First Amendment for the Rich?
Like the short-lived "Era of Good Feelings," which united all political factions behind the re-election of James Monroe, a First Amendment Era of Good Feelings unites all factions on the Rehnquist Supreme Court behind vigorous judicial protection of free speech. But, like the original Era of Good Feelings 180 years ago, the surface First Amendment consensus on the current Supreme Court conceals a crucial fault line that will shape the nature of free speech in the twenty-first century. At stake is whether the twenty-first-century First Amendment will be a protector of the powerful or a resource for the weak and disfranchised. The current Court is closely divided between First Amendment Disablers, like Justices Antonin Scalia and Clarence Thomas, who treat the free-speech clause as if it were a physical barrier walling government off from the act of speech; and First Amendment Idealists, like Justices John Paul Stevens and Ruth Bader Ginsburg, who view Madison's handiwork as the articulation of an ideal permitting government to regulate the speech of the extremely powerful when necessary to defend the Madisonian vision of a marketplace of ideas open to all, regardless of wealth.
Most of the time, the distinction between a First Amendment Disabler and a First Amendment Idealist is irrelevant, since most First Amendment cases are decided the same way under both approaches. That explains why, in the 100-odd First Amendment cases decided during the Rehnquist era, the scale has tilted so markedly toward free speech (occasionally over the Chief Justice's dissent). In 1988, two years into the Rehnquist era, the Chief Justice refused to allow Jerry Falwell to sue Hustler over a tasteless parody that insulted Falwell's mother. That unanimous decision set the tone for the next twelve years. This past term the Court invalidated Congress's efforts to confine sexually provocative speech on cable television to late-night broadcasts, reasoning that a rule allowing parents to block the transmission on a household-by-household basis is a less drastic interference with free speech. Last term, the Court struck down Congress's effort to ban the advertising of casino gambling on television. The term before that, the Court struck down Congress's effort to ban "indecent" speech from the Internet. Although the Court displays an occasional free-speech blind spot--witness its almost comic inability to deal with nude dancing, and its not-so-comic decimation of the student press--the grand free-speech alliance between the Court's liberal and conservative wings that was forged a little more than a decade ago in the flag-burning cases continues to hold.
In at least three important free-speech contexts, though, the differences between Disablers and Idealists can be crucial. The future of campaign finance reform depends on whether the twenty-first-century Court will be staffed by First Amendment Disablers or First Amendment Idealists. Until now, the Disablers have had the upper hand, with unfortunate results for American democracy. In Buckley v. Valeo, the Court gave the rich an immense electoral advantage by ruling that the First Amendment disables government from attempting to limit campaign spending, no matter how much money is involved and no matter how disproportionate the resources of the candidates may be. Restrictions on the size of campaign contributions were grudgingly permitted, however, in order to prevent corruption. A second distinction was made in Buckley between campaign speech, overtly aimed at influencing the outcome of an election, and issue advocacy, ostensibly aimed at persuading people about more general issues. While the funding of campaign speech was deemed subject to regulation, the First Amendment was held to disable government from all efforts to regulate the funding of issue advocacy.
The razor-thin distinctions in Buckley between campaign spending and campaign contributions, and between campaign speech and issue advocacy, have been disastrous. Political campaigns have been caught in a squeeze between an uncontrollable rise in the demand for campaign cash and significant limits on legitimate sources of supply. The net result has been a vast gray market in campaign funding. Huge amounts of unregulated money are spent on phony issue advocacy that is nothing more than unregulated campaign spending. Even larger sums are diverted to political parties as nonregulated "soft money," although everyone knows that the funds are disguised campaign contributions.
Given the collapse of the regulatory regime, virtually no one believes in the Buckley precedent anymore. The case is a rotten tree that is about to fall--but no one knows in which direction. If the First Amendment Disablers prevail, almost all restrictions on campaign funding, including most restrictions on campaign contributions, will be deemed to violate the First Amendment. If First Amendment Idealists prevail, reasonable limits on campaign spending designed to allow ordinary people to play a role in American democracy will have a real chance to succeed.
The Justices appointed by the winner of the 2000 presidential election will also determine the structure of American media in the twenty-first century. We are living through a profound consolidation of media ownership. When the dust settles, a handful of corporations will control virtually all of our television, cable, radio, newspapers, magazines, book publishers and movies. Everything that gets said on our media networks or gets sold in our bookstores and newsstands will go through a very few corporate boardrooms. If First Amendment Disablers prevail, government efforts to restructure the ownership and control of our media monopoly, perhaps by arguing that there is a First Amendment antitrust doctrine that forbids oligopoly control over communications, will be doomed. If First Amendment Idealists prevail, efforts to restructure the media to assure a multiplicity of voices will have a real chance to succeed.
Finally, much important speech in a democracy is subsidized. Public television, legal services lawyers, doctors in family planning clinics, professors in public universities and government-supported art museums are all examples of crucially important subsidized speakers. The current Court is deeply divided over whether government may place conditions on the aid it gives to those speakers. Disablers react by arguing that since the government is actually enhancing the quantity of speech, the First Amendment has little or no role to play in controlling the strings government chooses to put on the money. Thus, according to disablers, doctors in federally funded family-planning clinics can be forbidden to discuss abortion with their patients. The Court narrowly upheld such a restriction by a 5-to-4 vote. Idealists, on the other hand, view government efforts to control subsidized speech as a violation of the First Amendment. They viewed New York City Mayor Rudolph Giuliani's recent effort to control the art exhibited at the Brooklyn Museum as an easy First Amendment case.
At stake, therefore, in the 2000 presidential election is not whether we will have a vigorous First Amendment. That battle, at least for the foreseeable future, has been won. It is whether the First Amendment will become an ally of the rich and powerful, insulating their control over our politics and our media from government regulation, or whether the First Amendment will emerge as a vehicle for the defense of a true free market in ideas open to all, regardless of wealth.