the government‘s asserted interest in equalizing the relative resources of candidates and in reducing the overall costs of campaigns. Restrictions on expenditures, the Court held, constitute a substantial restraint on the enjoyment of First Amendment freedoms. As opposed to reasonable limits on contributions, which merely limit the expression of a person‘s ―support‖ of a candidate, the ―primary effect of [limitations on expenditures] is to restrict the quantity of campaign speech by individuals, groups and

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

181

candidates.‖27 ―A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,‖ the Court noted.28 The Court also found that the government‘s interests in stemming corruption by limiting expenditures were not compelling enough to override the First Amendment‘s protection of free and open debate because unlike contributions, the risk of quid pro quo corruption was not present, as the flow of money does not directly benefit a candidate‘s campaign fund.29 Upon a similar premise, the Court rejected the government‘s interest in limiting a wealthy candidate‘s ability to draw upon personal wealth to finance his or her campaign, and struck down the personal expenditure limitation.30

Reporting and Disclosure Requirements

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

In Buckley, the Supreme Court generally upheld FECA‘s disclosure and reporting requirements, but noted that they might be found unconstitutional as applied to certain groups. While compelled disclosure, in itself, raises substantial freedom of private association and belief issues, the Court held that these interests were adequately balanced by the state‘s regulatory interests. The state asserted three compelling interests in disclosure: (1) providing the electorate with information regarding the distribution of capital between candidates and issues in a campaign, thereby providing voters with additional evidence upon which to base their vote; (2) deterring actual and perceived corruption by exposing the source of large expenditures; and (3) providing regulatory agencies with information essential to the election law enforcement. However, when disclosure requirements expose members or supporters of historically suspect political organizations to physical or economic reprisal,31 then disclosure may fail constitutional scrutiny as applied to a particular organization.32

Voluntary Presidential Election Expenditure Limits Linked with Public Financing The Supreme Court in Buckley upheld the constitutionality of the system of voluntary presidential election expenditure limitations linked with public financing, through a voluntary income tax checkoff.33 The Court found no First Amendment violation in disallowing taxpayers to earmark their $1.00 ―checkoff‖ for a candidate or party of the taxpayer‘s choice. As the checkoff constituted an appropriation by Congress, it did not require outright taxpayer approval, as ―every appropriation made by Congress uses public money in a manner to which some taxpayers object.‖34 The Court also rejected a number of Fifth Amendment due process challenges, including a challenge contending that the public financing provisions discriminated against minor and new party candidates by favoring major parties through the full public funding of their conventions and general election campaigns, and by discriminating against minor and new parties who received only partial public funding under the act.35 The Court held that ―[a]ny risk of harm to minority interests ... cannot overcome the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

182

L. Paige Whitaker

force of the governmental interests against the use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism.‖36

Issue and Express Advocacy Communications In Buckley, the Supreme Court provided the genesis for the concept of issue and express advocacy communications. In order to pass constitutional muster and not be struck down as unconstitutionally vague, the Court ruled that FECA can only apply to non-candidate ―expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office,‖ i.e., expenditures for express advocacy communications.37 In a footnote to the Buckley opinion, the Court further defines ―express words of advocacy of election or defeat‖ as, ―vote for,‖ ―elect,‖ ―support,‖ ―cast your ballot for,‖ ―Smith for Congress,‖ ―vote against,‖ ―defeat,‖ and ―reject.‖38 Communications not meeting the express advocacy definition are commonly referred to as issue advocacy communications. In its rationale for establishing such a bright line distinction between issue and express advocacy, the Court noted that the discussion of issues and candidates as well as the advocacy of election or defeat of candidates ―may often dissolve in practical application.‖ That is, candidates — especially incumbents — are intimately tied to public issues involving legislative proposals and governmental actions, according to the Court.39

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

CONTRIBUTION LIMITS This section analyzes several Supreme Court opinions decided subsequent to Buckley in which the Court evaluated the constitutionality of contribution limitations. Specifically, in California Medical Association v. Federal Election Commission (FEC),40 the Court upheld limits on contributions from an unincorporated association to its affiliated, non-party, multicandidate political action committee (PAC). In Citizens Against Rent Control v. Berkeley,41 the Court reviewed a statute severely limiting the ability of an unincorporated association to raise funds through contributions in connection with its activities in a ballot initiative, holding that the limit unduly burdened the association‘s free speech and association rights. In Nixon v. Shrink Missouri Government PAC,42 the Court evaluated campaign contribution limit amounts and considered, among other things, whether Buckley‘s approved contribution limits established a minimum for state limits, with or without adjustment for inflation, and concluded that Buckley did not. Finally, in FEC v. Beaumont, the Court reaffirmed the prohibition on all corporations — including tax- exempt corporations — making direct treasury contributions in connection with federal elections.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

183

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Limiting Individual Contributions to Political Action Committees (California Medical Association v. FEC) California Medical Association (CMA) v. Federal Election Commission (FEC)43 considered whether the rationale behind the Buckley Court affording such high protection to campaign contributions extended to political action committee (PAC) contributions as well. This case involved 2 U.S.C. § 441a(a)(1)(C) of FECA, which limits individual contributions to PACs to $5,000 per year.44 An unincorporated association of medical professionals, (―the doctors‖) and the association‘s affiliated political action committee (―the PAC‖) challenged FECA‘s contribution limits, alleging, inter alia, violation of their free speech and association rights. The doctors argued that § 441a(a)(1)(C) was unconstitutional because it inhibited their use of the PAC as a proxy for their political expression.45 Moreover, the doctors contended that the contribution limit did not serve a compelling state interest because the risk of corruption is not present where money does not flow directly into a candidate‘s coffers.46 Unpersuaded, the Supreme Court upheld FECA‘s contribution limits. In evaluating the doctor‘s free speech interest, the Court held that the doctors‘ ―speech by proxy‖ theory was not entitled to full First Amendment protection because Buckley reserved this protection for independent and ―direct‖ political speech.47 The Court found that the PAC was not simply the doctors‘ ―political mouthpiece,‖ but was a separate legal entity that received funding ―from multiple sources‖ and engaged in its own, independent political advocacy.48 In rejecting the doctors‘ ―speech by proxy‖ theory, the Court construed the doctors‘ relationship with the PAC as providing ―support‖ through campaign contributions, which does not warrant the same level of First Amendment protection as independent political speech.49 In evaluating the state‘s interests, the CMA Court rejected the PAC and the doctors‘ argument that the risk of corruption is not present when contributions are made to a PAC. The Court interpreted this argument as implying that Congress cannot limit individuals and unincorporated associations from making contributions to multicandidate political committees. This rationale, the Court held, undercuts FECA‘s statutory scheme by allowing individuals to circumvent FECA‘s limits on individual contributions50 and aggregate contributions51 by making contributions to a PAC. Hence, the doctor‘s rationale would erode Congress‘ legitimate interest in protecting the integrity of the political process.52 Under Buckley, the Court held that the state‘s regulatory interests outweighed the doctors‘ relatively weak free speech interest.

Limiting Contributions in Connection with Ballot Initiatives (Citizens against Rent Control v. Berkeley) In Citizens Against Rent Control v. Berkeley,53 the Supreme Court addressed whether a city ordinance, imposing a $250 limit on contributions made to committees formed to support or oppose ballot measures, violated a PAC‘s liberty interest in free speech and free association under the Fourteenth Amendment.54 Citizens Against Rent Control (―the group‖), an unincorporated association formed to oppose a Berkeley ballot initiative imposing rent control on various properties, challenged the ordinance‘s constitutionality. The Court found for the group, on freedom of association and freedom of speech grounds.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

184

L. Paige Whitaker

The Court held that while the limit placed no restraint on an individual acting alone, it clearly restrained the right of association, as the ordinance burdened individuals who wished to band together to voice their collective viewpoint on ballot measures.55 The Court applied ―exacting scrutiny‖ to the ordinance, weighing the city‘s regulatory interests against the group‘s associational rights.56 While the Court noted that Buckley permitted contribution limits to candidates in order to prevent corruption, contributions tied to ballot measures pose ―no risk of corruption.‖57 Moreover, as the ordinance required contributors to disclose their identity, the regulation posed ―no risk‖ that voters would be confused by who supported the speech of the association.58 Under ―exacting scrutiny,‖ therefore, the $250 contribution limitation was held unconstitutional. Extending its holding, the Court found that the contribution limitations unduly burdened the free speech rights of the group and of individuals who wish to express themselves through the group.59 Applying ―exacting scrutiny,‖ the Court found no significant public interest in restricting debate and discussion of ballot measures, and held that the ordinance‘s disclosure requirement adequately protected the sanctity of the political system.60

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Establishing Contribution Limit Amounts (Nixon v. Shrink Missouri Government PAC) In Nixon v. Shrink Missouri Government PA C,61 the Supreme Court considered, among other things, whether Buckley‟s approved limitations on campaign contributions established a minimum for state contribution limits today, with or without adjustment for inflation. Asserting free speech and association rights, a political action committee and a candidate challenged the facial validity of a Missouri regulation limiting contributions to amounts ranging from $275 to $1,075.62 Missouri asserted interests similar to those articulated in Buckley, namely, that contribution limits serve the governmental interest in avoiding the real and perceived corruption of the electoral process.63 The Eighth Circuit found these interests unpersuasive and required Missouri to show that ―there were genuine problems that resulted from the contributions in amounts greater than the limits in place . . .‖64 The Court granted certiorari to review the agreement between the Eighth Circuit‘s evidentiary requirement and Buckley.65 Reversing, the Court found Missouri‘s regulatory interests compelling and negated the proposition that the $1,000 limit upheld by Buckley is a constitutional floor to state contribution limitations.66 Though the Court reviewed the case under an exacting scrutiny standard,67 it upheld the regulation since it ―was ‗closely drawn‘ to match a ‗sufficiently important interest.‘‖68 Notwithstanding the ―narrow tailoring‖ requirement, the Court held that the limitation‘s dollar amount ―need not be ‗fine tuned.‘‖69 As the risk of corruption is greater when money flows directly into a campaign‘s coffers, the Court found that contribution limits are more likely to withstand constitutional scrutiny. In these cases, a contributor‘s free speech interest is less compelling since ―contributions‖ merely index for candidate ―support,‖ not the contributor‘s ―independent‖ political point of view.70 Addressing the lower court‘s evidentiary requirement, the Court noted that ―[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justifications raised.‖71 However, it found

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

185

that Missouri cleared the standard implied by Buckley and its progeny.72 Given the relative weakness of the asserted free speech and associational interests, as compared to the state‘s weighty regulatory interest, the Court upheld the Missouri state campaign contribution limits.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Prohibiting Contributions by Tax-Exempt Corporations (FEC v. Beaumont) The Supreme Court in Federal Election Commission (FEC) v. Beaumont,73 evaluated the constitutional application of 2 U.S.C. § 441b of the Federal Election Campaign Act (FECA) to North Carolina Right to Life (NCRL), a tax-exempt advocacy corporation. Section 441b prohibits corporations, including tax-exempt advocacy corporations, from using treasury funds to make direct contributions and expenditures in connection with federal elections. Corporations seeking to make such contributions and expenditures may legally do so only through a political action committee or PAC. As it notes in Beaumont, the Supreme Court has long upheld the ban on corporate contributions, including those made by corporations that are tax-exempt under the Internal Revenue Code. However, in FEC v. Massachusetts Citizens for Life, Inc. (MCFL),74 the Court created an exception for independent expenditures made by such entities that do not accept significant corporate or labor union money finding that restrictions on contributions require less compelling justification under the First Amendment than restrictions on independent expenditures. In FEC v. Beaumont, NCRL unsuccessfully attempted to extend the MCFL exception to contributions by tax-exempt corporations. Finding that limits on contributions are more clearly justified under the First Amendment than limits on expenditures, the Court reaffirmed the prohibition on all corporations making direct treasury contributions in connection with federal elections and upheld the ban on corporate contributions as applied to NCRL. According to the Court, quoting from some of its earlier decisions, it has upheld the ―well established constitutional validity of ... regulat[ing] corporate contributions,‖ including contributions by membership corporations that ―might not exhibit all the evil that contributions by traditional economically organized corporations exhibit.‖75 Stating its refusal to ―second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared,‖ the Court rejected the argument that deference to congressional judgments is determined by whether the corporations affected by a regulation are for-profit or non-profit.76 Beaumont also clarified the standard for review applicable to campaign finance regulation under the First Amendment. In the view of the Court, determining the appropriate standard of review depends on the nature of the activity being regulated. Commencing with its 1976 ruling in Buckley, the Court said that it has treated the regulation of contributions as only a ―marginal‖ speech restriction, subject to ―relatively complaisant review under the First Amendment,‖ since contributions are a less direct form of speech than expenditures.77 Hence, the Court concluded that instead of requiring a contribution regulation to pass strict scrutiny by meeting the requirement that it be narrowly tailored to serve a compelling governmental interest, a contribution regulation involving ―significant interference with associational rights‖ passes constitutional muster by merely satisfying the lesser requirement of ―being ‗closely drawn‘ to match a ‗sufficiently important interest.‘‖78 The Court held that the Section 441b prohibition passed this lower level of scrutiny because it does not render a complete ban

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

186

L. Paige Whitaker

on corporate contributions, i.e., corporations are still permitted to use treasury funds to establish, solicit funds for, and pay the administrative expenses of a political action committee or PAC, which can then in turn make contributions.79 Invoking its unanimous holding in FEC v. National Right to Work, the Court rejected the argument that the regulatory burdens on PACs, including restrictions on their ability to solicit funds, renders a PAC unconstitutional as the only way that a corporation can make political contributions.80 In summary, the Supreme Court in FEC v. Beaumont upheld the ban on corporate contributions as applied to NCRL because corporate campaign contributions — including contributions by tax-exempt advocacy corporations — pose a risk of harm to the political system. Consequently, the Court found, courts owe deference to legislative judgments on how best to address their risk of harm. In addition, the Court announced that limits on contributions are merely ―marginal‖ speech restrictions subject to a ―relatively complaisant‖ or lesser review under the First Amendment than the strict scrutiny standard of review.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

EXPENDITURE LIMITS This section analyzes several Supreme Court opinions decided subsequent to Buckley in which the Court evaluated the constitutionality of expenditure limitations. The first area of case law involves the regulation of corporations. In First National Bank v. Bellotti,81 the Court held that corporate speech in the form of expenditures, in a state referendum, could not be suppressed under the First Amendment. In two other corporate speech cases, the Court generally upheld a requirement that corporate political expenditures be made from a special segregated fund or political action committee (PAC), but subjected this requirement to an exception for ―purely‖ political organizations: Federal Election Commission (FEC) v. Massachusetts Citizens for Life (MCFL)82 and Austin v. Michigan Chamber of Commerce.83 The second area of case law involves the regulation of labor unions. In FEC v. National Right to Work Committee84 the Court upheld a regulation restricting from whom labor unions can solicit funds for their separate segregated funds or PACs. The third area of case law addresses the regulation of political party expenditures. In Colorado Republican Federal Campaign Committee v. FEC,85 the Court upheld a political party‘s purchase and broadcasting of radio ―attack ads,‖ finding it was an ―uncoordinated independent expenditure.‖ The fourth area of case law examines the regulation of PACs. In FEC v. National Conservative Political Action Committee (NCPA C),86 the Court struck down a prohibition on independent expenditures above $1,000 in support of a ―publicly funded‖ candidate. Finally, the issue of a state statute limiting state office candidate expenditures is examined. In Randall v. Sorrell,87 the Court struck down a Vermont statute imposing expenditure limits finding that the state‘s primary justification for the limits was not significantly different from Congress‘s rationale for the expenditure limits that the Court struck down in Buckley.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

187

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Prohibiting or Limiting Corporate Expenditures (First National Bank of Boston v. Bellotti; FEC v. Massachusetts Citizens for Life, Inc.; Austin v. Michigan Chamber of Commerce) Representing an important new emphasis on First Amendment protection of corporate free speech, in First National Bank of Boston v. Bellotti, the Supreme Court held that the fact that the corporation is the speaker does not limit the scope of its interests in free expression, as the scope of First Amendment protection turns on the nature of the speech, not the identity of the speaker. However, as demonstrated in FEC v. Massachusetts Citizens for Life, Inc. (MCFL) and Austin v. Michigan Chamber of Commerce, the fact that the speaker is a corporation may elevate the state‘s interests in regulating a corporation‘s expressive activity, on equitable grounds. MCFL and Austin appear to expand the Court‘s ―governmental interest‖ jurisprudence from the interest identified in Buckley, i.e., avoiding candidate corruption, to a broader interest of avoiding corruption in the entire electoral process. Although the Court emphasized that equalizing the relative voices of persons and entities in the political process is not a valid regulatory end, MCFL and Austin appear to hold that the government has equitable interests in ensuring fair and open debate in the political marketplace by preventing corporate monopolization. However, in both cases, the Court stressed that corporate wealth, in itself, is not a valid object of speech suppression. In First National Bank of Boston v. Bellotti,88 the Supreme Court evaluated the constitutional basis of a Massachusetts criminal statute, which in pertinent part, prohibited corporate expenditures made to influence the outcome of a referendum. The statute did not completely ban corporate expenditures: it permitted expenditures when a referendum‘s outcome could materially affect a corporation‘s business, property, or assets.89 Bellotti arose in connection with a proposed state constitutional amendment permitting the state to impose a graduated tax on an individual‘s income.90 When the proposal was presented to the voters, a group of corporations wanted to expend money to publicize their point of view;91 however, their desire was burdened by the statutory provision stating that issues concerning the taxation of individuals do not ―materially affect‖ a corporate interest.92 The corporations sought to prevent enforcement of the statute, arguing that it was facially invalid under the First and Fourteenth Amendments.93 In agreement with the corporations, the Supreme Court struck down the statute. First, the Bellotti Court considered whether a speaker‘s ―corporate‖ identity substantively affects the extension of First Amendment liberties. On the state‘s contention that the scope of the First Amendment narrows when the speaker is a corporation, the Court found no constitutional support.94 This conclusion followed from the Court‘s framing of the issues. The Court did not address the question of whether corporate interests in free speech are coextensive with those of natural persons, finding the issue peripheral to the case‘s efficient resolution.95 Instead, the threshold issue was whether the statute proscribed speech that ―the First Amendment was meant to protect.‖96 In other words, the Court focused on the nature of the speech, not the identity of the speaker. As the Massachusetts statute burdened expressive activity addressing a proposed amendment to the state constitution, the nature of the speech fell squarely within the historic and doctrinal mandate of the First Amendment — protecting the free discussion of governmental affairs.97 As the corporations asserted ‗core‘ First Amendment interests, the statute was subject to ―exacting scrutiny,‖ triggering the remaining

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

188

L. Paige Whitaker

issues, where the Court considered whether the government‘s regulatory interests were compelling and obtained by narrowly tailored means.98 Massachusetts advanced two rationales for the prohibition of corporate speech: (1) elevating and ―sustaining‖ the individual‘s role in electoral politics, and (2) ensuring that corporate political expenditures are funded by shareholders who agree with their corporation‘s political views.99 In the context of candidate elections, the Court found these rationales ―weighty,‖ but in a ―direct democracy‖ context, they were simply not advanced in a material way.100 While ensuring that individuals sustain confidence in government and maintain an active role in elections is ―of the highest importance,‖101 the Bellotti Court did not find that regulating corporate speech would necessarily enhance the role of the individual in this context. The Court reasoned that the inclusion of corporate political perspectives does not demonstrate that they will unduly ―influence the outcome of a referendum vote‖102 and stressed that restricting the speech of some to amplify the voice of others is not a valid object suppression.103 As such, the Court held that permitting corporate speech in a referendum does not exert coercive pressures (real or perceived) on the ―direct democracy‖ process.104 Likewise, the Bellotti Court rejected the state‘s purported interest in protecting minority shareholders who object to their corporation‘s majority political philosophy. With respect to this interest, the Court found the statute was both over and under- inclusive. The statute was over-inclusive insofar as it proscribed corporate speech, where the corporate political policy and speech enjoyed unanimous assent by its members.105 The Court emphasized that corporate democracy informs the decision to engage in public debate, that shareholders are presumed to protect their own interests, and that they are not compelled to contribute additional funds to their corporation‘s political activities.106 The statute was under-inclusive insofar as corporations may exert political influence by lobbying for the passage and defeat of legislation and may express its political views on an issue when it does arise in connection to a ballot measure.107 As a result, the Court held that the statute unduly infringed on the corporations‘ protected free speech interest in expressing its political point of view.108 The Supreme Court in Federal Election Commission (FEC) v. Massachusetts Citizens for Life (MCFL)109 evaluated the constitutional application of 2 U.S.C. § 441b of the Federal Election Campaign Act (FECA), prescribing a separate segregated fund or PAC for corporate political expenditures. In this case, the requirement was applied to a non-profit corporation founded for purely political purposes. The founding charter of MCFL was to ―foster respect for life,‖ a purpose motivating various educational and public policy activities.110 Drawing from its general treasury, the corporation funded a pre-election publication entitled ―Everything You Need to Know to Vote Pro-life,‖ which triggered litigation under § 441b.111 As the publication was tantamount to an ―explicit directive [to] vote for [named] candidates,‖ MCFL‘s speech constituted ―express advocacy of the election of particular candidates,‖ subjecting the expenditure to regulation112 under the express advocacy standard first articulated by the Court in Buckley.113 However, as applied to MCFL, § 44 1b was held unconstitutional because it infringed on protected speech without a compelling justification.114 Noting that § 441b burdened expressive activity,115 the Court examined the government‘s regulatory interests in alleviating corruptive influences in elections by requiring the use of corporate PACs and the Court held that concentration of wealth, in itself, is not a valid object of regulation.116 The Court noted that a corporation‘s ability to amass large treasuries confers

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

189

upon it an unfair advantage in the political marketplace, as general treasury funds derive from investors‘ economic evaluation of the corporation, not their support of the corporation‘s politics.117 By requiring the use of a PAC, § 441b ensures that a corporation‘s independent expenditure fund indexes for the ―popular support‖ of its political ideas.118 The Court held that by prohibiting general treasury fund expenditures to advance a political point of view, the regulation ―ensured that competition among actors in the political arena is truly competition among ideas.‖119 While the Court found these interests compelling as applied to most corporations, it held the restriction unconstitutional as applied to MCFL. Specifically, the MCFL Court found the following characteristics exempt a corporation from the regulation: (1) its organizational purpose is purely political; (2) its shareholders have no economic incentive in the organization‘s political activities; and, (3) it was not founded by nor accepts contributions from business organizations or labor unions.120 Carving out an exception for corporations with these characteristics, the Court raised equitable grounds for the regulation, stressing that ―[r]egulation of corporate political activity . . . has reflected concern not about the use of the corporate form per se, but about the potential for the unfair deployment of [general treasury funds] for political purposes.‖121 The Court held that MCFL‘s general treasury is not a function of its economic success, but is an index for membership support of its political ideas.122 Thus, according to the Court, purely political organizations such as MCFL cannot constitutionally be regulated by § 441b because their treasuries already embody what the regulation purports to achieve: an index of the corporation‘s political support. In other words, MCFL is an example of a corporation that is not at risk for gaining an ―unfair‖ advantage in the electoral process.123 In Austin v. Michigan State Chamber of Commerce,124 the Supreme Court affirmed and clarified its MCFL holding when it considered whether a non-profit corporation‘s free speech rights were unconstitutionally burdened by a state prohibition on using general treasury funds to finance a corporation‘s independent expenditures in state elections. While prohibiting expenditures from general treasury funds,125 the statute permitted independent contributions as long as they were made from a separate segregated fund or PAC.126 Plaintiff-corporation, a non-profit founded for political and non-political purposes, asserted that the regulation burdened its First Amendment interest in political speech by limiting its spending.127 Further, the plaintiff contended that the regulation was not narrowly tailored to obtain the state‘s interests in avoiding the appearance of corruption by limiting a corporate entity‘s inherent ability to concentrate economic resources.128 Although economic power, in itself, does not necessarily index the persuasive value of a corporation‘s political ideas, the state argued, a corporation‘s structural ability to amass wealth makes it ―a formidable political presence‖ — a presence which triggers its regulatory interest.129 Unpersuaded by the corporation‘s assertion of right, the Court upheld the regulation. Under Buckley130 and MCFL,131 the Court addressed whether the plaintiff‘s free speech interests were burdened by the regulation; evaluated the state‘s regulatory interests; and asked whether the regulation was narrowly tailored to achieve those interests.132 The Court found that the plaintiff‘s freedom of expression was burdened by the regulation, but held that the state achieved its compelling interests by narrowly tailored means. By limiting the source of a corporation‘s independent expenditures to a special segregated fund or PAC, the Austin Court held that the regulation burdened the plaintiff‘s freedom of expression.133 The regulation placed various organizational and financial burdens

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

190

L. Paige Whitaker

on a corporation‘s management of its PAC,134 limited PAC solicitations to ―corporate members‖ only;135 and prohibited independent expenditures from corporate treasury funds.136 Similar to its finding in MCFL, the Court found that the statute‘s requirements burdened, but did not stifle, the corporation‘s exercise of free expression to a point sufficient to raise a genuine First Amendment claim.137 Thus, to overcome the claim, the regulation had to be motivated by compelling governmental interests and be narrowly tailored to serve those interests. First, the Austin Court evaluated the state‘s regulatory interests. The state argued that a corporation‘s ―unique legal and economic characteristics‖138 renders it a ―formidable political presence‖ in the market place of ideas, which necessitates regulation of its political expenditures to ―avoid corruption or the appearance of corruption.‖139 The Court stressed that the regulation‘s purpose was not to equalize the political influence of corporate and noncorporate speakers, but to ensure that expenditures ―reflect actual public support for political ideas espoused by corporations.‖140 Moreover, the Court was careful to emphasize that the mere fact that corporations can amass large treasuries was not its justification for upholding the statute. Rather, the Court identified the compelling state interest as ―the unique stateconferred corporate structure,‖ which facilitates the amassing of large amounts of wealth.141 On these grounds, the Court appeared to recognize a valid regulatory interest in assuring that the conversion of economic capital to political capital is done in an equitable way. In other words, the Court held that corruption of the electoral process itself, rather than just the corruption of candidates, is a compelling regulatory interest. After finding a compelling state interest, the Austin Court determined that the regulation was neither over-inclusive nor under- inclusive with respect to its burden on expressive activity. Responding to the plaintiff‘s argument that the regulation was over-inclusive insofar as it included closely held corporations, which do not enjoy the same capital resources as larger or publicly-held corporations, the Court ruled that the special benefits conferred to corporations and their potential for amassing large treasuries justified the restriction.142 Plaintiff‘s under-inclusiveness argument, alleging that the regulatory scheme failed to include unincorporated labor unions with large capital assets, fared no better. The Court distinguished labor unions from corporations on the ground that unions ―amass large treasuries ... without the significant state-conferred advantages of the corporate structure.‖143 Here again, the Court remarked that the corporate structure, not corporate wealth, triggers the state‘s interest in regulating a corporation‘s independent expenditures.144 Hence, despite the burden on political speech, the Court upheld the regulation because it was narrowly tailored to reach the state‘s compelling interests.145 In sum, the Austin Court clarified MCFL and upheld the three-part test for when a corporation is exempt from the state‘s general interest in requiring a corporation to use a separate segregated fund or PAC for its ―independent expenditures.‖146 Under Austin, a corporation is exempt from the PAC requirement when (1) the ―organization was formed for the express purpose of promoting political ideas;‖147 (2) no entity or person has a claim on the organization‘s assets or earnings, such that ―persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity;‖148 and (3) the organization is independent from ―the influence of business corporations.‖149

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

191

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Restricting from Whom Labor Unions Can Solicit PAC Funds (FEC v. National Right to Work)150 In Federal Election Commission (FEC) v. National Right to Work Committee (NRWC),151 the Supreme Court evaluated 2 U.S.C. § 441b(b)(4)(C) of FECA, which requires labor unions to solicit only ―members‖ when amassing funds for its separate segregated fund or PAC. In particular, the Court considered, inter alia, whether the Federal Election Commission‘s (FEC) interpretation of ―member‖ abridged NRWC‘s associational rights and held that it did not. The NRWC, a non-profit corporation, essentially considered anyone who gave a contribution a ―member.‖152 On the other hand, the FEC advanced a narrower definition of ―member,‖ under which a participant would have to display various levels of involvement with the soliciting-organization, beyond providing a contribution,153 or the participant would have to enjoy responsibilities, rather than mere privileges, in connection to the soliciting organization.154 Persuaded by the FEC‘s interpretation, the Court held that NRWC‘s asserted associational liberties were burdened by the FEC‘s definition, but were overborne by the state‘s regulatory interests.155 While associational rights are ―basic constitutional‖ freedoms deserving of the ―closest scrutiny,‖ they are not absolute.156 While § 441b restricts the solicitations of corporations and labor unions, thereby restricting their freedom of association, the state had an interest in hedging corporations and labor organizations‘ particular legal and economic attributes, since they may be converted into a political advantage.157 For example, corporations and labor unions can amass large, financial ―war chests,‖ which could be leveraged to incur political debts from candidates.158 Indeed, citing Bellotti, the Court affirmed the fundamental importance of curbing the potential, corruptive influence represented by political debts.159 The Court was further persuaded by the state‘s additional interest in protecting investors and members who provide financial support to their organization over their objection to or distaste for the corporation‘s majority-political philosophy.160 ―In order to prevent both actual and apparent corruption,‖ the Court concluded, ―Congress aimed a part of its regulatory scheme at corporations, [reflecting a constitutionally warranted] judgment that the special characteristics of the corporate structure require particularly careful regulation.‖161

Limiting Political Party Expenditures (Colorado Republican Federal Campaign Committee v. FEC (Colorado I); FEC v. Colorado Republican Federal Campaign Committee (Colorado II); FEC v. Democratic Senatorial Campaign Committee) In Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado I) ,162 the Supreme Court examined whether the FECA ―Party Expenditure Provision,‖163 which imposed dollar limits on political party expenditures ―in connection with the general election campaign of a [congressional] candidate,‖ was unconstitutionally enforced against a party‘s funding of radio ―attack ads‖ directed against its likely opponent in a federal senatorial election. This case concerned expenditures for radio ads by the Colorado Republican Party (CRP), which attacked the likely Democratic Party candidate in the 1986

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

192

L. Paige Whitaker

senatorial election.164 At the time the ads were purchased and aired, the CRP already transferred to the National Republican Party the full amount of the funds it was permitted to expend ―in connection with‖ senatorial elections under FECA.165 Finding that the CRP exceeded its election spending limits, the FEC noted that the ads were purchased after the fund transfer and found that the expenditure was ―in connection with the campaign of a candidate for federal office.‖166 The CRP challenged the constitutionality of the Party Expenditure Provision‘s ―in connection with‖ language as unconstitutionally vague167 and objected to how the provision was applied in this instance.168 Rendering a narrow holding, the Court found for the CRP on a portion of its ―as applied‖ challenge. The Court‘s ruling turned on whether CRP‘s ad purchase was an ―independent expenditure,‖ a ―campaign contribution‖ or a ―coordinated expenditure.‖169 ―Independent expenditures,‖ the Court noted, do not raise heightened governmental interests in regulation because the money is deployed to advance a political point of view ―independent‖ of a candidate‘s viewpoint.170 Indeed, the Court found that when independent expenditures display little coordination and prearrangement between the payor and a candidate, they alleviate the expenditure‘s corruptive influence on the polity.171 Moreover, the Court stressed that restrictions on independent expenditures ―represent substantial . . . restraints on the quantity and diversity of political speech,‖172 and constrict ―core First Amendment activity.‖173 However, restrictions on ―contributions,‖ which only marginally impair a ―contributor‘s ability to engage in free communication,‖174 do not burden free speech interests to the same degree and decrease the risk that corruptive influences will taint the political process.175 Similarly, ―coordinated expenditures‖ are not as inviolable as ―independent expenditures‖ because they are the functional equivalent of a ―contribution‖ and accordingly, they trigger regulatory interests in staving off real and perceived corruption.176 Given the heightened First Amendment protection of independent expenditures, the Court did ―not see how a provision that limits a political party‘s independent expenditures‖ could withstand constitutional scrutiny.177 The Court held that the CRP‘s ad purchase was an independent expenditure deserving constitutional protection. In categorizing the expenditure, the Court emphasized that at the time of the purchase the Republicans had not nominated a candidate and that the CRP‘s chairman independently developed the script, offering it for review only to the Party‘s staff and the Party‘s executive director.178 Moreover, the Court held that the CRP asserted significant free speech interests because ―independent expression of a political party‘s philosophy is ‗core‘ First Amendment activity. ‖179 According to the Court, the CRP‘s First Amendment interests were not counterbalanced by the state‘s interest in protecting the sanctity of the political process, as restraints on ―party‖ expenditures neither eliminate nor alleviate corruptive pressures on the candidate through an expectation of a quid pro quo.180 The greatest risk for corruption, the Court recognized, resided in the ability of an individual to circumvent the $1,000 restraint on ―individual contributions‖ by making a $20,000 party contribution with the expectation that it will benefit a particular candidate; however, the Court did not believe ―that the risk of corruption here could justify the ‗markedly greater burden on basic freedoms caused by‘ . . . limitations on expenditures.‖181 If anything, the Court remarked, an independent expenditure originating from a $20,000 donation that is controlled by a political party rather than an individual donor would seem less likely to corrupt than a similar independent expenditure made directly by a

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

193

donor.182 Additionally, the Court held that the statute was not overly broad and was narrowly tailored to obtain its compelling interests. In FEC v. Colorado Republican Federal Campaign Committee (Colorado II),183 the Supreme Court ruled 5 to 4 that a political party‘s coordinated expenditures, unlike genuine independent expenditures, may be limited in order to minimizecircumvention of FECA contribution limits. While the Court‘s opinion in Colorado I was limited to the constitutionality of the application of FECA‘s ―Party Expenditure Provision,‖184 to an independent expenditure by the Colorado Republican Party (CRP), in Colorado II the Court considered a facial challenge to the constitutionality of the limit on coordinated party spending. Persuaded by evidence supporting the FEC‘s argument, the Court found that coordinated party expenditures are indeed the ―functional equivalent‖ of contributions.185 Therefore, in its evaluation, the Court applied the same scrutiny to the coordinated ―Party Expenditure Provision‖ that it has applied to other contribution limits, i.e., whether the restriction is ―closely drawn‖ to the ―sufficiently important‖ governmental interest of stemming political corruption.186 The Court further determined that circumvention of the law through ―prearranged or coordinated expenditures amounting to disguised contributions‖ is a ―valid theory of corruption.‖187 In upholding the limit, the Court noted that ―substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law,‖ which, the Court concluded, ―shows beyond serious doubt how contribution limits would be eroded if inducement to circumvent them were enhanced by declaring parties‘ coordinated spending wide open.‖188 Although Federal Election Commission (FEC) v. Democratic Senatorial Campaign Committee (DSCC)189 dealt primarily with issues of statutory construction and application, the Supreme Court‘s rationale is relevant to the extension of Buckley and the First Amendment generally. Specifically, the Court addressed whether 2 U.S.C. § 441a(d) of FECA, which prohibits party committees from making expenditures on behalf of candidates, extends to party expenditures paid on behalf of other state and national party committees. This case arose in connection with the National Republican Senatorial Campaign Committee‘s (NRSC) agency relationship with its state and national party committees, under which the NRSC made various expenditures on behalf of its state and national affiliates.190 The DSCC challenged an FEC interpretation of §441a(d) permitting the NRSC to make such expenditures.191 The Court affirmed the FEC‘s interpretation. Under Buckley, the Court held, inter alia, the FEC‘s interpretation was not inconsistent with the purpose of FECA.192 Agency agreements do not raise the risk of corruption nor the appearance of corruption, spawned by the real or perceived coercive effect of large candidate contributions, so long as the candidate is not a party to the agency relationship.193 Under an agency agreement, contribution limits to candidates apply with equal force when a committee transfers its spending authority to one of its affiliate committees — the agreement does not increase the expenditure of a single additional dollar under FECA.194 Thus, the Court held, non-candidate agency agreements are consistent with Buckley and the purposes of FECA.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

194

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Limiting Political Action Committee Independent Expenditures (FEC v. National Conservative Political Action Committee) In Federal Election Commission (FEC) v. National Conservative Political Action Committee (NCPA C),195 the Supreme Court held that the First Amendment prohibits enforcement of 26 U.S.C. § 9012(f) of FECA, which proscribed any ―committee, association, or organization‖ from making expenditures over $1,000 in furtherance of electing a ―publicly financed‖ presidential candidate. NCPA C arose in connection with President Reagan‘s 1984 bid for reelection, where the Democratic National Committee sought an injunction under § 9012(f) against NCPAC from expending ―large sums of money‖ to support President Reagan‘s publicly funded campaign.196 NCPAC, an ideological multicandidate political committee, argued that § 90 12(f) unduly burdened its First Amendment interests in free expression and free association, as its expenditures were protected as ―independent expenditures.‖197 NCPAC intended to raise and expend money for the purposes of running radio and television ads to encourage voters to elect Reagan. Holding § 9012(f) unconstitutional, the Court found that the expenditure limitation burdened NCPAC‘s ―core‖ First Amendment speech, that it was supported by a comparatively weak state interest, and that it was fatally over-inclusive. The Court noted that in Buckley it had upheld expenditure restrictions on individual and political advocacy associations; however, in this case, the fact that NCPAC‘s expenditures were not made in coordination with the candidate supplied the distinguishing key opening the door to First Amendment protection. In sum, a regulation may not burden a non-candidate‘s First Amendment rights based on whether a candidate accepts or does not accept public funds. The Court first determined whether NCPAC was entitled to First Amendment protection. After interpreting the statute as proscribing NCPAC‘s expenditures, the Court concluded that the proscription burdened speech ―of the most fundamental First Amendment activities, [as the discussion of] public issues and debate on the qualification of candidates [is] integral to [a democratic form of governance.]‖198 While the statute did not exact a prior restraint on NCPAC‘s political speech, the Court held that limiting their expenditures to no more than $1,000 in today‘s sophisticated (and expensive) media market was akin to ―allowing a speaker in a public hall to express his views while denying him the use of an amplifying system.‖199 The Court then rejected the argument that NCPAC‘s organizational structure eroded its First Amendment liberty interests. Associational values and class consciousness pervaded the Court‘s reasoning. For example, the Court stressed that political committees are ―mechanisms by which large numbers of individuals of modest means can join together in organizations which serve to ‗amplify the voice of [the committee‘s] adherents.‘‖200 Moreover, the Court did not find that individuals were speaking through a political committee constitutionally significant: ―to say that . . . collective action in pooling ... resources to amplify [a political perspective] is not entitled to full First Amendment would [unduly disadvantage those of modest means].‖201 The Court distinguished its holding in National Right to Work Committee,202 which upheld a FECA regulation of corporations and unions by virtue of their unique organizational structure, and noted that ―organizational structure‖ is irrelevant to its facial analysis of § 9012(f) because the statute equally burdens informal groups who raise and expend money in support of federally funded presidential candidates.203

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

195

After concluding that NCPAC‘s First Amendment liberties were burdened by § 9012(f), the Court evaluated the state‘s regulatory interests and asked whether the section was narrowly tailored to reach those interests. The state‘s interests in alleviating the specter of corruption through a regulation which proscribes uncoordinated, independent expenditures by informal and formal organizations were not compelling to the Court as ―independent expenditures may well provide little assistance to the candidate‘s campaign and indeed may prove counter productive.‖ As such, the Court held that low probability of truly independent expenditures materializing into a political debt owed by the candidate to an independent speaker significantly undermined the state‘s asserted interest in deterring actual and perceived corruption. Entertaining the state‘s contention that the ability of political committees to amass large pools of funds increase the risk of corruption tainting the political process, the Court held that § 9012(f) was fatally over-inclusive, as it included within its scope informal groups that barely clear the $1,000 limitation.204

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Limiting Expenditures by Candidates (Randall v. Sorrell) In Randall v. Sorrell,205 the Supreme Court struck down as unconstitutional a Vermont statute imposing expenditure limits on state office candidates. The expenditure limits imposed were approximately $300,000 for governor, $100,000 for lieutenant governor, $45,000 for other statewide offices, $4,000 for state senate, and $3,000 for state representative, all of which were adjusted for inflation in odd-numbered years.206 In support of such statutory expenditure limits, the State of Vermont proffered that they were justified by the state interest in reducing the amount of time that candidates spend raising money. That is, according to a brief filed by Vermont Attorney General Sorrell, absent expenditure limits, increased campaign costs — coupled with the fear of running against an opponent having more funds — means that candidates need to spend more time fundraising instead of engaging in public debate and meeting with voters. Supporters of the law further argued that, in Buckley, the Court did not consider this time-saving rationale and had it done so, it would have upheld FECA‘s expenditure limitations back in 1976.207 While unable to reach consensus on a single opinion, six justices of the Supreme Court agreed that First Amendment free speech guarantees were violated by the Vermont expenditure limits. Announcing the Court‘s judgment and delivering an opinion, which was joined by Chief Justice Roberts and Justice Alito, Justice Breyer found that there was not a significant basis upon which to distinguish the expenditure limits struck down in Buckley from the expenditure limits at issue in Randall. According to Justice Breyer, it was ―highly unlikely that fuller consideration of ... [the] time protection rationale would have changed Buckley‟s result.‖208 In Buckley, the Court recognized the link between expenditure limits and a reduction in the time needed by a candidate for fundraising, but nonetheless struck down spending limits as unconstitutional.209 Therefore, Justice Breyer‘s opinion concluded, given Buckley‟s continued authority, the Court must likewise strike down Vermont‘s expenditure limits as violating the First Amendment.210

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

196

L. Paige Whitaker

DISCLOSURE REQUIREMENTS This section analyzes Supreme Court opinions decided subsequent to Buckley in which the Court evaluated the constitutionality of disclosure requirements. The first line of cases clarifies the scope of Buckley‘s general rule, upholding liberal disclosure requirements. In Buckley v. American Constitutional Law Foundation (ACLF),211 the Court struck down a regulation prescribing, among other things, ―payee‖ disclosure in connection with a ballot initiative. Moreover, in Brown v. Socialist Workers „74 Campaign Committee,212 the Court struck down a state disclosure requirement as applied to a minority party that had historically been the object of harassment and discrimination in the public and private sectors. In the second regulatory context, the Court in Federal Election Commission v. Akins213 was presented with the question of whether certain ―political committees,‖ without the primary purpose of electing candidates, must nonetheless disclose under FECA. The Court, however, did not issue a holding on this issue.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Requiring Reporting and Disclosure (Buckley v. American Constitutional Law Foundation; Brown v. Socialist Workers „74 Campaign Committee; FEC v. Akins) Reviewing a First Amendment privacy of association and belief claim, the Supreme Court in Buckley v. American Constitutional Law Foundation (ACLF)214 examined the facial validity of a Colorado ballot-initiative statute requiring initiative- sponsors to provide ―detailed, monthly disclosures‖ of the name, address, and amount paid and owed to their petition-circulators.215 Colorado affords its citizens many ―law-making‖ opportunities by placing initiatives on election ballots for public ratification.216 A non-profit organization founded to promote the tradition of ―direct democracy‖ challenged the facial validity of the state‘s statute regulating the initiative-petition process, alleging, inter alia, that the regulation‘s disclosure requirement burdened citizens‘ associational and speech interests.217 Colorado did not dispute that the regulation burdened expressive activity,218 but asserted regulatory interests in disseminating information concerning the distribution of capital tied to initiative campaigns.219 Colorado asserted that the regulation promotes ―informed public decision-making,‖ and deters actual and perceived corruption.220 Unimpressed with Colorado‘s interests, the ACLF Court upheld the lower court‘s decision,221 finding the disclosure requirement unconstitutional. Under Buckley, the Court determined that ―exacting scrutiny‖ is necessary where, as here, a regulation compels the disclosure of campaign related payments.222 After noting the state‘s interest in regulation, the Court examined the fit between the proposed statutory remedy and its requirements.223 As the lower court did not strike down the regulation in toto, but upheld the state‘s requirements for payor disclosure, the electorate had access to information about who proposed an initiative and who funded the circulation of the initiative.224 The added ―informational‖ benefit of requiring payee disclosure was not supported by the record and would be de minimis at best, held the Court.225 The Court further noted that, as Meyer v. Grant226 demonstrates, the risk of quid pro quo corruption, while common in candidate elections, is not as great in ballot initiatives because there is no corrupting object present, especially at the time of petition.227

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

197

Ergo, the Court held that while compelling state interests motivated Colorado‘s regulatory régime, the link between ―payee‖ disclosures and the state‘s interests was too tenuous to warrant First Amendment infringement.228 In Brown v. Socialist Workers „74 Campaign Committee,229 the Supreme Court considered whether a state disclosure requirement was constitutionally applied, under the Fourteenth Amendment‘s liberty interest in free speech and association, to a minority political party that historically had been the object of harassment and discrimination in the public and private sectors. The Court reviewed a state disclosure law requiring candidates to report the names and addresses of contributors and recipients of campaign funds.230 The principal plaintiff, a small political party operating in the socialist tradition, sought and obtained a restraining order against enforcement of the requirement and challenged the constitutionality of the statute as applied to its fundraising and expenditure activities.231 Agreeing with the plaintiff, the Court upheld the constitutional challenge. This was a fact intensive holding. The Brown Court affirmed Buckley‘s prohibition on compelled disclosures where contributors would be subject to a reasonable probability of threats, harassment, or reprisals by virtue of their support of a currently and historically suspect political organization.232 The Court extended Buckley to protect recipients of campaign contributions.233 Affording the plaintiff ―sufficient flexibility‖ in the proof of injury, the Court found ―substantial evidence‖ to support the contention that compliance with the disclosure requirement would subject both contributors and recipients of campaign funds to the risk of threats, harassment, or reprisals.234 Plaintiff‘s showing of current hostility by government and private parties included threatening phone calls, hate mail, burning of party literature, dismissal from employment due to member‘s political affiliation, destruction of the membership‘s property, harassment of the party‘s candidate, and the firing of gunshots at the party‘s offices.235 Plaintiff also developed a factual record of historic discrimination and hostility against the party and its membership.236 From this expansive record, the Court found that the plaintiffs established a ―reasonable probability‖ that acts of discrimination, threats, reprisals, and hostility would continue in the future.237 Therefore, the Court held that the disclosure requirement was unconstitutional as applied to the plaintiffs‘ political committees.238 In Federal Election Commission (FEC) v. Akins,239 the Supreme Court did not issue a holding on whether ―an organization that otherwise satisfies the [FECA‘s] definition of ‗political committee,‘ and thus is subject to its disclosure requirements, nonetheless falls outside that definition because ‗its major purpose‘ is not ‗the nomination or election of candidates.‘‖240 However, the Court reiterated that ―political committees,‖ for the purposes of FECA, refer to organizations under the ―control of a candidate‖ or with the major purpose of nominating or electing a candidate to political office.

Requiring Attribution Disclosure by Individuals Distributing Leaflets in Issue-Based Elections (McIntyre v. Ohio Elections Commission) In McIntyre v. Ohio Elections Commission,241 the Supreme Court further defined the universe of permissible disclosure requirements when it struck down an Ohio election law, which prohibited the distribution of anonymous campaign literature and required attribution

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

198

L. Paige Whitaker

disclosure of the name of the literature‘s author on all distributed campaign material. McIntyre arose in relation to a school tax levy, where a parent published and distributed anonymous campaign leaflets opposing the tax measure.242 The Court held that the statute violated the parent‘s liberty interest in free speech under the First Amendment as incorporated by the Fourteenth Amendment.243 As the statute burdened the parent‘s First Amendment interest in anonymous pamphleteering — ―an honorable tradition of advocacy and dissent‖ in U.S. political history — the Court applied exacting scrutiny to the regulation.244 The Court construed the First Amendment interest in anonymity as ―a shield from the tyranny of the majority. . . . [exemplifying] the purpose behind the Bill of Rights and of the First Amendment in particular, [which protects] unpopular individuals from retaliation and their ideas from suppression at the hand of an intolerant society.‖245 The Court recalled, for example, that the Federalist Papers were published under fictitious names.246 Balanced against the parent‘s interests in anonymous publishing, the Court acknowledged Ohio‘s interest in preventing the dissemination of fraudulent and libelous statements and in providing voters with information on which to evaluate the message‘s worth. However, the Court found that the state‘s interests were not served by a ban on anonymous publishing because it had a number of regulations designed to prevent fraud and libel and because a person‘s name has little significance to evaluating the normative weight of a speaker‘s message.247 Thus, the Court held that the statute was not narrowly tailored to serve its regulatory interests and therefore, struck it down. The McIntyre Court specifically found that neither Bellotti nor Buckley were controlling in the McIntyre case: Bellotti concerned the scope of First Amendment protection afforded to corporations and the relevant portion of the Buckley opinion concerned mandatory disclosure of campaign expenditures.248 Neither case involved a prohibition of anonymous campaign literature. In Buckley, the Court noted, it had stressed the importance of providing the electorate with information regarding the origin of campaign funds and how candidates spend those funds, but that such information had no relevance to the kind of ―independent activity‖ in the case of McIntyre. ―Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application in this case,‖ the Court stated.249 Moreover, the Court found that independent expenditure disclosure above a certain threshold, which the Court upheld in Buckley,250 although clearly impeding First Amendment activity, is a ―far cry from compelled self-identification on all election-related writings.‖ An election related document, particularly a leaflet, is often a personally crafted statement of a political viewpoint and as such, compelled identification is particularly intrusive, according to the Court. In contrast, the Court found, expenditure disclosure, reveals far less information; that is, ―even though money may ‗talk,‘ its speech is less specific, less personal, and less provocative than a handbill — and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation.‖251 Further distinguishing Buckley, the McIntyre Court found that not only is a prohibition on anonymous campaign literature more intrusive than the disclosure requirements upheld in Buckley, but it rests on ―different and less powerful state interests.‖252 The Federal Election Campaign Act (FECA), at issue in Buckley, regulates only candidate elections, not referenda or other issue-based elections, and the Buckley Court had construed ―independent expenditures‖ to only encompass those expenditures that ―expressly advocate the election or defeat of a clearly identified candidate.‖253 Unlike candidate elections, where the government

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

199

can identify a compelling governmental interest of avoiding quid pro quo candidate corruption, issue based elections do not present such a risk and hence, the Court ruled, the government cannot justify such an intrusion on free speech.254

POLITICAL PARTY SOFT MONEY AND ELECTIONEERING COMMUNICATION RESTRICTIONS

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

McConnell v. FEC In its most comprehensive campaign finance ruling since Buckley v. Valeo, the Supreme Court in its 2003 decision, McConnell v. FEC,255 upheld against facial constitutional challenges key portions of the Bipartisan Campaign Reform Act of 2002 (BCRA),256 also known as the McCain-Feingold or Shays-Meehan campaign finance reform law. In McConnell, a 5-to-4 majority of the Court upheld restrictions on the raising and spending of previously unregulated political party soft money and a prohibition on corporations and labor unions using treasury funds to finance ―electioneering communications,‖ requiring that such ads may only be paid for with corporate and labor union political action committee (PAC) funds. The Court invalidated BCRA‘s requirement that parties choose between making independent expenditures or coordinated expenditures on behalf of a candidate and its prohibition on minors age 17 and under making campaign contributions. By a 5-to-4 vote, the McConnell Court upheld two critical BCRA provisions, Titles I and II, against facial constitutional challenges. In the majority opinion, coauthored by Justices Stevens and O‘Connor and joined by Justices Souter, Ginsburg, and Breyer, the Court upheld the limits on raising and spending previously unregulated political party soft money (Title I), and the prohibition on corporations and labor unions using treasury funds — which is unregulated soft money — to finance directly electioneering communications (Title II). In upholding BCRA‘s ―two principal, complementary features,‖ the Court readily acknowledged that it is under ―no illusion that BCRA will be the last congressional statement on the matter‖ of money in politics. The Court observed, ―money, like water, will always find an outlet.‖ Hence, campaign finance issues that will inevitably arise and the corresponding legislative responses from Congress ―are concerns for another day.‖257

Restricting Political Party Soft Money Title I of BCRA prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money.258 As the Court noted, Title I takes the national parties ―out of the soft-money business.‖259 In addition, Title I prohibits state and local party committees from using soft money for activities that affect federal elections; prohibits parties from soliciting for and donating funds to tax-exempt organizations that spend money in connection with federal elections; prohibits federal candidates and officeholders from receiving, spending, or soliciting soft money in connection with federal elections and restricts their ability to do so in connection with state and local elections; and prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and local candidates from raising and spending soft money to fund advertisements and other public communications that promote or attack federal candidates.260

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

200

L. Paige Whitaker

Plaintiffs challenged Title I based on the First Amendment as well as Art. I, § 4 of the U.S. Constitution, principles of federalism, and the equal protection component of the Due Process Clause of the 1 4th Amendment. The Court upheld the constitutionality of all provisions in Title I, finding that its provisions satisfy the First Amendment test applicable to limits on campaign contributions: they are ―closely drawn‖ to effect the ―sufficiently important interest‖ of preventing corruption and the appearance of corruption. Rejecting plaintiff‘s contention that the BCRA restrictions on campaign contributions must be subject to strict scrutiny in evaluating the constitutionality of Title I, the Court applied the less rigorous standard of review — ―closely drawn‖ scrutiny. Citing its landmark 1976 decision Buckley v. Valeo and its progeny, the Court noted that it has long subjected restrictions on campaign expenditures to closer scrutiny than limits on contributions in view of the comparatively ―marginal restriction upon the contributor‘s ability to engage in free communication‖ that contribution limits entail.261 The Court observed that its treatment of contribution limits is also warranted by the important interests that underlie such restrictions, i.e. preventing both actual corruption threatened by large dollar contributions as well as the erosion of public confidence in the electoral process resulting from the appearance of corruption.262 The Court determined that the lesser standard shows ―proper deference to Congress‘ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise.‖263 Finally, the Court recognized that during its lengthy consideration of BCRA, Congress properly relied on its authority to regulate in this area, and hence, considerations of stare decisis as well as respect for the legislative branch of government provided additional ―powerful reasons‖ for adhering to the treatment of contribution limits that the Court has consistently followed since 1976.264 Responding to plaintiffs‘ argument that many of the provisions in Title I restrict not only contributions but also the spending and solicitation of funds that were raised outside of FECA‘s contribution limits, the Court determined that it is ―irrelevant‖ that Congress chose to regulate contributions ―on the demand rather than the supply side.‖ Indeed, the relevant inquiry is whether its mechanism to implement a contribution limit or to prevent circumvention of that limit burdens speech in a way that a direct restriction on a contribution would not. The Court concluded that Title I only burdens speech to the extent of a contribution limit: it merely limits the source and individual amount of donations. Simply because Title I accomplishes its goals by prohibiting the spending of soft money does not render it tantamount to an expenditure limitation.265 In his dissent, Justice Kennedy criticized the majority opinion for ignoring established constitutional bounds and upholding a campaign finance statute that does not regulate actual or apparent quid pro quo arrangements.266 According to Justice Kennedy, Buckley clearly established that campaign finance regulation that restricts speech, without requiring proof of specific corrupt activity, can only withstand constitutional challenge if it regulates conduct that presents a ―demonstrable quid pro quo danger.‖ The McConnell Court, however, interpreted the anti-corruption rationale to allow regulation of not only ―actual or apparent quid pro quo arrangements,‖ but also of ―any conduct that wins goodwill from or influences a Member of Congress.‖ Justice Kennedy further maintained that the standard established in Buckley defined undue influence to include the existence of a quid pro quo involving an officeholder, while the McConnell Court, in contrast, extended the Buckley standard of undue influence to encompass mere access to an officeholder. Justice Kennedy maintained that the

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

201

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Court, by legally equating mere access to officeholders to actual or apparent corruption of officeholders, ―sweeps away all protections for speech that lie in its path.‖267 Unpersuaded by Justice Kennedy‘s dissenting position that Congress‘s regulatory interest is limited to the prevention of actual or apparent quid pro quo corruption ―inherent in‖ contributions made to a candidate, the Court found that such a ―crabbed view of corruption‖ and specifically the appearance of corruption ―ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.‖268 According to the Court, equally problematic as classic quid pro quo corruption, is the danger that officeholders running for reelection will make legislative decisions in accordance with the wishes of large financial contributors, instead of deciding issues based on the merits or constituent interests. Since such corruption is neither easily detected nor practical to criminalize, the Court reasoned, Title I offers the best means of prevention, i.e., identifying and eliminating the temptation.269

Prohibiting Corporate and Labor Union Treasury Fund Financing of Electioneering Communications Title II of BCRA created a new term in FECA, ―electioneering communication,‖ which is defined as any broadcast, cable, or satellite communication that ―refers‖ to a clearly identified federal candidate, is made within 60 days of a general election or 30 days of a primary, and if it is a House or Senate election, is targeted to the relevant electorate.270 Title II prohibits corporations and labor unions from using their general treasury funds (and any persons using funds donated by a corporation or labor union) to finance electioneering communications. Instead, the statute requires that such ads may only be paid for with corporate and labor union political action committee (PAC) regulated hard money.271 The Court upheld the constitutionality of this provision. In Buckley v. Valeo, the Court construed FECA‘s disclosure and reporting requirements, as well as its expenditure limitations, to apply only to funds used for communications that contain express advocacy of the election or defeat of a clearly identified candidate.272 After Buckley, many lower courts had interpreted the decision to stand for the proposition that communications must contain express terms of advocacy, such as ―vote for‖ or ―vote against,‖ in order for regulation of such communications to pass constitutional muster under the First Amendment. Absent express advocacy, lower courts had held, a communication is considered issue advocacy, which is protected by the First Amendment and therefore may not be regulated. Effectively overturning such lower court rulings, the Supreme Court in McConnell held that neither the First Amendment nor Buckley prohibits BCRA‘s regulation of ―electioneering communications,‖ even though electioneering communications, by definition, do not necessarily contain express advocacy. The Court determined that when the Buckley Court distinguished between express and issue advocacy it did so as a matter of statutory interpretation, not constitutional command. Moreover, the Court announced that by narrowly reading FECA provisions in Buckley to avoid problems of vagueness and overbreadth, it ―did not suggest that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line.‖273 ―[T]he presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad,‖ the Court observed.274

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

202

L. Paige Whitaker

In response to plaintiffs maintaining that the justifications supporting the regulation of express advocacy do not apply to communications covered by the definition of ―electioneering communication,‖ the Court found that the argument failed to the extent that issue ads broadcast during the 30- and 60-day periods prior to primary and general elections are the ―functional equivalent‖ of express advocacy.275 The Court reasoned that the justifications for the regulation of express advocacy ―apply equally‖ to ads broadcast during those periods if the ads have the intent and effect of influencing elections. Based on the evidentiary record, the Court determined that the vast majority of such ads ―clearly had such a purpose.‖276 While Title II prohibits corporations and labor unions from using their general treasury funds for electioneering communications, the Court observed that they are still free to use separate segregated funds (PACs) to run such ads. Therefore, the Court concluded that it is erroneous to view this provision of BCRA as a ―complete ban‖ on expression rather than simply a regulation.277 Further, the Court found that the regulation is not overbroad because the ―vast majority‖ of ads that are broadcast within the electioneering communication time period (60 days before a general election and 30 days before a primary) have an electioneering purpose.278 The Court also rejected plaintiffs‘ assertion that the segregated fund requirement for electioneering communications is under-inclusive because it only applies to broadcast advertisements and not print or internet communications. Congress is permitted, the Court determined, to take one step at a time to address the problems it identifies as acute. With Title II of BCRA, the Court observed, Congress chose to address the problem of corporations and unions using soft money to finance a ―virtual torrent of televised election-related ads‖ in recent campaigns.279 In his dissent, Justice Kennedy criticized the majority for permitting ―a new and serious intrusion on speech‖ by upholding the prohibition on corporations and unions using general treasury funds to finance electioneering communications. Finding that this BCRA provision ―silences political speech central to the civic discourse that sustains and informs our democratic processes,‖ the dissent further noted that unions and corporations ―now face severe criminal penalties for broadcasting advocacy messages that ‗refer to a clearly identified candidate‘ in an election season.‖280 In upholding BCRA‘s extension of the prohibition on using treasury funds for financing electioneering communications to non-profit corporations, the McConnell Court found that even though the statute does not expressly exempt organizations meeting the criteria established in its 1986 decision in FEC v. Massachusetts Citizens for Life (MCFL),281 it is an insufficient reason to invalidate the entire section. Since MCFL had been established Supreme Court precedent for many years prior to enactment of BCRA, the Court assumed that when Congress drafted this section of BCRA, it was well aware that this provision could not validly apply to MCFL-type entities.282

Requiring Sponsors of Election-Related Advertisements to Self-Identify (“Stand-ByYour-Ad Provision”) By an 8-to-1 vote, the Court upheld Section 311 of BCRA, which requires that general public political ads that are ―authorized‖ by a candidate clearly indicate that the candidate or the candidate‘s committee approved the communication.283 Rejecting plaintiffs‘ assertion that this provision is unconstitutional, the Court found that this provision ―bears a sufficient

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

203

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

relationship to the important governmental interest of ‗shedding the light of publicity‘ on campaign financing.‖284

Requiring Political Parties to Choose between Coordinated and Independent Expenditures after Nominating a Candidate By a 5-to-4 vote, the Court invalidated BCRA‘s requirement that political parties choose between coordinated and independent expenditures after nominating a candidate,285 finding that it burdens the right of parties to make unlimited independent expenditures.286 Specifically, Section 213 of BCRA287 provides that, after a party nominates a candidate for federal office, it must choose between two spending options. Under the first option, a party that makes any independent expenditure is prohibited from making any coordinated expenditure under this section of law; under the second option, a party that makes any coordinated expenditure under this section of law — one that exceeds the ordinary $5,000 limit — cannot make any independent expenditure with respect to the candidate. FECA, as amended by BCRA, defines ―independent expenditure‖ to mean an expenditure by a person ―expressly advocating the election or defeat of a clearly identified candidate‖ and that is not made in cooperation with such candidate.288 According to the McConnell Court, the regulation presented by Section 213 of BCRA ―is much more limited than it initially appears.‖ A party that wants to spend more than $5,000 in coordination with its nominee is limited to making only independent expenditures that contain the magic words of express advocacy. Although the Court acknowledges that ―while the category of burdened speech is relatively small,‖ it is nonetheless entitled to protection under the First Amendment. Furthermore, the Court determined that under Section 213, a party‘s exercise of its constitutionally protected right to engage in free speech results in the loss of a longstanding valuable statutory benefit. Hence, to pass muster under the First Amendment, the provision ―must be supported by a meaningful governmental interest‖ and, the Court announced, the interest in requiring parties to avoid the use of magic words does not suffice.289 Prohibiting Campaign Contributions by Minors Age 17 and Under By a unanimous vote, the Court invalidated Section 318 of BCRA, which prohibited individuals age 17 or younger from making contributions to candidates and political parties.290 Determining that minors enjoy First Amendment protection and that contribution limits impinge on such rights, the Court determined that the prohibition is not ―closely drawn‖ to serve a ―sufficiently important interest.‖291 In response to the government‘s assertion that the prohibition protects against corruption by conduit — that is, parents donating through their minor children to circumvent contribution limits — the Court found ―scant evidence‖ to support the existence of this type of evasion. Furthermore, the Court postulated that such circumvention of contribution limits may be deterred by the FECA provision prohibiting contributions in the name of another person and the knowing acceptance of contributions made in the name of another person.292 Even assuming, arguendo, that a sufficiently important interest could be provided in support of the prohibition, the Court determined that it is over-inclusive. According to the Court, various states have found more-tailored approaches to address this issue, for example, counting contributions by minors toward the total permitted for a parent or family unit,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

204

L. Paige Whitaker

imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. The Court, however, expressly declined to decide whether any alternatives would pass muster.293

Establishing Staggered Increases in Contribution Limits if Opponent Spends Certain Amount in Personal Funds (“Millionaire Provisions”): Challengers Held to Lack Standing By a unanimous vote, the Court determined that the challenges to Sections 304, 316, and 319 of BCRA, also known as the ―millionaire provisions,‖ were properly dismissed by the district court due to lack of standing.294 The millionaire provisions, which therefore remain in effect, provide for a series of staggered increases in otherwise applicable limits on contributions to candidates if a candidate‘s opponent spends a certain amount in personal funds on his or her own campaign.295

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Supreme Court Deference to Congressional Findings A notable aspect of the Supreme Court‘s ruling in McConnell v. FEC is the extent to which the majority of the Court deferred to Congressional findings and used a pragmatic rationale in upholding BCRA. According to the Court, the record before it was replete with perceived problems in the campaign finance system, circumstances creating the appearance of corruption, and Congress‘s proposal to address these issues. As the Court remarked at one point, its decision showed ―proper deference‖ to Congress‘s determinations ―in an area in which it enjoys particular expertise.‖296 Furthermore, ―Congress is fully entitled,‖ the Court observed, ―to consider the real- world‖ as it determines how best to regulate in the political sphere.297

Wisconsin Right to Life, Inc. v. FEC (WRTL II) Ruling 5 to 4, the Supreme Court in its 2007 decision Wisconsin Right to Life, Inc. v. FEC (WRTL II)298 found that a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA), prohibiting corporate or labor union treasury funds from being spent on advertisements broadcast within 30 days of a primary or 60 days of a general election, was unconstitutional as applied to ads that Wisconsin Right to Life, Inc. sought to run. While not expressly overruling its 2003 ruling in McConnell v. FEC, which upheld the BCRA provision against a First Amendment facial challenge, the Court limited the law‘s application. Specifically, it ruled that advertisements that may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate are not the functional equivalent of express advocacy, and therefore, cannot be regulated. Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)299 prohibits corporate or labor union treasury funds from being spent for ―electioneering communications.‖ BCRA defines ―electioneering communication‖ as any broadcast, cable, or satellite transmission made within 30 days of a primary or 60 days of a general election (sometimes referred to as the ―blackout periods‖) that refers to a candidate for federal office and is targeted to the relevant electorate.300 In McConnell v. Federal Election Commission (FEC),301 the Supreme Court had upheld Section 203 of BCRA against a First Amendment

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

205

facial challenge even though the provision regulates not only campaign speech or ―express advocacy,‖ (speech that expressly advocates the election or defeat of a clearly identified candidate), but also ―issue advocacy,‖ (speech that discusses public policy issues, while also mentioning a candidate). Specifically, the Court determined that the speech regulated by Section 203 was the ―functional equivalent‖ of express advocacy.302 In July 2004, Wisconsin Right to Life (WRTL), a corporation that accepts contributions from other corporations, began broadcasting advertisements exhorting viewers to contact Senators Feingold and Kohl to urge them to oppose a Senate filibuster to delay and block consideration of federal judicial nominations. WRTL planned to run the ads throughout August 2004 and to finance them with its general treasury funds, thereby running afoul of Section 203, as such ads would have been broadcast within the 30 day period prior to the September 14, 2004, primary. Anticipating that the ads would be illegal ―electioneering communications,‖ but believing that they nevertheless had a First Amendment right to broadcast them, WRTL filed suit against the FEC, seeking declaratory and injunctive relief and alleging that Section 203‘s prohibition was unconstitutional as applied to the ads and any future ads that they might plan to run. Just prior to the BCRA 30-day blackout period, a three-judge district court denied a preliminary injunction, finding that McConnell v. FEC left no room for such an ―as-applied‖ challenge. Accordingly, WRTL did not broadcast its ads during the blackout period, and the district court subsequently dismissed the complaint in an unpublished opinion. On appeal, in Wisconsin Right to Life, Inc. v. FEC (WRTL I),303 the Supreme Court vacated the lower court judgment, finding that by upholding Section 203 against a facial challenge in McConnell, ―we did not purport to resolve future as-applied challenges.‖304 On remand, after permitting four Members of Congress to intervene as defendants, the three-judge district court granted WRTL summary judgment, determining that Section 203 was unconstitutional as applied to WRTL‘s ads.305 It concluded that the ads were genuine issue ads, not express advocacy or its ―functional equivalent‖ under McConnell, and held that no compelling interest justified their regulation.306 The FEC appealed.

Prohibiting Corporate and Labor Union Treasury Fund Financing of Electioneering Communications Affirming the lower court ruling, the Supreme Court in Wisconsin Right to Life, Inc. v. FEC (WRTL II)307 determined that Section 203 of BCRA was unconstitutional as applied to the WRTL ads, and that they should have been permissible to broadcast. In a plurality opinion, written by Chief Justice Roberts, joined by Justice Alito — Justice Scalia wrote a separate concurrence, joined by Justices Kennedy and Thomas308 — the Court announced that ―[b]ecause WRTL‘s ads may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate, we hold they are not the functional equivalent of express advocacy, and therefore, fall outside the scope of McConnell‟s holding.‖309 In determining the threshold question, as the Court found was required by McConnell, of whether the ads were the ―functional equivalent‖ of speech expressly advocating the election or defeat of a candidate for federal office or genuine issue advocacy, the Court observed that it had long recognized that the practical distinction between campaign advocacy and issue advocacy can often dissolve because candidates, particularly incumbents, ―are intimately tied to public issues involving legislative proposals and governmental actions.‖310 Nonetheless,

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

206

L. Paige Whitaker

the Court stated, its jurisprudence in this area requires it to make such a distinction, and ―[i]n drawing that line, the First Amendment requires ... err[ing] on the side of protecting political speech rather than suppressing it.‖311 The FEC argued that in view of the fact that McConnell had already held that Section 203 was facially valid, WRTL — and not the government — should bear the burden of demonstrating that BCRA is unconstitutional as applied to its ads.312 Rejecting the FEC‘s contention, the Court pointed out that Section 203 burdens political speech and is therefore subject to strict scrutiny.313 Under strict scrutiny, the Court determined that the FEC — not the regulated community — had the burden of proving that the application of Section 203 to WRTL‘s ads furthered a compelling interest, and was narrowly tailored to achieve that interest.314 As it had already ruled in McConnell that Section 203 ―survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent,‖ the Court found that in order to prevail, the FEC needed to show that the WRTL ads it sought to regulate fell within that category.315 On the other hand, if the speech that the FEC sought to regulate is not express advocacy or its functional equivalent, the Court cautioned that the FEC‘s task is ―more formidable‖ because it must demonstrate that banning such ads during the blackout periods is narrowly tailored to serve a compelling governmental interest, a conclusion that no precedent has reached.316 In response to the FEC‘s and the dissent‘s317 argument that McConnell had established a test for determining whether an ad is the functional equivalent of express advocacy, that is, ―whether the ad is intended to influence elections or has that effect,‖ the Court disagreed, finding that it had not adopted any type of test as the standard for future as-applied challenges.318 Instead, the Court found that its analysis in McConnell was grounded in the evidentiary record, particularly studies showing that the BCRA definition of ―Electioneering Communications accurately captures ads having the purpose or effect of supporting candidates for election to office.‖319 Hence, when the McConnell Court made its assessment that the plaintiffs in that case had not sufficiently proven that Section 203 was overbroad and could not be enforced in any circumstance, it did not adopt a particular test for determining what constituted the ―functional equivalent‖ of express advocacy. Indeed, the Court held, the fact that in McConnell it looked to such intent and effect ―neither compels nor warrants accepting that same standard as the constitutional test for separating, in an as-applied challenge, political speech protected under the First Amendment from that which may be banned.‖320 Accordingly, the Court turned to establishing the proper standard for an as- applied challenge to Section 203 of BCRA, finding that such a standard ―must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect,‖ involving ―minimal if any discovery‖ so that parties can resolve disputes ―quickly without chilling speech through the threat of burdensome litigation,‖ and eschewing ―‗the open-ended rough-and-tumble of factors,‘ which ‗invit[es] complex argument in a trial court and a virtually inevitable appeal.‘‖321 In summation, the Court announced that the standard ―must give the benefit of any doubt to protecting rather than stifling speech.‖322 Taking such considerations into account, the Court held that [A] Court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL‘s three ads are plainly not the functional

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo…

207

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate‘s character, qualifications, or fitness for office.323

Moreover, the Court cautioned, contextual factors ―should seldom play a significant role in the inquiry.‖ Although courts are not required to ignore basic background information that provides relevant contextual information about an advertisement — such as whether the ad describes a legislative issue that is under legislative consideration — the Court found that such background information ―should not become an excuse for discovery.‖324 In applying the standard it developed for as-applied challenges to the ads that WRTL sought to broadcast, the Court determined that the FEC had failed to demonstrate that such ads constituted the functional equivalent of express advocacy because they could reasonably be interpreted as something other than a vote for or against a candidate. The Court‘s established jurisprudence has recognized the governmental interest in preventing corruption and the appearance of corruption in elections, which has been invoked in order to justify contribution limits and, in certain circumstances, spending limits on electioneering expenditures that pose the risk of quid pro quo corruption. In McConnell, the Court noted, it had applied this interest in justifying the regulation of express advocacy and its functional equivalent, but in order to justify regulating WRTL‘s ads, ―this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy.‖325 In strongly worded opposition to extending the application of this governmental interested yet again, the Court announced, ―Enough is enough.‖ The WRTL ads are not equivalent to contributions — they are political speech — and the governmental interest in avoiding quid pro quo corruption cannot be used to justify their regulation.326 The Court also announced that the discussion of issues cannot be suppressed simply because the issues may also be relevant to an election: ―Where the First Amendment is implicated, the tie goes to the speaker, not the censor.‖327 While the ultimate impact and aftermath of the Supreme Court‘s decision in WRTL II remains to be seen, application of the federal law prohibiting corporate and labor union treasury funds from being spent on ads that are broadcast 30 days before a primary and 60 days before a general election has been limited. As a result of this ruling, only ads that are susceptible of no reasonable interpretation other than an exhortation to vote for or against a candidate can be regulated. While the Court‘s ruling was careful not to overrule explicitly its earlier upholding of this portion of the Bipartisan Campaign Reform Act (BCRA) in its 2003 decision, McConnell v. FEC, WRTL II seems to indicate that the FEC‘s ability to regulate the electioneering communication ban has nonetheless been circumscribed.

CONCLUSION In the landmark 1976 decision, Buckley v. Valeo, the Supreme Court established the constitutional framework for campaign finance regulation and in numerous subsequent decisions, extended its holding. Although it has provided much guidance with regard to the constitutionality of various aspects of campaign finance regulation, the Court‘s jurisprudence

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

208

L. Paige Whitaker

in this area continues to evolve and many questions remain unanswered. While awaiting further guidance from the Court, those proposing or evaluating campaign finance legislation rely on Buckley and its progeny for constitutional direction.

End Notes 1

Roth v. United States, 354 U.S. 476, 484 (1957). 424 U.S. 1 (1976). 3 For example, in a line of cases involving the regulation of corporations, the Court endeavored to resolve whether the First Amendment‘s value for open debate by diverse participants permits the government to impose regulations designed to promote fairness and prevent corporate monopolization of the political marketplace; and whether the First Amendment‘s value for liberty proscribes the government from regulating the political speech and association rights of corporations. Compare Buckley v. Valeo, 424 U.S. 1, 4849 (1976) (―[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.‖), with Buckley, 424 U.S. at 49 (―[T]he First Amendment ... was designed ‗to secure the widest possible dissemination of information from diverse and antagonistic sources‘‖ (quoting New York Times v. Sullivan, 376 U.S. 254, 266 (1964)). 4 2 U.S.C. § 431 et seq. 5 In summary, the FECA provisions at issue contained: (A) spending limitations consisting of (1) a $1,000 contribution cap to any candidate by any individual, (2) a $25,000 limit on an individual‘s annual, aggregate contributions, (3) a $1,000 cap on a person‘s or group‘s independent expenditures ―relative to a clearly identified candidate,‖ (4) spending limits on various candidates for various federal offices, and (5) spending limits on political parties‘ national conventions; (B) reporting and disclosure requirements on contributions and expenditures above certain thresholds; and ©) a provision establishing the Federal Election Commission to administer and enforce the statute. The Court evaluated ―spending‖ and ―disclosure‖ regulation under separate (though interrelated) lines of judicial principles. Evaluating a facial challenge to spending limitations, the Court construed the regulation as burdening two sorts of ―speech acts‖: (1) ―contributions,‖ which express the level of a person or group‘s ―support‖ of a candidate, and (2) ―independent expenditures,‖ which express the level of a person or group‘s ―independent political point of view.‖ In addition to evaluating ―speech‖ activity, the Court analyzed ―contributions‖ and ―independent expenditures‖ in connection with their ―associational‖ value. 6 26 U.S.C. § 9001 et seq. 7 2 U.S.C. § 441a. 8 2 U.S.C. § 434. 9 See Subtitle H of the Internal Revenue Code of 1954, codified at 26 U.S.C. § 9001 et seq. 10 Formerly 18 U.S.C. § 608(c)(1)(C-F). The Court made an exception for presidential candidates who accept public funding. 11 Formerly 18 U.S.C. § 608e. 12 Formerly 18 U.S.C. § 608a. 13 Formerly 2 U.S.C. § 437c(a)(1)(A-C). 14 There are two exceptions to this general rule: (1) disclosure requirements will probably not be upheld if disclosure of a contributor places him or her at risk for economic reprisal or physical threats for being ―publicly‖ associated with the political group, see NAACP v. Alabama, 357 U.S. 449 (1958) discussed infra, and Brown v. Socialist Workers, 459 U.S. 87 (1982), discussed infra, and (2) disclosure requirements will probably not be upheld if they abridge the right of an individual to publish and distribute leaflets anonymously, expressing a political point of view, in a referenda or other issue-based election, see McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) discussed infra. 15 See Buckley, 424 U.S. at 21. 16 Id. at 19. 17 Id. at 15. 18 Id. at 17. 19 See id. at 24. 20 Id. at 59. 21 Id. at 27. 22 See id. 23 Id. at 28.

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

2

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo… 24

Id. at 29. Id. 26 Id. at 39. 27 Id. 28 Id. at 19. 29 Id. at 55. 30 Id. at 51-54. The Court distinguished this holding from its validation of Subtitle H, which provides for the public financing of presidential elections. Limitations on expenditures by presidential candidates receiving public funds were distinguishable because the acceptance of public funds was voluntary. 31 See National Association for the Advancement of Colored People (NAACP) v. Alabama, 357 U.S. 449 (1958). The reasoning in Buckley and Brown v. Socialist Workers „74 Campaign Comm., 459 U.S. 87 (1982), discussed infra, has historical roots in NAACP v. Alabama. In NAACP, the Court addressed whether a nonprofit organization‘s associational rights were abridged by a state statute compelling disclosure of its members and agents without regard to their position and responsibilities in the association. The organization did not comply with the disclosure requirement. Finding for the NAACP, the Court held that the freedom of association is an ―inseparable aspect‖ of the freedoms guaranteed by the First and Fourteenth Amendments, see id. at 460-61; that compelled disclosure of the association‘s membership would effectively restrain that freedom, see id. at 46 1-463; and that, under strict scrutiny, the state‘s interests in disclosure were insufficient to overcome the association‘s deprivation of right, see id. at 463-366. The Court stressed that the ―vital relationship between freedom to associate and privacy in one‘s associations‖ was unduly burdened by the disclosure requirement, as past revelation of membership identity resulted in economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Id. at 462. 32 See also McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (further defining the scope of Buckley‘s disclosure jurisprudence to proscribe disclosure requirements that infringe on the right of an individual to publish and distribute leaflets anonymously, expressing a political point of view, in a referenda or other issuebased election), discussed infra. 33 26 U.S.C. § 9001 et seq. 34 See Buckley, 424 U.S. at 85. 35 See id. at 86. 36 Id. at 101. 37 Id. at 44. 38 Id., n. 52. 39 Buckley, 424 U.S. at 42. See also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), discussed infra. 40 453 U.S. 182 (1981). 41 454 U.S. 290 (1981). 42 528 U.S. 377 (2000). 43 453 U.S. 182 (1981). 44 See id. at 184. A related provision, 2 U.S.C. § 441 a(f), makes it unlawful for a political committee to knowingly accept contributions exceeding this limit. 45 See id. at 195. 46 See id. 47 See id. at 196. 48 Id. 49 See id. at 197. 50 CMA, 453 U.S. 198 (―Since multicandidate political committees may contribute up to $5,000 per year to any candidate, 2 U.S.C. § 441a(a)(2)(A), an individual or association seeking to evade the $1,000 limit on individual contributions could [channel] funds through a multicandidate political committee‖). 51 Id. at 198-199 (―Individuals could evade the $25,000 limit on aggregate annual contributions to candidates if they were allowed to give unlimited sums to multicandidate political committees, since such committees are not limited in the aggregate amount they may contribute in any given year‖). 52 See id. at 199. 53 454 U.S. 290 (1981). 54 The Fourteenth Amendment prohibits state governments from depriving ―any person of life, liberty, or property, without due process of law.‖ U.S. CONST., Amdt. 14 § 1. By virtue of the inclusion of the term ―liberty,‖ the First Amendment has become applicable to the states. See Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, concurring) (―[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech [and assembly] ... are fundamental rights.‖) Although the plain language of the First Amendment proscribes the Congress from abridging the freedom of speech and association, Justice Brandeis‘ reading of the Fourteenth Amendment has become a part of the Supreme Court‘s incorporation jurisprudence. See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 779-780 (1978), discussed infra. 25

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

209

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

210

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

55

See id. at 296. ―The freedom of association ‗is diluted if it does not include the right to pool money through contributions, for funds are often essential if advocacy is to be truly or optimally effective.‘‖ Id. (quoting Buckley, 424 U.S. at 65-66). 56 See id. at 298-199 (finding that ―[r]egulation of First Amendment Rights is always subject to exacting scrutiny‖). 57 Id. at 298 (noting that ―[r]eferenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue‖ (quoting First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)). 58 See id. 59 Id. at 298 (finding that ―[c]ontributions by individuals to support concerted action by a committee advocating a position on a ballot measure is beyond question a very significant form of political expression‖). 60 See id. at 299-300. 61 528 U.S. 377 (2000). 62 Id. at 901. The amounts were statutory base lines to be adjusted each year in light of the cumulative consumer price index. See id. 63 Id. at 902. 64 Id., quoting 161 F.3d 520, 521-522. 65 See id. at 903 (announcing that [t]he [First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.‖ Id. 66 Id. at 909. 67 Id. at 903. 68 Id. at 904, quoting Buckley, 424 U.S. at 25. 69 Id. at 904, quoting Buckley, 424 U.S. at 30, n. 3. 70 Id. at 904-905. 71 Id. at 906. 72 See id. at 906-908. 73 539 U.S. 146 (2003). 74 479 U.S. 238 (1986), discussed infra. 75 Beaumont, 539 U.S. at 157 (quoting National Conservative Political Action Comm., 470 U.S. at 500-01). 76 Id. (quoting National Right to Work Comm., 459 U.S. at 210). 77 The Court explained that ―[w]hile contributions may result in political expression if spent by a candidate or an association ... the transformation of contributions into political debate involves speech by someone other than the contributor.‖ Id. at 161 (quoting Buckley, 424 U.S. at 20-21). 78 Id. (quoting Buckley, 424 U.S. at 25). 79 See id. at 162-63. (―The PAC option allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members, and it lets the government regulate campaign activity through registration and disclosure, see § § 432-434, without jeopardizing the associational rights of advocacy organizations‘ members‖). 80 Id. (citing National Right to Work, 459 U.S. at 201). 81 435 U.S. 765 (1978). 82 479 U.S. 238 (1986). 83 494 U.S. 652 (1990). 84 459 U.S. 197 (1982). 85 518 U.S. 604 (1996). 86 470 U.S. 1 (1985). 87 548 U.S. 230 (2006). 88 435 U.S. 765 (1978). 89 Id. at 768. 90 Id. at 769. 91 Id. 92 Id. at 768. 93 Id. at 769. 94 See id. at 784-786. 95 See id. at 776. 96 Id. 97 See id. at 776-777 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966) (noting that the nature of the corporation‘s speech ―is the type of speech indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual‖). 98 Id. at 787. 99 Id. 100 Id. at 788. 101 Id. at 789 (citing Buckley, 352 U.S. at 2). 102 Id.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo… 103

Id. Id. at 790. Moreover, the Court asserted that the people, not the government, are the final arbiter and evaluator of the ―relative and conflicting arguments‖ on referendum issues. 105 See id. at 794. 106 See id. at 794-795. 107 See id. at 793. 108 See id. at 795. 109 479 U.S. 238 (1986). 110 See id. at 241-242. 111 See id. at 242. 112 Id. at 249. The Court found that the publication not only urged voters to vote for ―pro- life‖ candidates, but also identified and provided photographs of specific candidates. As a result, the Court determined that the publication could not be considered a ―mere discussion‖ of public issues. Id. 113 See Buckley v. Valeo, 424 U.S. 1, 44 (1976), supra. 114 See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. at 263. 115 See id. at 252. 116 Id. at 257 (―political ‗free-trade‘ does not necessarily require [that participants] in the political marketplace [compete with equal resources]‖). 117 See id. at 258 (cited by Austin, 494 U.S. at 659). 118 Id. 258, see also Austin, 494 U.S. at 660 (holding that the separate segregated fund requirement ―ensures that expenditures reflect actual public support‖). 119 Id. at 259. 120 See id. at 259, 264. 121 Id. (emphasis added). See also, id. at 263 (―voluntary political organizations do not suddenly present the specter of corruption merely by assuming the corporate form.‖), but see Austin, 494 U.S. 659, 660 (suggesting that the selection of the corporate form in itself triggers the state‘s regulatory interests; ―[t]he unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures‖). 122 See MCFL, 479 U.S. at 259. 123 See id. at 260. 124 494 U.S. 652 (1990). 125 The statute defined ―expenditure‖ as ―a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate.‖ Id. at 655 (quoting Mich. Comp. Laws § 169.206(1) (1979)). 126 The Michigan Statute was modeled on a provision of the Federal Election Campaign Act (FECA) requiring corporations and labor unions to use a separate segregated fund or PAC when making independent expenditures in connection with federal elections. See Austin, 494 U.S. at 656, n. 1. 127 See id. at 658. 128 See id. at 659. 129 Id. (quoting Federal Election Comm‘n v. Massachusetts Citizens for Life, 479 U.S. 238, 258 (1986) (MCFL)). 130 424 U.S. 1 (1976) (per curiam). 131 479 U.S. 238 (1986). 132 See Austin, 494 U.S. at 657. Antecedent to these inquiries, the Court affirmed that the plaintiff‘s interest in using general funds for independent expenditures is ―political expression at the core of our electoral process and of the First Amendment freedoms.‖ Id. at 657, (quoting Buckley, 424 U.S. at 39). Moreover, the Court noted that the plaintiff‘s status as a corporation did not completely erode its free speech interest under the First Amendment. See Austin, 494 U.S. at 657 (citing Bellotti, 435 U.S. at 777). 133 See Austin, 494 U.S. at 657. 134 For example, the Court noted that the regulation required a corporation to appoint a treasurer to administer the fund, keep records of the funds‘ transactional history, and create and periodically update an informational statement about the fund for the state. Id. at 658. 135 Id. 136 Id. 137 Id. (citing MCFL, 479 U.S. at 252 (plurality opinion)). 138 As examples, the Court cited attributes that enhanced a corporation‘s ability to manage and attract capital assets favorable to its shareholder‘s proprietary interests, such as perpetual life, limited liability, and favorable treatment with respect to the accumulation and distribution of capital. Austin, 494 U.S. at 658-659. 139 Id. at 658, 659 (citing Federal Election Comm‘n v. National Conservative Political Action Committee, 470 U.S. 480, 496-497 (1985), and MCFL, 479 U.S. at 258)). 140 Id. at 660. 104

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

211

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

212

L. Paige Whitaker

141

Id. See id. at 663. 143 Id. at 665. 144 Id. (―The desire to counter-balance those advantages unique to the corporate form is the State‘s compelling interest in this case.‖) But see MCFL, 479 U.S. at 259 (―[r]egulation of the corporate political activity thus has reflected concern not about the corporate form per se, but about the potential for unfair deployment of wealth for political purposes‖). 145 The Court also considered whether the corporation‘s ―ideological‖ purposes, rather than purely ―economic‖ purposes, provided a constitutional warrant for ―excepting‖ it from the ―segregation‖ requirement. 146 See Austin, 494 U.S. 662-664. 147 Id. at 662 (quoting MCFL, 479 U.S. at 264). 148 Id. at 663 (quoting MCFL, 479 U.S. at 264). 149 Id. at 664 (citing MCFL, 479 U.S. at 264). 150 Outside the First Amendment and Buckley contexts, but relevant to the regulation of political activities by labor unions, in Communications Workers of America v. Beck, 487 U.S. 735 (1988), the Supreme Court considered whether the National Labor Relations Act, 29 U.S.C. § 158(a)(3), permits a labor union to expend funds collected from dues paying, non-union member employees for activities unrelated to collective bargaining, contract administration, and grievance adjustment. The plain language of the act permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees otherwise wish to be a member of the union. See Beck, 487 U.S. at 736. The Court found that Congress intended to correct abuses associated with ―closed shop‖ agreements by limiting compulsory unionism to regimes that require non-member contributions only insofar as they are necessary to defray the costs of collective-bargaining efforts made on behalf of union and non-union employees. See id. at 745. Accordingly, the Court held that the act does not permit a union, over the objections of dues paying nonmember employees, to expend funds collected from them on activities unrelated to collective bargaining, including funds expended for political activities. See id. at 744-62. For further discussion of Communication Workers of America v. Beck, see CRS Report 97-618, The Use of Labor Union Dues For Political Purposes: A Legal Analysis, by L. Paige Whitaker. 151 459 U.S. 197 (1982). 152 See id. at 202 (―A person who, through his response [to the organization‘s publications or material], evidences an intention to support NRWC in promoting [the organization‘s purposes] qualifies as a member‖). Id. Under this definition, contributors to the NRWC‘s segregated fund were construed as members. 153 See id. at 203 (―A person is not considered a member ... if the only requirement for membership is a contribution to a separate segregated fund‖). 11 CFR § 114.1(e) (1982). 154 See NRWC, 459 U.S. at 203. 155 See id. at 207. 156 See id. at 206-207. 157 See id. at 207. 158 See id. at 207-208. 159 See id. at 209 (citing Bellotti, 435 U.S. at 788, n. 26.). 160 See id. at 208. 161 Id. at 209-210. For reasons similar to those in Austin and MCFL, the Court held that the regulation was narrowly tailored to attain its regulatory interests. See id. at 210. 162 518 U.S. 604 (1996). 163 2 U.S.C. § 441a(d)(3). 164 See 518 U.S. at 612. 165 At the time of this decision, FECA exempted political parties from its general contribution and expenditure limits, which limits ―multi-candidate‖ political committees to making no more than $5,000 in direct and indirect contributions to candidates. See 2 U.S.C. §§ 441a(a)(2),(7)(B)(i). Instead, FECA allowed political parties to make greater contributions and expenditures. See § § 441 a(d)(1 ),(3)(A). In this case the CRP qualified to spend about $103,000 in connection with the senatorial campaign, but transferred that amount to their national party. See 518 U.S. at 611. 166 See id. at 612. However, at the time of the expenditure, the Republicans had not selected their senatorial candidate. See id. at 614. 167 See id. at 618. 168 See id. at 613. 169 See id at 614, 615, 618, 622-623. 170 See id. at 614-615 (citing Federal Election Comm‘n v. National Conservative Political Action Committee (NCPAC), 479 U.S. 238 (1985)). 171 See id. at 615 (citing Buckley, 424 U.S. at 47). 172 Id. (quoting Buckley, 424 U.S. at 19).

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

142

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo… 173

Id. at 616. Id. at 614 (quoting Buckley, 424 U.S. at 20-21). 175 Id. at 615. 176 See id. at 610, 611, 613, 619. 177 See id. at 615. 178 See id. at 614-615. 179 Id. at 616. 180 See id. at 617. 181 See id. (quoting Buckley, 424 U.S. at 44). 182 See id. 183 533 U.S. 431 (2001). 184 2 U.S.C. § 441a(d)(3). 185 Id at 447. 186 Id. at 456. 187 Id. at 446, 456. 188 Id. at 457. 189 454 U.S. 27 (1981). 190 See id. at 29, 30. 191 See id. at 31. 192 See id. at 41. 193 See id. 194 See id. 195 470 U.S. 480 (1985). 196 See id. at 483. 197 See id. at 490. 198 See id. at 493 (quoting Buckley, 424 U.S. at 14). 199 Id. See also Buckley, 424 U.S. at 19(―A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today‘s mass society requires the expenditure of money.‖) 200 NCPAC, 470 U.S. at 494 (quoting Buckley, 424 U.S. at 22). 201 Id. at 495 (distinguishing California Medical Assoc. 453 U.S. at 196 (Marshal, J.) (plurality opinion)). 202 Discussed supra. 203 See NCPAC, 470 U.S. at 496. 204 See id. at 498. 205 548 U.S. 230 (2006). 206 See id. at 237-38. 207 See id. at 245. 208 Id. 209 See id. The Breyer opinion notes that in Buckley, the Court observed that ―Congress was trying to ‗free candidates from the rigors of fundraising.‘‖ Id. (citing Buckley v. Valeo, 424 U.S. 1, 91 (1976)). 210 See id. at 246. 211 525 U.S. 182 (1999). 212 459 U.S. 87 (1982). 213 524 U.S. 11 (1998). 214 525 U.S. 182 (1999). 215 See id. at 201. 216 See id. at 186. In addition to ―disclosure,‖ the statute limited petition circulation to six months and required that petition-circulators be at least eighteen years old, be registered to vote, wear identification badges indicating their status as ―volunteer‖ or ―paid,‖ and attach a signed affidavit to each petition stating that they have read and understood the laws governing petition-circulation. See id. at 188-189. The Court, however, only reviewed the constitutionality of the voting registration, badge, and disclosure requirements. See id. at 186. 217 See id. at 201-202. 218 See id. 219 See id. at 202. 220 See id. 221 The lower court invalidated the disclosure requirement ―only insofar as it compels disclosure of information specific to each paid contributor, in particular, the circulators‘ names and addresses and the total amount paid to each circulator.‖ Id. at 201 (citing American Constitutional Law Foundation v. Meyer, 120 F.3d 1092, 1104-1105 (1997)). 174

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

213

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

214

L. Paige Whitaker

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

222

See id. (citing Buckley, 424 U.S. at 64-65). By requiring proponents to identify paid circulators by name, it would decrease the supply of those willing to be circulators, thereby ―chilling‖ core political speech. See ACLF, 525 U.S. at 212 (Thomas, J. concurring). 223 See ACLF, 525 U.S. 202. 224 See id. at 203. 225 See id. 226 486 U.S. 414 (1988) (holding a Colorado statute making it a felony to pay for circulation of initiative petitions to abridge political speech in violation of the First and Fourteenth Amendments.) 227 See ACLF, 525 U.S. at 203 (quoting Meyer, 486 U.S. at 427) (―The risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting.‖) 228 See ACLF, 525 U.S. at 204. 229 479 U.S. 87 (1982). 230 See id. at 89. 231 See id. at 88. 232 See id. at 93 (citing Buckley, 424 U.S. at 74). 233 See id. at 97, 98. 234 See id. at 101-102. 235 See id. at 99. 236 See id. 237 See id. at 100. 238 See id. at 102. 239 524 U.S. 11 (1998). 240 See id. at 14. 241 514 U.S. 334 (1995). 242 See id. at 336. 243 See id. at 357. 244 Id. 245 Id. at 347. 246 See id. 247 See id. at 348, 349. 248 Id. at 353. 249 Id. at 354. 250 Id. at 355 (citing Buckley, 424 U.S. at 75-76). In Buckley, the Supreme Court had upheld a requirement that independent expenditures above a certain threshold be reported to the FEC. 251 Id. 252 Id. at 356. 253 Id. (quoting Buckley, 424 U.S. at 80. 254 See id. 255 540 U.S. 93 (2003). For further discussion of this decision, see CRS Report RL32245, Campaign Finance Law: A Legal Analysis of the Supreme Court Ruling in McConnell v. FEC, by L. Paige Whitaker. 256 P.L. 107-155. The Bipartisan Campaign Reform Act of 2002 (BCRA) was the first major overhaul of federal campaign finance laws since the enactment of the Federal Election Campaign Act of 1971. 257 Id. at 706. 258 2 U.S.C. § 441i(a). 259 McConnell, 124 S. Ct. at 654. 260 2 U.S.C. §§ 441i(b), 441i(d), 441i(e), 441i(f). 261 McConnell, 124 S. Ct. at 647 (quoting FEC v. Beaumont, 123 S. Ct. 2200 (2003)). 262 Id. at 656 (quoting FEC v. National Right to Work, 459 U.S. 197, 208 (1982)). 263 Id. at 656-57. The Court further noted that ―closely drawn‖ scrutiny provides Congress with sufficient room to anticipate and respond to circumvention of the federal election regulatory regime, which is designed to protect the integrity of the political process. Id. 264 Id. 265 Id. at 657-58. 266 Id. at 742-59 (Kennedy, J., concurring, in part, dissenting, in part) (joined by Chief Justice Rehnquist, Justices Scalia (except to the extent it upholds FECA § 323(e) and BCRA § 202) and Thomas (only with respect to BCRA § 213). 267 Id. at 746. 268 Id. at 665. 269 Id. at 666. 270 2 U.S.C. § 434(f)(3)(A)(i). BCRA defines ―[t]argeted to the relevant electorate‖ as a communication that can be received by 50,000 or more persons in a state or congressional district where the Senate or House election, respectively, is occurring. 2 U.S.C. § 434(f)(3)(C).

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo… 271

2 U.S.C. § 441b(b). Buckley, 424 U.S. at 80. 273 McConnell, 124 S. Ct. at 688. 274 Id. at 689. 275 Id. at 696. 276 Id. (citing 251 F. Supp. 2d 176, 573-578 (D.D.C.) (Kollar-Kotelly, J.), 826-827 (Leon, J.)). 277 Id. at 695. 278 Id. at 696. 279 Id. at 697. 280 Id. at 762 (Kennedy, J., concurring, in part, dissenting, in part) (joined by Chief Justice Rehnquist and Justices Scalia (except to the extent it upholds FECA § 323(e) and BCRA § 202) and Thomas (only with respect to BCRA § 213)). While Justice Kennedy‘s opinion served as the primary dissent for the minority, in a separate dissent, Justice Scalia wrote, ―[t]his is a sad day for the freedom of speech,‖ further commenting that ―[i]f the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so.‖ Id. at 720, 726. 281 479 U.S. 238 (1986) (holding that the following characteristics exempt a corporation from regulation: (1) its organizational purpose is purely political; (2) its shareholders have no economic incentive in the organization‘s political activities; and, (3) it was neither founded by nor accepts contributions from business organizations or labor unions). 282 McConnell, 124 S. Ct. at 699. 283 2 U.S.C. § 441d. 284 McConnell, 124 S. Ct. at 710. 285 2 U.S.C. § 315(d)(4). 286 McConnell, 124 S. Ct. at 703. 287 2 U.S.C. § 315(d)(4). 288 2 U.S.C. § 301(17). 289 McConnell, 124 S. Ct. at 702. 290 2 U.S.C. § 44 1k. 291 McConnell, 124 S. Ct. at 711. 292 See 2 U.S.C. § 441f. 293 McConnell, 124 S. Ct. at 711. 294 Id. 295 2 U.S.C. § 315(a). 296 McConnell, 124 S. Ct. at 656-57. 297 Id. at 686. 298 127 S.Ct. 2652 (2007). For further discussion of this decision, see CRS Report RS22687, The Constitutionality of Regulating Political Advertisements: An Analysis of Federal Election Commission v. Wisconsin Right to Life, Inc., by L. Paige Whitaker. 299 P.L. 107-155. This law is also known as ―McCain-Feingold,‖ referring to the principal Senate sponsors of the legislation. 300 See 2 U.S.C. § 441b(b)(2). 301 540 U.S. 93 (2003), discussed supra. 302 Id. at 204-205, 206. 303 546 U.S. 410 (2006). 304 Id. at 412. 305 Wisconsin Right to Life, Inc. v. Federal Election Commission, 466 F. Supp. 2d 195 (D.D.C. 2006). 306 Id. at 210. 307 127 S.Ct. 2652 (2007). 308 In a concurrence, Justice Scalia found that the attempt in the Court‘s ruling to distinguish McConnell is ―unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices ... having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so.‖ Id. at 2684, n. 7 (Scalia, J. concurring in part and concurring in the judgment). 309 Id. at 2670. 310 Id. at 2659 (quoting Buckley v. Valeo, 424 U.S. 1, 42 (1976)). 311 Id. 312 See id. at 2663-64. 313 See id. at 2664 (citing McConnell v. FEC, 540 U.S. 93, 205 (2003); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658 (1990); FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252 (1986); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978); Buckley v. Valeo, 424 U.S. 1, 44-45 (1976)). 272

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

215

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

216

L. Paige Whitaker

314

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Id. (finding ―[e]specially where, as here, a prohibition is directed at speech itself, and the speech is intimately related to the process of governing ... ‗the burden is on the government to show the existence of [a compelling] interest.‘‖(quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. at 786)). 315 Id. (quoting McConnell v. FEC, 540 U.S. at 206). 316 Id. 317 The dissenting opinion maintained that the principal opinion establishes a ―new test to identify a severely limited class of ads that may constitutionally be regulated as electioneering communications, a test that is flatly contrary to ... [and] simply inverts‖ the Court‘s holding in McConnell. Id. at 2669 (Souter, J., dissenting) (quoting McConnell v. FEC, 540 U.S. at 206-207, n. 88). While the Court in McConnell had ―left open the possibility‖ of a ―‗genuine‘ or ‗pure‘ issue ad that might not be open to regulation under § 203,‖ the dissent argued that the Court meant that an issue ad that did not contain campaign advocacy could escape the regulation, not that ―if an ad is susceptible to any ‗reasonable interpretation other than as an appeal to vote for or against a specific candidate,‘ then it must be a ‗pure‘ or ‗genuine‘ issue ad.‖ Id. (Souter, J., dissenting) 318 Id. at 2664. 319 Id. at 2665. 320 Id. The Court further noted that in its seminal 1976 campaign finance decision, Buckley, it had expressly ―rejected an intent-and-effect test for distinguishing between discussions of issues and candidates,‖ finding that such an analysis would afford ―‗no security for free discussion.‘‖ Id. (quoting Buckley v. Valeo, 424 U.S. 1, 43-44 (1976), quoting Thomas v. Collins, 323 U.S. 516 (1945)). 321 Id. at 2666 (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995)). 322 Id. at 2667 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). 323 Id. 324 Id. at 2669. 325 Id. at 2672 (emphasis included). 326 Id. at 2673. 327 Id. at 2669.

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

INDEX

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

A abuse, 55, 89, 106, 131, 132, 158, 172 accessibility, 63, 78 accommodation, ix, 109, 110, 112, 113, 114, 115, 119, 120, 121, 123 accountability, 155, 161, 169, 170 acid, 14 Action for Children‘s Television, 32, 33, 41, 56, 60, 63, 64, 105 Activists, 28 actuality, 180 adjustment, 182, 184, 212 advertisements, xi, 11, 12, 14, 30, 31, 47, 80, 91, 139, 140, 141, 144, 157, 163, 199, 202, 204, 205 advertising, 11, 12, 13, 14, 15, 31, 153, 156, 157, 163 advocacy, 4, 14, 70, 140, 141, 142, 145, 149, 161, 162, 163, 182, 183, 185, 186, 188, 194, 198, 201, 202, 203, 204, 205, 206, 207, 210, 216 affirming, 159, 176 age, 66, 68, 89, 90, 91, 94, 95, 103, 199, 203 agencies, 49, 175, 181 Air Force, 105, 116, 117, 122, 124 alcohol, 31 alternatives, 16, 90, 94, 95, 97, 204 alters, 13 analytical framework, 143 anger, 27 apparel, 114, 115, 117 applications, 21, 31, 33 appropriations, 134 armed forces, 117, 118, 124 arrest, 100, 125 arson, 27 assault, 53 assessment, 15, 33, 93, 102, 105, 115, 206 assets, 101, 153, 187, 190, 211

assignment, 122 assumptions, 165, 166 attacks, 14, 120, 165 attitudes, 51 Attorney General, 80, 95, 118, 172, 176, 195 attribution, 15, 197 authorities, 117, 144 authority, viii, 15, 20, 34, 37, 38, 40, 42, 53, 55, 56, 57, 87, 103, 113, 114, 116, 117, 133, 152, 156, 164, 193, 195, 200 authors, 108 availability, 26 avoidance, 64, 144

B background, ix, x, xi, 109, 110, 128, 207 background information, 207 bargaining, 11, 212 barriers, 134 beef, 15 beer, 31 behavior, 24, 27, 40, 138, 166, 175 beliefs, 21, 27, 103 beverages, 11, 31 bias, 27, 164, 174 birth, 44, 68, 106 birth control, 44, 106 blasphemy, 45 bleeding, 106 blocks, 95 bounds, 200 broadcast media, viii, 18, 33, 38, 39, 51, 52, 53, 54, 55, 56, 58, 59, 64, 68, 70, 83, 104, 105 buffer, 8, 9, 30 burn, 26 burning, 5, 22, 26, 27, 28, 35, 152, 197

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

218

Index

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

C cable service, 87, 88, 89 cable system, 86 cable television, 18, 19, 32, 51, 54, 55, 58, 59, 63, 64, 68, 70, 86, 87, 88, 89, 105, 140 campaign funds, 197, 198 campaigns, xi, 152, 157, 159, 160, 163, 173, 177, 180, 181, 196, 202, 210 cartoon, 4, 47, 67, 85 case law, 45, 186 cast, 123, 134, 151, 167, 172, 182 category d, 108 cattle, 15 causal relationship, 78 CBS, 32, 40, 45, 46, 49, 50, 59, 61, 62, 69, 71, 84, 105 cell, 29 censorship, 17, 32, 52, 63, 69, 77, 79, 84, 146, 170, 171 certificate, 42 certification, 159 challenges, x, xi, 12, 110, 112, 120, 128, 131, 132, 134, 159, 164, 165, 169, 172, 181, 204, 205, 206, 207 channels, vii, 1, 2, 7, 8, 18, 19, 51, 54, 55, 63, 64, 87, 88, 89, 102, 105 character, 82, 84, 123, 141, 207 charities, 13 circulation, 196, 213, 214 civil action, 80 civil liberties, 92 civil rights, 28, 115 clarity, 16 classroom, 132 classrooms, 113 climate, 163 climate change, 163 closed shop, 212 coal, 164 coercion, 112, 209 cohesion, 114, 115 collective bargaining, 212 color, 27, 115 commerce, ix, 66, 67, 68, 73, 80, 81, 84, 85, 86, 100, 156, 157 common sense, 151, 201 Communications Act, 80, 86, 87, 104, 107 community, viii, 3, 17, 18, 24, 28, 32, 37, 38, 40, 42, 45, 52, 65, 66, 68, 69, 75, 83, 85, 90, 91, 92, 93, 100, 102, 104, 105, 106, 107, 108, 112, 121, 123, 134, 206 compensation, 25

competition, 155, 189 competitiveness, 175 competitors, 156 complaints, 28, 34, 39, 40, 44, 46 compliance, 9, 20, 47, 48, 77, 80, 170, 197 composition, 51, 52, 83, 120, 150, 165 concentration, 188 conception, 170 concrete, 130, 138 conditioning, 20 conference, 106, 134, 151 confessions, 29 confidence, 23, 173, 178, 188, 200 conflict, xii, 133, 177, 179 confusion, 136, 152 consciousness, 194 consensus, 32, 144, 173, 195 consent, 9, 46, 47, 48, 98, 100, 155, 161, 169, 172 constitutional amendment, 151, 187 constitutional challenges, 165, 172, 199 constitutional law, 149, 173 constitutional limitations, x, 128, 130, 131 construction, 13, 193 consumer price index, 210 consumers, 11, 12, 14, 30 consumption, 15 control, 7, 19, 20, 54, 81, 89, 105, 119, 133, 183, 197 controversies, 137 conversion, 190 conviction, 28, 100, 101, 105, 108, 122 coordination, 160, 192, 194, 203 correlation, 143 cost, 15, 101, 132, 151 costs, 14, 180, 195, 212 counsel, 116 counseling, 9, 20, 21, 33, 115, 116 counterbalance, 111, 172 couples, 47 Court of Appeals, 32, 40, 41, 46, 48, 49, 54, 59, 69, 78, 83, 84, 91, 92, 116, 119, 135 credit, 91 criminal activity, 10, 78, 79, 115 criminal statutes, 101 criticism, 14, 33, 53 critics, 170 CRP, 191, 192, 193, 212 culture, 103, 150 curriculum, 17 customers, 76, 84, 88, 150 cyberspace, 62

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

219

Index

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

D damages, iv, 16, 24, 158 dance, 10, 78 dancers, 10, 78, 79 dances, 79 danger, 4, 15, 54, 74, 115, 117, 129, 136, 150, 200, 201 death, 29 debt, 168, 195 debts, 191 decision making, 210 decision-making process, 154 decisions, x, 13, 31, 42, 47, 48, 49, 50, 112, 121, 127, 128, 150, 157, 165, 168, 174, 185, 201, 207 deduction, 14 defamation, vii, 1, 2, 5, 15, 16 defecation, 43 defendants, 85, 205 defense, 34, 91, 92, 94, 116, 120, 121, 146, 166 definition, 6, 28, 32, 42, 44, 45, 49, 52, 53, 61, 62, 67, 76, 83, 84, 93, 94, 96, 98, 100, 104, 106, 114, 141, 152, 182, 191, 197, 201, 202, 206, 212 delegates, 113 democracy, 149, 151, 155, 158, 161, 162, 163, 164, 166, 167, 169, 170, 171, 173, 176, 178, 188, 196, 210 Democratic Party, 191 demographics, 121 demonstrations, 7, 115 denial, 28, 51, 77, 81, 176 Department of Commerce, 98 Department of Defense, x, 110, 111, 113, 122, 123, 124, 125 Department of Justice, 14, 137 deprivation, 209 destruction, 197 deviation, 50 differential treatment, 176 direct cost, 69, 95 direct costs, 69, 95 directives, 20, 113, 122 directors, 157 disability, 88 disaster, 31 disbursement, 134 discipline, 23, 26, 112, 114, 115, 117, 118, 123 discourse, 173, 202 discrimination, 15, 18, 22, 27, 29, 110, 115, 196, 197 disseminate, 5, 14, 180 dissenting opinion, 30, 96, 106, 150, 216 distress, 138

distribution, ix, 8, 14, 15, 64, 68, 73, 74, 84, 86, 121, 181, 196, 197, 211 diversity, 108, 175, 192 doctors, 21, 110, 183 donations, 17, 144, 159, 160, 166, 172, 200 donors, 13, 31, 144, 167, 176, 193 draft, 26 drawing, 4, 67, 85, 156, 206 drug use, 18 drugs, 13, 18, 47 due process, 146, 174, 181, 209 duties, 24, 25, 34, 114, 116, 117

E earnings, 190 economic change, 4 economic evaluation, 189 economic policy, 32 economic resources, 189 economy, 170, 176 educational qualifications, 122 Elementary and Secondary Education Act, 107, 131 emotion, 4 emotions, 63 employees, vii, 1, 2, 23, 24, 25, 26, 47, 48, 145, 157, 162, 212 employment, 23, 24, 25, 26, 118, 120, 197, 209, 212 employment relationship, 23 energy, 150 enforcement, 17, 48, 49, 50, 61, 69, 79, 91, 92, 96, 106, 116, 129, 187, 194, 197 environment, 122, 138, 150, 169 equating, 104, 201 equipment, 114, 115 equity, 153 erosion, 200 espionage, 125 Establishment Clause, v, ix, x, xi, 109, 110, 111, 112, 119, 124, 127, 128, 129, 131, 132, 133, 134, 135, 137 ethnicity, 115 evil, 154, 185 evolution, viii, 38, 39 exclusion, 6, 7, 20 excretion, 66, 96, 102 excuse, 207 Executive Order, 118 exercise, ix, 10, 21, 26, 109, 110, 111, 112, 113, 114, 116, 119, 120, 121, 122, 123, 130, 132, 133, 190, 203 expertise, 200, 204 experts, 108

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

220

Index

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

exploitation, 66, 67, 76 exploration, 157, 180, 181, 213 exposure, 32, 40, 45, 52, 56, 57, 64, 69, 80, 83, 84

funding, x, 21, 22, 110, 131, 132, 134, 137, 140, 141, 159, 160, 161, 171, 172, 176, 181, 183, 191, 208 fundraising, 175, 195, 197, 201, 213

F

G

fabric, 112, 119 failure, viii, 38, 42, 60, 62, 77, 116, 175 fairness, 18, 54, 63, 104, 208 faith, ix, 109, 110, 114, 120, 121, 162 family, 20, 33, 76, 122, 203 family members, 122 family planning, 20, 33 fear, 12, 29, 144, 156, 160, 195 federal authorities, 156 federal courts, x, 48, 127, 128, 130, 133, 137 Federal Election Commission, 33, 137, 140, 161, 165, 168, 174, 176, 179, 182, 183, 185, 186, 188, 191, 193, 194, 196, 197, 204, 208, 215 federal funds, ix, 20, 21, 22, 33, 74, 95, 96, 97, 129, 131, 135 federal law, ix, 48, 73, 80, 81, 86, 123, 155, 207 federalism, 123, 200 feet, 9, 12, 30, 76 fever, 155 Fifth Amendment, 181 films, 10, 14, 75, 76, 100 filters, 22, 69, 70, 94, 95, 97 finance, xi, xii, 15, 140, 145, 147, 150, 162, 163, 164, 165, 166, 169, 170, 171, 173, 174, 175, 177, 178, 179, 181, 185, 189, 199, 200, 201, 202, 204, 205, 207, 214, 216 financial support, 191, 198 financing, 172, 175, 179, 181, 202, 203 firms, 156 fitness, 141, 207 flatulence, 43 flexibility, 197 floating, 9 flood, 160, 162 focusing, 154, 206 foreign nationals, 152, 153, 154 forests, 146 foundations, 164 Fourteenth Amendment, 183, 187, 197, 198, 209, 214 framing, 187 franchise, 87 fraud, 15, 31, 172, 198, 214 free association, xii, 177, 179, 183, 194 freedom of expression, 9, 189 frequencies, viii, 18, 38, 39, 54, 62, 82 fruits, 15

gambling, 12 gender, 27 general election, 140, 145, 146, 181, 191, 201, 202, 204, 207 goals, 17, 41, 92, 97, 171, 200 governance, 117, 162, 176, 178, 194 grades, 122 grants, 20, 21, 107, 137, 178 grassroots, 163, 169, 171 greed, 195 groups, 7, 15, 92, 114, 120, 134, 150, 162, 165, 169, 180, 181, 194, 195 guidance, 115, 122, 207 guilty, 101, 104

H hair, ix, 109, 110, 114 hands, 155, 159, 169 harassment, 144, 159, 170, 196, 197 harm, 3, 12, 23, 27, 29, 56, 57, 64, 74, 97, 136, 138, 170, 181, 186 harmony, 23 hate, 197 health, 9, 115, 150, 155, 163, 169 health care, 9, 150, 155, 163 health insurance, 155 hedging, 191 high school, 17, 44 higher education, 22 highway system, 84 highways, 81, 84 hiring, 120, 121 homosexuality, ix, 27, 109, 110 homosexuals, 22, 28, 102 host, 22 hostility, 27, 165, 197, 209 hotels, 76 households, 158 human rights, 153 husband, 85

I ideal, 172 ideals, 26, 103 identification, 94, 99, 140, 149, 198, 213

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

221

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Index identity, 14, 106, 143, 152, 153, 159, 167, 169, 184, 187, 209 ideology, 29, 115 illegal drug use, 18 illusion, 199 image, 3, 25, 50, 67, 88, 92, 94, 100, 106 image files, 92 imagery, 46 images, 9, 19, 42, 44, 46, 50, 62, 63, 67, 69, 88, 92, 98, 108 impacts, 164 imprisonment, viii, 37, 38, 40, 92, 100 incarceration, 101 inclusion, ix, 74, 188, 209 inclusiveness, 190 income tax, 181 incumbents, 165, 171, 182, 205 indecency, vii, viii, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 56, 58, 59, 60, 61, 62, 63, 64, 66, 68, 86, 87, 89, 105 independence, 129, 155 individual rights, 130 industry, 49, 58, 84, 163, 169 inferences, 10 inflation, 182, 184, 195 initiation, 212 inmates, 125 insight, 31, 152 inspections, 77 institutions, 106, 151, 178 instruction, 113, 114, 115, 118, 122 insurance, 150, 155 integrity, xii, 149, 151, 155, 156, 161, 176, 177, 178, 179, 180, 183, 214 intellectual property, 6, 29 interference, ix, 54, 59, 109, 110, 155, 185 intermediaries, 158 internal controls, 175 internet, 172, 202 interrelatedness, 12 intervention, 161 intimidation, 27, 28 investors, 169, 189, 191 irony, 152, 157 isolation, 112, 124

J job performance, 25 joints, 121 judges, 101, 155 judgment, 6, 10, 50, 59, 64, 78, 105, 115, 117, 146, 158, 168, 173, 191, 195, 205, 215

judicial power, 21, 133, 134, 137 judiciary, 24, 130, 133, 142, 155 juries, 102 jurisdiction, 81, 99, 100, 108, 131, 155 justice, 96, 161, 176 justification, 8, 41, 79, 87, 100, 125, 185, 186, 188, 190

L land, 81, 133, 135, 136 land use, 135 landscape, 150 law enforcement, 181 lawyers, 14, 21, 31, 170 learning, 108 legislative proposals, 182, 205 licenses, 54, 77 likelihood, 17, 43, 57, 92 limited liability, 211 line, 25, 43, 99, 112, 113, 117, 120, 167, 182, 196, 201, 206, 208 listening, 41, 48 litigation, 134, 142, 158, 162, 174, 175, 188, 201, 206 lobbying, 162, 163, 164, 188 lobbyists, 165 local authorities, 156 local government, 123 logging, 146 loyalty, 23, 115

M machinery, 114 magazines, 16, 64, 101 maintenance, 78 management, 157, 159, 190 mandates, 54 marches, 118 marijuana, 18 market, 3, 190, 194 marketing, 15, 32 marketplace, xi, 54, 144, 176, 177, 178, 187, 189, 208, 211 measures, 30, 62, 151, 152, 153, 159, 169, 183, 184, 185 media, viii, 16, 18, 38, 39, 51, 53, 54, 55, 58, 82, 83, 88, 144, 156, 162, 176, 194 medication, 13 membership, 27, 113, 185, 189, 197, 209, 212 messages, 9, 11, 12, 27, 80, 81, 91, 99, 142, 168, 202 metaphor, 17

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

222

Index

methodology, 150 military, ix, 6, 7, 22, 34, 109, 110, 111, 112, 113, 114, 115, 116, 117, 119, 120, 121, 122, 123, 125 minorities, 27 minority, 181, 188, 196, 197, 215 minors, viii, ix, 3, 12, 13, 16, 17, 21, 32, 41, 52, 53, 56, 57, 64, 65, 66, 67, 68, 69, 73, 75, 80, 81, 83, 85, 91, 92, 93, 94, 95, 96, 98, 103, 105, 106, 107, 108, 133, 199, 203 model, 77, 169 models, 44, 67, 102 modernization, 165, 172 money, xi, xii, 79, 129, 142, 150, 151, 155, 156, 157, 159, 160, 161, 163, 164, 165, 166, 167, 168, 169, 171, 173, 174, 175, 176, 177, 178, 180, 181, 183, 184, 185, 187, 192, 194, 195, 198, 199, 200, 201, 202, 210, 211, 213 moral development, 56, 64 morale, 24, 115, 117 morality, 3, 32, 53, 74, 78, 83 morning, 44, 60 motels, 103 motion, 29, 53, 77, 102 motivation, 27 motives, 165 movement, 118 multiples, 163 music, 8

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

N nation, 93, 105, 112, 162, 172, 175 National Defense Authorization Act, 124 national origin, 27, 115 national parties, 142, 199 national security, 115 network, 40 newspapers, 14 noise, 4, 9 non-citizens, 153 nonenforcement, 50 novelty, 184 NTIA, 98 nudity, 10, 45, 49, 66, 76, 78, 79, 89, 96, 102, 105 nuisance, 40, 45, 84

O objectives, 20 obligation, 10, 89, 111 obstruction, 5 offensiveness, 3, 42, 43, 44, 66, 75, 102, 107 oil, 159

operator, 19, 87, 88, 105 opportunities, 57, 113, 121, 150, 196 organ, 44, 61 outreach, 171 oversight, 24, 175 ownership, 54

P pain, 160 parallel, 52, 98 parental authority, 89 parental control, 90, 103 parents, 41, 53, 55, 56, 57, 89, 93, 95, 103, 106, 113, 203 participatory democracy, 162 peers, 24 penalties, viii, 17, 27, 37, 38, 39, 77, 80, 92, 140, 142, 143, 202 penis, 60 pension plans, 158 performance, 40, 45, 116, 117 performers, viii, 38, 40, 42, 60, 62, 68 permission, iv, 155 permit, x, 27, 42, 48, 52, 89, 105, 117, 128, 131, 133, 134, 142, 160, 167, 212 personality, 43 pessimism, 151 photographs, 66, 102, 211 pitch, 155 planning, 46 platform, 158 plausibility, 184 pleasure, 124 pluralism, 120, 121 poetry, 25 police, 25, 116 political participation, 210 political parties, 17, 163, 165, 175, 180, 203, 208, 212 political party, xii, 26, 156, 178, 179, 186, 191, 192, 193, 197, 199, 207 politics, 151, 154, 161, 162, 163, 164, 165, 166, 167, 168, 171, 174, 188, 189, 199 pollution, 136 pools, 195 poor, 21, 175 popular support, 189 popular vote, 210 population, 16, 90, 111, 122 power, x, 7, 15, 18, 20, 50, 64, 74, 83, 86, 103, 120, 127, 128, 130, 131, 132, 133, 134, 137, 151, 155, 156, 169, 189

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

223

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

Index prayer, 113 precedent, 40, 49, 135, 141, 143, 144, 151, 152, 168, 201, 202, 206 precedents, 62, 142, 143, 149, 150, 157 predicate, ix, 70, 73, 100, 108 preferential treatment, x, 127, 128 prejudice, 110 President Clinton, 91 pressure, 164 prevention, 201 prices, 11 primacy, 161 prisons, 7 privacy, 3, 5, 18, 19, 41, 53, 55, 63, 75, 83, 87, 100, 196, 209 private sector, 196, 197 probability, 134, 144, 195, 197 procedural rule, 77 producers, 68, 157 production, 3, 60, 67, 79 profanity, 28, 43, 45, 61 profit, 10, 91, 149, 150, 154, 157, 158, 159, 171, 185, 188, 189, 191, 196, 202, 209 profits, ix, 73, 85, 162, 163, 168 program, ix, 15, 17, 39, 42, 44, 47, 48, 51, 60, 83, 109, 110, 112, 113, 119, 120, 122, 129, 132, 134, 167, 175, 176 programming, viii, 19, 38, 39, 42, 44, 46, 47, 48, 55, 57, 64, 83, 87, 88, 104 project, 20 proliferation, 51, 58 propaganda, 14 properties, 183 prophylactic, 185 proportionality, 156 proposition, 184, 201 psychological well-being, 16, 68, 75 psychologist, 116 public discourse, 173 public financing, xii, 160, 165, 171, 172, 175, 176, 178, 179, 181, 209 public interest, 40, 53, 54, 55, 63, 184 public nuisance law, 40 public opinion, 159 public policy, 110, 162, 188, 205 public radio, 41, 83 public safety, 9 public schools, 113, 132 public service, 23 public support, 190, 211 publishers, 28, 53, 92, 94, 108 punishment, 50, 101 pupil, 18

Q qualifications, 125, 141, 207

R race, 27, 115, 150, 156, 163, 167, 174 racketeering, 100, 101 radio, vii, viii, ix, 1, 2, 12, 16, 18, 20, 37, 38, 40, 42, 43, 44, 46, 48, 51, 52, 53, 54, 57, 58, 59, 63, 68, 73, 81, 82, 83, 103, 104, 186, 191, 194 radius, 12 rain, 14 range, 76, 94, 108, 116, 133, 171 rape, 5, 29, 63 ratings, 60 reactions, 25 reading, 52, 132, 153, 201, 209 reality, 48, 143, 151, 166, 168, 180 reason, 4, 50, 51, 54, 56, 59, 66, 76, 86, 95, 101, 108, 157, 162, 164, 167, 174, 176, 202 reasoning, 19, 20, 49, 64, 143, 146, 151, 152, 174, 194, 209 recognition, 125, 158 recommendations, iv, 122 reconcile, 14 recruiting, 5, 22 reelection, 164, 194, 201 reforms, 160, 165, 166, 169, 170, 171 region, 150 rejection, 146, 151 relationship, 15, 41, 83, 123, 168, 183, 193, 203, 209 relatives, 31 relaxation, 134 relevance, 53, 150, 198 relief, 133, 151, 205 religion, ix, x, 27, 109, 110, 111, 112, 113, 114, 115, 118, 120, 121, 122, 123, 127, 128, 131, 132 religious beliefs, ix, x, 109, 110, 111, 116, 117, 119 rent, 183 repair, 166 replication, 103 reputation, 16, 24 resentment, 27, 45, 61, 84 reserves, 131 resolution, 77, 187 resources, 108, 113, 121, 138, 150, 164, 170, 176, 180, 190, 194, 211 responsiveness, 176 retail, 11, 12, 30, 76, 101 retaliation, 26, 144, 170, 198 retention, 120, 155 retirement, 151

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

224

Index

retribution, 116, 156 revenue, 129 risk, 4, 17, 32, 43, 57, 83, 85, 142, 143, 159, 164, 181, 183, 184, 186, 189, 192, 193, 195, 196, 197, 199, 207, 208, 210, 214 rule of law, 151

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

S safety, 115, 118 sales, 11, 12, 15 sanctions, 5, 6, 29, 39, 50, 101, 106 satellite, 39, 59, 86, 140, 201, 204 satisfaction, 58 scarcity, 18, 19, 40, 54, 55, 59, 62, 64, 87 school, ix, 7, 12, 17, 21, 22, 23, 24, 33, 57, 69, 74, 76, 95, 107, 112, 113, 123, 131, 132, 133, 198 screening, 94 search, 25, 108, 137 Secretary of Defense, 113, 116, 122, 124 security, 30, 116, 122, 216 segregation, 212 seizure, 100, 101, 102 self-expression, 151 self-interest, 158, 165 Senate, 125, 145, 150, 160, 163, 175, 201, 205, 214, 215 sensitivity, 100 sentencing, 27 separation, 21, 116, 122, 125, 134 sex, 27, 28, 44, 47, 66, 67, 96, 102, 108, 115 sexual abuse, 66, 67 sexual activities, 43, 44, 46, 47, 85 sexual activity, 45, 67 sexual assaults, 78 sexual contact, 91, 96 sexual orientation, 15 sexually-oriented programming, 88 shareholders, 152, 153, 156, 157, 158, 159, 162, 166, 168, 169, 175, 188, 189, 210, 215 shares, 158 shock, 43, 44, 46, 162 shock waves, 162 signals, 59, 104 signs, 8, 9, 12, 28, 59, 104 skits, 47 social change, 178 social costs, 12 software, 21, 22, 69, 94, 95, 96, 97, 106, 108, 167 source code, 98 South Dakota, 33 space, 14, 40, 121 spam, 99

specter, 155, 195, 211 spectrum, 19, 40, 54, 55, 59, 87 state control, 167 State Department, 122 state laws, 147 statutes, ix, 11, 27, 31, 52, 67, 68, 69, 73, 74, 75, 79, 81, 86, 95, 124, 131, 179 sterile, 124 stock, 158 strategy, 13, 150, 169 strength, 103 stress, 116 structuring, 155 students, 17, 23, 113, 149 subscribers, 19, 64, 66, 88 Super Bowl, vii, 32, 37, 38, 40, 45, 46, 49, 59, 60, 61, 62 supervision, 41, 57, 83 supervisor, 25 supply, 200, 214 suppression, 11, 16, 21, 77, 79, 187, 188, 198 surplus, 132 survey, 44 survival, 164 symbols, 135, 138

T talent, 47, 48 targets, 9, 29 tax credit, 160 taxation, 129, 187 teachers, 113 technological developments, 54 teeth, 10 telecommunications, ix, 54, 74, 89, 95, 106 Telecommunications Act, 41, 89 telecommunications services, 95 telephone, ix, 68, 74, 81, 89, 104, 106 television ads, 140, 142, 194 television stations, 12, 18, 39, 41, 62, 63, 83 television viewing, 19, 55, 87 tension, ix, 51, 58, 63, 109, 110, 121, 178 terminals, 108 terrorism, 122, 125 thoughts, 52, 67 threat, 4, 5, 6, 24, 28, 29, 129, 162, 164, 166, 176, 206, 209 threats, 2, 4, 5, 9, 27, 28, 144, 166, 197, 208 threshold, x, 127, 128, 187, 198, 205, 214 thresholds, 208 time periods, 103, 145 timing, 154

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,

225

Index Title I, 68, 107, 142, 199, 200, 201, 202 tobacco, 12 tracks, 104 trade, 30, 76, 91, 163, 167, 211 tradition, 7, 171, 173, 196, 197, 198 traditions, 103 training, ix, 47, 48, 109, 110, 122 transactions, 70, 156 transformation, 210 transmission, 18, 54, 59, 63, 87, 88, 104, 106, 140, 204 transparency, 159, 168, 169, 170 transport, ix, 73, 84 transportation, 82, 132 trial, 5, 17, 29, 78, 91, 92, 94, 102, 174, 206 tribes, 167 triggers, 142, 179, 189, 190, 211 trust, 156

U uniform, x, 25, 109, 110, 111, 114, 115, 116, 117, 118, 124 unionism, 212 unions, xi, 139, 140, 144, 145, 146, 157, 186, 189, 190, 191, 194, 199, 201, 202, 211, 212, 215 universe, 151, 197 urban life, 30, 76 use of force, 4, 115

Copyright © 2010. Nova Science Publishers, Incorporated. All rights reserved.

V vacuum, 124 validation, 209 variance, 93 variations, 93, 121

vehicles, 27, 30, 84, 118 victims, 31, 53 video, 25, 77, 88, 89, 106, 140, 142, 149, 166 video programming, 88, 89 videotape, 100 violence, 4, 115, 118 vision, 169, 170 voice, 106, 184, 188, 194, 208 voters, 161, 162, 166, 169, 171, 172, 173, 176, 181, 184, 187, 194, 195, 198, 211 voting, 158, 172, 173, 213

W war, 14, 17, 18, 120, 191 warrants, 206, 211 weakness, 185 wealth, 143, 144, 180, 181, 187, 188, 189, 190, 212 weapons, 114, 180 wear, ix, 10, 17, 63, 78, 79, 109, 110, 114, 115, 117, 118, 119, 124, 213 welfare, 20, 21, 115, 137, 153 welfare law, 21 well-being, 53, 55, 57, 103 wholesale, 101 windows, 158 winning, 39, 69, 84, 158, 163 witnesses, 117 working conditions, 30 workplace, 20, 24 World War I, 135 World Wide Web, 94 writing, 16, 19, 23, 25, 46, 59, 81, 82, 87, 92, 93, 102, 104 wrongdoing, 137

The First Amendment: Select Issues : Select Issues, Nova Science Publishers, Incorporated, 2010. ProQuest Ebook Central,