Musings on the First Amendment

March 23, 2015

The Supreme Court heard oral arguments today in Walker v. Texas Division, Sons of Confederate Veterans, Inc., No. 14-144. The case involves specialty license plates, and a state’s right under the First Amendment to limit the messages. In a nutshell, almost, the Sons of Confederate Veterans want a specialty license plate in Texas. The state said no, the trial court said no, the Fifth Circuit said yes, and the Supreme Court said “let’s take a look.”

Lyle Denniston for SCOTUSblog provides his usual first-rate analysis in Assuming the Answer, Up Front. As it is with so many issues, the premise will often determine the conclusion. Here, as Mr. Denniston notes, the case turns on whose speech appears on the license plate. If the state is talking, the First Amendment doesn’t apply; on the other hand, if the plate represents a forum for the public to express its sentiments, the First Amendment almost surely does apply.

Apt was Chief Justice John Roberts’ observation (borrowed from the Denniston piece):

I’m not sure why it’s government speech [to have a specialty plate program]. It is only doing it to get the money.

I was struck, reading about the Sons of Confederate Veterans case, by the silliness of the dispute. License plates exist to identify vehicles. Bumper stickers exist so some people among us can broadcast what they like and do not like. (Some of us cannot confine ourselves to a few short words. We blog.) Somehow—and I think the Chief has nailed the issue—states have let the two get intertwined, surely because of the revenue stream, and now we have a bunch of smart attorneys, and judges slicing and dicing. Stuff matters in the United States of America! And that does not include this issue.

Further to the First Amendment, I read The Embattled First Amendment by Lincoln Caplan for The American Scholar’s Spring 2015 issue over the weekend. The article is a slog, and not because of Mr. Caplan’s writing. It’s his subject; I don’t like First Amendment speech issues, and I’m not shy about owning up to it.

The big takeaway in the Caplan piece comes from this paragraph:

A quarter century ago … Yale Law School’s Jack Balkin warned that liberals’ free speech victories were likely to be of greater benefit to the status quo and, as a result, to conservative causes. He pointed out that ‘guarantees of formal liberty and formal equality generally favor those groups in society that are already the most powerful.’ The idea that Justice Holmes identified as the heart of free speech—freedom from censorship based on the speech’s substance—is hallowed in American law, but through government limitations on the time, place, and manner of protests imposed in the name of public safety, Balkin pointed out, speech has often been muffled.

No surprise here, as we live in a society in which power accretes to the powerful. So, a provision we think we find in the Constitution to protect us from the heavy hand of the state—read the Caplan piece to better understand the real underpinnings of the free speech clause—does, in fact, further both the state and those who are in control. And, in fact, the muffling goes well beyond time, place, and manner restrictions on protests.

Doubt me? Wondering why, until today, no candidate has yet announced that she or he will be running for POTUS in 2016? Maybe you thought Hilary was really thinking “run/don’t run?” The answer lies in the nuances of campaign finance laws and the First Amendment. Bottom line? Candidates can collect $2700 per donor, per election. “Candidates” (and their related entities) can collect much, much more. So much more, in fact, that I can’t figure out how just how much more!

In conclusion, what a mess!

P.S. Senator Ted Cruz (R-Tex.) announced his bid for the White House today. (I guess he won’t be getting many really big donors.) His announcement brought to mind the late, great Morris Udall, the man who represented my district in Congress for a very long time, and the candidate who should have been elected to the presidency in 1976. Introducing himself to a couple of old New Hampshire codgers in 1975 as “Mo Udall, running for President,” he reported that one of them said, “Yep, we were just laughing about it.” Let’s hope we’ll all be able to say the same thing about Senator Cruz!

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