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Chapter 8

Chapter 8

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Published by Allison Hayward

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Published by: Allison Hayward on Apr 22, 2010
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The First Amendment “has its fullest and most urgent application * * * to the conduct of campaigns for political office.”
Monitor Patriot Co
, 401 U.S. 265, 272 (1971).Accordingly, the constitutional protections of “the freedom of speech, [and] of the press” are particularly important in election law. Elections provide the clearest opportunity for the people toexercise the power of self-governance in a republic, and the power of the vote can be effectiveonly if, and to the extent that, voters can inform themselves about the candidates and issues to beconsidered at elections.
See, e.g.
, A
, F
(1948).Yet the importance of elections to the democratic process, and of speech to elections, meansthat disinformation can produce particularly severe negative consequences. Additionally, free-speech protections allow persons to exert influence commensurate with their ability to articulatea persuasive message and distribute it to an audience. Because some people are better than othersat producing and distributing speech, and because some people can devote more resources to theeffort than can others, free speech can result in inequality of political influence. Thus, ironically,elections present both the most compelling context for protecting free speech, and the mostcompelling context for limiting it.This Chapter considers several different areas in which free-speech questions arise. Thoughour focus will be on election-related speech, some of the cases included here do not deal overtlywith elections. Each case is significant, however, for what it says about the constitutional protection granted to speech on matters of public concern, and thereby forms a foundation for our understanding of the First Amendment’s application to the electoral politics.The summary in this section, and the coverage in this Chapter, leave undiscussed manyimportant areas of First Amendment doctrine, including some that relate to the expression of  political speech and the communication of ideas that have the potential to shape politics. Thus,the Supreme Court’s treatment of subversive speech and symbolic expression, for example, arenot analyzed here; rather, we seek to present those portions of First Amendment law that havethe largest impact on speech in campaigns.The First Amendment applies by its terms only to congressional laws that abridge the listedfreedoms, but the other branches of the federal government are also required to respect itsstrictures. Further, the Court has long considered First Amendment rights to be fundamental, andaccordingly has interpreted the Fourteenth Amendment as extending the First Amendment’s protections to the states.
 Fiske v. Kansas
, 274 U.S. 380, 386-87 (1927) (incorporating theFirst Amendment’s protection of the freedom of speech);
Gitlow v. New York 
, 268 U.S. 652, 666(1925) (announcing the same principle in dictum). Thus, whether the challenged abridgement of speech is the result of state or federal action, it will be deemed constitutional only if it passesstrict scrutiny— 
., if the restriction on speech is narrowly tailored to serve a compellinggovernmental interest.Before one can determine that strict scrutiny is appropriate, however, it is necessary to
determine whether a regulation implicates the right. As a general matter, “content-based”regulations trigger strict scrutiny, while “content-neutral” regulations concerning the time, place,or manner of speech are evaluated under a more forgiving test. If a regulation is motivated by a purpose unrelated to the content of the speech, it will be upheld if significant governmentinterests outweigh the incidental restriction on speech.
D. R 
& J
E. N
,5 T
§ 20.47(a) at 461 (4th ed. 2008).A content-based restriction is one where the harm the government seeks to prevent is relatedto the message of the speaker; the government must assess the content of the message toascertain whether it risks the harm the government is trying to avoid. A content-neutralrestriction, by contrast, seeks to achieve a result unrelated to the message of a given speaker. A ban on sound trucks, for example, limits the expression of speech, but does so in a content-neutral way because the harm the government seeks to prevent—the disturbances caused bynoise—are unrelated to the message conveyed by the sound truck. Whether the sound truck carries a speech by a mayoral candidate, an advertisement about a ballot issue, a commercialadvertisement, or a public-service announcement, the harm is the same. Content-neutralregulations are more apt to be constitutional than are content-based restrictions, but they muststill be reasonable. The government cannot simply ban all speech within a certain area anddefend on the ground that the ban is content-neutral.
 Board of Airport Commissioners v. Jews for Jesus, Inc.
, 482 U.S. 569 (1987).“Viewpoint-based” restrictions are a subset of content-based ones. Viewpoint-basedrestrictions not only apply to speech depending on what message is conveyed in the speech, butuse the power of the government to advantage one side in a debate. Thus, a regulation applyingto speech “about the National Football League” would be content-based because the governmentwould need to assess the speech to determine if the NFL were the subject of the speech. Aregulation applying to speech “promoting the National Football League,” however, would notonly be content-based but would be viewpoint-based as well, because it would leave unregulatedspeech denigrating the League. Viewpoint-based regulations are almost always unconstitutional.Certain categories of language have traditionally not been considered to be part of “thefreedom of speech,” and therefore the government can limit the use of such language withouttriggering the strict-scrutiny test. These categories include obscenity, fighting words, and libel.
See Chaplinsky v. New Hampshire
, 315 U.S. 568, 571-72 (1942). Even as to such “low-valuespeech,” however, the Constitution may provide some protection—especially if a governmentregulation may in practice chill not only those kinds of speech, but other expression as well. In
 New York Times Co v. Sullivan
, 376 U.S. 254 (1964) [p. XXX], for example, the Court struck down a libel judgment against a newspaper as inconsistent with the First Amendment. The Courtreasoned that even if libel is constitutionally unprotected, speakers would refrain from exercisingtheir rights if they knew that a false statement would subject them to liability. Accordingly, theCourt held that a state may award damages for libel only where the defendant’s false statementswere made with knowledge of their falsity, or with reckless disregard for whether they were falseor not.
See id 
. at 280.Libel prohibitions are only one kind of regulation affecting speech about public affairs and public figures. Media outlets have occasionally been targets of governmental “fairnessregulation when regulators fear that media coverage has the capacity to slant the public’s perception of candidates or issues. For the most part, such restrictions have failed to surviveconstitutional review. An exception exists, however, for regulation of broadcast media. Whereasregulation of newspapers’ editorializing has been held flatly unconstitutional,
 see Miami Herald 
 Publishing Co. v. Tornillo
, 418 U.S. 241 (1974) [p. XXX], the Supreme Court upheld the FCC’s(since-repealed) requirement that radio and television broadcasters provide criticized persons anopportunity to respond to attacks.
 Red Lion Broadcasting Co. v. Federal CommunicationsCommission
, 395 U.S. 367 (1969) [p. XXX]. Broadcast media were different, the Courtconcluded, because the scarcity of available broadcast frequencies prevented each potentialspeaker from having access to the airwaves. Accordingly, broadcasters could constitutionally beconsidered to hold their licenses in the public interest, and obligated to permit other members of the public access to their stations when necessary to give the public a balanced presentation of issues.Government is usually prohibited from imposing civil or criminal penalties for politicalspeech, and may not interfere with the speech of candidates for public office.
See Brown v. Hartlage
, 456 U.S. 45 (1982) [p. XXX]. Where a state’s electoral process incorporates a role for  petitions (often as a prerequisite to ballot-access for third parties or initiatives), the circulation of such petitions involves “core political speech.”
See Meyer v. Grant 
, 486 U.S. 414, 420-22 (1986)[p. XXX]. Even judicial candidates possess a First Amendment right to announce their views incampaigns, though states may be able to restrict judicial campaign speech more than they canrestrict speech in other types of campaigns.
See Republican Party of Minnesota v. White
, 536U.S. 765, 783 (2002) [p. XXX]. Political speakers are also protected from being forced todisclose their identities when speaking.
See McIntyre v. Ohio Elections Commission
, 514 U.S.334 (1995). As we will see in Chapter 9, however, the Court has upheld campaign-finance lawsthat require donors to disclosure their identities.
See McConnell v. Federal Election Commission
,540 U.S. 93,
189-202 (2003) [p. XXX];
 Buckley v. Valeo
, 424 U.S. 1, 74-82 (1976) [p. XXX](
 per curiam
).When government acts not as a regulator but as an employer, it may sometimes conditionemployment on the employee’s agreement not to engage in political speech—provided that theemployee’s speech would adversely affect job performance. Where an individual’s job performance is unaffected by the speech, government may not discipline an employee for speechthat opposes the government’s viewpoint.
See Pickering v. Board of Education
, 391 U.S. 563(1968) [p. XXX]. In a series of cases upholding limitations on government employees’ politicalactivity, however, the Court has indicated that the government may impose limits on employees’First Amendment freedoms where public confidence in government demands that workers not beseen as having their jobs depend on their support for the party or politicians in power.
See Broadrick v. Oklahoma
, 413 U.S. 601 (1973);
Civil Service Commission v. National Associationof Letter Carriers
, 413 U.S. 548 (1973) [p. XXX];
United Public Workers v. Mitchell 
, 330 U.S.75 (1947) [p. XXX].The dangers of a partisan government workforce are so acute that the Court has not onlyauthorized limits on employees’ speech, but has also held that the First Amendment itself requires government to refrain from making certain employment decisions on a patronage basis.Patronage persists to some degree, of course, but the Court has stated that party loyalty may bethe basis for personnel decisions relating only to those positions for which “party affiliation is anappropriate requirement for the effective performance of the public office involved.”
 Branti v. Finkel 
, 445 U.S. 507, 518-20 (1980).One particular type of political speech—campaign finance—is the subject of its ownChapter. As you read the materials in this one, however, you should consider how the principlesdeveloped here should apply in evaluating the constitutionality of restrictions on raising or spending money in campaigns.3

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