Communication Currents

Political Speech Protection and the Supreme Court of the United States

October 1, 2015
Freedom of Expression

In January 2010, the Supreme Court of the United States delivered an opinion in Citizens United v. Federal Elections Commission that resonated in weeks of heated discussions nationwide. While deciding whether a non-for-profit corporation, Citizens United, could have aired and advertised the documentary critical of Hillary Clinton within the 30-day window prohibiting electioneering communication preceding primary elections, the court ruled that parts of the2002 Bipartisan Campaign Reform Act (BCRA) that limited the amount of money corporations (and unions) could spend on political campaigns out of their treasuries violated the First Amendment rights of those corporations (and unions). The court reasoned that electioneering communication is a form of political speech. Political speech, being the most protected form of speech under the First Amendment, warrants the highest level of scrutiny against the laws that regulate it. Section 441b of BCRA failed to withstand this scrutiny based on the court’s argument that the government cannot curb political speech of corporations (and unions) just because they are corporations (and unions) and not individuals.

The following election seasons brought about Super PACs with steadily growing amounts of money poured into the campaigns. In the 2012 presidential elections, for instance, independent groups (with the dominance of Super PACs) spent more than $500 million on political ads and other campaign-related activities. Experts estimate that spending by candidates, individuals, parties, and outside groups in the current 2016 presidential race will reach an unprecedented $10 billionThey attribute such a trend to the Supreme Court’s decisions in Citizens United and later in McCutcheon v. Federal Elections Commission when the court further extended relief from campaign finance limitations by again striking down caps on aggregate campaign contributions per election cycle, arguing the case on the grounds of the First Amendment protection of political speech.

In these decisions, the court did not deviate from the established-by-common-law approach to political speech protection. The ability of the people to speak freely without the fear of government repression on the matters pertinent to how this country is run while scrutinizing, criticizing, and holding elected officials accountable has been the foundation of the American democratic system. The peculiarity of the Citizens United and McCutcheon decisions was in the way the court applied the principle of political speech protection to the rulings of such a grand effect. This was what inspired me to examine how the United States Supreme Court has been applying the principle of political speech protection to its decisions. Considering the significance of political speech protection to the functioning of democratic self-governance in the United States and the binding authority of the court, it is hard to underestimate the importance of such a study. I was wondering whether I could find a trend in these rulings, and if so, what kind of trend that would be. Specifically, I wanted to see the opinions, and which of the Supreme Court justices have supported political speech protection in the speech-related cases the court reviewed on political speech grounds; which of the Supreme Court justices have supported regulation of political speech in the speech-related cases the court reviewed on political speech grounds; and what rationales these opinions applied.

To find answers to these questions, I reviewed First Amendment cases decided by the court under Chief Justice John Roberts Jr. I looked at the period from 2005 to 2009, leaving the following years to be covered by the second study. In total, during this period there were five First Amendment cases the court either decided on the grounds of political speech protection or included concurring or dissenting opinions based on political speech protection.

Four out of the five cases (Randall v. SorrellWisconsin Right to Life v. Federal Election CommissionDavis v. Federal Election Commissionand YSURSA v. Pocatello Education Association) concerned campaign finance regulations, with two of those four questioning the constitutionality of various BCRA provisions. Of the remaining two, one questioned a state statute that also regulated campaign spending and funding, and another state statute limiting public employees in their choice of contributions to the union PACs. Only one case (Morse v. Frederick) had nothing to do with elections or campaign funding.

Notably, in the first three cases, the court majority sided with the challengers of the limitations on campaign spending and donations, applying the same logic as in Citizens United. The court did not specifically put forward the same argument that political speech cannot be abridged based on the identity of the speaker, but it did argue campaign finance limitations could not withstand strict scrutiny since electioneering communication is political speech that requires the highest level of protection. In theYSURSA case, however, the court majority did not find any First Amendment issues with the statute under question. It reasoned that while government cannot regulate political speech, it cannot be compelled to facilitate its funding.

The Supreme Court also did not find a high school principal, Deborah Morse, who suspended a student for holding up an inappropriate (according to the school policy) banner, in violation of the student’s First Amendment rights. Here, the court majority was reluctant to view the content of the banner as political speech and instead reviewed it against the school policy, finding the latter adequate. The court’s dissenting minority were the ones who argued in favor of the banner being political speech, thus requiring the highest level of protection.

My study showed we can indeed observe a trend in the court’s application of political speech protection. Based on these five cases, studentsand government employees, following the tradition in the First Amendment jurisprudence limiting students’ freedom of speech and not always providing full protection to government employees, did fall beyond the court’s protective umbrella. The court seemed to use this tradition to its convenience in reasoning when to apply strict scrutiny. The court also avoided strictly scrutinizing issues under the First Amendment unless consequences of speech would be purely political. The Roberts Court did not seem to be especially supportive of the First Amendment protection of political speech unless in the context of campaign finance. What’s more, the court’s protection extended only to corporations or rich individuals.

So what do all these findings reveal about the Roberts Court as a guardian of free speech? Based on the existing literature and results of this analysis, it appears to be selective more so than effective in protecting speech. The implications of such an approach may be rather grim. Uneven application of political speech protection and bias in favor of institutions and individuals with deep pockets may shake the core of the political system upon which the governance of this country has been built. Effective self-government by people is not possible in the state where all its citizens do not have an equal andfair opportunity to exercise their right to freely and on equal terms discuss issues of political importance and have their voices heard—not drowned by more financially able counterparts. So far, as this study revealed, there is support to previous scholarship in that the Roberts Court follows a certain pattern in the decisions that apply the philosophy of governance by the people, and this pattern is disturbing.

About the author (s)

Ellada Gamreklidze

Louisiana State University

Adjunct Instructor