The Contradictory Messages of Rehnquist-Roberts Era Speech Law
By David Kairys
This essay begins with a new analysis and critique of the campaign finance cases. Buckley v. Valeo, Citizens United v. FEC and all the protective campaign financing cases in between treat limits on the quantity of speech the same way courts have long treated complete prohibitions of speech – with strict scrutiny and no consideration of the adequacy of the allowed quantity or alternative avenues of speech. It’s an appealing approach. On the other hand, there are reasons not to extend heightened constitutional protection to unlimited quantities of speech or money (or anything else). But whatever the merits of the quantity-limits principle, and despite its centrality to almost four decades of invalidation of campaign financing reforms, it’s not a principle at all, at least not in the sense that principles have general applicability. Outside of the campaign finance context, decisions regularly allow limits on the quantity of speech without mentioning the principle or applying strict scrutiny, such as limits on the number of picketers, the number of demonstrators, the number and frequency of permits, the volume of amplifiers, the number and size of protest signs.
The quantity limits principle expands free speech, leading some to declare the Rehnquist-Roberts era and approach pro-free speech. But in the same period, the last three or four decades, the principle has not been extended to speakers who express themselves other than by spending large amounts of money on electoral campaigns. For example, when people of ordinary means use their money to support speech, the money-is-speech principle is not mentioned and strict scrutiny is not applied. Further, the trend in many areas of speech law has been to narrow free speech rights, also often with new principles that have not been generally applied, leading others to characterize the Rehnquist-Roberts era as anti-free speech.
This essay reviews a range of principles and doctrines innovated or substantially revised in the Rehnquist-Roberts era – quantity limits, money is speech, corporations are people, commercial speech, incidental effects, secondary effects, time, place and manner restrictions, offensive speech, and public forum – only to discover an incoherent tangle of contradictory rules that on the whole is not pro- or anti-free speech. There are, however, themes and patterns discernible by looking across the range of speech cases and issues, focusing on the context and social meaning of the speech claimed to be protected as well as legal reasoning, and being open to, or expecting, change rather than consistency or synthesis as social and political contexts and justices change over time.
The themes and patterns discerned are: (1) enlargement of the speech rights available to wealthy people, businesses, and corporations, and to otherwise favored people or institutions; (2) restriction of the speech rights available to people of ordinary means, students, and various dissenters and otherwise disfavored people and institutions, and of the basic democratic rights of every American to vote and participate in the electoral and political process; and (3) free-speech barriers to public access to the media and to electoral, economic and social reforms. This is what we now call freedom of speech.
Available at: http://works.bepress.com/david_kairys/1/