Askin: The high court and the costs of free speech
IT APPEARS that freedom of speech, like beauty, is
in the eye of the beholder – if the beholders are members of the U.S. Supreme
Court.
The conservative justices are ferocious in their defense of free speech for
corporations and millionaires. But they have little sympathy for the person who
inadvertently blurts out an expletive over the airwaves.
The non-conservative justices view these matters just the opposite.
The latest illustration of this judicial phenomenon came two weeks ago when the
court, by a 5-4 vote, upheld punishments meted out by the Federal
Communications Commission for “fleeting expletives” uttered in live broadcasts.
One of the offenders was Cher, who in accepting an award on TV in 2002,
referred to her critics with an obscenity. The other miscreant was Nicole
Richie, who used a vulgar term in a broadcast conversation with Paris Hilton in
explaining the difficulty of cleaning cow manure from a Prada purse.
The other conservative justices — Anthony Kennedy, Clarence Thomas, Sam Alito,
and Chief Justice John Roberts — agreed with Antonin Scalia.
The moderate bloc — Stephen Breyer, Ruth Bader Ginsberg, David Souter and John
Paul Stevens — dissented.
The breakdown of justices was the same, but the result was different last term
when it came to the free speech rights of millionaires running for public
office. There, the conservative majority found that the free speech rights of
self-financed candidates for federal office had been violated by Congress when
it tried to provide a bit of assistance to their underfunded opponents.
Millionaire’s rule
In the so-called “millionaire’s amendment,” Congress would have allowed
candidates running against self-financing millionaires a bit of an escape from
the contribution limits that cap individual political contributions at $2,300
per election.
Under the congressional sliding scale, those competing with millionaires could
have accepted up to $6,900 from individuals.
The court majority held that it would violate the constitutional right of
millionaires to pour unlimited amounts of their own funds into their campaigns
(Davis v. Federal Election Commission).
Impact on New Jersey
One consequence of the decision in the Davis case was that the Office of
Legislative Counsel in New Jersey issued an opinion that our state’s Clean
Elections law was unconstitutional. Under the Clean Elections Pilot Program,
candidates in designated legislative districts could accept public financing
for their campaigns in exchange for a pledge not to raise private funds. But if
their opponents declined to participate in the public financing program, the
“clean” candidates would be entitled to a limited amount of additional public
grants.
While that scheme might have been distinguished from the Millionaire’s
Amendment, legislative counsel ruled otherwise, and New Jersey Assembly Speaker
Joe Roberts withdrew the bill from consideration.
It also appears from recent decisions that the conservative majority is
prepared to overrule longstanding precedents that permit legislative bodies,
both state and federal, to preclude business corporations from spending treasury
funds to support the election of candidates for office.
Justices Scalia, Thomas and Kennedy have already announced their support for
such a change in the law, and most court-watchers believe that the newest
justices, Roberts and Alito, are ready to join them.
The non-conservatives see nothing wrong with laws, some of which go back to
1907, restricting the use of corporate funds in political campaigns.
I will leave it to the psychological community to explain why conservative
judges feel so passionately about free speech for millionaires and corporations
but are hostile to occasional expletives, while non-conservative judges feel
exactly the opposite.
Frank Askin is professor of law and director of the Constitutional Litigation Clinic at Rutgers Law School,
Newark. Send comments to grad@northjersey.com.
IT
APPEARS that freedom of speech, like beauty, is in the eye of the beholder – if
the beholders are members of the U.S. Supreme Court.
The
conservative justices are ferocious in their defense of free speech for
corporations and millionaires. But they have little sympathy for the person who
inadvertently blurts out an expletive over the airwaves.
The
non-conservative justices view these matters just the opposite.
The
latest illustration of this judicial phenomenon came two weeks ago when the
court, by a 5-4 vote, upheld punishments meted out by the Federal
Communications Commission for “fleeting expletives” uttered in live broadcasts.
One of the offenders was Cher, who in accepting an award on TV in 2002,
referred to her critics with an obscenity. The other miscreant was Nicole
Richie, who used a vulgar term in a broadcast conversation with Paris Hilton in
explaining the difficulty of cleaning cow manure from a Prada purse.
The
other conservative justices — Anthony Kennedy, Clarence Thomas, Sam Alito, and
Chief Justice John Roberts — agreed with Antonin Scalia.
The
moderate bloc — Stephen Breyer, Ruth Bader Ginsberg, David Souter and John Paul
Stevens — dissented.
The
breakdown of justices was the same, but the result was different last term when
it came to the free speech rights of millionaires running for public office.
There, the conservative majority found that the free speech rights of self-financed
candidates for federal office had been violated by Congress when it tried to
provide a bit of assistance to their underfunded opponents.
Millionaire’s
rule
In
the so-called “millionaire’s amendment,” Congress would have allowed candidates
running against self-financing millionaires a bit of an escape from the
contribution limits that cap individual political contributions at $2,300 per
election.
Under
the congressional sliding scale, those competing with millionaires could have
accepted up to $6,900 from individuals.
The
court majority held that it would violate the constitutional right of
millionaires to pour unlimited amounts of their own funds into their campaigns
(Davis v. Federal Election Commission).
Impact
on New Jersey
One
consequence of the decision in the Davis case was that the Office of
Legislative Counsel in New Jersey issued an opinion that our state’s Clean
Elections law was unconstitutional. Under the Clean Elections Pilot Program,
candidates in designated legislative districts could accept public financing
for their campaigns in exchange for a pledge not to raise private funds. But if
their opponents declined to participate in the public financing program, the
“clean” candidates would be entitled to a limited amount of additional public
grants.
While
that scheme might have been distinguished from the Millionaire’s Amendment,
legislative counsel ruled otherwise, and New Jersey Assembly Speaker Joe
Roberts withdrew the bill from consideration.
It
also appears from recent decisions that the conservative majority is prepared
to overrule longstanding precedents that permit legislative bodies, both state
and federal, to preclude business corporations from spending treasury funds to
support the election of candidates for office.
Justices
Scalia, Thomas and Kennedy have already announced their support for such a
change in the law, and most court-watchers believe that the newest justices,
Roberts and Alito, are ready to join them.
The
non-conservatives see nothing wrong with laws, some of which go back to 1907,
restricting the use of corporate funds in political campaigns.
I
will leave it to the psychological community to explain why conservative judges
feel so passionately about free speech for millionaires and corporations but
are hostile to occasional expletives, while non-conservative judges feel
exactly the opposite.