Chapter 8

1

Chapter 8

POLITICAL SPEECH

A. INTRODUCTIONThe First Amendment “has its fullest and most urgent application * * * to the conduct of

campaigns for political office.” Monitor Patriot Co. v. Roy, 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 to exercise the power of self-governance in a republic, and the power of the vote can be effective only if, and to the extent that, voters can inform themselves about the candidates and issues to be considered at elections. See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATIONSHIP TO SELF GOVERNMENT (1948).

Yet the importance of elections to the democratic process, and of speech to elections, means that disinformation can produce particularly severe negative consequences. Additionally, free-speech protections allow persons to exert influence commensurate with their ability to articulate a persuasive message and distribute it to an audience. Because some people are better than others at producing and distributing speech, and because some people can devote more resources to the effort 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 most compelling context for limiting it.

This Chapter considers several different areas in which free-speech questions arise. Though our focus will be on election-related speech, some of the cases included here do not deal overtly with 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 many important 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, are not analyzed here; rather, we seek to present those portions of First Amendment law that have the largest impact on speech in campaigns.

The First Amendment applies by its terms only to congressional laws that abridge the listed freedoms, but the other branches of the federal government are also required to respect its strictures. Further, the Court has long considered First Amendment rights to be fundamental, and accordingly has interpreted the Fourteenth Amendment as extending the First Amendment’s protections to the states. See Fiske v. Kansas, 274 U.S. 380, 386-87 (1927) (incorporating the First 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 passes strict scrutiny—i.e., if the restriction on speech is narrowly tailored to serve a compelling governmental 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 government interests outweigh the incidental restriction on speech. See RONALD D. ROTUNDA & JOHN E. NOWAK, 5 TREATISE ON CONSTITUTIONAL LAW § 20.47(a) at 461 (4th ed. 2008).

A content-based restriction is one where the harm the government seeks to prevent is related to the message of the speaker; the government must assess the content of the message to ascertain whether it risks the harm the government is trying to avoid. A content-neutral restriction, 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 by noise—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 commercial advertisement, or a public-service announcement, the harm is the same. Content-neutral regulations are more apt to be constitutional than are content-based restrictions, but they must still be reasonable. The government cannot simply ban all speech within a certain area and defend on the ground that the ban is content-neutral. See 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-based restrictions not only apply to speech depending on what message is conveyed in the speech, but use the power of the government to advantage one side in a debate. Thus, a regulation applying to speech “about the National Football League” would be content-based because the government would need to assess the speech to determine if the NFL were the subject of the speech. A regulation applying to speech “promoting the National Football League,” however, would not only be content-based but would be viewpoint-based as well, because it would leave unregulated speech denigrating the League. Viewpoint-based regulations are almost always unconstitutional.

Certain categories of language have traditionally not been considered to be part of “the freedom of speech,” and therefore the government can limit the use of such language without triggering 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-value speech,” however, the Constitution may provide some protection—especially if a government regulation 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 Court reasoned that even if libel is constitutionally unprotected, speakers would refrain from exercising their rights if they knew that a false statement would subject them to liability. Accordingly, the Court held that a state may award damages for libel only where the defendant’s false statements were made with knowledge of their falsity, or with reckless disregard for whether they were false or 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 “fairness” regulation 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 survive constitutional review. An exception exists, however, for regulation of broadcast media. Whereas regulation 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

2

(since-repealed) requirement that radio and television broadcasters provide criticized persons an opportunity to respond to attacks. See Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969) [p. XXX]. Broadcast media were different, the Court concluded, because the scarcity of available broadcast frequencies prevented each potential speaker from having access to the airwaves. Accordingly, broadcasters could constitutionally be considered 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 political speech, 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 in campaigns, though states may be able to restrict judicial campaign speech more than they can restrict speech in other types of campaigns. See Republican Party of Minnesota v. White, 536 U.S. 765, 783 (2002) [p. XXX]. Political speakers are also protected from being forced to disclose 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 laws that 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 condition employment on the employee’s agreement not to engage in political speech—provided that the employee’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 speech that 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’ political activity, 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 be seen 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 Association of 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 only authorized 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 be the basis for personnel decisions relating only to those positions for which “party affiliation is an appropriate 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 own Chapter. As you read the materials in this one, however, you should consider how the principles developed here should apply in evaluating the constitutionality of restrictions on raising or spending money in campaigns.

3

B. DEFAMATION AND THE PROBLEM OF FALSE STATEMENTSWe begin with perhaps the most famous First Amendment case in American history. New

York Times Co. v. Sullivan constitutionalized the “actual malice” standard for libel, holding that the First Amendment prohibited states from awarding tort damages to public officials for libelous statements unless the defendant knew the statements were false, or unless the defendant acted in reckless disregard for whether the statements were false or not. The case has had a tremendous influence on political discourse because of its determination that even some false and damaging speech should receive constitutional protection so as to avoid “chilling” more worthy expression.

NEW YORK TIMES CO. v. SULLIVANSupreme Court of the United States

376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)

MR. JUSTICE BRENNAN delivered the opinion of the Court [in which MR. CHIEF JUSTICE WARREN, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE WHITE join].

We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.1

Respondent L.B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was “Commissioner of Public Affairs and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales.” He brought this civil libel action [and a] jury in the Circuit Court of Montgomery County awarded him damages of $500,000 * * *.

Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. Entitled “Heed Their Rising Voices,” the advertisement began by stating that “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” It went on to charge that “in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . .” Succeeding paragraphs purported to illustrate the “wave of terror” by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, “the struggle for the right-to-vote,” and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.

The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading “We in the south who are struggling daily for dignity and freedom warmly endorse this appeal,” appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was

1 [The First Amendment governs state action and not private action, but t]hat proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. [Relocated from text. –Eds.]

4

signed at the bottom of the page by the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South,” and the officers of the Committee were listed.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent’s claim of libel. They read as follows:

Third paragraph:

“In Montgomery, Alabama, after students sang ‘My Country, ’Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.”

Sixth paragraph:

“Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times—for ‘speeding,’ ‘loitering’ and similar ‘offenses.’ And now they have charged him with ‘perjury’—a felony under which they could imprison him for ten years. * * *”

Although neither of these statements mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of “ringing” the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement “They have arrested [Dr. King] seven times” would be read as referring to him; he further contended that the “They” who did the arresting would be equated with the “They” who committed the other described acts and with the “Southern violators.” Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with “intimidation and violence,” bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.

It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capital steps, they sang the National Anthem and not “My Country, ’Tis of Thee.” Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time “ring” the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.

On the premise that the charges in the sixth paragraph could be read as referring to him,

5

respondent was allowed to prove that he had not participated in the events described. Although Dr. King’s home had in fact been bombed twice when his wife and child were there, both of these occasions antedated respondent’s tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King’s four arrests took place before respondent became Commissioner. Although Dr. King had in fact been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the indictment.

Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel.3 * * *

* * * The manager of the [Times’] Advertising Acceptability Department testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was false, and because it bore the endorsement of “a number of people who are well known and whose reputation” he “had no reason to question.” Neither he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories relating to some of the described events or by any other means. * * *

Under Alabama law as applied in this case, a publication is “libelous per se” if the words “tend to injure a person . . . in his reputation” or to “bring [him] into public contempt[.]” * * * The jury must find that the words were published “of and concerning” the plaintiff, but where the plaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once “libel per se” has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. His privilege of “fair comment” for expressions of opinion depends on the truth of the facts upon which the comment is based. Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight.

The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.

Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the Constitution does not protect libelous publications. Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials. * * * In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet “libel” than we have to other “mere labels” of state law. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the representation of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by

3 Approximately 394 copies of the edition of the Times containing the advertisement were circulated in Alabama. Of these, about 35 copies were distributed in Montgomery County. The total circulation of the Times for that day was approximately 650,000 copies.

6

standards that satisfy the First Amendment. * * *[W]e consider this case against the background of a profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker. The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” As Madison said, “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” In Cantwell v. Connecticut, 310 U.S. 296, 310 [(1940)], the Court declared:

“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.”

[E]rroneous statement is inevitable in free debate, and [] it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive[.]” * * *

Injury to official reputation error affords no more warrant for repressing speech that would otherwise be free than does factual error. * * * Criticism of [government officials’] official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. That statute made it a crime, punishable by a $5,000 fine and five years in prison, “if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress . . ., or the President . . ., with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.” The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. * * *

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. * * * [The Court recounted expressions of Members of Congress, President Jefferson, Supreme Court Justices, and commentators to the effect that the Act was unconstitutional.] These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment. * * * What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. * * *

7

The state rule of law is not saved by its allowance of the defense of truth. * * * A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.19 Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. * * * We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action,23 the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual malice for an award of punitive damages, where general damages are concerned malice is “presumed.” Such a presumption is inconsistent with the federal rule. * * *

Since respondent may seek a new trial, we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment for respondent. * * * [W]e consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the use of their names on the advertisement, there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard. The judgment against them is thus without constitutional support.

As to the Times, we similarly conclude that the facts do not support a finding of actual malice. * * * We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.

We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury’s finding that the allegedly libelous statements were made “of and concerning” respondent. * * *

19 Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about “the clearer perception and livelier impression of truth, produced by its collision with error.” Mill, On Liberty (Oxford: Blackwell, 1947), at 15; see also Milton, Areopagitica, in Prose Works (Yale, 1959), Vol. II, at 561.23 We have no occasion here to determine how far down into the lower ranks of government employees the “public official” designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included. Nor need we here determine the boundaries of the “official conduct” concept. It is enough for the present case that respondent’s position as an elected city commissioner clearly made him a public official, and that the allegations in the advertisement concerned what was allegedly his official conduct as Commissioner in charge of the Police Department. * * *

8

There was no reference to respondent in the advertisement, either by name or official position. * * * The statements upon which respondent principally relies as referring to him are the two allegations that did concern the police or police functions: that “truckloads of police .  . . ringed the Alabama State College Campus” after the demonstration on the State Capitol steps, and that Dr. King had been “arrested . . . seven times.” * * * Although the statements may be taken as referring to the police, they did not on their face make even an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent’s witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct[.] * * * [T]he evidence was constitutionally insufficient to support a finding that the statements referred to respondent. * * *

Reversed and remanded.

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring [in the judgment].[T]he Court holds that “the Constitution delimits a State’s power to award damages for libel

in actions brought by public officials against critics of their official conduct.” I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely “delimit” a State’s power to award damages to “public officials against critics of their official conduct” but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if “actual malice” can be proved against them. “Malice,” even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials. * * *

[S]tate libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. * * * In my opinion the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction—by granting the press an absolute immunity for criticism of the way public officials do their public duty. Stopgap measures like those the Court adopts are in my judgment not enough. * * *

* * * This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. * * * An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.

I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction.

MR. JUSTICE GOLDBERG, with whom MR. JUSTICE DOUGLAS joins, concurring in the result. * * *

In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm

9

which may flow from excesses and abuses. The prized American right “to speak one’s mind” about public officials and affairs needs “breathing space to survive.” The right should not depend upon a probing by the jury of the motivation of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel. * * *

* * * It may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury’s evaluation of the speaker’s state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And if newspapers, publishing advertisements dealing with public issues, thereby risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished. * * *

This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech insures that government will respond to the will of the people and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self-governing society. The imposition of liability for private defamation does not abridge the freedom of public speech or any other freedom protected by the First Amendment. * * *

Notes and Questions1. Do you agree with the Court that chilled speech represents a greater harm than do the

false statements protected by the actual-malice standard? In the context of an electoral campaign, what harm can predictably result from New York Times? Consider Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 767-69 (1985) (White, J., concurring in the judgment):

I joined the judgment and opinion in New York Times [v. Sullivan]. I also joined later decisions extending the New York Times standard to other situations. But I came to have increasing doubts about the soundness of the Court’s approach and about some of the assumptions underlying it. * * * I have * * * become convinced that the Court struck an improvident balance in the New York Times case between the public’s interest in being fully informed about public officials and public affairs and the competing interest of those who have been defamed in vindicating their reputation.

In a country like ours, where the people purport to be able to govern themselves through their elected representatives, adequate information about their government is of transcendent importance. That flow of intelligence deserves full First Amendment protection. Criticism and assessment of the performance of public officials and of government in general are not subject to penalties imposed by law. But these First Amendment values are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government. As the Court said in Gertz [v. Robert Welch, Inc, 418 U.S. 323, 340 (1974)]: “[T]here is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Yet in New York Times

10

cases, the public official’s complaint will be dismissed unless he alleges and makes out a jury case of a knowing or reckless falsehood. Absent such proof, there will be no jury verdict or judgment of any kind in his favor, even if the challenged publication is admittedly false. The lie will stand, and the public continue to be misinformed about public matters. * * *2 [The public’s] only chance of being accurately informed is measured by the public official’s ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amendment interests—“it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not ‘hot’ news, and rarely receive the prominence of the original story.”

Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. * * * The upshot is that the public official must suffer the injury, often cannot get a judgment identifying the lie for what it is, and has very little, if any, chance of countering that lie in the public press.

The New York Times rule thus countenances two evils: first, the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. In terms of the First Amendment and reputational interests at stake, these seem grossly perverse results.

2. Should false statements be protected only to encourage the dissemination of truth, or is there value in the false statements themselves?

3. The Court expounded on the privilege created by New York Times in Garrison v. Louisiana, 379 U.S. 64 (1964), and Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971). Garrison held that criticism of a judge was protected even if the criticism reflected on the office holder’s private character. Roy made explicit that the New York Times standard applied to candidates for public office as well as officeholders.

St. Amant v. Thompson, 390 U.S. 727 (1968), clarified the meaning of “actual malice”—in particular its focus on “reckless disregard” of a statement’s falsity:

[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity. Concededly the reckless disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher. But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.

2 * * * It might be suggested that courts, as organs of the government, cannot be trusted to discern what the truth is. But the logical consequence of that view is that the First Amendment forbids all libel and slander suits, for in each such suit, there will be no recovery unless the court finds the publication at issue to be factually false. Of course, no forum is perfect, but that is not a justification for leaving whole classes of defamed individuals without redress or a realistic opportunity to clear their names. We entrust to juries and the courts the responsibility of decisions affecting the life and liberty of persons. It is perverse indeed to say that these bodies are incompetent to inquire into the truth of a statement of fact in a defamation case. I can therefore discern nothing in the Constitution which forbids a plaintiff to obtain a judicial decree that a statement is false—a decree he can then use in the community to clear his name and to prevent further damage from a defamation already published.

11

The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

Id. at 731-32. Do you agree that an objective negligence standard regarding falsity would undermine “First Amendment policies”? Should there be an obligation to investigate the truth of statements, at least where a reasonable person would have doubt?

BROWN v. HARTLAGESupreme Court of the United States

456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982)

JUSTICE BRENNAN delivered the opinion of the Court [in which JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, JUSTICE POWELL, JUSTICE STEVENS, and JUSTICE O’CONNOR join].

The question presented is whether the First Amendment, as applied to the States through the Fourteenth Amendment, prohibits a State from declaring an election void because the victorious candidate had announced to the voters during his campaign that he intended to serve at a salary less than that “fixed by law.”

IThis case involves a challenge to an application of the Kentucky Corrupt Practices Act. The

parties were opposing candidates in the 1979 general election for the office of Jefferson County Commissioner, “C” District. Petitioner, Carl Brown, was the challenger; respondent, Earl Hartlage, was the incumbent. On August 15, 1979, in the course of the campaign, Brown held a televised press conference together with Bill Creech, the “B” District candidate on the same party ticket. * * *

On behalf of himself and his running mate, Creech pledged the taxpayers some relief:

“We abhor the commissioners’ outrageous salaries. And to prove the strength of our convictions, one of our first official acts as county commissioners will be to lower our salary to a more realistic level. We will lower our salaries, saving the taxpayers $36,000 during our first term of office, by $3,000 each year.”

[Brown himself reiterated the pledge.]Shortly after the press conference, Brown and Creech learned that their commitment to lower

their salaries arguably violated the Kentucky Corrupt Practices Act. On August 19, 1979, they issued a joint statement retracting their earlier pledge:

“We are men enough to admit when we’ve made a mistake.“We have discovered that there are Kentucky court decisions and Attorney General opinions which

indicate that our pledge to reduce our salaries if elected may be illegal. . . .“. . . [We] do hereby formally rescind our pledge to reduce the County Commissioner’s salary if

elected and instead pledge to seek corrective legislation in the next session of the General Assembly, to correct this silly provision of State Law.”

12

In the November 6, 1979, election, Brown defeated Hartlage by 10,151 votes. Creech was defeated.

Hartlage then filed this action * * *, alleging that Brown had violated the Corrupt Practices Act and seeking to have the election declared void and the office of Jefferson County Commissioner, “C” District, vacated by Brown. [Ky. Rev. Stat. §] 121.055, upon which Hartlage based his claim, provides:

“Candidates prohibited from making expenditure, loan, promise, agreement, or contract as to action when elected, in consideration for vote.—No candidate for nomination or election to any state, county, city or district office shall * * * promise, agree or make a contract with any person to vote for or support any particular individual, thing or measure, in consideration for the vote or the financial or moral support of that person in any election, primary or nominating convention, and no person shall require that any candidate make such a promise, agreement or contract.”

[The Kentucky Court of Appeals held that Brown violated the Corrupt Practices Act, and, imposing the statutorily prescribed remedy, ordered a new election.]

II We begin our analysis of § 121.055 by acknowledging that the States have a legitimate

interest in preserving the integrity of their electoral processes. Just as a State may take steps to ensure that its governing political institutions and officials properly discharge public responsibilities and maintain public trust and confidence, a State has a legitimate interest in upholding the integrity of the electoral process itself. But when a State seeks to uphold that interest by restricting speech, the limitations on state authority imposed by the First Amendment are manifestly implicated. * * *

The free exchange of ideas provides special vitality to the process traditionally at the heart of American constitutional democracy—the political campaign. “[If] it be conceded that the First Amendment was ‘fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-272 (1971). The political candidate does not lose the protection of the First Amendment when he declares himself for public office. Quite to the contrary:

“The candidate, no less than any other person, has a First Amendment right to engage in the discussion

of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day. * * *” Buckley v. Valeo 424 U.S. 1, 52-53 (1976) (per curiam).

When a State seeks to restrict directly the offer of ideas by a candidate to the voters, the First

Amendment surely requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression.

III* * * We discern three bases upon which the application of the statute to Brown’s promise

might conceivably be justified: first, as a prohibition on buying votes; second, as facilitating the candidacy of persons lacking independent wealth; and third, as an application of the State’s

13

interests and prerogatives with respect to factual misstatements. We consider these possible justifications in turn.

A* * * No body politic worthy of being called a democracy entrusts the selection of leaders to

a process of auction or barter. And as a State may prohibit the giving of money or other things of value to a voter in exchange for his support, it may also declare unlawful an agreement embodying the intention to make such an exchange. Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. * * *

It is thus plain that some kinds of promises made by a candidate to voters, and some kinds of promises elicited by voters from candidates, may be declared illegal without constitutional difficulty. But it is equally plain that there are constitutional limits on the State’s power to prohibit candidates from making promises in the course of an election campaign. Some promises are universally acknowledged as legitimate, indeed “indispensable to decisionmaking in a democracy”; and the “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means . . . is a fundamental principle of our constitutional system.” Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote. The fact that some voters may find their self-interest reflected in a candidate’s commitment does not place that commitment beyond the reach of the First Amendment. We have never insisted that the franchise be exercised without taint of individual benefit; indeed, our tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare.7 So long as the hoped-for personal benefit is to be achieved through the normal processes of government, and not through some private arrangement, it has always been, and remains, a reputable basis upon which to cast one’s ballot.

It remains to determine the standards by which we might distinguish between those “private arrangements” that are inconsistent with democratic government, and those candidate assurances that promote the representative foundation of our political system. We hesitate before attempting to formulate some test of constitutional legitimacy: the precise nature of the promise, the conditions upon which it is given, the circumstances under which it is made, the size of the audience, the nature and size of the group to be benefited, all might, in some instance and to varying extents, bear upon the constitutional assessment. But acknowledging the difficulty of rendering a concise formulation, or recognizing the possibility of borderline cases, does not disable us from identifying cases far from any troublesome border.

It is clear that the statements of petitioner Brown in the course of the August 15 press conference were very different in character from the corrupting agreements and solicitations historically recognized as unprotected by the First Amendment. Notably, Brown’s commitment to serve at a reduced salary was made openly, subject to the comment and criticism of his political opponent and to the scrutiny of the voters. We think the fact that the statement was

7 See The Federalist No. 10. * * *

14

made in full view of the electorate offers a strong indication that the statement contained nothing fundamentally at odds with our shared political ethic.

The Kentucky Court of Appeals analogized Brown’s promise to a bribe. But however persuasive that analogy might be as a matter of state law, there is no constitutional basis upon which Brown’s pledge to reduce his salary might be equated with a candidate’s promise to pay voters for their support from his own pocketbook. * * * [D]espite the Kentucky courts’ characterization of the promise to serve at a reduced salary as an offer “to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus . . . an offer to the voter of pecuniary gain,” it is impossible to discern in Brown’s generalized commitment any invitation to enter into an agreement that might place the statement outside the realm of unequivocal protection that the Constitution affords to political speech. Not only was the source of the promised benefit the public fisc, but that benefit was to extend beyond those voters who cast their ballots for Brown, to all taxpayers and citizens. Even if Brown’s commitment could in some sense have been deemed an “offer,” it scarcely contemplated a particularized acceptance or a quid pro quo arrangement. It was to be honored, “if elected”; it was conditioned not on any particular vote or votes, but entirely on the majority’s vote.

In sum, Brown did not offer some private payment or donation in exchange for voter support; Brown’s statement can only be construed as an expression of his intention to exercise public power in a manner that he believed might be acceptable to some class of citizens. If Brown’s expressed intention had an individualized appeal to some taxpayers who felt themselves the likely beneficiaries of his form of fiscal restraint, that fact is of little constitutional significance. The benefits of most public policy changes accrue not only to the undifferentiated “public,” but more directly to particular individuals or groups. Like a promise to lower taxes, to increase efficiency in government, or indeed to increase taxes in order to provide some group with a desired public benefit or public service, Brown’s promise to reduce his salary cannot be deemed beyond the reach of the First Amendment, or considered as inviting the kind of corrupt arrangement the appearance of which a State may have a compelling interest in avoiding.

A State may insist that candidates seeking the approval of the electorate work within the framework of our democratic institutions, and base their appeal on assertions of fitness for office and statements respecting the means by which they intend to further the public welfare. But a candidate’s promise to confer some ultimate benefit on the voter, qua taxpayer, citizen, or member of the general public, does not lie beyond the pale of First Amendment protection.

B* * * The State might legitimately fear that [an] emphasis on free public service might result

in persons of independent wealth but less ability being chosen over those who, though better qualified, could not afford to serve at a reduced salary.8 But if § 121.055 was designed to further

8 [The Kentucky Court of Appeals feared that allowing candidates to promise to serve without remuneration]“* * * would permit the various elective public offices to become filled by those who would purchase their election thereto by making the most extravagant bid. The auction method of choosing a public officer would supplant the personal fitness test. Eventually most of the public offices would be occupied by the opulent, who could afford to serve without pay, or by the ambitious, who would serve only for the pittance of honor attached to the office, or by the designing grafter, who would surely obtain his remuneration by methods which would not bear scrutiny. Under such a system good government would certainly vanish from every subdivision of the state.” * * *

[Relocated. –Eds.]

15

this interest, it chooses a means unacceptable under the First Amendment.9 In barring certain public statements with respect to this issue, the State ban runs directly contrary to the fundamental premises underlying the First Amendment as the guardian of our democracy. That Amendment embodies our trust in the free exchange of ideas as the means by which the people are to choose between good ideas and bad, and between candidates for political office. The State’s fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech. It is simply not the function of government to “select which issues are worth discussing or debating” in the course of a political campaign.

C[Section] 121.055 * * * bars promises to serve at a reduced salary only when the salary of the

official has been “fixed by law,” and where the promise cannot, therefore, be delivered. Of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements. But “erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need .  . . to survive,’ ” New York Times Co. v. Sullivan, 376 U.S. 254, 271-272 (1964) [p. XXX], quoting NAACP v. Button, 371 U.S. 415, 433 (1963). Section 121.055, as applied in this case, has not afforded the requisite “breathing space.”

The Commonwealth of Kentucky has provided that a candidate for public office forfeits his electoral victory if he errs in announcing that he will, if elected, serve at a reduced salary. As the Kentucky courts have made clear in this case, a candidate’s liability under § 121.055 for such an error is absolute: His election victory must be voided even if the offending statement was made in good faith and was quickly repudiated. The chilling effect of such absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns. Although the state interest in protecting the political process from distortions caused by untrue and inaccurate speech is somewhat different from the state interest in protecting individuals from defamatory falsehoods, the principles underlying the First Amendment remain paramount. Whenever compatible with the underlying interests at stake, under the regime of that Amendment “we depend for . . . correction not on the conscience of judges and juries but on the competition of other ideas.” In a political campaign, a candidate’s factual blunder is unlikely to escape the notice of, and correction by, the erring candidate’s political opponent. The preferred First Amendment remedy of “more speech, not enforced silence,” thus has special force. There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner’s election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment.

9 A State could address this concern by prohibiting the reduction of a public official’s salary during his term of office, as Kentucky has done here. * * *

16

IVBecause we conclude that § 121.055 has been applied in this case to limit speech in violation

of the First Amendment, we reverse the judgment of the Kentucky Court of Appeals and remand for proceedings not inconsistent with this opinion.

It is so ordered.

THE CHIEF JUSTICE [BURGER] concurs in the judgment [without opinion].

JUSTICE REHNQUIST, concurring in the result.I agree that the provision of the Kentucky Corrupt Practices Act discussed by the Court in its

opinion impermissibly limits freedom of speech on the part of political candidates in violation of the First and Fourteenth Amendments to the United States Constitution. Because on different facts I think I would give more weight to the State’s interest in preventing corruption in elections, I am unable to join the Court’s analogy between such laws and state defamation laws. * * *

Notes and Questions1. Problem. Hawaii establishes a “Code of Fair Campaign Practices” establishing rules for

conducting campaigns. Among the rules are that candidates “shall not use campaign material relating to any candidate’s election which misrepresents, distorts, or otherwise falsifies the facts regarding the candidate,” and that candidates “shall refrain from the use of personal vilification, character defamation, or any other form of scurrilous personal attacks on any candidate or his family.” Candidates need not sign the Code, but a list of candidates endorsing the Code and a list of candidates refusing to endorse the Code are made public at a website maintained by the state’s Campaign Spending Commission. Candidates who sign the Code and then breach it are subject to censure.

A candidate challenging the incumbent state senator signs the pledge and, during the campaign, distributes a flyer containing a cartoon depicting his opponent in a pocket labeled “Special Interests.” The flyer also alleged that the incumbent’s law firm had received one million dollars from one particular interest, and cited a newspaper story. The Commission censured the candidate, reasoning that he had no facts upon which to allege that the incumbent’s position in the senate resulted in any gain for the incumbent or his firm. Is the censure constitutional? If the statement is protected under New York Times and Brown v. Hartlage, may the candidate waive that First Amendment protection by signing the Code? Would the result change if the state did not publicize the names of the non-signatories by maintaining the website? See Ancheta v. Watada, 135 F. Supp. 2d 1114 (D. Haw. 2001).

2. Problem. Roy Cooper, candidate for North Carolina Attorney General, sponsors a television advertisement, in which he criticizes his opponent, Dan Boyce. The audio portion of the advertisement is as follows:

Dan Boyce—his law firm sued the state, charging $28,000 an hour in lawyer fees to the taxpayers. The Judge said it shocks the conscience. Dan Boyce’s law firm wanted more than a police officer’s salary for each hour’s work. Dan Boyce, wrong for Attorney General.

In reality, the law firm carrying Boyce’s name, Boyce & Isley, did not come into existence until after the institution of the suit, so the advertisement was arguably deceptive and defamatory in that it alleged that Boyce’s law firm “sued the state.” Further, the attorneys’ fee was requested

17

—not “charged”—by Boyce and was a contingency fee for successfully prosecuting a $150 million class-action suit.

Boyce, his partners, and the firm sued Cooper for defamation. Does the First Amendment permit the plaintiffs to recover? See Boyce & Isley, PLLC v. Cooper, 568 S.E.2d 893 (N.C. Ct. App. 2002).

3. Problem. A candidate running in the 2006 Republican primary publicizes some complimentary remarks other public officials made about him in 2004. In the campaign advertisement, the candidate reprints the text of the remarks accurately, and also notes in small print that they were made in 2004. Nevertheless, he is fined by a state agency charged with administering a law barring the use of endorsements without the approval of the endorsing party. Here, because the candidate never received permission from the public officials who made the statements, he violated the statute. Is the statute constitutional as applied to him? Would the statute be constitutional as applied to a candidate who accurately reprinted the text of the remarks, but nowhere indicated the date the remarks were made? Would the statute be constitutional as applied to a candidate who materially misrepresented the remarks that were made? The next case may prove useful in answering the last question.

STATE OF WASHINGTON ex rel. PUBLIC DISCLOSURE COMMISSION v. 119 VOTE NO! COMMITTEE

Supreme Court of Washington957 P.2d 691, 135 Wash. 2d 618 (Wash. 1998)

SANDERS, J. [with whom DOLLIVER and SMITH, JJ., join]. * * *The State alleges the Committee published [false] political advertising contrary to RCW

[Revised Code of Washington] 42.17.530(1)(a) during the course of its campaign in opposition to Initiative 119, the so-called “Death with Dignity Act.” Ultimately the initiative went down to defeat at the polls on November 5, 1991. The one-page printed advertisement begins with the words “Vote No!” superimposed over the words “Initiative 119,” and generally suggests the initiative invites assisted suicide without sufficient safeguards.1 * * *

RCW 42.17.530(1)(a) provides: “It is a violation of this chapter for a person to sponsor with actual malice . . . [p]olitical advertising that contains a false statement of material fact. . . .”2 The

1 The leaflet stated in pertinent part:Initiative 119: Vote No IT WOULD LET DOCTORS END PATIENTS’ LIVES WITHOUT BENEFIT OF SAFEGUARDS . . .• No special qualifications—your eye doctor could kill you.• No rules against coercion—Nothing to prevent “selling” the idea to the aged, the poor, the homeless.• No reporting requirements—No records kept.• No notification requirements—Nobody need tell family members beforehand.• No protection for the depressed—No waiting period, no chance to change your mind.INITIATIVE 119 . . . IS A DANGEROUS LAW VOTE NO ON INITIATIVE 119

2 RCW 42.17.530 provides:False political advertising

18

Committee and the ACLU argue the statute is a facially unconstitutional abridgment of free speech. The State asserts its interest in an informed electorate justifies this burden upon political debate.

The State asserts it may prohibit false statements of fact contained in political advertisements. This claim presupposes the State possesses an independent right to determine truth and falsity in political debate. However, the courts have “consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.” New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) [p. XXX].

Rather, the First Amendment operates to insure the public decides what is true and false with respect to governance. In Meyer [v. Grant, 486 U.S. 414 (1988)], the Supreme Court explained:

“The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind. . . . In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”

Id. at 419-20 (emphasis added).Particularly in the religious and political realms, “the tenets of one man . . . seem the rankest

error to his neighbor.” Cantwell v. Connecticut, 310 U.S. 296, 310 (1940). Therefore, the Supreme Court has recognized that to sustain our constitutional commitment to uninhibited political discourse, the State may not prevent others from “resort[ing] to exaggeration, to vilification of men who have been, or are, prominent in church and state, and even to false statement.” Id. (emphasis added). At times such speech seems unpalatable, but the value of free debate overcomes the danger of misuse. For even false statements make valuable contributions to debate by bringing about “the clearer perception and livelier impression of truth, produced by its collision with error.” New York Times, 376 U.S. at 279 n.19 (quoting John S. Mill, On Liberty).

Specifically, the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment. * * *

Instead of relying on the State to silence false political speech, the First Amendment requires our dependence on even more speech to bring forth truth. In the political context, a campaign’s factual blunder is most likely noticed and corrected by the campaign’s political opponent rather than the State. Contrary to claims made by Justice Talmadge in his concurrence, the Supreme Court has refused to recognize the possibility of “an eleventh-hour anonymous smear campaign” as enough to justify a restriction on speech. Moreover, a well-publicized, yet bogus, complaint to the PDC on election eve raises the same concern. Therefore, “[t]he preferred First Amendment remedy of ‘more speech, not enforced silence’ thus has special force.” Brown v. Hartlage, 456 U.S. 45, 61 (1982) [p. XXX]. Underlying our dependence upon more speech is the presupposition “that right conclusions are more likely to be gathered out of a multitude of

(1) It is a violation of this chapter for a person to sponsor with actual malice:(a) Political advertising that contains a false statement of material fact;(b) Political advertising that falsely represents that a candidate is the incumbent for the office sought when in fact the candidate is not the incumbent;(c) Political advertising that makes either directly or indirectly, a false claim stating or implying the support or endorsement of any person or organization when in fact the candidate does not have such support or endorsement.

(2) Any violation of this section shall be proven by clear and convincing evidence.[Relocated. –Eds.]

19

tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” New York Times, 376 U.S. at 270. * * *

Even assuming, as per Justice Talmadge’s concurrence, that malicious falsehoods against candidates are beyond constitutional protection, this statute has broader reach and brings within its sweep every maliciously false statement of “material fact” whether it is defamatory to an individual or not. Justice Talmadge’s concurrence cites no authority to support its broad claim that all false statements in a political advertisement, including statements relating to issues campaigns, may be prohibited as unprotected speech. Moreover, the statutory requirement that malice be proved by a high standard of proof does not cure the infirmity as the chilling effect of possible governmental sanction will not be lost on the faint of heart. * * *

The State claims its interest to foster an informed electorate outweighs the imposition upon political expression by RCW 42.17.530(1)(a). The State relies heavily on defamation cases to prove a compelling interest to justify intrusion into public debate citing Gertz [v. Robert Welch, Inc.], 418 U.S. 323, 340 (1974), which states: “[T]here is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” The State argues the language in these defamation cases applies with equal force to all political speech, even if no one is defamed.

However the State’s reliance on the law of defamation is misplaced. By its nature defamation concerns statements made by one person against another and is designed to protect the property of an individual in his or her good name. “The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by a defamatory falsehood.” * * * Gertz, 418 U.S. at 341. Clearly, a competing interest exists in defamation cases which is absent here. As then-Professor Fried explained:

Free speech cases often explain that “[t]here is no such thing as a false idea.” But why may the state intervene to prohibit or punish factually false statements? Defamation and deception are actionable wrongs, perhaps [because] they vindicate private rights invoked by, or at least on behalf of, private individuals. But the First Amendment precludes punishment for generalized “public” frauds, deceptions and defamation. In political campaigns the grossest misstatements, deceptions, and defamations are immune from legal sanction unless they violate private rights—that is, unless individuals are defamed.

Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. Chi. L. Rev. 225, 238 (1992). However RCW 42.17.530(1)(a) restricts political speech absent the competing interest present in defamation cases, and, unlike a defamation suit, creates a cause of action for the government to pursue against a private person. * * *

Additionally, even if the State possessed a compelling interest here, it must also prove the statute at issue is necessary to serve that interest. However, the record here demonstrates RCW 42.17.530(1)(a) may be manipulated by candidates to impugn the electoral process rather than promote truthfulness.

Ultimately, the State’s claimed compelling interest to shield the public from falsehoods during a political campaign is patronizing and paternalistic. It assumes the people of this state are too ignorant or disinterested [sic] to investigate, learn, and determine for themselves the truth or falsity in political debate, and it is the proper role of the government itself to fill the void. This assumption is especially flawed in cases like this where the truth of the assertion may be readily tested against the text of the initiative. At its worst the statute is pure censorship, allowing government to undertake prosecution of citizens who, in their view, have abused the right of political debate.

20

We therefore conclude RCW 42.17.530(1)(a) chills political speech, usurps the rights of the electorate to determine the merits of political initiatives without fear of government sanction, and lacks a compelling state interest in justification. * * * The First Amendment to the United States Constitution renders RCW 42.17.530(1)(a) facially unconstitutional. * * *

GUY, J., [with whom DURHAM, C.J., joins,] (concurring [in the judgment]). * * *Intentional, malicious lies do not foster debate; they foster deception and manipulation of the

voting public. I agree with * * * Justice Talmadge’s concurrence that the advertisement before us from the 119 Vote No! Committee does not violate RCW 42.17.530(1)(a). I disagree with the majority and Justice Madsen’s concurrence that the statute on its face violates the First Amendment.

MADSEN, J., [with whom ALEXANDER, J., joins,] (concurring).I agree with the majority that RCW 42.17.530 is facially unconstitutional because it sweeps

protected First Amendment activity within its provisions by penalizing political speech, even if knowingly false, regarding an initiative measure. I write separately to emphasize that I am not convinced that the same is true where a statement contains deliberate falsehoods about a candidate for public office. In my view, there is merit to the contention that the Legislature may constitutionally penalize sponsorship of political advertising of such a nature by enacting a narrower statute than RCW 42.17.530. * * *

We need not, however, decide that issue because where an initiative measure is involved, as in this case, the First Amendment does not permit governmental censorship of political speech. There must be no impediment to free and open debate regarding such issues. For unlike the case where the societal interest in individual reputations is at stake, there is no competing interest sufficient to override our precious freedom to vigorously debate the wisdom of enacting a measure, even if that debate contains falsehoods as well as truths. The voters in this state are able to make an informed choice based upon freely advanced competing ideas, sorting the wheat from the chaff, and can compare what they hear and read with the text of a proposed measure.

TALMADGE, J., [with whom JOHNSON, J., joins,] (concurring [in the judgment]).Today the Washington State Supreme Court becomes the first court in the history of the

Republic to declare First Amendment protection for calculated lies. * * * While I believe the First Amendment properly presents extraordinarily difficult hurdles for statutes addressing political speech and conduct, I cannot agree RCW 42.17.530 violates the First Amendment. However, because I believe the 119 Vote No! Committee did not violate RCW 42.17.530(1)(a), I concur in the majority’s disposition of the case. * * *

[T]he threshold question is whether the statute affects speech over which the First Amendment affords protection. * * * [A] person violates the statute if and only if he or she sponsors political advertising that is (1) a false statement of material fact (2) with actual malice, as defined, and (3) is found to have done so by clear and convincing evidence. * * *

The Supreme Court has unequivocally and repeatedly refused to extend First Amendment protection to deliberate lies. The Court said in Garrison v. Louisiana, 379 U.S. 64, 75 (1964):

* * *Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political

21

tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

These were the words of Justice Brennan, certainly not one disposed to limit First Amendment freedoms.

Ten years later, in Gertz v. Robert Welch, Inc., 418 U.S. [at] 340, the Court reiterated: “But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” And, in Brown v. Hartlage, 456 U.S. [at] 59, the Court said, “Of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements.” [Justice Talmadge here cited several additional cases.] * * *

Despite the mountain of United States Supreme Court and state court authority to the contrary, the majority decides the First Amendment condones deliberate falsehoods in campaigns. As support for its position, the majority cites to New York Times Co. v. Sullivan on four separate occasions. Yet nowhere does the majority opinion reveal the holding of New York Times, which is “a public official cannot recover for defamation unless he or she establishes the defendant made the defamatory statement with actual malice, that is, knowledge of its falsity or with reckless disregard for whether it was false or not.” * * * RCW 42.17.530(1)(a), * * * having adopted from New York Times the exact language defining “actual malice,” plainly passes muster under that case. * * * How, then, can a statute on all fours with controlling United States Supreme Court authority be unconstitutional in Washington? * * *

The Court’s holding in New York Times and its repeated refusals to grant First Amendment protection to lies are completely dispositive of the issues in this case. The majority is undeterred by authority, however, and finding no case extending First Amendment protection to deliberate lies in political campaigns, asserts a novel proposition to support its conclusion: the majority decides that everything the Supreme Court said in New York Times, Garrison, and Gertz concerning deliberate lies is applicable only to defamation cases, and not to ballot issues that, because they do not involve individuals, are not susceptible to defamation actions. The Supreme Court itself has never indicated such a dichotomy exists, nor has any other court in any other jurisdiction.

The majority takes its cue from intervenor American Civil Liberties Union (ACLU), which cited in its brief a law review article by former Harvard Law School Professor Charles Fried. * * * Then-Professor Fried did not discuss the rationale for his assertion [that false statements “are immune from legal sanction unless they violate private rights”]; nor is it the central or even the peripheral subject of his law review article. He did not discuss New York Times, or Gertz, or Garrison in the context of his statement. Nor did he suggest calculated lying has a legitimate role in American politics. Fried’s bare assertion has the effect of a throwaway line. No other court has adopted his proposition; indeed, I can find none that has even discussed it. Although the article in which the statement appears has been cited many times in the scholarly literature for other reasons, the statement itself has gone largely unnoticed in the five years since it was published, except by the ACLU. On such flimsy authority, the majority suggests we ignore all the Supreme

22

Court pronouncements to the contrary and hold the First Amendment protects calculated falsehoods.

Professor Fried is flat wrong. Numerous laws affecting First Amendment rights intended to protect the integrity of the electoral process itself, and not just private dignitary rights, have been upheld. The leading example is Buckley v. Valeo, 424 U.S. 1 (1976) [p. XXX]. There, the Court upheld federal statutory limitations on political contributions and requirements that candidates disclose the sources of their campaign funding against First Amendment challenges. Buckley had nothing to do with reputational interests, yet the Court upheld restrictions on First Amendment activities.

Other examples of constitutional restrictions on First Amendment rights that do not involve reputational interests abound. * * * [See, e.g.,] Burson v. Freeman, 504 U.S. 191 (1992) [p. XXX] (upholding Tennessee statute prohibiting the solicitation of votes and display of campaign materials within 100 feet of a polling place). In summary, there are numerous valid restrictions on the content of speech that do not involve personal, reputational interests. Fried was wrong, and the majority is wrong in basing its conclusion solely on Fried’s unanalyzed statement.

Thus, the majority holds that in political campaigns involving ballot issues the deliberate lie must receive First Amendment protection. * * * I could not disagree more. I discern no benefit whatsoever to our treasured democracy from use of the calculated lie in electoral politics, and cannot conceive the First Amendment protects it. * * *

The chilling effect of the statute on free speech is infinitesimal, if it exists at all. The scope of RCW 42.17.530(1)(a) is severely proscribed. It does not reach hyperbole or rhetoric, polemic or beguiling commentary, satire or mockery, zealotry or insanity, insincerity or low cunning, true beliefs or mere mistakes. * * * The statute speaks to only one person: the calculating liar, who with clear mind and steadfast, deliberate purpose, coldly composes and diligently distributes knowing lies to effect a desired political result. The statute chills only this devious liar, not free speech. * * *

Because I conclude calculated lies are not protected speech under the First Amendment, it is not necessary to address the second question, which is, does the state have a compelling interest in prohibiting calculated lies in political campaigns. Nevertheless, I address it because the majority implies the State does not have a compelling interest in preserving the sanctity of the electoral process. * * *

Do the people of Washington have a compelling interest in penalizing deliberate lies in political campaigns? The answer is obvious. The United States Supreme Court said in Burson v. Freeman, 504 U.S. at 199-200, “* * * a State has a compelling interest in protecting voters from confusion and undue influence.” The Court also has recognized that a State “indisputably has a compelling interest in preserving the integrity of its election process.” Id., at 231. The Court thus has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson v. Celebrezze, 460 U.S. 780, 788, n.9 (1983) [p. XXX] (collecting cases). In other words, it has recognized that a State has a compelling interest in ensuring that an individual’s right to vote is not undermined by fraud in the election process.

The State has a compelling interest in ensuring the integrity of the electoral process, for ballot measures as well as for election of candidates. That compelling interest includes punishing calculated deceit and knowing lies.

[The majority’s] entire answer to any concerns about an electoral process flowing from deliberate lies is that more speech will cure such falsehoods. I wish this were true, and, in the

23

best of all possible worlds, it could be. But, in modern American politics, it isn’t reality. It is indeed all too common for candidates, political committees and individuals in political campaigns to make last minute charges, usually distributed the weekend before election day or in a fashion calculated to forestall a reply through whatever means at their disposal. There is simply no time to use any of the traditional means of political communication—leaflets, direct mail, newspaper, radio or television advertising—to combat late hour, outrageously false statements. Further speech, in the classic formulation, will not cure such a situation. As * * * Gertz stated, 418 U.S. at 345 n.9: “[A]n opportunity for rebuttal seldom suffices to undo harmful defamatory falsehood. Indeed the law of defamation is rooted in our experience that the truth rarely catches up with the lie.”

Ironically, in the case of defamation in a campaign involving candidates, the remedies for such conduct may actually be greater than those available to address outright lies in a ballot measure campaign. A defamed candidate has a cause of action in court. That candidate may also suggest to the legislative body that the offending candidate should not be seated. That candidate could even challenge the offender in the next election. By contrast, the ballot measure enacted on the basis of a campaign of lies may be amended only by a two-thirds vote of the Legislature for the period of two years after its enactment. Few legislators would choose to risk proposing the repeal of a popularly enacted measure, let alone two-thirds of all legislators necessary for such repeal, to express antagonism to a campaign flawed by deliberate lies. * * *

In summary, the First Amendment does not protect calculated lies. Moreover, the people of Washington have a compelling interest in preventing such lies in electoral campaigns. I would uphold the facial constitutionality of RCW 42.17.530(1)(a). * * *

Having found the statute constitutional, I next address whether it was violated. * * * The Committee distributed a leaflet with statements of opinion regarding the contents of the proposed law; those opinions did not constitute facts within the meaning of the statute. * * *

Political campaigns are communications exercises and often involve heated debate rife with hyperbole that pushes the truth to its edge. The Committee’s statements in its leaflet were statements of opinion about the effect of the proposed law. They were sufficiently debatable to fall within the wide latitude this Court has traditionally given to political speech. * * *

Notes and Questions1. In 1999, the year following the decision in 119 Vote No! Committee, the Washington

Legislature took a cue from Justice Madsen’s concurrence and re-enacted the statute to bar “[p]olitical advertising or [] electioneering communication[s] that contain[] a false statement of material fact about a candidate for public office.” R.C.W. § 42.17.530(1) (emphasis added). In another fractured decision, the Washington Supreme Court struck down the law under the First Amendment. Rickert v. Public Disclosure Commission, 168 P.3d 826 (Wash. 2007).

Rickert ran against an incumbent state senator, and in the campaign claimed falsely that the senator had “voted to close a facility for the developmentally challenged in his district.” The Commission, after receiving a complaint from the senator, concluded that the senator had not, in fact voted to close the facility in question, and the facility—a youth camp—was not for the developmentally challenged. The Commission fined Rickert $1000. Applying 119 Vote No! Committee, the court overturned the fine. The plurality opinion and Chief Justice Alexander’s opinion concurring in the judgment acknowledged that false defamatory statements could be proscribed, because penalizing defamation serves the interest in compensating victims for damage to their reputations. Nondefamatory statements, however, cause no such damage. Rather,

24

prohibitions such as § 42.17.530(1) serve to protect political candidates from false criticism—an interest the plurality (and apparently the Chief Justice) thought less than compelling. Justice Madsen dissented, in an opinion joined by three other justices. She argued that false campaign speech undermines democracy by threatening to damage the reputations of the candidates who are attacked, and by deterring potential public servants from seeking office.

2. Should it make any difference whether the false speech concerns a ballot measure, as in 119 Vote No! Committee, or a candidate election, as in Rickert? Justice Madsen concluded that the First Amendment prevented the government from punishing false speech in the former situation but not in the latter one. Can you construct an argument that the proper result should be precisely the opposite?

3. Is the court convincing in its attempt to distinguish between defamation actions and the sort of proceeding involved in 119 Vote No! Committee and Rickert?

4. Does the First Amendment permit the government “to determine truth and falsity in political debate”? In Pestrak v. Ohio Elections Commission, 926 F.2d 573 (6th Cir. 1991), the Sixth Circuit confronted a challenge to the Commission’s authority to discourage speakers from making false statements by “proclaim[ing] to the electorate the truth [or falsity] of various campaign allegations.” Id. at 579. The court held that this “truth-declaring” function was

closely comparable to those now carried on by many agencies of government. Thus, we regularly see: various high officials of the executive and legislative branches asserting the untruth of statements made by political opponents and the veracity of statements with which they agree; members of Congress, following hearings at which testimony may be compelled, issue reports declaring the truth or falsity of matters of the utmost importance to public policy and election campaigns; government agencies declare the truth or falsity of statements with regard to apparently “technical” matters such as the inflation rate, the unemployment rate, energy reserves, infant mortality rates, or the population of the United States and its political subdivisions; and, government funded and sponsored news media, such as National Public Radio and the Corporation for Public Broadcasting/Public Broadcasting System regularly issue statements as to the truth or falsity of statements made by public officials. * * * All of this “speech” can have the most direct effect on governmental activities, as well as influencing public debate and election campaigns.

Id. Are you convinced by the Sixth Circuit’s analogy between the common governmental announcements and the Commission’s truth declarations?

5. Should false campaign speech be protected by the First Amendment? If so, why? What was the rationale for protecting false speech in New York Times Co. v. Sullivan? See generally William P. Marshall, False Campaign Speech and the First Amendment, 153 U. PA. L. REV. 285 (2004); Steven G. Gey, The First Amendment and the Dissemination of Socially Worthless Untruths, 36 FLA. ST. U. L. REV. 1 (2008). For a case in which a ban on false campaign statements was upheld, see State v. Davis, 499 N.E.2d 1255 (Ohio Ct. App. 1985).

C. MEDIA COVERAGEThe First Amendment’s protection of “the freedom of speech, [and] of the press” extends not

just to candidates, but to the institutional media as well. The press has been viewed as fulfilling a watchdog function, informing the public about candidates and public officials, among other issues of the day. Accordingly, the Court has been reluctant to permit government oversight of this institution, which is supposed to oversee government. Nevertheless, First Amendment rights are not absolute, and the permissible scope of government regulation depends on the medium and the policies pursued by the regulation.

The Supreme Court has refused to permit states to limit the editorial discretion of

25

newspapers, reasoning that people upset with the policies of existing papers can start their own. Broadcast media, however, present a different picture, so to speak. Because the broadcast spectra are necessarily limited, the Court has treated broadcasters as fulfilling a public function and accordingly has permitted far more government intervention in the editorial policies of broadcasters than would be permissible in the case of newspapers. The Court upheld the so-called “fairness doctrine” in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) [p. XXX], but the decision has been subject to criticism since then—in part due to technological innovations that many see as weakening the distinction the Court drew between print and broadcast media. The FCC’s repeal of the doctrine in 1987, see In re: Syracuse Peace Council, 2 F.C.C. Rcd. 5043 (1987), upheld 867 F.2d 654 (D.C. Cir. 1989), has made it unnecessary for the Court to revisit Red Lion head-on, but it remains a vitally important case in assessing the constitutional limits of government attempts to advance the “public interest” through regulations of broadcasters.

MILLS v. ALABAMASupreme Court of the United States

384 U.S. 214, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966)

MR. JUSTICE BLACK delivered the opinion of the Court [in which MR. CHIEF JUSTICE WARREN, MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE FORTAS join].

The question squarely presented here is whether a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them.

On November 6, 1962, Birmingham, Alabama, held an election for the people to decide whether they preferred to keep their existing city commission form of government or replace it with a mayor-council government. On election day the Birmingham Post-Herald, a daily newspaper, carried an editorial written by its editor, appellant, James E. Mills, which strongly urged the people to adopt the mayor-council form of government. Mills was later arrested on a complaint charging that by publishing the editorial on election day he had violated § 285 of the Alabama Corrupt Practices Act, which makes it a crime “to do any electioneering or to solicit any votes * * * in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.” * * *

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the

26

press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.

Admitting that the state law restricted a newspaper editor’s freedom to publish editorials on election day, the Alabama Supreme Court nevertheless sustained the constitutionality of the law on the ground that the restrictions on the press were only “reasonable restrictions” or at least “within the field of reasonableness.” The court reached this conclusion because it thought the law imposed only a minor limitation on the press—restricting it only on election days—and because the court thought the law served a good purpose. It said:

“It is a salutary legislative enactment that protects the public from confusive last-minute charges and countercharges and the distribution of propaganda in an effort to influence voters on an election day; when as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over.”

This argument, even if it were relevant to the constitutionality of the law, has a fatal flaw. The state statute leaves people free to hurl their campaign charges up to the last minute of the day before election. The law held valid by the Alabama Supreme Court then goes on to make it a crime to answer those “last-minute” charges on election day, the only time they can be effectively answered. Because the law prevents any adequate reply to these charges, it is wholly ineffective in protecting the electorate “from confusive last-minute charges and countercharges.” We hold that no test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election.

The judgment of the Supreme Court of Alabama is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

[In a concurring opinion joined by MR. JUSTICE BRENNAN, MR. JUSTICE DOUGLAS argued that the judgment below was “final” and therefore the Court properly took jurisdiction.]

Separate opinion of MR. JUSTICE HARLAN.In my opinion the appellant is not here on a “final” state judgment and therefore * * * the

Court has no jurisdiction to entertain this appeal. * * *Since the Court has decided otherwise, however, I feel warranted in making a summary

statement of my views on the merits of the case. I agree with the Court that the decision below cannot stand. But I would rest reversal on the ground that the relevant provision of the Alabama statute—“to do any electioneering or to solicit any votes [on election day] * * * in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held”—did not give the appellant * * * fair warning that the publication of an editorial of this kind was reached by the foregoing provisions of the Alabama Corrupt Practices Act. I deem a broader holding unnecessary.

Notes and Questions1. Problem. A Virgin Islands statute prohibits candidates and their campaign staffs from

engaging in political activity after 2:00 a.m. on election day. Is such a prohibition distinguishable from Mills? See Abiff v. Virgin Islands Legislature, 216 F. Supp. 2d 455 (D.V.I. 2002).

2. Problem. An Arizona statute requires any PAC wishing to promote the election or defeat

27

of a candidate within ten days before an election to mail a copy of the advertisement to the opposition candidate twenty-four hours before its publication. The state defends the statute as “necessary to an informed electorate because it affords candidates an opportunity to respond to last-minute negative ‘hit pieces’ that may confuse or misinform voters.” Is the statute constitutional? See Arizona Right to Life Political Action Committee v. Bayless, 320 F.3d 1002 (9th Cir. 2003). Would it make any difference if, instead of requiring PACs to mail advertisements to the opposition candidate, the statute required PACs to mail advertisements to a government agency, which would then investigate the accuracy of the advertisements’ claims and issue press releases correcting any misleading or false assertions?

3. Problem. May a state ban exit polling within three hundred feet of a polling place? See Daily Herald Co. v. Munro, 758 F.2d 350 (9th Cir. 1984); American Broadcasting Co. v. Blackwell, 479 F. Supp. 2d 719 (S.D. Ohio 2006); CBS v. Smith, 681 F. Supp. 794 (S.D. Fla. 1988); National Broadcasting Co. v. Colburg, 699 F. Supp. 241 (D. Mont. 1988); National Broadcasting Co. v. Cleland, 697 F. Supp. 1204 (N.D. Ga. 1988); Firestone v. News-Press Publishing Co., 538 So. 2d 457 (Fla. 1989). What if a state permitted the media to conduct exit polls, but prohibited the announcement of the results until the polls closed, reasoning that potential voters will be dissuaded from voting if they believe the election has, for practical purposes, been decided? See CBS, Inc. v. Growe, 15 Media L. Rep. 2275 (D. Minn. 1988).

RED LION BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION

Supreme Court of the United States395 U.S. 367, 89 S. Ct. 1764, 23 L. Ed. 2d 371 (1969)

MR. JUSTICE WHITE delivered the opinion of the Court [in which MR. CHIEF JUSTICE WARREN, MR. JUSTICE BLACK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join].

The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory requirement of § 315 of the Communications Act1 that equal time be allotted all qualified candidates for public

1 Communications Act of 1934, 47 U.S.C. § 301 et seq. Section 315 now reads:“315. Candidates for public office; facilities; rules.

“(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any—

“(1) bona fide newscast,“(2) bona fide news interview,“(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or“(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),

shall not be deemed to be use of a broadcasting station within the meaning of this subsection. * * *

28

office. Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial public issues and to political editorializing, were codified more precisely in the form of FCC regulations in 1967. The two cases before us * * * challenge the constitutional and statutory bases of the doctrine and component rules. Red Lion involves the application of the fairness doctrine to a particular broadcast, and RTNDA [United States v. Radio Television News Directors Association] arises as an action to review the FCC’s 1967 promulgation of the personal attack and political editorializing regulations, which were laid down after the Red Lion litigation had begun.

The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a “Christian Crusade” series. A book by Fred J. Cook entitled “Goldwater—Extremist on the Right” was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a “book to smear and destroy Barry Goldwater.” When Cook heard of the broadcast he concluded that he had been personally attacked and demanded free reply time, which the station refused. * * *

Not long after the Red Lion litigation was begun, the FCC [promulgated rules] with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. * * *

As they now stand amended, the regulations read as follows:

“Personal attacks; political editorials.“(a) When, during the presentation of views on a controversial issue of public importance, an attack is

made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack, and (3) an offer of a reasonable opportunity to respond over the licensee’s facilities.

“(b) The provisions of paragraph (a) of this section shall not be applicable (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign; and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (a) of this section shall be applicable to editorials of the licensee). * * *

“(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii) the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial; and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the licensee’s facilities: Provided, however, That where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.”

[RTNDA challenged the rules’ constitutionality.]Believing that the specific application of the fairness doctrine in Red Lion, and the

“(b) The charges made for the use of any broadcasting station for any of the purposes set forth in this section shall not exceed the charges made for comparable use of such station for other purposes. * * *”

29

promulgation of the regulations in RTNDA, are both authorized by Congress and enhance rather than abridge the freedoms of speech and press protected by the First Amendment, we hold them valid and constitutional[.] * * *

The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.

Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied to them. * * *

Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others.

When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology. * * *

Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same “right” to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.

This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because “the public interest” requires it “is not a denial of free speech.” * * *

This is not to say that the First Amendment is irrelevant to public broadcasting. * * * Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. * * *

30

Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200,000,000, the Government could surely have decreed that each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. The ruling and regulations at issue here do not go quite so far. They assert that under specified circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station. The expression of a political endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time sharing. As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on “their” frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use.

In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial rules are indistinguishable from the equal-time provision of § 315, a specific enactment of Congress requiring stations to set aside reply time under specified circumstances and to which the fairness doctrine and these constituent regulations are important complements. That provision, which has been part of the law since 1927, has been held valid by this Court as an obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him from liability for defamation. The constitutionality of the statute under the First Amendment was unquestioned. Farmers Educ. & Coop. Union v. WDAY, 360 U.S. 525 (1959).

Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. * * *

It is strenuously argued, however, that if political editorials or personal attacks will trigger an obligation in broadcasters to afford the opportunity for expression to speakers who need not pay for time and whose views are unpalatable to the licensees, then broadcasters will be irresistibly forced to self-censorship and their coverage of controversial public issues will be eliminated or at least rendered wholly ineffective. Such a result would indeed be a serious matter, for should licensees actually eliminate their coverage of controversial issues, the purposes of the doctrine would be stifled.

At this point, however, as the Federal Communications Commission has indicated, that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard. It would be better if the FCC’s encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of those doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect.

That this will occur now seems unlikely, however, since if present licensees should suddenly

31

prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. * * *

It is argued that even if at one time the lack of available frequencies for all who wished to use them justified the Government’s choice of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, this condition no longer prevails so that continuing control is not justified. To this there are several answers.

Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission, have led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also grown apace. Portions of the spectrum must be reserved for vital uses unconnected with human communication, such as radio-navigational aids used by aircraft and vessels. * * * Among the various uses for radio frequency space, including marine, aviation, amateur, military, and common carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists.

Comparative hearings between competing applicants for broadcast spectrum space are by no means a thing of the past. The radio spectrum has become so congested that at times it has been necessary to suspend new applications. The very high frequency television spectrum is, in the country’s major markets, almost entirely occupied * * *.

The rapidity with which technological advances succeed one another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other, makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorized by Congress. Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise planning is essential. This does not mean, of course, that every possible wavelength must be occupied at every hour by some vital use in order to sustain the congressional judgment. The substantial capital investment required for many uses, in addition to the potentiality for confusion and interference inherent in any scheme for continuous kaleidoscopic reallocation of all available space may make this unfeasible. The allocation need not be made at such a breakneck pace that the objectives of the allocation are themselves imperiled.

Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government’s effort to assure that a broadcaster’s programming ranges widely enough to serve the public interest.

In view of the scarcity of broadcast frequencies, the Government’s role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and ruling at

32

issue here are both authorized by statute and constitutional.28 * * *

Not having heard oral argument in these cases, MR. JUSTICE DOUGLAS took no part in the Court’s decision.2

Notes and Questions1. Before its repeal by the FCC in 1987, see In re: Syracuse Peace Council, 2 F.C.C. Rcd.

5043 (1987), upheld 867 F.2d 654 (D.C. Cir. 1989), the fairness doctrine required broadcasters to provide for the equal airing of differing views, and the equal-time provisions continue to require broadcasters to make their facilities available on an equal basis. Suppose a broadcaster decides to adhere to a policy of strict neutrality: Nobody may use the facilities to discuss public issues. Does that satisfy the broadcaster’s obligations? In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973), the Court upheld a Federal Communications Commission ruling that broadcasters need not accept any editorial advertisements, if they are otherwise satisfying their obligation to act in the “public interest” by providing full and fair coverage of public issues.

2. Are the equal-time provisions in 47 U.S.C. § 315 (quoted in footnote 1 in Red Lion) appropriate means of ensuring broadcast neutrality? Are the exemptions for newscasts, interviews, documentaries, and on-the-spot coverage too broad? Not broad enough? See, e.g., Anne Kramer Ricchiuto, The End of Time for Equal Time?: Revealing the Statutory Myth of Fair Election Coverage, 38 IND. L. REV. 267 (2005); Randy Dotinga, Latest Path Around Soft-Money Ban: Buy a TV Station, CHRISTIAN SCI. MONITOR, Dec. 17, 2003, USA section, at 2.

3. May the government require broadcasters to provide free air time for candidates to discuss their views? See, e.g., LILLIAN BEVIER, IS FREE TV FOR FEDERAL CANDIDATES CONSTITUTIONAL? (1999); Joel M. Gora, Buckley v. Valeo: A Landmark of Political Freedom, 33 AKRON L. REV. 7, 38 (1999) (citing “severe, and perhaps insurmountable, constitutional difficulties”); Cass R. Sunstein, Television and the Public Interest, 88 CALIF. L. REV. 499 (2000); Seth Grossman, Note, Creating Competitive and Informative Campaigns: A Comprehensive Approach to “Free Air Time” for Political Candidates, 22 YALE L. & POL’Y REV. 351 (2004).

4. Have technological innovations since 1969 undercut Red Lion? Or have the increased dominance of national and international media empires further underscored the potential manipulative power of a relatively small number of broadcasters? In 2004, Sinclair Broadcasting Group, the country’s largest owner and operator of television stations, planned to preempt regular programming to broadcast a documentary attacking presidential candidate John Kerry. Sinclair ultimately decided, however, to forego the plan after receiving strong opposition. Does freedom for broadcasters risk overwhelming the speech of persons and groups with opposing political views? See Elizabeth Jensen, Conservative TV Group to Air Anti-Kerry Film, L.A.

28 We need not deal with the argument that even if there is no longer a technological scarcity of frequencies limiting the number of broadcasters, there nevertheless is an economic scarcity in the sense that the Commission could or does limit entry to the broadcasting market on economic grounds and license no more stations than the market will support. Hence, it is said, the fairness doctrine or its equivalent is essential to satisfy the claims of those excluded and of the public generally. A related argument, which we also put aside, is that quite apart from scarcity of frequencies, technological or economic, Congress does not abridge freedom of speech or press by legislation directly or indirectly multiplying the voices and views presented to the public through time sharing, fairness doctrines, or other devices which limit or dissipate the power of those who sit astride the channels of communication with the general public.2 Justice Fortas resigned before the decision was announced; only seven Justices participated. [-Eds.]

33

TIMES, Oct. 9, 2004, at A1. If the FCC reinstituted the fairness doctrine today, would it be constitutional?

5. In upholding the fairness doctrine, the Court argued that broadcasters benefited from a “preferred position conferred by the Government,” i.e., the broadcast license. As a result, the Court was not sympathetic to broadcasters’ claims that once the government granted a license it should not be able to influence the editorial content of programming. Should the “greater” power to deny a license altogether include the “lesser” power to regulate content?

6. What other potential speakers have benefited from a “preferred position conferred by the Government”? Are all corporations in that category, as the corporate form provides limited liability and potentially perpetual life? Cf. Citizens United v. Federal Election Commission, __ U.S. __, 130 S. Ct. __ (2009); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-60 (1990).

7. As with much of constitutional law, analyses of the fairness doctrine can turn as much on the procedural question who decides the fairness question as on the substantive question whether there should be an obligation of fair coverage. Do you trust the FCC to adjudicate questions of fairness? What can we learn about that issue from the cases we have read so far in this Chapter?

8. The fairness doctrine did not require fair coverage per se. Rather, it provided “attack[ed]” persons and groups with an opportunity for reply. As a result, skittish broadcasters could avoid triggering the right-of-reply obligation simply by not engaging in such attacks. Such a result may not be “fair” at all, however. Imaging that a broadcaster wishes to criticize Candidate X, who is running for mayor against Candidate Y. The fairness doctrine might discourage such criticism, but perhaps the criticism was well grounded and otherwise “fair.” Are you troubled that such fair criticism might be silenced? Are you troubled by a right of reply to a fair criticism? Does such a right imply that the attack and the defense are equally weighty? Do you think the risks of broadcasters’ editorial freedom exceed any harm caused by stifling proper attacks?

9. Would the scope of a renewed fairness doctrine raise constitutional concerns? If the FCC were to reinstitute the fairness doctrine and apply it to (largely conservative) talk radio, but exempt standard news programs (which conservatives allege to have a liberal bias), would such a distinction be defensible as permitting the doctrine to reach only “editorial” or “commentary”?

10. Should entertainment programs be exempt from the fairness doctrine? Studies demonstrate that many people—particularly young people—receive information from late-night talk shows and other programs besides the traditional network newscasts. See, e.g., Pew Research Center for the People & the Press, Internet’s Broader Role in Campaign 2008, Jan. 11, 2008, available at http://people-press.org/report/384/. If that is an accurate reflection of modern American society, does that argue for an expanded fairness doctrine, or for the doctrine’s eternal entombment?

11. How might the FCC determine whether Hannity, the O’Reilly Factor, the Rush Limbaugh Show, Paul Harvey News and Comment, Countdown with Keith Olbermann, or 60 Minutes are “bona fide newscasts” or “interviews,” rather than editorials or commentary?

12. Problem. Assuming that a renewed fairness doctrine were to apply to shows such as Hannity & Colmes and the Colbert Report, how should the FCC determine whether the shows were meeting their obligation of fairness? In Hannity & Colmes, one host was conservative and one was liberal, but Hannity took the stronger role (and is now the sole host of the successor program). Could the FCC justifiably conclude that the show overall favors conservative viewpoints? The Colbert Report is a satirical news program in which the host mocks conservative commentators by adopting a caricatured persona of one. Should Colbert have to

34

give liberals or conservatives a right of reply to the Colbert character’s exaggerated version of a conservative position?

MIAMI HERALD PUBLISHING CO. v. TORNILLOSupreme Court of the United States

418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974)

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court [in which MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join].

The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.

In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a teachers’ collective-bargaining agent, was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 29, 1972, appellant printed editorials critical of appellee’s candidacy. In response to these editorials appellee demanded that appellant print verbatim his replies, defending the role of the Classroom Teachers Association and the organization’s accomplishments for the citizens of Dade County. Appellant declined to print the appellee’s replies and appellee brought suit * * *. The action was premised on Florida Statute § 104.38, a “right of reply” statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statute constitutes a first-degree misdemeanor. * * *

The appellee and supporting advocates of an enforceable right of access to the press vigorously argue that government has an obligation to ensure that a wide variety of views reach the public. * * * It is urged that at the time the First Amendment to the Constitution was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular ideas and often treated events and expressed views not covered by conventional newspapers. A true marketplace of ideas existed in which there was relatively easy access to the channels of communication.

Access advocates submit that although newspapers of the present are superficially similar to those of 1791 the press of today is in reality very different from that known in the early years of our national existence. * * * Newspapers have become big business and there are far fewer of them to serve a larger literate population. Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events. Major metropolitan newspapers have collaborated to establish news services national in scope. Such national news organizations provide syndicated “interpretive reporting” as well as syndicated features and commentary, all of which can serve as part of the new school of “advocacy journalism.”

35

The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper’s being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public.

The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership. * * *

The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers, have made entry into the marketplace of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be “surrogates for the public” carries with it a concomitant fiduciary obligation to account for that stewardship. From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the “marketplace of ideas” is today a monopoly controlled by the owners of the market. * * *

* * * The clear implication [of our prior cases] has been that any such a compulsion to publish that which “ ‘reason’ tells them should not be published” is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.

Appellee’s argument that the Florida statute does not amount to a restriction of appellant’s right to speak because “the statute in question here has not prevented the Miami Herald from saying anything it wished” begs the core question. Compelling editors or publishers to publish that which “ ‘reason’ tells them should not be published” is what is at issue in this case. The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of

36

access inescapably “dampens the vigor and limits the variety of public debate,” New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) [p. XXX]. * * *

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.

It is so ordered.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE REHNQUIST joins, concurring.I join the Court’s opinion which, as I understand it, addresses only “right of reply” statutes

and implies no view upon the constitutionality of “retraction” statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction.

MR. JUSTICE WHITE, concurring.* * * We have learned, and continue to learn, from what we view as the unhappy experiences

of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be, we prefer “the power of reason as applied through public discussion” and remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation’s press. * * *

Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. But the balance struck by the First Amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed. * * * Any other accommodation—any other system that would supplant private control of the press with the heavy hand of government intrusion—would make the government the censor of what the people may read and know. * * * Whatever power may reside in government to influence the publishing of certain narrowly circumscribed categories of material, we have never thought that the First Amendment permitted public officials to dictate to the press the contents of its news columns or the slant of its editorials.

But though a newspaper may publish without government censorship, it has never been entirely free from liability for what it chooses to print. Among other things, the press has not been wholly at liberty to publish falsehoods damaging to individual reputation. At least until today, we have cherished the average citizen’s reputation interest enough to afford him a fair chance to vindicate himself in an action for libel characteristically provided by state law. He has been unable to force the press to tell his side of the story or to print a retraction, but he has had at least the opportunity to win a judgment if he has been able to prove the falsity of the damaging publication, as well as a fair chance to recover reasonable damages for his injury. * * *

Notes and Questions1. Tornillo argued that the “communications revolution” in the half-century before 1974 had

37

changed the media in such a way as to make right-of-reply statutes necessary to ensure that a wide variety of views were made available to the public. In making this argument, Tornillo focused on the consolidation of media ownership, including the diminution in the number of newspapers produced in many markets and cross-ownership between media, as well as the tendency of media to focus on national news and report it in a similar way. Nevertheless, other developments in the “communications revolution” arguably cut the other way, demonstrating that modern technology was making it easier to publicize diverse views without the assistance of right-of-reply statutes. Do you see how?

2. In the years since 1974, communications technology has continued to improve, and ownership of media conglomerates has continued to become more centralized. How should such developments affect the attitude of the courts to right-of-reply statutes?

3. Does the majority opinion affect laws requiring newspapers to print retractions to correct misstatements of fact? Would a state be able to require that such retractions “appear in as conspicuous a place and in the same kind of type as the” misstatements? Would it matter if the misstatements were made negligently, recklessly, intentionally, or through no fault of the newspaper?

4. Red Lion and Tornillo represent opposing poles concerning First Amendment protection of media. While the Court has all but immunized newspapers’ editorial decisions from government regulation, broadcasters have been granted less autonomy. The next two cases involve public broadcasting and concern the extent to which the government may exercise editorial control of the broadcast media in the name of the “public interest.” As you read them, consider whether there remains (and whether there ever was) sufficient justification for drawing a bright line between the editorial freedom of newspaper publishers and that of broadcasters.

FEDERAL COMMUNICATIONS COMMISSION v. LEAGUE OF WOMEN VOTERS

Supreme Court of the United States468 U.S. 364, 104 S. Ct. 3106, 82 L. Ed. 2d 278 (1984)

JUSTICE BRENNAN delivered the opinion of the Court [in which JUSTICE MARSHALL, JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE O’CONNOR join].

Moved to action by a widely felt need to sponsor independent sources of broadcast programming as an alternative to commercial broadcasting, Congress set out in 1967 to support and promote the development of noncommercial, educational broadcasting stations. A keystone of Congress’ program was the Public Broadcasting Act of 1967, 47 U.S.C. § 390 et seq., which established the Corporation for Public Broadcasting, a nonprofit corporation authorized to disburse federal funds to noncommercial television and radio stations in support of station operations and educational programming. Section 399 of that Act forbids any “noncommercial educational broadcasting station which receives a grant from the Corporation” to “engage in editorializing.” In this case, we are called upon to decide whether Congress, by imposing that restriction, has passed a “law . . . abridging the freedom of speech, or of the press” in violation of the First Amendment of the Constitution. * * *

Appellee Pacifica Foundation is a nonprofit corporation that owns and operates several noncommercial educational broadcasting stations in five major metropolitan areas. Its licensees have received and are presently receiving grants from the Corporation and are therefore prohibited from editorializing by the terms of § 399 * * *. In April 1979, appellees brought this

38

suit in the United States District Court for the Central District of California challenging the constitutionality of former § 399 [which prohibited all “noncommercial educational broadcasting station[s]” from editorializing and endorsing candidates]. * * * While the suit was pending before the District Court, Congress * * * amended § 399 by confining the ban on editorializing to noncommercial stations that receive Corporation grants and by separately prohibiting all noncommercial stations from making political endorsements, irrespective of whether they receive federal funds. Subsequently, appellees amended their complaint to reflect this change, challenging only the ban on editorializing.9

The District Court granted summary judgment in favor of appellees, holding that § 399’s ban on editorializing violated the First Amendment. * * * The FCC appealed from the District Court judgment directly to this Court pursuant to 28 U.S.C. § 1252. [W]e now affirm.

* * * Section 399 plainly operates to restrict the expression of editorial opinion on matters of public importance, and, as we have repeatedly explained, communication of this kind is entitled to the most exacting degree of First Amendment protection. E.g., Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 585 (1983); First National Bank of Boston v. Bellotti, 435 U.S. 765, 776-777 (1978) [p. XXX]; Buckley v. Valeo, 424 U.S. 1, 14 (1976) [p. XXX]; Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940). Were a similar ban on editorializing applied to newspapers and magazines, we would not hesitate to strike it down as violative of the First Amendment. E.g., Mills v. Alabama, 384 U.S. 214 (1966) [p. XXX]. But, as the Government correctly notes, because broadcast regulation involves unique considerations, our cases have not followed precisely the same approach that we have applied to other media and have never gone so far as to demand that such regulations serve “compelling” governmental interests. At the same time, we think the Government’s argument loses sight of concerns that are important in this area and thus misapprehends the essential meaning of our prior decisions concerning the reach of Congress’ authority to regulate broadcast communication.

The fundamental principles that guide our evaluation of broadcast regulation are by now well established. First, we have long recognized that Congress, acting pursuant to the Commerce Clause, has power to regulate the use of this scarce and valuable national resource. * * * 11

Second, Congress may, in the exercise of this power, seek to assure that the public receives through this medium a balanced presentation of information on issues of public importance that otherwise might not be addressed if control of the medium were left entirely in the hands of those who own and operate broadcasting stations. Although such governmental regulation has never been allowed with respect to the print media, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) [p. XXX], we have recognized that “differences in the characteristics of new media justify differences in the First Amendment standards applied to them.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969) [p. XXX]. The fundamental distinguishing characteristic of the new medium of broadcasting that, in our view, has required some adjustment in First Amendment analysis is that “[broadcast] frequencies are a scarce resource [that] must be

9 In their amended complaint, appellees did not challenge the provision in § 399 prohibiting all noncommercial educational broadcasting stations from “[supporting] or [opposing] any candidate for public office.” * * * We therefore express no view of the constitutionality of [that provision].11 The prevailing rationale for broadcast regulation based on spectrum scarcity has come under increasing criticism in recent years. Critics, including the incumbent Chairman of the FCC, charge that with the advent of cable and satellite television technology, communities now have access to such a wide variety of stations that the scarcity doctrine is obsolete. We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required.

39

portioned out among applicants.” Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 101 (1973). Thus, our cases have taught that, given spectrum scarcity, those who are granted a license to broadcast must serve in a sense as fiduciaries for the public by presenting “those views and voices which are representative of [their] community and which would otherwise, by necessity, be barred from the airwaves.” Red Lion, supra, at 389. * * *

Finally, although the Government’s interest in ensuring balanced coverage of public issues is plainly both important and substantial, we have, at the same time, made clear that broadcasters are engaged in a vital and independent form of communicative activity. As a result, the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area. Unlike common carriers, broadcasters are “entitled under the First Amendment to exercise ‘the widest journalistic freedom consistent with their public [duties].’ ” CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 110). Indeed, if the public’s interest in receiving a balanced presentation of views is to be fully served, we must necessarily rely in large part upon the editorial initiative and judgment of the broadcasters who bear the public trust. * * *

Thus, although the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. As a result of these restrictions, of course, the absolute freedom to advocate one’s own positions without also presenting opposing viewpoints—a freedom enjoyed, for example, by newspaper publishers and soapbox orators—is denied to broadcasters. But, as our cases attest, these restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest, such as ensuring adequate and balanced coverage of public issues, e.g., Red Lion, 395 U.S., at 377. Making that judgment requires a critical examination of the interests of the public and broadcasters in light of the particular circumstances of each case. * * *

In seeking to defend the prohibition on editorializing imposed by § 399, the Government urges that the statute was aimed at preventing two principal threats to the overall success of the Public Broadcasting Act of 1967. According to this argument, the ban was necessary, first, to protect noncommercial educational broadcasting stations from being coerced, as a result of federal financing, into becoming vehicles for Government propagandizing or the objects of governmental influence; and, second, to keep these stations from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints. By seeking to safeguard the public’s right to a balanced presentation of public issues through the prevention of either governmental or private bias, these objectives are, of course, broadly consistent with the goals identified in our earlier broadcast regulation cases. But, in sharp contrast to the restrictions upheld in Red Lion or in CBS, Inc. v. FCC, which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner. The Government insists, however, that the hazards posed in the “special” circumstances of noncommercial educational broadcasting are so great that § 399 is an indispensable means of preserving the public’s First Amendment interests. We disagree.

When Congress first decided to provide financial support for the expansion and development of noncommercial educational stations, all concerned agreed that this step posed some risk that these traditionally independent stations might be pressured into becoming forums devoted solely to programming and views that were acceptable to the Federal Government. That Congress was

40

alert to these dangers cannot be doubted. It sought through the Public Broadcasting Act to fashion a system that would provide local stations with sufficient funds to foster their growth and development while preserving their tradition of autonomy and community-orientation. * * *

The intended role of § 399 in achieving these purposes, however, is not as clear. * * * Indeed, it appears that, as the House Committee Report frankly admits, § 399 was added not because Congress thought it was essential to preserving the autonomy and vitality of local stations, but rather “[out] of an abundance of caution.”18

More importantly, an examination of both the overall legislative scheme established by the 1967 Act and the character of public broadcasting demonstrates that the interest asserted by the Government is not substantially advanced by § 399. First, to the extent that federal financial support creates a risk that stations will lose their independence through the bewitching power of governmental largesse, the elaborate structure established by the Public Broadcasting Act already operates to insulate local stations from governmental interference. Congress not only mandated that the new Corporation for Public Broadcasting would have a private, bipartisan structure, but also imposed a variety of important limitations on its powers. The Corporation was prohibited from owning or operating any station, it was required to adhere strictly to a standard of “objectivity and balance” in disbursing federal funds to local stations, and it was prohibited from contributing to or otherwise supporting any candidate for office.

The Act also established a second layer of protections which serve to protect the stations from governmental coercion and interference. Thus, in addition to requiring the Corporation to operate so as to “assure the maximum freedom [of local stations] from interference with or control of program content or other activities,” the Act expressly forbids “any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over educational television or radio broadcasting, or over the Corporation or any of its grantees or contractors . . . ,” § 398(a). Subsequent amendments to the Act * * * have provided long-term appropriations authority for public broadcasting, rather than allowing funding to depend upon yearly appropriations; have strictly defined the percentage of appropriated funds that must be disbursed by the Corporation to local stations; and have defined objective criteria under which local television and radio stations receive basic grants from the Corporation to be used at the discretion of the station. The principal thrust of the amendments, therefore, has been to assure long-term appropriations for the Corporation and, more importantly, to insist that it pass specified portions of these funds directly through to local stations to give them greater autonomy in defining the uses to which those funds should be put. Thus, in sharp contrast to § 399, the unifying theme of these various statutory provisions is that they substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations’ ability to speak on matters of public concern.19

18 The legislative history surrounding § 399 also suggests that a variety of reasons lay behind the decision to include it as part of the Act. Although some supporters of § 399 plainly were concerned that permitting editorializing might create a risk that noncommercial stations would be subjected to undue governmental influence and thereby become vehicles for governmental propaganda, other supporters of the provision appear to have been more concerned with preventing the possibility that these stations would criticize Government officials. Representative Springer, the provision’s chief sponsor and the ranking minority member of the House Committee that reported out the bill containing § 399, explained that his concerns were due at least in part to the fact that “[t]here are some of us who have very strong feelings because they have been editorialized against.” * * *19 Furthermore, the risk that federal coercion or influence will be brought to bear against local stations as a result of federal financing is considerably attenuated by the fact that CPB grants account for only [23.4%] of total public broadcasting income. The vast majority of financial support comes instead from state and local governments, as well as a wide variety of private sources, including foundations, businesses, and individual contributions * * *. Given this

41

Even if these statutory protections were thought insufficient to the task, however, suppressing the particular category of speech restricted by § 399 is simply not likely, given the character of the public broadcasting system, to reduce substantially the risk that the Federal Government will seek to influence or put pressure on local stations. An underlying supposition of the Government’s argument in this regard is that individual noncommercial stations are likely to speak so forcefully on particular issues that Congress, the ultimate source of the stations’ federal funding, will be tempted to retaliate against these individual stations by restricting appropriations for all of public broadcasting. But, as the District Court recognized, the character of public broadcasting suggests that such a risk is speculative at best. There are literally hundreds of public radio and television stations in communities scattered throughout the United States and its territories. Given that central fact, it seems reasonable to infer that the editorial voices of these stations will prove to be as distinctive, varied, and idiosyncratic as the various communities they represent. More importantly, the editorial focus of any particular station can fairly be expected to focus largely on issues affecting only its community. Accordingly, absent some showing by the Government to the contrary, the risk that local editorializing will place all of public broadcasting in jeopardy is not sufficiently pressing to warrant § 399’s broad suppression of speech. * * *

Furthermore, the manifest imprecision of the ban imposed by § 399 reveals that its proscription is not sufficiently tailored to the harms it seeks to prevent to justify its substantial interference with broadcasters’ speech. Section 399 includes within its grip a potentially infinite variety of speech, most of which would not be related in any way to governmental affairs, political candidacies, or elections. Indeed, the breadth of editorial commentary is as wide as human imagination permits. But the Government never explains how, say, an editorial by local station management urging improvements in a town’s parks or museums will so infuriate Congress or other federal officials that the future of public broadcasting will be imperiled unless such editorials are suppressed. Nor is it explained how the suppression of editorials alone serves to reduce the risk of governmental retaliation and interference when it is clear that station management is fully able to broadcast controversial views so long as such views are not labeled as its own. * * *

Finally, although the Government certainly has a substantial interest in ensuring that the audiences of noncommercial stations will not be led to think that the broadcaster’s editorials reflect the official view of the Government, this interest can be fully satisfied by less restrictive means that are readily available. To address this important concern, Congress could simply require public broadcasting stations to broadcast a disclaimer every time they editorialize which would state that the editorial represents only the view of the station’s management and does not in any way represent the views of the Federal Government or any of the station’s other sources of funding. Such a disclaimer—similar to those often used in commercial and noncommercial programming of a controversial nature—would effectively and directly communicate to the audience that the editorial reflected only the views of the station rather than those of the Government. Furthermore, such disclaimers would have the virtue of clarifying the responses that might be made under the fairness doctrine by opponents of the station’s position, since those opponents would know with certainty that they were responding only to the station’s views and not in any sense to the Government’s position.

In sum, § 399’s broad ban on all editorializing by every station that receives CPB funds far exceeds what is necessary to protect against the risk of governmental interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of government. The regulation impermissibly sweeps within its prohibition a wide range of

42

speech by wholly private stations on topics that do not take a directly partisan stand or that have nothing whatever to do with federal, state, or local government.

Assuming that the Government’s second asserted interest in preventing noncommercial stations from becoming a “privileged outlet for the political and ideological opinions of station owners and managers” is legitimate, the substantiality of this asserted interest is dubious. The patent overinclusiveness and underinclusiveness of § 399’s ban “undermines the likelihood of a genuine [governmental] interest” in preventing private groups from propagating their own views via public broadcasting. First National Bank of Boston v. Bellotti, 435 U.S., at 793. If it is true, as the Government contends, that noncommercial stations remain free, despite § 399, to broadcast a wide variety of controversial views through their power to control program selection, to select which persons will be interviewed, and to determine how news reports will be presented, then it seems doubtful that § 399 can fairly be said to advance any genuinely substantial governmental interest in keeping controversial or partisan opinions from being aired by noncommercial stations. Indeed, since the very same opinions that cannot be expressed by the station’s management may be aired so long as they are communicated by a commentator or by a guest appearing at the invitation of the station during an interview, § 399 clearly “provides only ineffective or remote support for the government’s purpose.”

In short, § 399 does not prevent the use of noncommercial stations for the presentation of partisan views on controversial matters; instead, it merely bars a station from specifically communicating such views on its own behalf or on behalf of its management. If the vigorous expression of controversial opinions is, as the Government assures us, affirmatively encouraged by the Act, and if local licensees are permitted under the Act to exercise editorial control over the selection of programs, controversial or otherwise, that are aired on their stations, then § 399 accomplishes only one thing—the suppression of editorial speech by station management. It does virtually nothing, however, to reduce the risk that public stations will serve solely as outlets for expression of narrow partisan views. * * *

Finally, the public’s interest in preventing public broadcasting stations from becoming forums for lopsided presentations of narrow partisan positions is already secured by a variety of other regulatory means that intrude far less drastically upon the “journalistic freedom” of noncommercial broadcasters. The requirements of the FCC’s fairness doctrine, for instance, which apply to commercial and noncommercial stations alike, ensure that such editorializing would maintain a reasonably balanced and fair presentation of controversial issues. Thus, even if the management of a noncommercial educational station were inclined to seek to further only its own partisan views when editorializing, it simply could not do so. Indeed, in considering the constitutionality of the FCC’s fairness doctrine, the Court in Red Lion considered precisely the same justification invoked by the Government today in support of § 399: that without some requirement of fairness and balance, “station owners . . . would have unfettered power . . . to communicate only their own views on public issues . . . and to permit on the air only those with whom they agreed.” 395 U.S., at 392. The solution to this problem offered by § 399, however, is precisely the opposite of the remedy prescribed by the FCC and endorsed by the Court in Red Lion. Rather than requiring noncommercial broadcasters who express editorial opinions on controversial subjects to permit more speech on such subjects to ensure that the public’s First Amendment interest in receiving a balanced account of the issue is met, § 399 simply silences all editorial speech by such broadcasters. Since the breadth of § 399 extends so far beyond what is necessary to accomplish the goals identified by the Government, it fails to satisfy the First Amendment standards that we have applied in this area.

43

We therefore hold that even if some of the hazards at which § 399 was aimed are sufficiently substantial, the restriction is not crafted with sufficient precision to remedy those dangers that may exist to justify the significant abridgment of speech worked by the provision’s broad ban on editorializing. The statute is not narrowly tailored to address any of the Government’s suggested goals. Moreover, the public’s “paramount right” to be fully and broadly informed on matters of public importance through the medium of noncommercial educational broadcasting is not well served by the restriction, for its effect is plainly to diminish rather than augment “the volume and quality of coverage” of controversial issues. Red Lion, 395 U.S., at 393. Nor do we see any reason to deny noncommercial broadcasters the right to address matters of public concern on the basis of merely speculative fears of adverse public or governmental reactions to such speech.

* * * Relying upon our recent decision in Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983), the Government argues that by prohibiting noncommercial educational stations that receive CPB grants from editorializing, Congress has, in the proper exercise of its spending power, simply determined that it “will not subsidize public broadcasting station editorials.” In Taxation With Representation, the Court found that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, however, we explained that such organizations remained free “to receive [tax-deductible] contributions to support nonlobbying [activities].” 461 U.S., at 545. Thus, a charitable organization could create, under § 501(c)(3) of the Internal Revenue Code, an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and, at the same time, establish, under § 501(c)(4), a separate affiliate to pursue its lobbying efforts without such contributions. 461 U.S., at 544. Given that statutory alternative, the Court concluded that “Congress has not infringed any First Amendment rights or regulated any First Amendment activity; [it] has simply chosen not to pay for TWR’s lobbying.” Id., at 546.

In this case, however, unlike the situation faced by the charitable organization in Taxation With Representation, a noncommercial educational station that receives only 1% of its overall income from CPB grants is barred absolutely from all editorializing. Therefore, in contrast to the appellee in Taxation With Representation, such a station is not able to segregate its activities according to the source of its funding. The station has no way of limiting the use of its federal

44

funds to all noneditorializing activities, and, more importantly, it is barred from using even

45

wholly private funds to finance its editorial activity. * * * 27

In conclusion, we emphasize that our disposition of this case rests upon a narrow proposition. We do not hold that the Congress or the FCC is without power to regulate the content, timing, or character of speech by noncommercial educational broadcasting stations. Rather, we hold only that the specific interests sought to be advanced by § 399’s ban on editorializing are either not sufficiently substantial or are not served in a sufficiently limited manner to justify the substantial abridgment of important journalistic freedoms which the First Amendment jealously protects. Accordingly, the judgment of the District Court is

Affirmed.

JUSTICE WHITE: Believing that the editorializing and candidate endorsement proscription stand or fall together and being confident that Congress may condition use of its funds on abstaining from political endorsements, I join JUSTICE REHNQUIST’s dissenting opinion.

JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE [BURGER] and JUSTICE WHITE join, dissenting.

* * * Congress in enacting § 399 of the Public Broadcasting Act has simply determined that public funds shall not be used to subsidize noncommercial, educational broadcasting stations which engage in “editorializing” or which support or oppose any political candidate. I do not believe that anything in the First Amendment to the United States Constitution prevents Congress from choosing to spend public moneys in that manner. * * *

Last Term, in Regan v. Taxation With Representation of Washington, we upheld a provision of the Internal Revenue Code which deprives an otherwise eligible organization of its tax-exempt status and its right to receive tax-deductible contributions if it engages in lobbying. We squarely rejected the contention that Congress’ decision not to subsidize lobbying violates the First Amendment, even though we recognized that the right to lobby is constitutionally protected. * * * [T]he Court today seeks to avoid the thrust of that opinion by pointing out that a public broadcasting station is barred from editorializing with its nonfederal funds even though it may receive only a minor fraction of its income from CPB grants. * * *

But to me there is no distinction between § 399 and the statute which we upheld in Oklahoma v. CSC. Section 12(a) of the Hatch Act totally prohibits any local or state employee who is employed in any activity which receives partial or total financing from the United States from taking part in any political activities. One might just as readily denounce such congressional action as prohibiting employees of a state or local government receiving even a minor fraction of that government’s income from federal assistance from exercising their First Amendment right to speak. But not surprisingly this Court upheld the Hatch Act provision in Oklahoma v. CSC, succinctly stating: “While the United States is not concerned with, and has no power to regulate, local political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed.” Id., at 143. See also CSC v. Letter Carriers; United Public Workers v. Mitchell.

The Court seems to believe that Congress actually subsidizes editorializing only if a station uses federal money specifically to cover the expenses that the Court believes can be isolated as editorializing expenses. But to me the Court’s approach ignores economic reality. CPB’s unrestricted grants are used for salaries, training, equipment, promotion, etc.—financial expenditures which benefit all aspects of a station’s programming, including management’s editorials. Given the impossibility of compartmentalizing programming expenses in any

46

meaningful way, it seems clear to me that the only effective means for preventing the use of public moneys to subsidize the airing of management’s views is for Congress to ban a subsidized station from all on-the-air editorializing. * * *

This is not to say that the Government may attach any condition to its largess; it is only to say that when the Government is simply exercising its power to allocate its own public funds, we need only find that the condition imposed has a rational relationship to Congress’ purpose in providing the subsidy and that it is not primarily “aimed at the suppression of dangerous ideas.” In this case Congress’ prohibition is directly related to its purpose in providing subsidies for public broadcasting, and it is plainly rational for Congress to have determined that taxpayer moneys should not be used to subsidize management’s views or to pay for management’s exercise of partisan politics. Indeed, it is entirely rational for Congress to have wished to avoid the appearance of Government sponsorship of a particular view or a particular political candidate. Furthermore, Congress’ prohibition is strictly neutral. In no sense can it be said that Congress has prohibited only editorial views of one particular ideological bent. Nor has it prevented public stations from airing programs, documentaries, interviews, etc. dealing with controversial subjects, so long as management itself does not expressly endorse a particular viewpoint. And Congress has not prevented station management from communicating its own views on those subjects through any medium other than subsidized public broadcasting. * * *

Here, in my view, Congress has rationally concluded that the bulk of taxpayers whose moneys provide the funds for grants by the CPB would prefer not to see the management of public stations engage in editorializing or the endorsing or opposing of political candidates. Because Congress’ decision to enact § 399 is a rational exercise of its spending powers and strictly neutral, I would hold that nothing in the First Amendment makes it unconstitutional. Accordingly, I would reverse the judgment of the District Court.

JUSTICE STEVENS, dissenting.The court jester who mocks the King must choose his words with great care. An artist is

likely to paint a flattering portrait of his patron. The child who wants a new toy does not preface his request with a comment on how fat his mother is. Newspaper publishers have been known to listen to their advertising managers. Elected officials may remember how their elections were financed. By enacting the statutory provision that the Court invalidates today, a sophisticated group of legislators expressed a concern about the potential impact of Government funds on pervasive and powerful organs of mass communication. * * *

* * * The quality of the interest in maintaining government neutrality in the free market of ideas—of avoiding subtle forms of censorship and propaganda—outweigh the impact on expression that results from this statute. Indeed, by simply terminating or reducing funding, Congress could curtail much more expression with no risk whatever of a constitutional transgression. * * *

In my judgment the interest in keeping the Federal Government out of the propaganda arena is of overriding importance. That interest is of special importance in the field of electronic communication, not only because that medium is so powerful and persuasive, but also because it is the one form of communication that is licensed by the Federal Government. When the Government already has great potential power over the electronic media, it is surely legitimate to

47

enact statutory safeguards to make sure that it does not cross the threshold that separates neutral

48

regulation from the subsidy of partisan opinion.11

The Court does not question the validity of the basic interests served by § 399. Instead, it suggests that the statute does not substantially serve those interests because the Public Broadcasting Act operates in many other respects to insulate local stations from governmental interference. In my view, that is an indication of nothing more than the strength of the governmental interest involved here—Congress enacted many safeguards because the evil to be avoided was so grave. * * * No safeguard is foolproof; and the fact that funds are dispensed according to largely “objective” criteria certainly is no guarantee. Individuals must always make judgments in allocating funds, and pressure can be exerted in subtle ways as well as through outright fund-cutoffs.

Members of Congress, not members of the Judiciary, live in the world of politics. When they conclude that there is a real danger of political considerations influencing the dispensing of this money and that this provision is necessary to insulate grantees from political pressures in addition to the other safeguards, that judgment is entitled to our respect.

* * * No matter how great or how small the immediate risk may be, there surely is more than a theoretical possibility that future grantees might be influenced by the ever present tie of the political purse strings, even if those strings are never actually pulled. * * *

I respectfully dissent.

Notes and Questions1. As the Court noted, the Corporation for Public Broadcasting itself was “prohibited from

contributing to or otherwise supporting any candidate for office.” Are those prohibitions constitutional? Are they distinguishable from similar restrictions applied to ordinary business corporations? See Citizens United v. FEC, __ U.S. __, 130 S. Ct. __ (2009).

2. The Court criticized the Act’s “imprecision,” arguing that few editorials would prompt congressional retaliation. How could Congress more narrowly tailor a ban without creating an unconstitutional content-based distinction?

ARKANSAS EDUCATIONAL TELEVISION COMMISSION v. FORBES

Supreme Court of the United States523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998)

JUSTICE KENNEDY delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST, JUSTICE O’CONNOR, JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE BREYER join].

A state-owned public television broadcaster sponsored a candidate debate from which it excluded an independent candidate with little popular support. The issue before us is whether, by reason of its state ownership, the station had a constitutional obligation to allow every candidate access to the debate. We conclude that, unlike most other public television programs, the candidate debate was subject to constitutional constraints applicable to nonpublic fora under our forum precedents. Even so, the broadcaster’s decision to exclude the candidate was a reasonable, viewpoint-neutral exercise of journalistic discretion.

Petitioner, the Arkansas Educational Television Commission (AETC), is an Arkansas state agency owning and operating a network of five noncommercial television stations. * * * In the spring of 1992, AETC staff began planning a series of debates between candidates for federal office in the November 1992 elections. AETC decided to televise a total of five debates,

49

scheduling one for the Senate election and one for each of the four congressional elections in Arkansas. Working in close consultation with Bill Simmons, Arkansas Bureau Chief for the Associated Press, AETC staff developed a debate format allowing about 53 minutes during each 1-hour debate for questions to and answers by the candidates. Given the time constraint, the staff and Simmons “decided to limit participation in the debates to the major party candidates or any other candidate who had strong popular support.”

On June 17, 1992, AETC invited the Republican and Democratic candidates for Arkansas’ Third Congressional District to participate in the AETC debate for that seat. Two months later, after obtaining the 2,000 signatures required by Arkansas law, respondent Ralph Forbes was certified as an independent candidate qualified to appear on the ballot for the seat. Forbes was a perennial candidate who had sought, without success, a number of elected offices in Arkansas. On August 24, 1992, he wrote to AETC requesting permission to participate in the debate for his district, scheduled for October 22, 1992. On September 4, AETC Executive Director Susan Howarth denied Forbes’ request, explaining that AETC had “made a bona fide journalistic judgement that our viewers would best be served by limiting the debate” to the candidates already invited.

On October 19, 1992, Forbes filed suit against AETC, seeking injunctive and declaratory relief as well as damages. * * * At trial, AETC professional staff testified Forbes was excluded because he lacked any campaign organization, had not generated appreciable voter support, and was not regarded as a serious candidate by the press covering the election. The jury made express findings that AETC’s decision to exclude Forbes had not been influenced by political pressure or disagreement with his views. The District Court entered judgment for AETC.

The Court of Appeals * * * reversed. The court acknowledged that AETC’s decision to exclude Forbes “was made in good faith” and was “exactly the kind of journalistic judgment routinely made by newspeople.” The court asserted, nevertheless, that AETC had “opened its facilities to a particular group—candidates running for the Third District Congressional seat.” AETC’s action, the court held, made the debate a public forum, to which all candidates “legally qualified to appear on the ballot” had a presumptive right of access. Applying strict scrutiny, the court determined that AETC’s assessment of Forbes’ “political viability” was neither a “compelling nor [a] narrowly tailored” reason for excluding him from the debate. * * * We now reverse. * * *

As a general rule, the nature of editorial discretion counsels against subjecting broadcasters to claims of viewpoint discrimination. Programming decisions would be particularly vulnerable to claims of this type because even principled exclusions rooted in sound journalistic judgment can often be characterized as viewpoint based. To comply with their obligation to air programming that serves the public interest, broadcasters must often choose among speakers expressing different viewpoints. * * * Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others. Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.

When a public broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity. Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts. * * *

50

Although public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine, candidate debates present the narrow exception to the rule. For two reasons, a candidate debate like the one at issue here is different from other programming. First, unlike AETC’s other broadcasts, the debate was by design a forum for political speech by the candidates. Consistent with the long tradition of candidate debates, the implicit representation of the broadcaster was that the views expressed were those of the candidates, not its own. The very purpose of the debate was to allow the candidates to express their views with minimal intrusion by the broadcaster. In this respect the debate differed even from a political talk show, whose host can express partisan views and then limit the discussion to those ideas.

Second, in our tradition, candidate debates are of exceptional significance in the electoral process. “[I]t is of particular importance that candidates have the . . . opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day.” CBS, Inc. v. FCC, 453 U.S. 367, 396 (1981). Deliberation on the positions and qualifications of candidates is integral to our system of government, and electoral speech may have its most profound and widespread impact when it is disseminated through televised debates. * * *

The special characteristics of candidate debates support the conclusion that the AETC debate was a forum of some type. * * * Forbes argues, and the Court of Appeals held, that the debate was a public forum to which he had a First Amendment right of access. Under our precedents, however, the debate was a nonpublic forum, from which AETC could exclude Forbes in the reasonable, viewpoint-neutral exercise of its journalistic discretion.

For our purposes, it will suffice to employ the categories of speech fora already established and discussed in our cases. “[T]he Court [has] identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum.” Traditional public fora are defined by the objective characteristics of the property, such as whether, “by long tradition or by government fiat,” the property has been “devoted to assembly and debate.” The government can exclude a speaker from a traditional public forum “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.”

Designated public fora, in contrast, are created by purposeful governmental action. “The government does not create a [designated] public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse.” Hence “the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny.

Other government properties are either nonpublic fora or not fora at all. The government can restrict access to a nonpublic forum “as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.”

In summary, traditional public fora are open for expressive activity regardless of the government’s intent. The objective characteristics of these properties require the government to accommodate private speakers. The government is free to open additional properties for expressive use by the general public or by a particular class of speakers, thereby creating designated public fora. Where the property is not a traditional public forum and the government has not chosen to create a designated public forum, the property is either a nonpublic forum or not a forum at all.

51

The parties agree the AETC debate was not a traditional public forum. The Court has rejected the view that traditional public forum status extends beyond its historic confines; and even had a more expansive conception of traditional public fora been adopted, the almost unfettered access of a traditional public forum would be incompatible with the programming dictates a television broadcaster must follow. The issue, then, is whether the debate was a designated public forum or a nonpublic forum.

Under our precedents, the AETC debate was not a designated public forum. To create a forum of this type, the government must intend to make the property “generally available” to a class of speakers. * * * A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers. * * *

* * * By recognizing the distinction [between the “general access” characteristic of a designated public forum and the “selective access” of a nonpublic forum], we encourage the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all. That this distinction turns on governmental intent does not render it unprotective of speech. Rather, it reflects the reality that, with the exception of traditional public fora, the government retains the choice of whether to designate its property as a forum for specified classes of speakers.

Here, the debate did not have an open-microphone format. * * * AETC made candidate-by-candidate determinations as to which of the eligible candidates would participate in the debate. “Such selective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum.” Thus the debate was a nonpublic forum.

[T]he Court of Appeals’ holding would result in less speech, not more. In ruling that the debate was a public forum open to all ballot-qualified candidates, the Court of Appeals would place a severe burden upon public broadcasters who air candidates’ views. In each of the 1988, 1992, and 1996 Presidential elections, for example, no fewer than 19 candidates appeared on the ballot in at least one State. In the 1996 congressional elections, it was common for 6 to 11 candidates to qualify for the ballot for a particular seat. On logistical grounds alone, a public television editor might, with reason, decide that the inclusion of all ballot-qualified candidates would “actually undermine the educational value and quality of debates.”

Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates’ views at all. * * * These concerns are more than speculative. As a direct result of the Court of Appeals’ decision in this case, the Nebraska Educational Television Network canceled a scheduled debate between candidates in Nebraska’s 1996 United States Senate race. A First Amendment jurisprudence yielding these results does not promote speech but represses it.

The debate’s status as a nonpublic forum, however, did not give AETC unfettered power to exclude any candidate it wished. * * * To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker’s viewpoint and must otherwise be reasonable in light of the purpose of the property.

In this case, the jury found Forbes’ exclusion was not based on “objections or opposition to his views.” The record provides ample support for this finding, demonstrating as well that AETC’s decision to exclude him was reasonable. AETC Executive Director Susan Howarth testified Forbes’ views had “absolutely” no role in the decision to exclude him from the debate. She further testified Forbes was excluded because (1) “the Arkansas voters did not consider him a serious candidate”; (2) “the news organizations also did not consider him a serious candidate”; (3) “the Associated Press and a national election result reporting service did not plan to run his

52

name in results on election night”; (4) Forbes “apparently had little, if any, financial support, failing to report campaign finances to the Secretary of State’s office or to the Federal Election Commission”; and (5) “there [was] no ‘Forbes for Congress’ campaign headquarters other than his house.” Forbes himself described his campaign organization as “bedlam” and the media coverage of his campaign as “zilch.” It is, in short, beyond dispute that Forbes was excluded not because of his viewpoint but because he had generated no appreciable public interest. * * *

Nor did AETC exclude Forbes in an attempted manipulation of the political process. The evidence provided powerful support for the jury’s express finding that AETC’s exclusion of Forbes was not the result of “political pressure from anyone inside or outside [AETC].” There is no serious argument that AETC did not act in good faith in this case. AETC excluded Forbes because the voters lacked interest in his candidacy, not because AETC itself did.

The broadcaster’s decision to exclude Forbes was a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment. The judgment of the Court of Appeals is

Reversed.

JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, dissenting.The Court has decided that a state-owned television network has no “constitutional obligation

to allow every candidate access to” political debates that it sponsors. I do not challenge that decision. The judgment of the Court of Appeals should nevertheless be affirmed. * * *

No written criteria cabined the discretion of the AETC staff. Their subjective judgment about a candidate’s “viability” or “newsworthiness” allowed them wide latitude either to permit or to

53

exclude a third participant in any debate.14 Moreover, in exercising that judgment they were free to rely on factors that arguably should favor inclusion as justifications for exclusion. Thus, the fact that Forbes had little financial support was considered as evidence of his lack of viability when that factor might have provided an independent reason for allowing him to share a free

54

forum with wealthier candidates.15 * * *The reasons that support the need for narrow, objective, and definite standards to guide

licensing decisions apply directly to the wholly subjective access decisions made by the staff of

55

AETC.18 The importance of avoiding arbitrary or viewpoint-based exclusions from political debates militates strongly in favor of requiring the controlling state agency to use (and adhere to) preestablished, objective criteria to determine who among qualified candidates may participate. * * * A constitutional duty to use objective standards—i.e., “neutral principles”—for determining whether and when to adjust a debate format would impose only a modest requirement that would fall far short of a duty to grant every multiple-party request. Such standards would also have the benefit of providing the public with some assurance that state-owned broadcasters cannot select debate participants on arbitrary grounds. * * *

Notes and Questions1. The Court essentially held that there is no requirement that public entities sponsoring

debates adhere to preexisting criteria in inviting candidates to participate. As long as the decision to exclude a certain candidate is not motivated by disagreement with the candidate’s viewpoint and is otherwise reasonable, the exclusion is constitutional. Justice Stevens argued that such a rule created too much opportunity for abuse, and that the public entity should not be permitted to limit participation in debates through an ad hoc process.

Despite the Court’s holding that preexisting criteria are not a constitutional necessity, would you advise such entities to adopt them anyway? Why or why not?

2. Is Justice Stevens’s approach workable in other contexts? Would he require a state university to adhere to preexisting criteria in selecting a commencement speaker? What constitutional constraints would apply to such a situation under the Court’s analysis?

3. The Court opined that debates are different from programs such as “political talk shows” because debates are designed to feature the views of the candidates, whereas talk shows feature the views and agendas of the hosts. As a result, talk shows can be seen as expressing the viewpoints of the station, and the Court suggests that the First Amendment presents no barrier to the expression of such opinion, even when dissenters are not provided an opportunity to respond. Does this discussion indicate skepticism on the part of the Court with Red Lion? Would it be ironic to allow Congress to require private broadcasters to adhere to the fairness doctrine, while permitting public broadcasters to use talk shows to promote certain viewpoints?

4. The AETC Court argued that treating debates as public for a would result in less speech because broadcasters would decline to hold debates if the only alternative were to provide access to every ballot-qualified candidate. Is that analysis consistent with Red Lion?

D. ANONYMOUS SPEECH

BROWN v. SOCIALIST WORKERS ’74 CAMPAIGN COMMITTEE (OHIO)

Supreme Court of the United States459 U.S. 87, 103 S. Ct. 416, 74 L. Ed. 2d 250 (1982)

JUSTICE MARSHALL delivered the opinion of the Court [in which CHIEF JUSTICE BURGER, JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE POWELL join, and in which JUSTICE BLACKMUN joins as to Parts I, III, and IV]. * * *

56

IThe Socialist Workers Party (SWP) is a small political party with approximately 60 members

in the State of Ohio. The Party states in its constitution that its aim is “the abolition of capitalism and the establishment of a workers’ government to achieve socialism.” As the District Court found, the SWP does not advocate the use of violence. It seeks instead to achieve social change through the political process, and its members regularly run for public office. The SWP’s candidates have had little success at the polls. In 1980, for example, the Ohio SWP’s candidate for the United States Senate received fewer than 77,000 votes, less than 1.9% of the total vote. Campaign contributions and expenditures in Ohio have averaged about $15,000 annually since 1974.

In 1974 appellees instituted a class action * * * challenging the constitutionality of the disclosure provisions of the Ohio Campaign Expense Reporting Law. The Ohio statute requires every candidate for political office to file a statement identifying each contributor and each recipient of a disbursement of campaign funds. The “object or purpose” of each disbursement must also be disclosed. The lists of names and addresses of contributors and recipients are open to public inspection for at least six years. Violations of the disclosure requirements are punishable by fines of up to $1,000 for each day of violation.

* * * [T]he three-judge court concluded that under Buckley v. Valeo, 424 U.S. 1 (1976) [p. XXX], the Ohio disclosure requirements are unconstitutional as applied to appellees. * * *

IIThe Constitution protects against the compelled disclosure of political associations and

beliefs. Such disclosures “can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley v. Valeo, supra, at 64. “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, [357 U.S. 449], 462 [(1958)]. The right to privacy in one’s political associations and beliefs will yield only to a “subordinating interest of the State [that is] compelling,” NAACP v. Alabama, supra, at 463, and then only if there is a “substantial relation between the information sought and [an] overriding and compelling state interest.”

In Buckley v. Valeo this Court upheld against a First Amendment challenge the reporting and disclosure requirements imposed on political parties by the Federal Election Campaign Act of 1971. The Court found three government interests sufficient in general to justify requiring disclosure of information concerning campaign contributions and expenditures: enhancement of voters’ knowledge about a candidate’s possible allegiances and interests, deterrence of corruption, and the enforcement of contribution limitations. The Court stressed, however, that in certain circumstances the balance of interests requires exempting minor political parties from compelled disclosures. The government’s interests in compelling disclosures are “diminished” in the case of minor parties. Minor party candidates “usually represent definite and publicized viewpoints” well known to the public, and the improbability of their winning reduces the dangers of corruption and vote-buying. At the same time, the potential for impairing First Amendment interests is substantially greater:

“We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The

57

public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within and without the political arena.” [424 U.S.], at 71.

We concluded that in some circumstances the diminished government interests furthered by compelling disclosures by minor parties does not justify the greater threat to First Amendment values.

Buckley v. Valeo set forth the following test for determining when the First Amendment requires exempting minor parties from compelled disclosures:

“The evidence offered need show only a reasonable probability that the compelled disclosure of a

party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Id., at 74.

The Court acknowledged that “unduly strict requirements of proof could impose a heavy burden” on minor parties. Ibid. Accordingly, the Court emphasized that “[minor] parties must be allowed sufficient flexibility in the proof of injury.” Ibid.

“The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.” Ibid.

Appellants concede that the Buckley test for exempting minor parties governs the disclosure of the names of contributors, but they contend that the test has no application to the compelled disclosure of names of recipients of campaign disbursements. Appellants assert that the State has

58

a substantial interest in preventing the misuse of campaign funds.10 They also argue that the disclosure of the names of recipients of campaign funds will have no significant impact on First Amendment rights, because, unlike a contribution, the mere receipt of money for commercial services does not affirmatively express political support.

We reject appellants’ unduly narrow view of the minor-party exemption recognized in Buckley. Appellants’ attempt to limit the exemption to laws requiring disclosure of contributors is inconsistent with the rationale for the exemption stated in Buckley. The Court concluded that the government interests supporting disclosure are weaker in the case of minor parties, while the threat to First Amendment values is greater. Both of these considerations apply not only to the

59

disclosure of campaign contributors but also to the disclosure of recipients of campaign

60

disbursements. * * *11

Moreover, appellants seriously understate the threat to First Amendment rights that would result from requiring minor parties to disclose the recipients of campaign disbursements. Expenditures by a political party often consist of reimbursements, advances, or wages paid to party members, campaign workers, and supporters, whose activities lie at the very core of the First Amendment. Disbursements may also go to persons who choose to express their support for an unpopular cause by providing services rendered scarce by public hostility and suspicion. Should their involvement be publicized, these persons would be as vulnerable to threats,

61

harassment, and reprisals as are contributors whose connection with the party is solely

62

financial.14 Even individuals who receive disbursements for “merely” commercial transactions may be deterred by the public enmity attending publicity, and those seeking to harass may disrupt commercial activities on the basis of expenditure information. Because an individual who enters into a transaction with a minor party purely for commercial reasons lacks any ideological commitment to the party, such an individual may well be deterred from providing services by

63

even a small risk of harassment.16 Compelled disclosure of the names of such recipients of expenditures could therefore cripple a minor party’s ability to operate effectively and thereby reduce “the free circulation of ideas both within and without the political arena.” Buckley, 424 U.S., at 71.

We hold, therefore, that the test announced in Buckley for safeguarding the First Amendment interests of minor parties and their members and supporters applies not only to the compelled disclosure of campaign contributors but also to the compelled disclosure of recipients of campaign disbursements.

IIIThe District Court properly applied the Buckley test to the facts of this case. The District

Court found “substantial evidence of both governmental and private hostility toward and harassment of SWP members and supporters.” Appellees introduced proof of specific incidents of private and government hostility toward the SWP and its members within the four years preceding the trial. These incidents, many of which occurred in Ohio and neighboring States, included threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members’ property, police harassment of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership. Although appellants contend that two of the Ohio firings were not politically motivated, the evidence amply supports the District Court’s conclusion that “private hostility and harassment toward SWP members make it difficult for them to maintain employment.”

The District Court also found a past history of Government harassment of the SWP. * * * Until at least 1976, the FBI employed various covert techniques to obtain information about the SWP, including information concerning the sources of its funds and the nature of its expenditures. The District Court specifically found that the FBI had conducted surveillance of the Ohio SWP and had interfered with its activities within the State. Government surveillance was not limited to the FBI. The United States Civil Service Commission also gathered information on the SWP, the YSA, and their supporters, and the FBI routinely distributed its reports to Army, Navy and Air Force Intelligence, the United States Secret Service, and the Immigration and Naturalization Service.

The District Court properly concluded that the evidence of private and Government hostility toward the SWP and its members establishes a reasonable probability that disclosing the names of contributors and recipients will subject them to threats, harassment, and reprisals. There were

64

numerous instances of recent harassment of the SWP both in Ohio and in other States.20 There was also considerable evidence of past Government harassment. Appellants challenge the relevance of this evidence of Government harassment in light of recent efforts to curb official misconduct. Notwithstanding these efforts, the evidence suggests that hostility toward the SWP is ingrained and likely to continue. All this evidence was properly relied on by the District Court.

IVThe First Amendment prohibits a State from compelling disclosures by a minor party that

will subject those persons identified to the reasonable probability of threats, harassment, or reprisals. Such disclosures would infringe the First Amendment rights of the party and its members and supporters. In light of the substantial evidence of past and present hostility from private persons and Government officials against the SWP, Ohio’s campaign disclosure requirements cannot be constitutionally applied to the Ohio SWP.

The judgment of the three-judge District Court for the Southern District of Ohio is affirmed.It is so ordered.

JUSTICE BLACKMUN, concurring in part and concurring in the judgment.[JUSTICE BLACKMUN argued that the case did not properly present the question whether the

anonymity of campaign disbursements should be subject to the same constitutional standard as the one applicable to contributions. Assuming, however, that the Buckley standard applied to both, he agreed that the Ohio law could not constitutionally be applied against the SWP, either as to contributions or expenditures.]

JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, concurring in part and dissenting in part.

I concur in the judgment that the Socialist Workers Party has sufficiently demonstrated a reasonable probability that disclosure of contributors will subject those persons to threats, harassment, or reprisals, and thus under Buckley v. Valeo the State of Ohio cannot constitutionally compel the disclosure. Further, I agree that the broad concerns of Buckley apply to the required disclosure of recipients of campaign expenditures. But, as I view the record presented here, the SWP has failed to carry its burden of showing that there is a reasonable probability that disclosure of recipients of expenditures will subject the recipients themselves or the SWP to threats, harassment, or reprisals. Moreover, the strong public interest in fair and honest elections outweighs any damage done to the associational rights of the party and its members by application of the State’s expenditure disclosure law. * * *

[T]here are important differences between disclosure of contributors and disclosure of recipients of campaign expenditures—differences that * * * compel me to conclude that the balance should not necessarily be calibrated identically. First, unlike the government’s interest in disclosure of contributions, its interest in disclosure of expenditures does not decrease significantly for small parties. The Court in Buckley recognized that knowing the identity of contributors would not significantly increase the voters’ ability to determine the political ideology of the minor-party candidate, for the stance of the minor-party candidate is usually well known. Nor would identifying a minor party’s contributors further the interest in preventing the “buying” of a candidate, because of the improbability of the minor-party candidate’s winning the

65

election. Thus, these two major government interests in disclosure of contributions are

66

significantly reduced for minor parties.3

In sharp contrast, however, the governmental interest in disclosure of expenditures remains significant for minor parties. The purpose of requiring parties to disclose expenditures is to deter improper influencing of voters. Corruption of the electoral process can take many forms: the actual buying of votes; the use of “slush funds;” dirty tricks; and bribes of poll watchers and other election officials. Certainly, a “persuasive” campaign worker on election day can corral voters for his minor-party candidate with even a modest “slush fund.” Even though such improper practices are unlikely to be so successful as to attract enough votes to elect the minor-party candidate, a minor party, whose short-term goal is merely recognition, may be as tempted to resort to impermissible methods as are major parties, and the resulting deflection of votes can determine the outcome of the election of other candidates. The requirement of a full and

67

verifiable report of expenditures is important in deterring such practices, for otherwise the party

68

could hide the improper transactions through an accounting sleight of hand.6

On the other side of the balance, disclosure of recipients of expenditures will have a lesser impact on a minority party’s First Amendment interests than will disclosure of contributors. * * * Many expenditures of the minority party will be for quite mundane purposes to persons not intimately connected with the organization. Payments for such things as office supplies, telephone service, bank charges, printing and photography costs would generally fall in this category. The likelihood that such business transactions would dry up if disclosed is remote at best. Unlike silent contributors, whom disclosure would reveal to the public as supporters of the party’s ideological positions, persons providing business services to a minor party are not generally perceived by the public as supporting the party’s ideology, and thus are unlikely to be harassed if their names are disclosed. Consequently, the party’s associational interests are unlikely to be affected by disclosure of recipients of such expenditures.

Other recipients of expenditures may have closer ideological ties to the party. The majority suggests that campaign workers receiving per diem, travel, or room expenses may fit in this category. It is certainly conceivable that such persons may be harassed or threatened for their conduct. Laws requiring disclosure of recipients of expenditures, however, are not likely to contribute to this harassment. Once an individual has openly shown his close ties to the organization by campaigning for it, disclosure of receipt of expenditures is unlikely to increase the degree of harassment so significantly as to deter the individual from campaigning for the party. Further, in striking the balance, the governmental concerns are greatest precisely for the actions of campaign workers that might improperly influence voters. Thus, whatever marginal deterrence that may arise from disclosure of expenditures is outweighed by the heightened governmental interest.

In sum, the heightened governmental interest in disclosure of expenditures and the reduced marginal deterrent effect on associational interests demand a separately focused inquiry into whether there exists a reasonable probability that disclosure will subject recipients or the party itself to threats, harassment, or reprisals.

Turning to the evidence in this case, it is important to remember that, even though proof requirements must be flexible, Buckley, supra, at 74, the minor party carries the burden of production and persuasion to show that its First Amendment interests outweigh the governmental interests. Additionally, the application of the Buckley standard to the historical evidence is most

69

properly characterized as a mixed question of law and fact, for which we normally assess the

70

record independently to determine if it supports the conclusion of unconstitutionality as applied.8

Here, there is no direct evidence of harassment of either contributors or recipients of expenditures. Rather, as the majority accurately represents it, the evidence concerns harassment and reprisals of visible party members, including violence at party headquarters and loss of jobs. I concur in the majority’s conclusion that this evidence, viewed in its entirety, supports the conclusion that there will be a reasonable probability of harassment of contributors if their names are disclosed. This evidence is sufficiently linked to disclosure of contributors in large part because any person publicly known to support the SWP’s unpopular ideological position may suffer the reprisals that this record shows active party members suffer, and the disclosure of contributors may lead the public to presume these people support the party’s ideology.

In contrast, the record, read in its entirety, does not suggest that disclosure of recipients of expenditures would lead to harassment of recipients or reprisals to the party or its members. Appellees gave no breakdown of the types of expenditures they thought would lead to harassment if disclosed. The record does contain the expenditure statements of the SWP, which itemize each expenditure with its purpose while usually omitting the name and address of the recipient. The majority of expenditures, both in number and dollar amount, are for business transactions such as office supplies, food, printing, photographs, telephone service, and books. There is virtually no evidence that disclosure of the recipients of these expenditures will impair the SWP’s ability to obtain needed services. Even if we assume that a portion of expenditures went to temporary campaign workers or others whom the public might identify as supporting the party’s ideology, these persons have already publicly demonstrated their support by their campaign work. There is simply no basis for inferring that such persons would thereafter be harassed or threatened or otherwise deterred from working for the party by virtue of inclusion of their names in later expenditure reports, or that if any such remote danger existed, it would outweigh the concededly important governmental interests in disclosure of recipients of expenditures.

It is plain that appellees did not carry their burden of production and persuasion insofar as they challenge the expenditure disclosure provisions. I would therefore uphold the constitutionality of those portions of the Ohio statute that require the SWP to disclose the recipients of expenditures.

Notes and Questions1.

MCINTYRE V. OHIO ELECTIONS COMMISSIONSupreme Court of the United States

514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995)

JUSTICE STEVENS delivered the opinion of the Court [in which JUSTICE O’CONNOR, JUSTICE KENNEDY, JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join].

The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a “law . . . abridging the freedom of speech” within the meaning of the First Amendment.

On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre’s opposition to the levy. There is no suggestion that the text of

71

her message was false, misleading, or libelous. She had composed and printed it on her home computer and had paid a professional printer to make additional copies. Some of the handbills identified her as the author; others merely purported to express the views of “CONCERNED PARENTS AND TAX PAYERS.” Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently.

While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills.

The proposed school levy was defeated at the next two elections, but it finally passed on its third try in November 1988. Five months later, the same school official filed a complaint with the Ohio Elections Commission charging that Mrs. McIntyre’s distribution of unsigned leaflets

72

violated § 3599.09(A) of the Ohio Code.3 The commission agreed and imposed a fine of $100. * * *

Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The State does not suggest that all anonymous publications are pernicious or that a statute totally excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment.

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” Great works of literature have frequently been produced by authors

73

writing under assumed names.4 Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

The freedom to publish anonymously extends beyond the literary realm. In Talley [v. California, 362 U.S. 60 (1960)], the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. Writing for the Court, Justice Black noted that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”  Id., at 64. * * * On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where “the identity of the speaker is an important component of many attempts to persuade,” City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994), the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court’s reasoning embraced a respected tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one’s conscience without fear of retaliation.

California had defended the Los Angeles ordinance at issue in Talley as a law “aimed at providing a way to identify those responsible for fraud, false advertising and libel.” We rejected that argument because nothing in the text or legislative history of the ordinance limited its application to those evils. * * * The Ohio statute likewise contains no language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify § 3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when there is no hint of falsity or libel.

Ohio’s statute does, however, contain a different limitation: It applies only to unsigned documents designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all anonymous handbilling “in any place under any circumstances.” For that reason, Ohio correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide whether and to what extent the First Amendment’s protection of anonymity encompasses documents intended to influence the electoral process.

Ohio places its principal reliance on cases such as Anderson v. Celebrezze, 460 U.S. 780 (1983) [p. XXX]; Storer v. Brown, 415 U.S. 724 (1974) [p. XXX]; and Burdick v. Takushi, 504 U.S. 428 (1992) [p. XXX], in which we reviewed election code provisions governing the voting process itself. In those cases we * * * considered the relative interests of the State and the injured voters, and we evaluated the extent to which the State’s interests necessitated the contested restrictions. * * *

74

* * * Unlike the statutory provisions challenged in Storer and Anderson, § 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of differing

75

viewpoints,8 it is a direct regulation of the content of speech. * * * Furthermore, the category of covered documents is defined by their content—only those publications containing speech designed to influence the voters in an election need bear the required markings. Consequently, we are not faced with an ordinary election restriction; this case “involves a limitation on political expression subject to exacting scrutiny.”

Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment:

“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. * * * In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. ‘[I]t can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’ ” Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (per curiam) [p. XXX].

Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776-777 (1978) [p. XXX] (speech on income tax referendum “is at the heart of the First Amendment’s protection”). Indeed, the speech in which Mrs. McIntyre engaged—handing out leaflets in the advocacy of a politically controversial viewpoint—is the essence of First Amendment expression. That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre’s expression: Urgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed. No form of speech is entitled to greater constitutional protection than Mrs. McIntyre’s.

When a law burdens core political speech, we apply “exacting scrutiny,” and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. * * * Ohio judges its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information to be sufficiently compelling to justify the anonymous speech ban. * * *

Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document’s content that the author is free to include or exclude. We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) [p. XXX]. The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader’s ability to evaluate the document’s message. Thus, Ohio’s informational interest is plainly insufficient to support the constitutionality of its disclosure requirement.

The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on § 3599.09(A) to protect that interest. Its Election Code includes

76

detailed and specific prohibitions against making or disseminating false statements during political campaigns. These regulations apply both to candidate elections and to issue-driven ballot measures. Thus, Ohio’s prohibition of anonymous leaflets plainly is not its principal

77

weapon against fraud.13 Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify § 3599.09(A)’s extremely broad prohibition.

As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author’s interest in anonymity. Moreover, as this case also demonstrates, the absence of the author’s name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the Election Code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State’s enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.

Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti and Buckley v. Valeo amply support the constitutionality of its disclosure requirement. Neither case

78

is controlling[.]3 * * * In Bellotti, * * * although we commented in dicta on the prophylactic effect of requiring identification of the source of corporate advertising [“so that the people will be able to evaluate the arguments to which they are being subjected,” 435 U.S., at 792 n.32], that footnote did not necessarily apply to independent communications by an individual like Mrs. McIntyre.

Our * * * comments concerned contributions to the candidate or expenditures authorized by the candidate or his responsible agent. They had no reference to the kind of independent activity pursued by Mrs. McIntyre. Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case.

True, in another portion of the Buckley opinion we expressed approval of a requirement that even “independent expenditures” in excess of a threshold level be reported to the Federal Election Commission. But that requirement entailed nothing more than an identification to the Commission of the amount and use of money expended in support of a candidate. Though such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings. A written election-related document—particularly a leaflet—is often a personally crafted statement of a political viewpoint. Mrs. McIntyre’s handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender’s political views. Nonetheless, even though money may “talk,” its speech is less specific, less personal, and less provocative than a handbill—and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation. * * *

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio’s blunderbuss approach than the facts of the case before us.

The judgment of the Ohio Supreme Court is reversed.It is so ordered.

JUSTICE GINSBURG, concurring. * * *In for a calf is not always in for a cow. The Court’s decision finds unnecessary,

overintrusive, and inconsistent with American ideals the State’s imposition of a fine on an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do not thereby hold that the State may not in other, larger circumstances require the

79

speaker to disclose its interest by disclosing its identity. Appropriately leaving open matters not presented by McIntyre’s handbills, the Court recognizes that a State’s interest in protecting an election process “might justify a more limited identification requirement.” But the Court has convincingly explained why Ohio lacks “cause for inhibiting the leafletting at issue here.”

JUSTICE THOMAS, concurring in the judgment.I agree with the majority’s conclusion that Ohio’s election law is inconsistent with the First

Amendment. I would apply, however, a different methodology to this case. Instead of asking whether “an honorable tradition” of anonymous speech has existed throughout American history, or what the “value” of anonymous speech might be, we should determine whether the phrase “freedom of speech, or of the press,” as originally understood, protected anonymous political leafletting. I believe that it did. * * *

Unfortunately, we have no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must focus on the practices and beliefs held by the Founders concerning anonymous political articles and pamphlets. * * *

There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of “Publius,” are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution. Of course, the simple fact that the Framers engaged in certain conduct does not necessarily prove that they forbade its prohibition by the government. In this case, however, the historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the “freedom of the press.”

For example, the earliest and most famous American experience with freedom of the press, the 1735 Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter Zenger, who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger himself for seditious libel. Although the case set the Colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind.

During the Revolutionary and Ratification periods, the Framers’ understanding of the relationship between anonymity and freedom of the press became more explicit. In 1779, for example, the Continental Congress attempted to discover the identity of an anonymous article in the Pennsylvania Packet signed by the name “Leonidas.”  Leonidas, who actually was Dr. Benjamin Rush, had attacked the Members of Congress for causing inflation throughout the States and for engaging in embezzlement and fraud. Elbridge Gerry, a delegate from Massachusetts, moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas. Several Members of Congress then rose to oppose Gerry’s motion on the ground that it invaded the freedom of the press. * * *  In the end, these arguments persuaded the assembled delegates, who “sat mute” in response to Gerry’s motion. Neither the printer nor Dr. Rush ever appeared before Congress to answer for their publication.

At least one of the state legislatures shared Congress’ view that the freedom of the press protected anonymous writing. Also in 1779, the upper house of the New Jersey State Legislature attempted to punish the author of a satirical attack on the Governor and the College of New

80

Jersey (now Princeton) who had signed his work “Cincinnatus.” Attempting to enforce the crime of seditious libel, the State Legislative Council ordered Isaac Collins—the printer and editor of the newspaper in which the article had appeared—to reveal the author’s identity. Refusing, Collins declared: “Were I to comply . . . I conceive I should betray the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.” Apparently, the State Assembly agreed that anonymity was protected by the freedom of the press, as it voted to support the editor and publisher by frustrating the council’s orders. * * *

To be sure, there was some controversy among newspaper editors over publishing anonymous articles and pamphlets. But this controversy was resolved in a manner that indicates that the freedom of the press protected an author’s anonymity. The tempest began when a Federalist, writing anonymously himself, expressed fear that “emissaries” of “foreign enemies” would attempt to scuttle the Constitution by “fill[ing] the press with objections” against the proposal. He called upon printers to refrain from publishing when the author “chooses to remain concealed.” Benjamin Russell, the editor of the prominent Federalist newspaper the Massachusetts Centinel, immediately adopted a policy of refusing to publish Anti-Federalist pieces unless the author provided his identity to be “handed to the publick, if required.” A few days later, the Massachusetts Gazette announced that it would emulate the example set by the Massachusetts Centinel. * * * Federalists expressed similar thoughts in Philadelphia.

Ordinarily, the fact that some founding-era editors as a matter of policy decided not to publish anonymous articles would seem to shed little light upon what the Framers thought the government could do. The widespread criticism raised by the Anti-Federalists, however, who were the driving force behind the demand for a Bill of Rights, indicates that they believed the freedom of the press to include the right to author anonymous political articles and pamphlets. That most other Americans shared this understanding is reflected in the Federalists’ hasty retreat before the withering criticism of their assault on the liberty of the press [with the Centinel publishing anonymous Anti-Federalist essays and the Gazette refusing to release the names of Anti-Federalist authors]. * * *

The controversy over Federalist attempts to prohibit anonymous political speech is significant for several reasons. First, the Anti-Federalists clearly believed the right to author and publish anonymous political articles and pamphlets was protected by the liberty of the press. Second, although printers’ editorial policies did not constitute state action, the Anti-Federalists believed that the Federalists were merely flexing the governmental powers they would fully exercise upon the Constitution’s ratification. Third, and perhaps most significantly, it appears that the Federalists agreed with the Anti-Federalist critique. * * * When Federalist attempts to ban anonymity are followed by a sharp, widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author’s name. * * *

The large quantity of newspapers and pamphlets the Framers produced during the various crises of their generation show the remarkable extent to which the Framers relied upon anonymity. During the break with Great Britain, the revolutionaries employed pseudonyms both to conceal their identity from Crown authorities and to impart a message. * * *

If the practice of publishing anonymous articles and pamphlets fell into disuse after the Ratification, one might infer that the custom of anonymous political speech arose only in response to the unusual conditions of the 1776-1787 period. After all, the Revolution and the Ratification were not “elections,” per se, either for candidates or for discrete issues. Records

81

from the first federal elections indicate, however, that anonymous political pamphlets and newspaper articles remained the favorite media for expressing views on candidates. * * *

The use of anonymous writing extended to issues as well as candidates. The ratification of the Constitution was not the only issue discussed via anonymous writings in the press. James Madison and Alexander Hamilton, for example, resorted to pseudonyms in the famous “Helvidius” and “Pacificus” debates over President Washington’s declaration of neutrality in the war between the British and French. Anonymous writings continued in such Republican papers as the Aurora and Federalists organs such as the Gazette of the United States at least until the election of Thomas Jefferson. * * *

While, like JUSTICE SCALIA, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. *  * * Because the majority has adopted an analysis that is largely unconnected to the Constitution’s text and history, I concur only in the judgment.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE [REHNQUIST] joins, dissenting. * * *The question posed by the present case is not the easiest sort to answer for those who adhere

to the Court’s (and the society’s) traditional view that the Constitution bears its original meaning and is unchanging. * * * That technique is simple of application when government conduct that is claimed to violate the Bill of Rights or the Fourteenth Amendment is shown, upon investigation, to have been engaged in without objection at the very time the Bill of Rights or the Fourteenth Amendment was adopted. There is no doubt, for example, that laws against libel and obscenity do not violate “the freedom of speech” to which the First Amendment refers; they existed and were universally approved in 1791. Application of the principle of an unchanging Constitution is also simple enough at the other extreme, where the government conduct at issue was not engaged in at the time of adoption, and there is ample evidence that the reason it was not engaged in is that it was thought to violate the right embodied in the constitutional guarantee. Racks and thumbscrews, well-known instruments for inflicting pain, were not in use because they were regarded as cruel punishments.

The present case lies between those two extremes. Anonymous electioneering was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. * * * The practice of anonymous electioneering may have been less general in 1868, when the Fourteenth Amendment was adopted, but at least as late as 1837 it was respectable enough to be engaged in by Abraham Lincoln.

But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern election laws such as those involved in Burson v. Freeman, 504 U.S. 191 (1992) [p. XXX] [limiting electioneering within a certain distance of polling places], and Buckley v. Valeo would be prohibited, as would (to mention only a few other categories) modern antinoise regulation * * * and modern parade-permitting regulation[.] * * *

[JUSTICE THOMAS’s] concurrence recounts * * * pre- and post-Revolution examples of defense of anonymity in the name of “freedom of the press,” but not a single one involves the context of restrictions imposed in connection with a free, democratic election, which is all that is at issue here. For many of them, moreover, * * * the issue of anonymity was incidental to the (unquestionably free-speech) issue of whether criticism of the government could be punished by

82

the state.Thus, the sum total of the historical evidence marshaled by the concurrence for the principle

of constitutional entitlement to anonymous electioneering is partisan claims in the debate on ratification (which was almost like an election) that a viewpoint-based restriction on anonymity by newspaper editors violates freedom of speech. * * *

What we have, then, is the most difficult case for determining the meaning of the Constitution. No accepted existence of governmental restrictions of the sort at issue here demonstrates their constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections. In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press) that existed when the constitutional protection was accorded. In the present case, absent other indication, I would be inclined to agree with the concurrence that a society which used anonymous political debate so regularly would not regard as constitutional even moderate restrictions made to improve the election process. (I would, however, want further evidence of common practice in 1868, since I doubt that the Fourteenth Amendment time-warped the post-Civil War States back to the Revolution.)

But there is other indication, of the most weighty sort: the widespread and longstanding traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. And that is what we have before us here. Ohio Rev. Code Ann. § 3599.09(A) was enacted by the General Assembly of the State of Ohio almost 80 years ago. Even at the time of its adoption, there was nothing unique or extraordinary about it. The earliest statute of this sort was adopted by Massachusetts in 1890, little more than 20 years after the Fourteenth Amendment was ratified. No less than 24 States had similar laws by the end of World War I, and today every State of the Union except California has one, as does the District of Columbia, and as does the Federal Government where advertising relating to candidates for federal office is concerned. Such a universal and long-established American legislative practice must be given precedence, I think, over historical and academic speculation regarding a restriction that assuredly does not go to the heart of free speech. * * *

The Court says that the State has not explained “why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection.” I am not sure what this complicated comparison means. I am sure, however, that (1) a person who is required to put his name to a document is much less likely to lie than one who can lie anonymously, and (2) the distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus, people will be more likely to observe a signing requirement than a naked “no falsity” requirement; and, having observed that requirement, will then be significantly less likely to lie in what they have signed.

But the usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and dignified level of campaign debate—which the State has no power to command, but ample power to encourage by such undemanding measures as a signature requirement. Observers

83

of the past few national elections have expressed concern about the increase of character assassination—“mudslinging” is the colloquial term—engaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office. Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased potential for “dirty tricks.”  It is not unheard-of for campaign operatives to circulate material over the name of their opponents or their opponents’ supporters (a violation of election laws) in order to attract or alienate certain interest groups. How much easier—and sanction free!—it would be to circulate anonymous material (for example, a really tasteless, though not actionably false, attack upon one’s own candidate) with the hope and expectation that it will be attributed to, and held against, the other side.

The Court contends that demanding the disclosure of the pamphleteer’s identity is no different from requiring the disclosure of any other information that may reduce the persuasiveness of the pamphlet’s message. It cites Miami Herald Publishing Co. v. Tornillo, which held it unconstitutional to require a newspaper that had published an editorial critical of a particular candidate to furnish space for that candidate to reply. But it is not usual for a speaker to put forward the best arguments against himself, and it is a great imposition upon free speech to make him do so. Whereas it is quite usual—it is expected—for a speaker to identify himself, and requiring that is (at least when there are no special circumstances present) virtually no imposition at all.

We have approved much more onerous disclosure requirements in the name of fair elections. In Buckley v. Valeo, we upheld provisions of the Federal Election Campaign Act that required private individuals to report to the Federal Election Commission independent expenditures made for communications advocating the election or defeat of a candidate for federal office. Our primary rationale for upholding this provision was that it served an “informational interest” by “increas[ing] the fund of information concerning those who support the candidates.” The provision before us here serves the same informational interest, as well as more important interests, which I have discussed above. * * *

I respectfully dissent.

Notes and Questions1.

MAJORS v. ABELLUnited States Court of Appeals for the Seventh Circuit

361 F.3d 349 (7th Cir. 2004)

POSNER, Circuit Judge [with whom BAUER, Circuit Judge, joins].An Indiana statute, challenged in this suit as an infringement of free speech, requires that

political advertising that “expressly advocat[es] the election or defeat of a clearly identified candidate” contain “a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for .  . . the communication,” and makes violation a misdemeanor. “Disclaimer” is a misnomer; the correct word would be “disclosure”—but as we’ll see, that word has been appropriated to describe a

84

reporting requirement. * * *Although [McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)] [p. XXX] held that

government may not forbid the distribution of anonymous campaign literature, several subsequent decisions upheld statutes similar to the Indiana statute interpreted to reach all persons. Federal Election Comm’n v. Public Citizen, 268 F.3d 1283, 1287-91 (11th Cir. 2001) (per curiam); Gable v. Patton, 142 F.3d 940, 944-45 (6th Cir. 1998); Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 646-48 (6th Cir. 1997). Those cases point out that the statute struck down in McIntyre applied to issue referenda as well as to candidate elections and that only issue referenda were before the Court, a difference on which McIntyre had relied to distinguish Buckley v. Valeo, 424 U.S. 1, 80 (1976) (per curiam), which had upheld a provision of the federal campaign finance law that was similar to these state statutes. * * * The opinions that distinguish McIntyre also point out that Ohio had defended its statute only on the basis that knowing the author of a document helps one to evaluate its truthfulness, whereas a weightier ground is that “disclosure protects the integrity of the electoral process by ensuring that the words of an independent group are not mistakenly understood as having come from the mouth of a candidate.” It also deters corruption by identifying large contributors who may be seeking a quid pro quo and—a related point—it provides information helpful to the enforcement of the provisions of election campaign law, both also being purposes that had been emphasized in Buckley, 424 U.S. at 66-68. * * *

The constitutional issue * * * is difficult because it entails a balancing of imponderables. On the one hand, forbidding anonymous political advertising reduces the amount of political advertising because some would-be advertisers are unwilling to reveal their identity. On the other hand, the quality of the political advertising that continues to be produced and disseminated under such a regime is enhanced because the advertising contains additional information useful to the consumer. The avidity with which candidates for public office seek endorsements is evidence (as if any were needed) that the identity of a candidate’s supporters—and opponents—is information that the voting public values highly. In areas of inquiry where logic or exact observation is unavailing, a speaker’s credibility often depends crucially on who he is. As Aristotle said, “persuasion is achieved by the speaker’s personal character when the speech is so spoken as to make us think him credible. We believe good men more fully and more readily than others: this is true generally whatever the question is, and absolutely true where exact certainty is impossible and opinions are divided.” Aristotle, Rhetoric, in 2 The Complete Works of Aristotle 2152, 2155 (Jonathan Barnes ed. 1984). “Where exact certainty is impossible and opinions are divided” is a pretty good description of politics.

Can we get help in answering the thorny question presented by this appeal from the case law, and in particular from the Supreme Court’s recent and very lengthy opinions in [McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003)] [p. XXX]? The provision of the Bipartisan Campaign Reform Act that is analogous to the Indiana statute regulates “electioneering communications,” which are advertisements broadcast within 60 days of a general election or 30 days of a primary that refer to a candidate for federal office. 2 U.S.C. § 434(f)(3)(A)(i). Individuals who spend more than $10,000 producing such communications, or contribute at least $1,000 to an organization that produces them, must report (in the case of the contributions it is the recipient who must report) their identities to the Federal Election Commission. 2 U.S.C. §§ 434(f)(1)-(2). Without attempting to narrow the class of covered “individuals,” the Supreme Court upheld this provision on the ground that it served “important state interests .  . . [in] providing the electorate with information, deterring actual corruption and avoiding any

85

appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions.” Like the Indiana statute, the provision of the Bipartisan Campaign Reform Act that the Court upheld requires identifying any person who contributes to the making of the ad, even if the person is not a candidate or a member of the candidate’s campaign staff.

True, what is required is disclosure to an agency rather than disclosure in the political ad itself, though, as is apparent from the Court’s reference to “providing the electorate with information,” the identity of the contributor is available to the public rather than secreted by the FEC. 2 U.S.C. §§ 434(a)(11)-(12), (d)(2). That may not seem a big difference from the standpoint of protecting the advertiser from retaliation, but the Court had earlier indicated that having to identify itself to the entire audience for the ad has as a practical matter a greater inhibiting effect than just a reporting requirement does because it broadcasts the advertiser’s name to the entire electoral community. Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 197-200 (1999) [p. XXX]. The reaction may not be “retaliation” in any strong sense, but there is a weak sense as well; there may be a degree of social ostracism, some dirty looks, a few snide comments, and such, and we and other courts have long recognized that mild forms of retaliation can be effective in deterring the exercise of free speech.

The Court in McIntyre thought “the intrusion” on freedom of political advocacy brought about by a reporting requirement was “a far cry from compelled self-identification on all election-related writings,” 514 U.S. at 355, which is what we have here—and what the Bipartisan Campaign Reform Act does not have; it does not even require identifying the specific ads financed by the reporting contributor. But of course the very thing that makes reporting less inhibiting than notice in the ad itself—fewer people are likely to see the report than the notice—makes reporting a less effective method of conveying information that by hypothesis the voting public values. It’s as if cigarette companies, instead of having to disclose the hazards of smoking in their ads, had only to file a disclosure statement with the Food and Drug Administration.

The only reference to McIntyre by the majority in McConnell appears in a footnote that distinguishes “genuine issue ads” from “regulation of campaign speech” and assumes that restrictions constitutionally applicable to the latter, such as the restrictions both in the Bipartisan Campaign Reform Act and in the Indiana statute, might not be applicable to the former; McIntyre is cited noncommittally as having invalidated a “statute banning the distribution of anonymous campaign literature.” 540 U.S. at 206 n.88. Remember that McIntyre had only been about issue referenda, where there are no candidates and so, it might be thought, “campaign literature” is more likely to consist of “genuine issue ads.” Thus the Court may have so far narrowed McIntyre (one of the dissenting opinions said the Court had overruled it) that it no longer overlaps the Indiana statute.

An alternative interpretation, however, is that because the Bipartisan Campaign Reform Act and therefore the McConnell decision are about campaign financing, the decision is inapplicable to people who pay for political ads themselves, since they are not engaged in fund-raising. On that reading, McIntyre, which was such a case, is unaffected by McConnell, and so the Indiana statute, which is also about requiring self-financiers to identity themselves, is condemned by McIntyre’s holding. But campaign financing and fund-raising are not synonyms, as the argument assumes; and the Bipartisan Campaign Reform Act is not just about fund-raising—the relevant provision that the Court upheld applies equally to self-financed and other-financed ads. The disclosure statement must be filed by “every person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year,” whether he produces the ad himself or gives the money to

86

someone else to produce it, 2 U.S.C. § 434(f)(1); and sections 434(a)(6)(B) and (E) expressly impose a requirement of reporting campaign disbursements by a candidate from his personal funds. And the first governmental interest that the Court recited in upholding the provision—that it would provide the electorate with information—is applicable to self-financed ads. An ad might seem disinterested, but if the voting public knew who had paid for it—maybe it was an interest group that the candidate was known to have done favors for—the existence of an interest might be revealed. To draw the constitutional line between self- and other-financed campaign ads would be to deliver a gratuitous benefit to wealthy candidates and wealthy supporters of candidates.

But what must give us considerable pause, in light of the distinction the Supreme Court has drawn between “disclosure” (reporting one’s identity to a public agency) and “disclaimer” (placing that identity in the ad itself), is the fact that the Indiana statute requires the latter and not merely the former. Buckley v. American Constitutional Law Foundation, Inc., supra, 525 U.S. at 197-200, invalidated a state law that required people who circulated petitions for issue referenda (actually initiatives, but the only and irrelevant difference is that a referendum asks the people to vote on a law proposed by the legislature, while in an initiative the proposal has not been before the legislature) to wear identification badges. But the requirement was inapplicable to elections of candidates. Federal Election Comm’n v. Public Citizen, supra, 268 F.3d at 1287-91, interpreting a provision of the previous federal campaign finance law, upheld a requirement of a disclaimer in a candidate election. But all that had to be disclaimed (for once, the word was apt) was that the advertiser was independent of the candidate—yet the court assumed that a separate requirement, that the identity of the advertiser be disclosed in the ad, was also valid. Id. at 1290. There is a similar assumption in McConnell. See 540 U.S. at 231. A statute quite like the Indiana statute was invalidated in Citizens for Responsible Government State Political Action Comm. v. Davidson, 236 F.3d 1174, 1198-1200 and n.10 (10th Cir. 2000)—and upheld in Gable v. Patton, supra, 142 F.3d at 944-45, and Kentucky Right to Life, Inc. v. Terry, supra, 108 F.3d at 646-48. Several cases, signally McIntyre itself, expressly or implicitly contrast the fragility of the small independent participant in political campaigns with large corporations or other organizations.

The Indiana Supreme Court, recognizing this last point, did a bit of judicial legerdemain, expanding the statutory exemption for mailings of up to 100 pieces of “mail” that are “substantially similar,” Ind. Code § 3-9-3-2.5(a)(9), “to include any form of delivery of any written material, including personal delivery or use of some service other than use of the United States Postal Service,” with the result that “Indiana’s law permits some individual pamphleteering and applies only to candidate elections.” The statutory exemption as expanded by judicial interpretation protects the most vulnerable independent contributors to political advocacy. And as we said earlier, to require only the reporting of the advertiser’s name to a public agency, while it would as a practical matter allay some of the anxieties of potential advertisers, would at the same time reduce the amount of information possessed by voters. Both sides of the First Amendment balance would be depressed. We cannot say that the net effect of invalidating the Indiana statute would be to promote political speech.

As an original matter it could be objected that speech and the press would no longer be free if the government could insist that every speaker and every writer add to his message information that the government deems useful to the intended audience for the message, and that it is arbitrary for the government to single out the identity of the writer or speaker and decree that that information, though no other that potential voters might value as much or more, must be disclosed. But the Supreme Court crossed that Rubicon in McConnell. Reluctant, without clearer

87

guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional.

The decision of the district court * * * is AFFIRMED.

EASTERBROOK, Circuit Judge, dubitante.Four decisions of the Supreme Court hold or strongly imply that the ability to speak

anonymously—and thus with less concern for repercussions—is part of the “freedom of speech” protected by the first amendment against governmental interference. Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission; Buckley v. American Constitutional Law Foundation; Watchtower Bible & Tract Society of New York, Inc. v. Stratton, 536 U.S. 150, 166-67 (2002). See Jonathan Turley, Registering Publius: The Supreme Court and the Right to Anonymity, 2001-02 Cato Sup. Ct. Rev. 57. * * *

There have been times and places in the United States when opposing elected political officials risked both wealth and health. Decisions such as O’Hare Truck Service, Inc. v. Northlake, 518 U.S. 712 (1996), and Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) [p. XXX], hold that government is not entitled to retaliate, but what people do in fact often differs from what they should do, and litigation after the fact is no cure-all. It is no cure at all for retaliation by private actors, who are free to penalize those whose political views they do not accept, provided only that they do not cross the line into violence—and that line has not always been observed; think of persons whose candidates were the “wrong” race. Anonymity thus may be especially valuable when opposing entrenched actors. Disclosure also makes it easier to see who has not done his bit for the incumbents, so that arms may be twisted and pockets tapped. Labor law deems it improper for employers to nose out union adherents’ names; judges and members of the NLRB perceive that knowledge may facilitate retaliation and that fear of this outcome will stifle speech. Yet although union organizers may operate in secret, and everyone may vote in secret (our adoption of the Australian ballot came from awareness that disclosure could affect political support), political advocates must disclose their identities. Today the court holds that a state may require persons engaged in core political speech to identify themselves so that the officeholders and their allies can pinpoint their critics. How can this be?

According to my colleagues, the answer lies in the fact that McConnell v. Federal Election Commission rejected a constitutional challenge to § 201 of the Bipartisan Campaign Reform Act of 2002, which amended § 304 of the Federal Election Campaign Act. Section 304 as amended requires any person who makes disbursements exceeding $10,000 in any year for speech in federal campaigns, or who donates $1,000 or more to another person or group engaged in advocacy, to disclose his identity to the Federal Election Commission. Indiana’s law differs—it starts from a lower threshold (100 sheets of paper) and requires disclosure to the public in the electioneering literature rather than to an agency—but once it is settled that speakers must reveal their identities directly to the political establishment, five Justices may think that everything else is mere detail.

Still, the Justices’ failure to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply. Does McConnell apply to all electioneering? All speakers? To primary communications (as opposed to notices sent to agencies)? The Supreme Court wrote that § 304 is valid because it is (in the view of five Justices) a wise balance among competing interests. Yet the function of the first amendment is to

88

put the regulation of speech off limits to government even if regulation is deemed wise. For the judiciary to say that a law is valid to the extent that it is good is to operate as a council of revision and to deny the power of a written constitution to constrain contemporary legislation supported by the social class from which judges are drawn. And when, as in McConnell, the judgment is supported by a one-vote margin, any Justice’s conclusion that a particular extension is unwise will reverse the constitutional outcome. How can legislators or the judges of other courts determine what is apt to tip the balance?

Footnote 88 to the lead opinion in McConnell hints that one or more members of the majority may believe that the validity of the federal statute depends on its entire complement of rules. This footnote—the only place in which a majority opinion discusses McIntyre (though not when dealing with § 304!)—says that “BCRA’s fidelity to those imperatives” sets it apart from the law held invalid in McIntyre. This treats the statute as a unit. It is difficult to say that the Indiana legislation at issue today displays “fidelity” to the “imperatives” of curtailing public corruption while allowing room for expression. As far as I can see, it has nothing to do with the risk of subtle bribery, and it attaches no weight to the risks borne by supporters of unpopular candidates. The majority in McConnell emphasized that the disclosure to the agency did not include the content of the advertisement. In Indiana the disclosure is affixed to the speech; the association is unavoidable; does this make a difference? My colleagues think not; I am not so sure.

Doubtless “a speaker’s credibility often depends crucially on who he is.” But how does this support obligatory disclosure? Speakers who prefer concealment in order to reduce their personal risks, and who accept the discount that readers attach to advocacy from unnamed sources, do not impose burdens on strangers. What then is the justification for regulation?  “People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message.” McIntyre, 514 U.S. at 348 n.11. Arguments that speech may be regulated to protect the audience from misunderstanding should fare poorly and outside of electioneering have fared poorly. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748, 769-70 (1976). Anyway, we must consider the possibility that anonymity promotes a focus on the strength of the argument rather than the identity of the speaker; this is a reason why Madison, Hamilton, and Jay chose to publish The Federalist anonymously. Instead of having to persuade New Yorkers that his roots in Virginia should be overlooked, Madison could present the arguments and let the reader evaluate them on merit.

Trade associations and other interest groups will have little difficulty complying with Indiana’s law. Factions that hope to secure political favors enjoy legal counsel who specialize in election matters. Professionals in the field not only will assure compliance but also will exploit the inevitable loopholes. The identity of these interest groups is no mystery; many operate from marble-clad buildings and deploy full-time lobbyists. Statutes such as Indiana’s have their real bite when flushing small groups, political clubs, or solitary speakers into the limelight, or reducing them to silence. Indiana’s statute, which requires disclosure from the first dollar of speech, bears especially heavily on political outsiders. Indiana has essentially forbidden all spontaneous political speech, perhaps all electioneering by individuals and small groups. Before favoring or opposing any candidate, a would-be speaker must navigate a thicket of rules. * * *

Often the Supreme Court says that even a small fee or tax, or a short delay in obtaining a free license (as in Watchtower), is an unacceptable burden on speech. Yet in McConnell the Court was sanguine about the delays, and non-trivial legal expenses, entailed in complying with

89

complex rules for campaign speech. These outlays come on top of the costs that must be borne by persons who back the wrong horse and incur the enmity of elected officials—for the winners now are entitled to learn all of their vocal opponents’ identities. Maybe these effects can be justified with respect to electioneering at the national level by deep-pocket interest groups—though I think that the Justices have been too ready to equate political support to bribery—but for local elections the equation is impossible to sustain.

Indiana does not contend that requiring disclosure by plaintiffs Carol Antun, Perry Metzger, and Bruce Martin—who want to use their own resources to speak on behalf of candidates of the Libertarian Party (and oppose incumbents, for libertarians do not occupy any major office in Indiana)—is essential to avert a material risk of underground favor-trading or bribery. Nor does the state try to justify mandatory disclosure by any truly independent speaker. Instead Indiana contends that it is entitled to regulate all electioneering by every speaker in order to avoid drawing lines. Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law.

Notes and Questions1.

E. CIRCULATION OF PETITIONSWe encountered petition circulation in Chapter 6 when we studied the obstacles facing a

third-party or independent candidate seeking to appear on the ballot. Petitions are a common requirement for the placement of initiatives on the ballot as well. In Chapter 6, our principal focus was on the extent to which states could demand a showing of support so as to prevent ballots from becoming unmanageable.

The simplest type of burden presented by petition requirements is the number of signatures that must be obtained. But, as Williams v. Rhodes, 393 U.S. 23 (1968) [p. XXX], well illustrated, that is not the only hurdle for petitioners to surmount. Restrictions on how and by whom signatures may be collected, as well as on compensating signature-gatherers can have a significant impact on a petition’s chances of meeting the signature threshold. Those burdens will be our primary concerns in this section.

MEYER v. GRANTSupreme Court of the United States

486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988)

JUSTICE STEVENS delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST, JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, JUSTICE O’CONNOR, JUSTICE SCALIA, and JUSTICE KENNEDY join]. * * *

Colorado is one of several States that permits its citizens to place propositions on the ballot through an initiative process. Under Colorado law, proponents of an initiative measure must submit the measure to the State Legislative Council and the Legislative Drafting Office for review and comment. The draft is then submitted to a three-member title board, which prepares a title, submission clause, and summary. After approval of the title, submission clause, and summary, the proponents of the measure then have six months to obtain the necessary signatures, which must be in an amount equal to at least five percent of the total number of voters who cast

90

votes for all candidates for the Office of Secretary of State at the last preceding general election. If the signature requirements are met, the petitions may be filed with the Secretary of State, and the measure will appear on the ballot at the next general election.

State law requires that the persons who circulate the approved drafts of the petitions for signature be registered voters. Before the signed petitions are filed with the Secretary of State, the circulators must sign affidavits attesting that each signature is the signature of the person whose name it purports to be and that, to the best of their knowledge and belief, each person signing the petition is a registered voter. The payment of petition circulators is punished as a felony.

Appellees are proponents of an amendment to the Colorado Constitution that would remove motor carriers from the jurisdiction of the Colorado Public Utilities Commission. In early 1984 they obtained approval of a title, submission clause, and summary for a measure proposing the amendment and began the process of obtaining the 46,737 signatures necessary to have the proposal appear on the November 1984 ballot. Based on their own experience as petition circulators, as well as that of other unpaid circulators, appellees concluded that they would need the assistance of paid personnel to obtain the required number of signatures within the allotted time. They then brought this action under 42 U.S.C. § 1983 against the Secretary of State and the Attorney General of Colorado seeking a declaration that the statutory prohibition against the use of paid circulators violates their rights under the First Amendment. [The District Court upheld the prohibition, but the en banc Court of Appeals reversed.] * * *

We fully agree with the Court of Appeals’ conclusion that this case involves a limitation on political expression subject to exacting scrutiny. Buckley v. Valeo, 424 U.S. 1, 45 (1976) [p. XXX]. * * * The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as “core political speech.”

The refusal to permit appellees to pay petition circulators restricts political expression in two ways: First, it limits the number of voices who will convey appellees’ message and the hours they can speak and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion. * * *

Appellants argue that even if the statute imposes some limitation on First Amendment expression, the burden is permissible because other avenues of expression remain open to appellees and because the State has the authority to impose limitations on the scope of the state-created right to legislate by initiative. Neither of these arguments persuades us that the burden imposed on appellees’ First Amendment rights is acceptable.

That appellees remain free to employ other means to disseminate their ideas does not take their speech through petition circulators outside the bounds of First Amendment protection. Colorado’s prohibition of paid petition circulators restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication. That it leaves open “more burdensome” avenues of communication, does not

91

relieve its burden on First Amendment expression. The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.

* * * Colorado contends that because the power of the initiative is a state-created right, it is free to impose limitations on the exercise of that right. [But] the power to ban initiatives entirely [does not] include[] the power to limit discussion of political issues raised in initiative petitions. * * * We agree with the Court of Appeals’ conclusion that the statute trenches upon an area in which the importance of First Amendment protections is “at its zenith.” For that reason the burden that Colorado must overcome to justify this criminal law is well-nigh insurmountable.

We are not persuaded by the State’s arguments that the prohibition is justified by its interest in making sure that an initiative has sufficient grass roots support to be placed on the ballot, or by its interest in protecting the integrity of the initiative process. As the Court of Appeals correctly held, the former interest is adequately protected by the requirement that no initiative

92

proposal may be placed on the ballot unless the required number of signatures has been

93

obtained.7

The State’s interest in protecting the integrity of the initiative process does not justify the prohibition because the State has failed to demonstrate that it is necessary to burden appellees’ ability to communicate their message in order to meet its concerns. The Attorney General has argued that the petition circulator has the duty to verify the authenticity of signatures on the petition and that compensation might provide the circulator with a temptation to disregard that duty. No evidence has been offered to support that speculation, however, and we are not prepared to assume that a professional circulator—whose qualifications for similar future assignments may well depend on a reputation for competence and integrity—is any more likely to accept false signatures than a volunteer who is motivated entirely by an interest in having the proposition placed on the ballot.

Other provisions of the Colorado statute deal expressly with the potential danger that circulators might be tempted to pad their petitions with false signatures. It is a crime to forge a signature on a petition, to make false or misleading statements relating to a petition, or to pay someone to sign a petition. Further, the top of each page of the petition must bear a statement printed in red ink warning potential signatories that it is a felony to forge a signature on a petition or to sign the petition when not qualified to vote and admonishing signatories not to sign the petition unless they have read and understand the proposed initiative. These provisions seem adequate to the task of minimizing the risk of improper conduct in the circulation of a petition, especially since the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting.

* * * The Colorado statute prohibiting the payment of petition circulators imposes a burden on political expression that the State has failed to justify. The Court of Appeals correctly held that the statute violates the First and Fourteenth Amendments. Its judgment is therefore affirmed.

It is so ordered.

BUCKLEY v. AMERICAN CONSTITUTIONAL LAW FOUNDATION, INC.Supreme Court of the United States

525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999)

JUSTICE GINSBURG delivered the opinion of the Court [in which JUSTICE STEVENS, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE SOUTER join].

Colorado allows its citizens to make laws directly through initiatives placed on election ballots. We review in this case three conditions Colorado places on the ballot-initiative process: (1) the requirement that initiative-petition circulators be registered voters; (2) the requirement that they wear an identification badge bearing the circulator’s name; and (3) the requirement that proponents of an initiative report the names and addresses of all paid circulators and the amount paid to each circulator. * * *

By constitutional amendment in 1980, and corresponding statutory change the next year, Colorado added to the requirement [not challenged in this action] that petition circulators be residents, the further requirement that they be registered voters. Registration, Colorado’s Attorney General explained at oral argument, demonstrates “commit[ment] to the Colorado law-making process,” and facilitates verification of the circulator’s residence. Beyond question, Colorado’s registration requirement drastically reduces the number of persons, both volunteer and paid, available to circulate petitions. We must therefore inquire whether the State’s concerns

94

warrant the reduction.When this case was before the District Court, registered voters in Colorado numbered

approximately 1.9 million. At least 400,000 persons eligible to vote were not registered. * * *The Tenth Circuit reasoned that the registration requirement placed on Colorado’s voter-

eligible population produces a speech diminution of the very kind produced by the ban on paid circulators at issue in Meyer [v. Grant, 486 U.S. 414 (1988)] [p. XXX]. We agree. The requirement that circulators be not merely voter eligible, but registered voters * * * decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment

95

to circulators.16 Both provisions “limi[t] the number of voices who will convey [the initiative proponents’] message” and, consequently, cut down “the size of the audience [proponents] can reach.” In this case, as in Meyer, the requirement “imposes a burden on political expression that the State has failed to justify.”

Colorado acknowledges that the registration requirement limits speech, but not severely, the State asserts, because “it is exceptionally easy to register to vote.” The ease with which qualified voters may register to vote, however, does not lift the burden on speech at petition circulation time. Of course there are individuals who fail to register out of ignorance or apathy. But there are also individuals for whom, as the trial record shows, the choice not to register implicates political thought and expression. A lead plaintiff in this case, long active in ballot-initiative support—a party no doubt “ ‘able and willing’ to convey a political message”—testified that his refusal to register is a “form of . . . private and public protest.” Another initiative proponent similarly stated that some circulators refuse to register because “they don’t believe that the political process is responsive to their needs.” For these voter-eligible circulators, the ease of registration misses the point.

The State’s dominant justification appears to be its strong interest in policing lawbreakers among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State’s subpoena power, which in these matters does not extend beyond the State’s borders. The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the “address at which he or she resides, including the street name and number, the city or town, [and] the county.” This address attestation, we note, has an immediacy, and corresponding reliability, that a voter’s registration may lack. The attestation is made at the time a petition section is submitted; a voter’s registration may lack that currency.

ACLF did not challenge Colorado’s right to require that all circulators be residents, a requirement that, the Tenth Circuit said, “more precisely achieved” the State’s subpoena service objective. Nor was any eligible-to-vote qualification in contest in this lawsuit. Colorado maintains that it is more difficult to determine who is a state resident than it is to determine who is a registered voter. The force of that argument is diminished, however, by the affidavit attesting to residence that each circulator must submit with each petition section.

In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measure—a question we * * * have no occasion to decide because the parties have not placed the matter of residence at issue—the added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot-access arena without impelling cause.

Colorado enacted the provision requiring initiative-petition circulators to wear identification badges in 1993, five years after our decision in Meyer. The Tenth Circuit held the badge requirement invalid insofar as it requires circulators to display their names. The Court of Appeals did not rule on the constitutionality of other elements of the badge provision, namely, the “requirements that the badge disclose whether the circulator is paid or a volunteer, and if paid, by whom.” Nor do we.

Evidence presented to the District Court, that court found, “demonstrated that compelling circulators to wear identification badges inhibits participation in the petitioning process.” The badge requirement, a veteran ballot-initiative-petition organizer stated, “very definitely limited the number of people willing to work for us and the degree to which those who were willing to work would go out in public.” Another witness told of harassment he personally experienced as

96

circulator of a hemp initiative petition. He also testified to the reluctance of potential circulators to face the recrimination and retaliation that bearers of petitions on “volatile” issues sometimes encounter: “[W]ith their name on a badge, it makes them afraid.” Other petition advocates similarly reported that “potential circulators were not willing to wear personal identification badges.”

Colorado urges that the badge enables the public to identify, and the State to apprehend, petition circulators who engage in misconduct. Here again, the affidavit requirement, unsuccessfully challenged below, is responsive to the State’s concern; as earlier noted, each petition section must contain, along with the collected signatures of voters, the circulator’s name, address, and signature. This notarized submission, available to law enforcers, renders less needful the State’s provision for personal names on identification badges.

While the affidavit reveals the name of the petition circulator and is a public record, it is tuned to the speaker’s interest as well as the State’s. Unlike a name badge worn at the time a circulator is soliciting signatures, the affidavit is separated from the moment the circulator speaks. As the Tenth Circuit explained, the name badge requirement “forces circulators to reveal their identities at the same time they deliver their political message”; it operates when reaction to the circulator’s message is immediate and “may be the most intense, emotional, and unreasoned.” The affidavit, in contrast, does not expose the circulator to the risk of “heat of the moment” harassment.

Our decision in McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) [p. XXX], is instructive here. The complainant in McIntyre challenged an Ohio law that prohibited the distribution of anonymous campaign literature. * * * “Circulating a petition is akin to distributing a handbill,” the Tenth Circuit observed in the decision now before us. Both involve a one-on-one communication. But the restraint on speech in this case is more severe than was the restraint in McIntyre. Petition circulation is the less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. That endeavor, we observed in Meyer, “of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.”

The injury to speech is heightened for the petition circulator because the badge requirement compels personal name identification at the precise moment when the circulator’s interest in anonymity is greatest. For this very reason, the name badge requirement does not qualify for inclusion among the “more limited [election process] identification requirement[s]” to which we alluded in McIntyre. In contrast, the affidavit requirement * * *, which must be met only after circulators have completed their conversations with electors, exemplifies the type of regulation for which McIntyre left room.

In sum, we conclude * * * that Colorado’s current badge requirement discourages participation in the petition circulation process by forcing name identification without sufficient cause. * * *

* * * Colorado requires ballot-initiative proponents who pay circulators to file both a final report when the initiative petition is submitted to the Secretary of State, and monthly reports during the circulation period. The Tenth Circuit invalidated the final report provision only insofar as it compels disclosure of information specific to each paid circulator, in particular, the circulators’ names and addresses and the total amount paid to each circulator. As modified by the Court of Appeals decision, the final report will reveal the amount paid per petition signature, and thus, effectively, the total amount paid to petition circulators. * * *

Mindful of Buckley [v. Valeo, 424 U.S. 1 (1976)] [p. XXX], which upheld disclosure

97

provisions of the Federal Election Campaign Act], the Tenth Circuit * * * upheld the State’s requirements for disclosure of payors, in particular, proponents’ names and the total amount they have spent to collect signatures for their petitions. In this regard, the State and supporting amici stress the importance of disclosure as a control or check on domination of the initiative process by affluent special interest groups. Disclosure of the names of initiative sponsors, and of the amounts they have spent gathering support for their initiatives, responds to that substantial state interest.

Through the disclosure requirements that remain in place, voters are informed of the source and amount of money spent by proponents to get a measure on the ballot; in other words, voters will be told “who has proposed [a measure],” and “who has provided funds for its circulation.” The added benefit of revealing the names of paid circulators and amounts paid to each circulator, the lower courts fairly determined from the record as a whole, is hardly apparent and has not

98

been demonstrated.22

We note, furthermore, that ballot initiatives do not involve the risk of “quid pro quo” corruption present when money is paid to, or for, candidates. * * *

In sum, we agree with the Court of Appeals [sic] appraisal: Listing paid circulators and their income from circulation “forc[es] paid circulators to surrender the anonymity enjoyed by their volunteer counterparts”; no more than tenuously related to the substantial interests disclosure serves, Colorado’s reporting requirements, to the extent that they target paid circulators, “fai[l] exacting scrutiny.” * * *

For the reasons stated, we conclude that the Tenth Circuit correctly separated necessary or proper ballot-access controls from restrictions that unjustifiably inhibit the circulation of ballot-initiative petitions. Therefore, the judgment of the Court of Appeals is

Affirmed.

JUSTICE THOMAS, concurring in the judgment.When considering the constitutionality of a state election regulation that restricts core

political speech or imposes “severe burdens” on speech or association, we have generally required that the law be narrowly tailored to serve a compelling state interest. But if the law imposes “lesser burdens,” we have said that the State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. The Court today appears to depart from this now-settled approach. In my view, Colorado’s badge, registration, and reporting requirements each must be evaluated under strict scrutiny. Judged by that exacting standard, I agree with the majority that each of the challenged regulations violates the First and Fourteenth Amendments, and accordingly concur only in the judgment. * * *

Colorado argues that its badge, registration, and reporting requirements impose “lesser” burdens, and consequently, each ought to be upheld as serving important state interests. I cannot agree.

The challenged badge requirement directly regulates the content of speech. The State requires that all petition circulators disclose, at the time they deliver their political message, their names and whether they were paid or unpaid. Therefore, the regulation must be evaluated under strict scrutiny. Moreover, the category of burdened speech is defined by its content—Colorado’s badge requirement does not apply to those who circulate candidate petitions, only to those who circulate initiative or referendum proposals. Content-based regulation of speech typically must be narrowly tailored to a compelling state interest. The State’s dominant justification for its badge requirement is that it helps the public to identify, and the State to apprehend, petition circulators who perpetrate fraud. Even assuming that this is a compelling interest, plainly, this requirement is not narrowly tailored. It burdens all circulators, whether they are responsible for committing fraud or not. In any event, the State has failed to satisfy its burden of demonstrating that fraud is a real, rather than a conjectural, problem.

Although Colorado’s registration requirement does not directly regulate speech, it operates in the same fashion that Colorado’s prohibition on paid circulators did in Meyer—the requirement reduces the voices available to convey political messages. We unanimously concluded in Meyer that initiative petition circulation was core political speech. * * * I see no reason to revisit our earlier conclusion. The aim of a petition is to secure political change, and the First Amendment, by way of the Fourteenth Amendment, guards against the State’s efforts to restrict free discussions about matters of public concern.

Colorado primarily defends its registration requirement on the ground that it ensures that petition circulators are residents, which permits the State to more effectively enforce its election

99

laws against those who violate them. The Tenth Circuit assumed, and so do I, that the State has a compelling interest in ensuring that all circulators are residents. Even so, it is clear, as the Court of Appeals decided, that the registration requirement is not narrowly tailored. A large number of Colorado’s residents are not registered voters, as the majority points out, and the State’s asserted interest could be more precisely achieved through a residency requirement. * * *

In my view, the burdens that the reporting requirement imposes on circulation are too attenuated to constitute a “severe burden” on core political speech. However, “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley v. Valeo, 424 U.S., [at] 64 (per curiam). In Buckley, because the disclosure requirements of the Federal Election Campaign Act of 1971 encroached on associational rights, we required that they pass a “strict test.” Id., at 66. The same associational interests are burdened by the State’s reporting requirements here, and they must be evaluated under strict scrutiny.

* * * Even assuming that Colorado has a compelling interest in identifying circulators, its law does not serve that interest. The State requires that proponents identify only the names of paid circulators, not all circulators. The interest in requiring a report as to the money paid to each circulator by name, as the majority points out, has not been demonstrated.

The State contends that its asserted interest in providing the press and the electorate with information as to how much money is spent by initiative proponents to advance a particular measure is similar to the governmental interests in providing the electorate with information about how money is spent by a candidate and where it comes from, and in deterring actual corruption and avoiding the appearance of corruption that we recognized in Buckley. However, we have suggested that ballot initiatives and candidate elections involve different considerations. [First National Bank of Boston v. Bellotti, 435 U.S. 765, 787 n.26 (1978) [p. XXX]; Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 296-300 (1981) [p. XXX].] Indeed, we recognized in Meyer that “the risk of improper conduct . . . is more remote at the petition stage of an initiative.” Similarly, I would think, at the very least, the State’s interest in informing the public of the financial interests behind an initiative proposal is not compelling during the petitioning stage. * * *

JUSTICE O’CONNOR, with whom JUSTICE BREYER joins, concurring in the judgment in part and dissenting in part.

Petition circulation undoubtedly has a significant political speech component. * * * [W]e held in [Meyer v. Grant] that regulations directly burdening the one-on-one, communicative aspect of petition circulation are subject to strict scrutiny.

Not all circulation-related regulations target this aspect of petition circulation, however. Some regulations govern the electoral process by directing the manner in which an initiative proposal qualifies for placement on the ballot. These latter regulations may indirectly burden speech but are a step removed from the communicative aspect of petitioning and are necessary to maintain an orderly electoral process. Accordingly, these regulations should be subject to a less exacting standard of review. * * *

I agree with the Court that requiring petition circulators to wear identification badges, specifically name badges, should be subject to, and fails, strict scrutiny. * * *

Unlike the majority, however, I believe that the requirement that initiative petition circulators be registered voters is a permissible regulation of the electoral process. It is indeed a classic example of this type of regulation * * * [that] only indirectly and incidentally burdens the communicative aspects of petition circulation. By its terms, the requirement does not directly

100

prohibit otherwise qualified initiative petition circulators from circulating petitions. Moreover, * * * this requirement can be satisfied quite easily. * * *

Because the registration requirement indirectly and incidentally burdens the one-on-one, communicative aspect of petition circulation, [it must] advance [only] a legitimate state interest to be a reasonable regulation of the electoral process. Colorado maintains that the registration requirement is necessary to enforce its laws prohibiting circulation fraud and to guarantee the State’s ability to exercise its subpoena power over those who violate these laws, two patently legitimate interests. In the past, Colorado has had difficulty enforcing its prohibition on circulation fraud, in particular its law against forging petition signatures, because violators fled the State. Colorado has shown that the registration requirement is an easy and a verifiable way to ensure that petition circulators fall under the State’s subpoena power. For these reasons, I would uphold the requirement as a reasonable regulation of Colorado’s electoral process.

Most disturbing is the Court’s holding that Colorado’s disclosure provisions are partially unconstitutional. * * * Colorado’s disclosure provision is a step removed from the one-on-one, communicative aspects of petition circulation, and it burdens this communication in only an incidental manner. Like the mandatory affidavit that must accompany every set of signed petitions, the required disclosure reports “revea[l] the name of the petition circulator and [are] public record[s] . . . [, but are] separated from the moment the circulator speaks.” This characteristic indeed makes the disclosure reports virtually indistinguishable from the affidavit requirement, which the Court suggests is a permissible regulation of the electoral process, and similarly lessens any chilling effect the reports might have on speech. If anything, the disclosure reports burden speech less directly than the affidavits because the latter are completed by the petition circulator, while the former are completed by the initiative proponent and thus are a step removed from petition circulation. In fact, the Court does not suggest that there is any record evidence tending to show that such remote disclosure will deter the circulation of initiative petitions. To the extent the disclosure requirements burden speech, the burden must be viewed as incremental and insubstantial in light of the affidavit requirement, which also reveals the identity of initiative petition circulators.

As a regulation of the electoral process with an indirect and insignificant effect on speech, the disclosure provision should be upheld so long as it advances a legitimate government interest. Colorado’s asserted interests in combating fraud and providing the public with information about petition circulation are surely sufficient to survive this level of review. * * * Disclosure deters circulation fraud and abuse by encouraging petition circulators to be truthful and self-disciplined. The disclosure required here advances Colorado’s interest in law enforcement by enabling the State to detect and to identify on a timely basis abusive or fraudulent circulators. Moreover, like election finance reporting generally, Colorado’s disclosure reports provide facts useful to voters who are weighing their options. Members of the public deciding whether to sign a petition or how to vote on a measure can discover who has proposed it, who has provided funds for its circulation, and to whom these funds have been provided. Knowing the names of paid circulators and the amounts paid to them also allows members of the public to evaluate the sincerity or, alternatively, the potential bias of any circulator that approaches them. In other words, if one knows a particular circulator is well paid, one may be less likely to believe the sincerity of the circulator’s statements about the initiative proposal. The monthly disclosure reports are public records available to the press and public, are “contemporaneous with circulation,” and are more accessible than the other “masses of papers filed with the petitions.”

101

It is apparent from the preceding discussion that, to combat fraud and to inform potential signatories in a timely manner, disclosure must be made at the time people are being asked to sign petitions and before any subsequent vote on a measure that qualifies for the ballot. * * * Accordingly, the monthly reports, which are disseminated during the circulation period and are available to the press, uniquely advance Colorado’s interests. The affidavit requirement is not an effective substitute because the affidavits are not completed until after all signatures have been collected and thus after the time that the information is needed. In addition, the public’s access to the affidavits is generally more restricted than its access to monthly disclosure reports, for as the District Court found, the public will have “greater difficulty in finding [the] names and addresses [of petition circulators] in the masses of papers filed with the petitions as compared with the monthly reports.”

To be sure, Colorado requires disclosure of financial information about only paid circulators. But, contrary to the Court’s assumption, this targeted disclosure is permissible because the record suggests that paid circulators are more likely to commit fraud and gather false signatures than other circulators. The existence of occasional fraud in Colorado’s petitioning process is documented in the record. An elections officer for the State of Colorado testified that only paid circulators have been involved in recent fraudulent activity. Likewise, respondent William C. Orr, the executive director of the American Constitutional Law Foundation, Inc., while examining a witness, explained to the trial court that “volunteer organizations, they’re self-policing and there’s not much likelihood of fraud. . . . Paid circulators are perhaps different.”

Because the legitimate interests asserted by Colorado are advanced by the disclosure provision and outweigh the incidental and indirect burden that disclosure places on political speech, I would uphold the provision as a reasonable regulation of the electoral process. Colorado’s interests are more than legitimate, however. We have previously held that they are substantial. See Buckley v. Valeo, at 67, 68. Therefore, even if I thought more exacting scrutiny were required, I would uphold the disclosure requirements.

Because I feel the Court’s decision invalidates permissible regulations that are vitally important to the integrity of the political process, and because the decision threatens the enforceability of other important and permissible regulations, I concur in the judgment only in part and dissent in part.

CHIEF JUSTICE REHNQUIST, dissenting. * * ** * * [T]he Court today holds that a State cannot require that those who circulate the

petitions to get initiatives on the ballot be electors, and that a State is constitutionally required to instead allow those who make no effort to register to vote—political dropouts—and convicted

102

drug dealers [denied the franchise as part of their punishment] to engage in this electoral

103

activity.1 Although the Court argues that only those eligible to vote may now circulate candidate petitions, there is no Colorado law to this effect. Such a law would also be even harder to administer than one which limited circulation to residents, because eligible Colorado voters are that subset of Colorado residents who have fulfilled the requirements for registration, and have not committed a felony or been otherwise disqualified from the franchise. A State would thus have to perform a background check on circulators to determine if they are not felons. And one of the reasons the State wished to limit petition circulation to electors in the first place was that it is far easier to determine who is an elector from who is a resident, much less who is “voter

104

eligible.”2 * * *State ballot initiatives are a matter of state concern, and a State should be able to limit the

ability to circulate initiative petitions to those people who can ultimately vote on those initiatives at the polls. If eligible voters make the conscious decision not to register to vote on the grounds that they reject the democratic process, they should have no right to complain that they cannot circulate initiative petitions to people who are registered voters. And the idea that convicted drug felons who have lost the right to vote under state law nonetheless have a constitutional right to circulate initiative petitions scarcely passes the “laugh test.”

But the implications of today’s holding are even more stark than its immediate effect. Under the Court’s interpretation of Meyer, any ballot initiative regulation is unconstitutional if it either diminishes the pool of people who can circulate petitions or makes it more difficult for a given issue to ultimately appear on the ballot. Thus, while today’s judgment is ostensibly circumscribed in scope, it threatens to invalidate a whole host of historically established state regulations of the electoral process in general. Indeed, while the Court is silent with respect to whether a State can limit initiative petition circulation to state residents, the implication of its reading of Meyer * * * is that under today’s decision, a State cannot limit the ability to circulate issues of local concern to its own residents.

May a State prohibit children or foreigners from circulating petitions, where such restrictions would also limit the number of voices who could carry the proponents’ message and thus cut down on the size of the audience the initiative proponents could reach? And if initiative petition circulation cannot be limited to electors, it would seem that a State can no longer impose an elector or residency requirement on those who circulate petitions to place candidates on ballots, either. At least 19 States plus the District of Columbia explicitly require that candidate petition circulators be electors, and at least one other State requires that its petition circulators be state residents. Today’s decision appears to place each of these laws in serious constitutional jeopardy. * * *

As to the other two laws struck down by the Court, I agree that the badge requirement for petition circulators is unconstitutional. * * * I disagree, however, that the First Amendment renders the disclosure requirements unconstitutional. The Court affirms the Court of Appeals’ invalidation of only the portion of the law that requires final reports to disclose information specific to each paid circulator—the name, address, and amount paid to each. Important to the Court’s decision is the idea that there is no risk of “quid pro quo” corruption when money is paid to ballot initiative circulators, and that paid circulators should not have to surrender the anonymity enjoyed by their volunteer counterparts. I disagree with this analysis because, under Colorado law, all petition circulators must surrender their anonymity under the affidavit requirement. Colorado law requires that each circulator must submit an affidavit which must include the circulator’s “name, the address at which he or she resides, including the street name and number, the city or town, [and] the county.” This affidavit requirement was upheld by the Tenth Circuit as not significantly burdening political expression, and is relied upon by the Court in holding that the registered voter requirement is unconstitutional. The only additional piece of information for which the disclosure requirement asks is thus the amount paid to each circulator. Since even after today’s decision the identity of the circulators as well as the total amount of money paid to circulators will be a matter of public record, I do not believe that this additional requirement is sufficient to invalidate the disclosure requirements as a whole. They serve substantial interests and are sufficiently narrowly tailored to satisfy the First Amendment. * * *

105

Notes and Questions1. The Court repeatedly noted that ACLF did not challenge a state’s ability to set residency

requirements for signature-gatherers, but challenged only the further requirement that they be registered voters. Is this a sign that the residency requirement, too, would be unconstitutional? Or was the registration requirement unconstitutional because the residency requirement was a less restrictive means of satisfying the state’s interests? See Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008); Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236 (10th Cir. 2002); Initiative & Referendum Institute v. Jaeger, 241 F.3d 614 (8th Cir. 2001); Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000). Could a state ban other election-related speech, such as television advertising, by out-of-staters concerning state-law issues?

2. Suppose that the speech at issue related to a national matter and not a state one. For example, imagine that Congresses proposes a Twenty-Eighth Amendment to the Constitution, and the states are considering whether to ratify it. May a state constitutionally prohibit citizens of other states from speaking about the matter? What if the state prohibited election-related speech by citizens of foreign countries?

3. Might out-of-state-resident petition-circulators have claims under the Privileges and Immunities Clause, Art. IV, § 2, cl. 1, and the dormant Commerce Clause, Art I, § 8, cl. 3, (because such a prohibition would prevent out-of-staters from competing for jobs as petition-circulators), in addition to claims under the First Amendment? The Clauses generally operate to prevent states from privileging their own citizens as to fundamental liberties and economic opportunities, respectively. Nevertheless, states are permitted to favor their own citizens if they

106

have a good enough reason for doing so.4 See generally Supreme Court v. Piper, 470 U.S. 274, 282 & n.13 (1985) (noting that the Privileges and Immunities Clause does not require states to forfeit their identities as sovereign political bodies, and that accordingly a state may restrict the privileges of voting and holding elective office to state residents); Corfield v. Coryell, 4 Wash. C.C. 371, Fed. Cas. No. 3,230 (1823).

4. Should one’s ability to speak, or the state’s ability to require registration or disclosure, differ depending on whether the election is a ballot initiative or a candidate election?

5. Chief Justice Rehnquist characterized the proposition that minors have a constitutional right to circulate petitions as “absurd[],” and the Court seemed to agree, saying that the suggestion was “imaginary.” But why should minors not have such a right? Certainly minors generally possess a right to engage in expressive activity. See, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). One of the few points on which a clear majority of the Court was able to agree in McConnell v. Federal Election Commission, 540 U.S. 93 (2003) [p. XXX], was that the Bipartisan Campaign Reform Act’s prohibition of contributions by minors, 2 U.S.C. § 441k was unconstitutional. See 540 U.S. at 231-32. Should the same result obtain in the case of petition circulation?

6. More broadly, why should a state be able to tie the ability to engage in election-related speech to the ability to vote? Are you comfortable calling petition circulation “speech,” or should it receive less protection under the First Amendment than, for example, distributing leaflets?

7. Problem. May a state prohibit initiative supporters from paying signature-gatherers by the signature? The state argues that the prohibition guards against fraud; the opponents argue that the prohibition makes it more expensive and inefficient to gather signatures. See Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008); Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006); Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001).

8. Problem. Many New England towns employ the “open town-hall meeting” style of governing, according to which all registered voters are empowered to legislate, in an exercise of direct, rather than representative, democracy. Debate at town-hall meetings is presided-over by a moderator, who is elected by the voters of the town. All registered voters may speak at the meetings, but non-registered voters may speak only if the moderator permits them to do so. Does such a system abridge the First Amendment rights of non-registered voters who reside in the town? See Curnin v. Town of Egremont, 510 F.3d 24 (1st Cir. 2007). What if non-registered voters were absolutely barred from speaking, leaving the moderator without discretion? What if non-registered voters were prohibited from speaking at a public-comment portion of a representative body’s meeting? See Mesa v. White, 197 F.3d 1041 (10th Cir. 1999); Piscottano v. Town of Somers, 396 F. Supp. 2d 187 (D. Conn. 2005); Scroggins v. City of Topeka, 2 F. Supp. 2d 1362 (D. Kan. 1998); Pesek v. City of Brunswick, 794 F. Supp. 768 (N.D. Ohio 1992).

F. GOVERNMENT SPEECHThe government can, and often does, speak to us. From statutory directives to agency web

sites, and from “Just Say No” campaigns to town newsletters, we are confronted daily with government speech. Such speech rarely raises a constitutional question, even if the government is discriminating on the basis of viewpoint in creating its message—after all, the expression of a viewpoint is often the whole purpose of speaking. See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991). Government speech in the context of elections, however, raises more serious questions. The next case explores whether the First Amendment, or any other portion of the Constitution, prohibits the government from taking sides in an electoral contest.

107

KIDWELL v. CITY OF UNIONUnited States Court of Appeals for the Sixth Circuit

462 F.3d 620 (6th Cir. 2006), cert. denied 550 U.S. 935 (2007)

JULIA SMITH GIBBONS, Circuit Judge. * * *This case arises from a series of disputed ballot initiatives beginning in 1997 relating to the

creation and funding of a fire department in the City of Union[, Ohio]. In 1997, Union’s fire and emergency services (along with those of other neighboring communities) were provided by the neighboring township of Randolph. The combination of the restructuring of the townships and the perceived inadequacy in Union’s emergency services led to changes in the fire department structure. The Union Council * * * ultimately passed an emergency resolution establishing a town fire department. The new fire department became effective on January 1, 1998.

The resolution establishing a Union fire department was challenged by the plaintiffs via a ballot initiative requiring a referendum. The referendum was preceded by a lively campaign in which the plaintiffs organized a “Vote Yes” campaign to retain the extant fire districts. The Council supported the opposite position and used public funds to disseminate information supporting its position to citizens [by] the hanging of “Vote No” banners, mailing of leaflets to residents, advertising in local newspapers, and using the town newsletter to support the Council’s position. The referendum occurred in November 1997, and the Council’s decision was ratified. Voters funded the new fire department in a May 1998 referendum. [Plaintiffs brought suit under 42 U.S.C. § 1983, arguing that the City’s advocacy violated the First and Fourteenth Amendments. The District Court granted summary judgment to the defendants.] * * *

This case presents the rare instance when public citizens seek to limit the speech of a governmental entity rather than the reverse. The scenarios in which citizens may halt a government’s speech are limited. * * * The government’s power to fund its speech is similarly limited, however. In NAACP v. Hunt, 891 F.2d 1555, 1565-66 (11th Cir. 1990), the Eleventh Circuit identified three categories of government actions that courts have determined to be unconstitutional infringement of free speech: (1) abridgment of equality in the field of ideas by granting differential access to public fora based on viewpoint; (2) monopolization of the “marketplace of ideas”; and (3) compulsion of citizens “to support candidates, parties, ideologies, or causes that they are against.” Plaintiffs assert that Union’s actions violated two of these categories by denying them access to a public forum (the town newsletter and town treasury) and compelling them to support causes to which they are adverse. Plaintiffs urge us to find that government speech relating to elections is a form of unconstitutional compelled speech by distinguishing between governing and campaigning.

Turning first to the issue of differential access to public fora, plaintiffs argue that Union unconstitutionally denied them access to two public fora—the town newsletter and the town treasury—to which others had been granted access. A government abridges “equality in the field of ideas” when it grants “the use of a [public] forum to people whose views it finds acceptable, but [denies its] use to those wishing to express less favored or more controversial views.” Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972).

Plaintiffs assert that they were denied access to the town newsletter, but * * * they provide no evidence that they asked for or were refused access to that forum, even if it was public. Plaintiffs have similarly failed to present evidence that any other private group was given access to the newsletter other than a single quote about the contested issue that was responsive to another quote advocating the contrary position. “[W]hen government property is not dedicated to open

108

communication the government may—without further justification—restrict use to those who participate in the forum’s official business.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 53 (1983). The single quotation cannot be construed as opening the newsletter as a public forum. Further, “when the government determines an overarching message and retains power to approve every word disseminated at its behest, the message must be attributed to the government for First Amendment purposes.” Here, Union approved the message delivered in the town newsletter, so its content must be considered that of the city itself, not that of the quoted private citizen. Plaintiffs thus cannot prevail on their public forum claim relating to the newsletter.

The town treasury is not a public forum; it is not “by tradition or designation a forum for public communication.” Perry, 460 U.S. at 46. Nor is the treasury a limited purpose public forum; Union has not opened that treasury to the public by making any town funds available to private individuals or groups. Union has used the treasury for its own speech—a use that has no effect on the treasury as a public forum. To hold that Union’s advocacy converts its treasury to a public forum would severely limit the town’s ability to self-regulate and would be tantamount to a heckler’s veto, where the government could not speak for fear of opening its treasury to the public. This argument is therefore baseless, and the plaintiffs’ public forum challenge cannot succeed.

As to the plaintiffs’ second claim regarding compelled speech, governments cannot compel citizens to support positions with which they disagree. Wooley v. Maynard, 430 U.S. 705, 715 (1977). This case, however, presents a compelled subsidy—not a compelled speech—claim because the plaintiffs were not themselves required to speak in any manner. * * *

The Supreme Court has held in several instances that compelled subsidies may violate the First Amendment rights of citizens. See Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) (labor union political action); Keller v. State Bar of Cal., 496 U.S. 1 (1990) (bar dues for political action); Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217 (2000) (student activities fund for extracurricular activity). All of the cases in which the Supreme Court has held a compelled subsidy to be a First Amendment violation have involved subsidies of speech by private organizations rather than by the government itself. Governmental subsidies are distinguishable from the labor union, state bar, and state university contexts because it is imperative that government be free to make unpopular decisions without opening the public fisc to opposing views. The Supreme Court recognized this distinction in Southworth: “The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to defend its own policies.” 529 U.S. at 229. More recently, in Johanns v. Livestock Mktg. Ass’n, 544 U.S. [550,] 559 [(2005)], the Court addressed a compelled subsidy directly in the governmental context:

Our compelled-subsidy cases have consistently respected the principle that “[c]ompelled support of a private association is fundamentally different from compelled support of government.” “Compelled support of government”—even those programs of government one does not approve—is of course perfectly constitutional, as every taxpayer must attest. And some government programs involve, or entirely consist of, advocating a position.

Here, the plaintiffs have challenged the expenditure of tax dollars by a governmental entity to advocate a position—a case that the Supreme Court deemed “perfectly constitutional” in Johanns. Though the plaintiffs acknowledge that the speech in this case is attributable to the government, they argue that the power of the government to compel subsidies for its speech is

109

not as broad as the Supreme Court suggested in Johanns. Because the asserted subsidy arose in the context of an election, the plaintiffs argue that this court should find Union’s speech to be unconstitutionally compulsive.

As the dissent recognizes, elections raise unique constitutional issues because they are the very foundation of a democratic system: where the government uses its official voice in an attempt to affect the identity of the people’s elected representatives, it can undermine its legitimacy as a champion of the people’s will and thereby subvert one of the principles underlying democratic society. Although these principles require some limit on the government’s power to advocate during elections, they do not support a bright line rule barring such speech, at least where the government speaks within the scope of its governance functions. Governments must serve their citizens in myriad ways, including by provision of emergency services, and these activities require funding through taxation. Union’s speech related to emergency service and tax initiatives thus fits squarely within its competence as governor and was made in the context of “advocat[ing] and defend[ing] its own policies.” The issues on which the city advocated were thus germane to the mechanics of its function, and are clearly distinguishable from the hypothetical cases of government speech in support of particular candidates suggested by the dissent. Where speech is not so directed, the result may be different: in Mountain States Legal Foundation v. Denver School District No. 1, by contrast, the court ruled illegal a local school board’s use of public funds for advocacy in a statewide initiative regarding education funding. 459 F. Supp. 357, 361 (D. Colo. 1978). Unlike Union’s actions, the school board’s advocacy in Mountain States was not directly related to its governance functions and was struck down.

In this case, Ohio’s home rule system made Union’s policies subject to acceptance or rejection by ballot. In this context, a limit on government speech during elections would allow hecklers to silence the government on issues in which it has an interest and expertise—and on which citizens have an interest in hearing their government’s perspective. Because Union’s speech in this case was germane to its role as governor, plaintiffs have failed to show that democratic legitimacy is threatened or that Union’s compelled subsidy of its speech violates the Constitution.

The natural outcome of government speech is that some constituents will be displeased by the stance their government has taken. Displeasure does not necessarily equal unconstitutional compulsion, however, and in most cases the electoral process—not First Amendment litigation—is the appropriate recourse for such displeasure. The needs of effective governance command that the bar limiting government speech be high. The plaintiffs in this case have failed to show that the City of Union’s expenditures crossed the line separating a valid compelled subsidy from an unconstitutional one, and valid advocacy from prescription of orthodoxy.

For the foregoing reasons, we affirm the district court decision.

BOYCE F. MARTIN, JR., Circuit Judge, dissenting.* * * Although local governmental expenditures to advocate in an election may seem

commonplace and uninspiring, I take the position that governmental campaigning in elections is implicitly prohibited by our constitutional design and republican form of government. “Free and honest elections are the very foundation of our republican form of government,” and when the government uses tax dollars to enter an electoral contest and advocate in favor of a position or candidate, it distorts the very check on governmental power so central to our constitutional design—the next election—that I must conclude such activity is unconstitutional. * * *

* * * I concede that the government may ordinarily speak to advocate and defend its own

110

policies. The caveat, however, is always that the citizens’ remedy is at the ballot box in the next election. [Here], however, the government is distorting the only check on its power. I am not sure I would limit this argument to the confines of the First Amendment; rather, to me, it is more of a structural argument regarding democratic principles and the structure and purpose of the [C]onstitution. * * *

I believe that the Constitution properly prohibits the government from having a horse in the race when it comes to elections. When government advocates on one side of an issue, the ultimate source of governing power is shifted away from the people and the threat of official doctrine exists. Of course, the threat is not as omnipresent today in the United States as it is in some other countries. There is no real evidence in any of these cases on point that the government as speaker crowded out private speech. There is no evidence that the government sought to suppress or in any way discourage other speech of a contrary nature. The absence of this evidence, however, does not in my opinion cure the underlying evil—that is, ordinary democratic controls are insufficient as a remedy in situations where governmental influence threatens to undermine the independent political process. Governmental advocacy and campaign expenditures could arguably threaten to undermine free and fair elections, could be coercive, and could reasonably undermine the reliability and outcome of elections where the government acts as a participant.

Moreover, it could be argued that when the government takes sides in an election, it gives a content or viewpoint based subsidy to those advocating the position the government chooses to side with. In the ordinary case of governmental action outside of an election, political controls can remedy citizen disagreement with governmental actions. Citizens can make their voices known at the ballot box in the next election by voting current officeholders out. Governmental electioneering, however, diminishes the effectiveness of the political response and threatens underlying constitutional values and democratic principles. The outcome of elections ideally should reflect the pure will of the people unpolluted by government electioneering. Where the political response cannot provide an adequate remedy, it can be argued that courts must step in.

Thus, I would hold that the Constitution requires governmental neutrality in elections—that is, the Constitution permits the government to educate and inform the public, but it may not cross the line into advocacy. Thus, government could provide factual information in newsletters and other forms of communication with the electorate. [I]t would not always be easy finding the line of demarcation between informing and advocacy, but courts should look closely at the facts of each case, including the words used, the tone of the communication, the timing, and any other relevant factors. Moreover, government may provide equal access to a forum (as it does in so many other contexts) allowing both sides of the debate to advance their positions. Thus, a governmental newsletter such as the one at issue in this case could grant equal space to competing factions to make their best case to the electorate. This position, I think, would more appropriately reflective [sic] of the balance the Framers sought to strike in our democratic structure and goes a long way to ensuring that the true power remains with the people.

For these reasons, I must respectfully dissent from today’s majority opinion.

Notes and Questions1. Is this case more appropriately resolved on the basis of the First Amendment or the

general “structural” features of the Constitution referenced in Judge Martin’s dissent? Cf. National Endowment for the Arts v. Finley, 524 U.S. 569, 598 n.3 (1998) (Scalia, J., concurring in the judgment) (“I suppose it would be unconstitutional for the government to give money to an organization devoted to the promotion of candidates nominated by the Republican Party—but it

111

would be just as unconstitutional for the government itself to promote candidates nominated by the Republican Party, and I do not think that that unconstitutionality has anything to do with the First Amendment.”). Are there judicially manageable standards for enforcing these “structural” features? Are there other reasons courts should not enforce guarantees not protected by

112

(relatively) specific constitutional text?5 In a portion of the dissent not reprinted here, Judge Martin suggested that “[p]erhaps th[e] day has come” to revisit the Supreme Court’s conclusion that the Guarantee Clause is nonjusticiable. See 462 F.3d at 635 n.5 (Martin, J., dissenting). Is his invocation of an undefined “structural” protection against governmental electoral advocacy simply a ruse to evade binding precedent?

2. Is there an administrable line between government speech that governs, informs and educates, on the one hand, and that which advocates electoral results, on the other? Is there an administrable line between advocacy of government policies, which Judge Martin concedes is permissible, and advocacy of electoral results, which he argues is not?

In Chapter 9, we will address the constitutionality of certain restrictions on “electioneering communications.” The bright-line definition adopted in the Bipartisan Campaign Reform Act and upheld in McConnell v. Federal Election Commission, 540 U.S. 93 (2003) [p. XXX] (but called into some question by Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) [p. XXX]) treated all advertisements that referred to a “clearly identified candidate for Federal office,” were made within sixty days before a general election or thirty days before a primary election, and could be received by 50,000 or more persons in the district as “electioneering communications,” and subject to restrictions on their financing. The bright-line definition was adopted to avoid perceived problems of “sham” issue advocacy, where advertisements would ostensibly discuss issues, but would in reality encourage voters to support or oppose certain candidates.

Do Judge Martin’s proposed distinctions create the same potential for subterfuge? How would he address the constitutionality of a governmentally sponsored advertisement discussing the advantages of “the Smith-Jones Health Care Act”? What about the commonplace signs at state borders that welcome travelers and gratuitously include the name of the incumbent governor? Suppose a legislator were to use his privilege to send free mail to his constituents telling of all the great things he has accomplished during his term—just in case any of the voters were to find such information relevant in deciding whom to support in the election the following month. Is such action unconstitutional?

3. What limits are there on the majority’s willingness to tolerate governmentally sponsored electoral speech? The majority says that perhaps a government could not speak on a matter that is far afield from its governing role, but doesn’t government speech pose the greatest threat to democracy when it is directly related to its governing function?

4. The court argued that restricting government’s electoral speech would deprive citizens of the ability to “hear[] their government’s perspective.” Are you troubled by the implication that the government has a perspective independent of the citizenry?

5. Are you concerned that government speech can overwhelm opposing messages, or do you believe that government speech will affect elections only if the voters agree with it? In other words, does government speech honor the public’s capacity to reason or seek to subvert it? We will return to the issue of the persuasive power of campaign speech in Chapter 9.

G.PUBLIC EMPLOYEESGovernment employees may be particularly interested in public affairs, and their knowledge

may be invaluable to the rest of us in assessing the performance of government. As a result, the political participation of those employees may be especially valuable both for them and for everyone else. On the other hand, however, there are also more pressing reasons to restrict the political activities of government workers than apply to the rest of us. We want to be sure that

113

civil servants will apply the law impartially, and if we think that they are using the law to their political advantage, then our confidence in government will be undermined. Additionally, we may view restrictions on workers’ political activity as protection for the workers themselves—if an employee is forbidden from taking part in a political campaign, then we can be sure that a supervisor will not pressure the employee to do so on behalf of the supervisor’s (or the governing administration’s) preferred candidate. The cases in this section explore the extent to which public employment can limit employees’ First Amendment right to participate in politics.

UNITED PUBLIC WORKERS OF AMERICA (C.I.O.) v. MITCHELL

Supreme Court of the United States330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947)

MR. JUSTICE REED delivered the opinion of the Court [in which MR. CHIEF JUSTICE VINSON, MR. JUSTICE FRANKFURTER, and MR. JUSTICE BURTON join]. * * *

[Appellants brought this constitutional challenge to the second sentence of § 9(a) of the Hatch Act, which] reads, “No officer or employee in the executive branch of the Federal

114

Government * * * shall take any active part in political management or in political campaigns.”2

* * * It is alleged that the individuals desire to engage in acts of political management and in

115

political campaigns. * * *11 From the affidavits it is plain, and we so assume, that these activities will be carried on completely outside of the hours of employment. Appellants challenge the second sentence of § 9(a) as [violating the First Amendment’s protections of freedom of speech, of the press, and of assembly; the Ninth and Tenth Amendments; and the Fifth Amendment’s Due Process Clause, this last owing to the Act’s alleged vagueness and its allegedly arbitrary distinctions between the employees subject to the restrictions of the Act and the employees not so restricted]. * * *

None of the appellants, except George P. Poole, has violated the provisions of the Hatch Act. They wish to act contrary to its provisions * * * and desire a declaration of the legally permissible limits of regulation. * * * The District Court * * * determined that the questioned provision of the Hatch Act was valid * * *. It accordingly dismissed the complaint and granted summary judgment to defendants. * * *

[The Supreme Court first held that each of the appellants’ claims, other than Poole’s, was unripe. The Court then turned to the merits of Poole’s claim:]

[Poole] was a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and a paymaster for the services of other party workers. * * * We accept appellants’ contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments are involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. * * * And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment. Appellants’ objections under the Amendments are basically the same.

We do not find persuasion in appellants’ argument that such activities during free time are not subject to regulation even though admittedly political activities cannot be indulged in during working hours. The influence of political activity by government employees, if evil in its effects on the service, the employees or people dealing with them, is hardly less so because that activity takes place after hours. Of course, the question of the need for this regulation is for other branches of government rather than the courts. Our duty in this case ends if the Hatch Act provision under examination is constitutional.

Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolutes. * * * The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. * * * Again this Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government. * * *

* * * Congress and the President are responsible for an efficient public service. If, in their judgment, efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, we see no constitutional objection.

Another Congress may determine that on the whole, limitations on active political management by federal personnel are unwise. The teaching of experience has evidently led Congress to enact the Hatch Act provisions. To declare that the present supposed evils of political activity are beyond the power of Congress to redress would leave the nation impotent to deal with what many sincere men believe is a material threat to the democratic system. Congress is not politically naive or regardless of public welfare or that of the employees. It leaves untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency. With that limitation

116

only, employees may make their contributions to public affairs or protect their own interests, as before the passage of the act.

The argument that political neutrality is not indispensable to a merit system for federal employees may be accepted. But because it is not indispensable does not mean that it is not desirable or permissible. Modern American politics involves organized political parties. Many classifications of Government employees have been accustomed to work in politics—national, state and local—as a matter of principle or to assure their tenure. Congress may reasonably desire to limit party activity of federal employees so as to avoid a tendency toward a one-party system. It may have considered that parties would be more truly devoted to the public welfare if public servants were not overactive politically.

Appellants urge that federal employees are protected by the Bill of Rights and that Congress may not “enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work.” None would deny such limitations on Congressional power but because there are some limitations it does not follow that a prohibition against acting as ward leader or worker at the polls is invalid. A reading of the Act * * * shows the wide range of public activities with which there is no interference by the legislation. It is only partisan political activity that is interdicted. It is active participation in political management and political campaigns. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the Government employee does not direct his activities toward party success.

It is urged, however, that Congress has gone further than necessary in prohibiting political activity to all types of classified employees. It is pointed out by appellants “that the impartiality of many of these is a matter of complete indifference to the effective performance” of their duties. Mr. Poole would appear to be a good illustration for appellants’ argument. The complaint states that he is a roller in the Mint. We take it this is a job calling for the qualities of a skilled mechanic and that it does not involve contact with the public. Nevertheless, if in free time he is engaged in political activity, Congress may have concluded that the activity may promote or retard his advancement or preferment with his superiors. Congress may have thought that Government employees are handy elements for leaders in political policy to use in building a political machine. For regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service. There are hundreds of thousands of United States employees with positions no more influential upon policy determination than that of Mr. Poole. Evidently what Congress feared was the cumulative effect on employee morale of political activity by all employees who could be induced to participate actively. It does not seem to us an unconstitutional basis for legislation.

There is a suggestion that administrative workers may be barred, constitutionally, from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act “narrowly drawn to define and punish specific conduct.” A ready answer, it seems to us, lies in the fact that * * * Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the Government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress. We do not know whether the

117

number of federal employees will expand or contract; whether the need for regulation of their political activities will increase or diminish. The use of the constitutional power of regulation is for Congress, not for the courts.

We have said that Congress may regulate the political conduct of Government employees “within reasonable limits,” even though the regulation trenches to some extent upon unfettered political action. The determination of the extent to which political activities of governmental employees shall be regulated lies primarily with Congress. Courts will interfere only when such regulation passes beyond the general existing conception of governmental power. That conception develops from practice, history, and changing educational, social and economic conditions. The regulation of such activities as Poole carried on has the approval of long practice by the Commission, court decisions upon similar problems and a large body of informed public opinion. Congress and the administrative agencies have authority over the discipline and efficiency of the public service. When actions of civil servants in the judgment of Congress menace the integrity and the competency of the service, legislation to forestall such danger and adequate to maintain its usefulness is required. The Hatch Act is the answer of Congress to this need. We cannot say with such a background that these restrictions are unconstitutional.

* * * The activities of Mr. Poole, as ward executive committeeman and a worker at the polls, obviously fall within the prohibitions of § 9 of the Hatch Act against taking an active part in political management and political campaigns. * * * We need to examine no further at this time into the validity of the definition of political activity * * *.

The judgment of the District Court is accordingly affirmed.Affirmed.

MR. JUSTICE MURPHY and MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE RUTLEDGE dissents as to Poole for the reasons stated by MR. JUSTICE BLACK. He does not pass upon the constitutional questions presented by the other appellants for the reason that he feels the controversy as to them is not yet appropriate for the discretionary exercise of declaratory judgment jurisdiction.

MR. JUSTICE FRANKFURTER, concurring.[T]his case should be dismissed for want of jurisdiction [because the appeal was not timely

docketed]. * * * But under compulsion of the Court’s assumption of jurisdiction, I reach the merits and join in MR. JUSTICE REED’s opinion.

MR. JUSTICE BLACK, dissenting. * * *The right to vote and privately to express an opinion on political matters, important though

they be, are but parts of the broad freedoms which our Constitution has provided as the bulwark of our free political institutions. Popular government, to be effective, must permit and encourage much wider political activity by all the people. * * * Legislation which muzzles several million citizens threatens popular government, not only because it injures the individuals muzzled, but also, because of its harmful effect on the body politic in depriving it of the political participation and interest of such a large segment of our citizens. Forcing public employees to contribute money and influence can well be proscribed in the interest of “clean politics” and public administration. But I think the Constitution prohibits legislation which prevents millions of

118

citizens from contributing their arguments, complaints, and suggestions to the political debates which are the essence of our democracy; prevents them from engaging in organizational activity to urge others to vote and take an interest in political affairs; bars them from performing the interested citizen’s duty of insuring that his and his fellow citizens’ votes are counted. Such drastic limitations on the right of all the people to express political opinions and take political action would be inconsistent with the First Amendment’s guaranty of freedom of speech, press, assembly, and petition. And it would violate, or come dangerously close to violating, Article I and the Seventeenth Amendment of the Constitution, which protect the right of the people to vote for their Congressmen and their United States Senators and to have their votes counted.

There is nothing about federal and state employees as a class which justifies depriving them or society of the benefits of their participation in public affairs. They, like other citizens, pay taxes and serve their country in peace and in war. The taxes they pay and the wars in which they fight are determined by the elected spokesmen of all the people. They come from the same homes, communities, schools, churches, and colleges as do the other citizens. I think the Constitution guarantees to them the same right that other groups of good citizens have to engage in activities which decide who their elected representatives shall be. * * *

It is argued that it is in the interest of clean politics to suppress political activities of federal and state employees. It would hardly seem to be imperative to muzzle millions of citizens because some of them, if left their constitutional freedoms, might corrupt the political process. All political corruption is not traceable to state and federal employees. Therefore, it is possible that other groups may later be compelled to sacrifice their right to participate in political activities for the protection of the purity of the Government of which they are a part.

It may be true, as contended, that some higher employees, unless restrained, might coerce their subordinates or that Government employees might use their official position to coerce other citizens. But is such a possibility of coercion of a subordinate by his employer limited to governmental employer-employee relationships? The same quality of argument would support a law to suppress the political freedom of all employees of private employers, and particularly of employers who borrow money or draw subsidies from the Government. * * * If the possibility exists that some * * * public employees may, by reason of their more influential positions, coerce other public employees or other citizens, laws can be drawn to punish the coercers. It hardly seems consistent with our system of equal justice to all to suppress the political and speaking freedom of millions of good citizens because a few bad citizens might engage in coercion.

It may also be true, as contended, that if public employees are permitted to exercise a full freedom to express their views in political campaigns, some public officials will discharge some employees and grant promotion to others on a political rather than on a merit basis. For the same reasons other public officials, occupying positions of influence, may use their influence to have their own political supporters appointed or promoted. But here again, if the practice of making discharges, promotions or recommendations for promotions on a political basis is so great an evil as to require legislation, the law could punish those public officials who engage in the practice. To punish millions of employees and to deprive the nation of their contribution to public affairs, in order to remove temptation from a proportionately small number of public officials, seems at the least to be a novel method of suppressing what is thought to be an evil practice.

Our political system, different from many others, rests on the foundation of a belief in rule by the people—not some, but all the people. Education has been fostered better to fit people for self-expression and good citizenship. In a country whose people elect their leaders and decide great

119

public issues, the voice of none should be suppressed—at least such is the assumption of the First Amendment. That Amendment, unless I misunderstand its meaning, includes a command that the Government must, in order to promote its own interest, leave the people at liberty to speak their own thoughts about government, advocate their own favored governmental causes, and work for their own political candidates and parties.

The section of the Act here held valid reduces the constitutionally protected liberty of several million citizens to less than a shadow of its substance. It relegates millions of federal, state, and municipal employees to the role of mere spectators of events upon which hinge the safety and welfare of all the people, including public employees. It removes a sizable proportion of our electorate from full participation in affairs destined to mould the fortunes of the Nation. It makes honest participation in essential political activities an offense punishable by proscription from public employment. It endows a governmental board with the awesome power to censor the thoughts, expressions, and activities of law-abiding citizens in the field of free expression from which no person should be barred by a government which boasts that it is a government of, for, and by the people—all the people. Laudable as its purpose may be, it seems to me to hack at the roots of a Government by the people themselves; and consequently I cannot agree to sustain its validity.

MR. JUSTICE DOUGLAS, dissenting in part. * * ** * * Poole is not in the administrative category of civil service. He is an industrial worker—

a roller in the mint, a skilled laborer or artisan whose work or functions in no way affect the policy of the agency nor involve relationships with the public. * * *

* * * Political fortunes of parties will ebb and flow; top policy men in administrations will come and go; new laws will be passed and old ones amended or repealed. But those who give continuity to administration, those who contribute the basic skill and efficiency to the daily work of government, and those on whom the new as well as the old administration is dependent for smooth functioning of the complicated machinery of modern government are the core of the civil service. If they are beneficiaries of political patronage rather than professional careerists, serious results might follow—or so Congress could reasonably believe. Public confidence in the objectivity and integrity of the civil service system might be so weakened as to jeopardize the effectiveness of administrative government. Or it might founder on the rocks of incompetency, if every change in political fortunes turned out the incumbents, broke the continuity of administration, and thus interfered with the development of expert management at the technical levels. Or if the incumbents were political adventurers or party workers, partisanship might color or corrupt the processes of administration of law with which most of the administrative agencies are entrusted.

The philosophy is to develop a civil service which can and will serve loyally and equally well any political party which comes into power.

Those considerations might well apply to the entire group of civil servants in the administrative category—whether they are those in the so-called expert classification or are clerks, stenographers and the like. They are the ones who have access to the files, who meet the public, who arrange appointments, who prepare the basic data on which policy decisions are made. Each may be a tributary, though perhaps a small one, to the main stream which we call policy making or administrative action. If the element of partisanship enters into the official activities of any member of the group it may have its repercussions or effect throughout the administrative process. Thus in that type of case there would be much to support the view of the

120

Court that Congress need not undertake to draw the line to include only the more important offices but can take the precaution of protecting the whole by insulating even the lowest echelon from partisan activities.

So, I think that if the issues tendered by Poole were tendered by an administrative employee, we would have quite a different case. For Poole claims the right to work as a ward executive committeeman, i.e., as an officeholder in a political party.

But Poole, being an industrial worker, is as remote from contact with the public or from policy making or from the functioning of the administrative process as a charwoman. The fact that he is in the classified civil service is not, I think, relevant to the question of the degree to which his political activities may be curtailed. He is in a position not essentially different from one who works in the machine shop of a railroad or steamship which the Government runs, or who rolls aluminum in a manufacturing plant which the Government owns and operates. Can all of those categories of industrial employees constitutionally be insulated from American political life? If at some future time it should come to pass in this country, as it has in England, that a broad policy of state ownership of basic industries is inaugurated, does this decision mean that all of the hundreds of thousands of industrial workers affected could be debarred from the normal political activity which is one of our valued traditions?

The evils of the “spoils” system do not, of course, end with the administrative group of civil servants. History shows that the political regimentation of government industrial workers produces its own crop of abuses. Those in top policy posts or others in supervisory positions might seek to knit the industrial workers in civil service into a political machine. As a weapon they might seek to make the advancement of industrial workers dependent on political loyalty, on financial contributions, or on other partisan efforts. Or political activities of these workers might take place on government premises, on government time, or otherwise at government expense. These are specific evils which would require a specific treatment.

There is, however, no showing of any such abuse here. What Poole did, he did on his own without compulsion or suggestion or invitation from any one higher up. Nor does it appear that what he did was done on government time or on government premises. Moreover, as MR. JUSTICE BLACK points out, laws can be drawn to punish those who use such coercion. Such activity is more than the exercise of political prerogatives; it is the use of official power as well, and hence can be restrained or punished.

The question is whether a permissible remedy is complete or partial political sterilization of the industrial group. * * * The difficulty lies in attempting to preserve our democratic way of life by measures which deprive a large segment of the population of all political rights except the right to vote. Absent coercion, improper use of government position or government funds, or neglect or inefficiency in the performance of duty, federal employees have the same rights as other citizens under the Constitution. They are not second class citizens. If, in exercise of their rights, they find common political interests and join with each other or other groups in what they conceive to be their interests or the interests of the nation, they are simply doing what any other group might do. In other situations where the balance was between constitutional rights of individuals and a community interest which sought to qualify those rights, we have insisted that the statute be “narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest” of government.

That seems to me the proper course to follow here. The prohibition in § 9(a) of the Hatch Act against government employees taking an “active part in political management or in political campaigns” applies without discrimination to all employees whether industrial or administrative.

121

The same is true of the Civil Service Rules. But the supposed evils are both different and narrower in case of industrial workers than they are in the case of the administrative group. The public interest in the political activity of a machinist or elevator operator or charwoman is a distinct and different problem. In those cases the public concern is in the preservation of an unregimented industrial group, in a group free from political pressures of superiors who use their official power for a partisan purpose. Then official power is misused, perverted. The Government is corrupted by making its industrial workers political captives, victims of bureaucratic power, agents for perpetuating one party in power.

122

Offset against that public concern are the interests of the employees in the exercise of cherished constitutional rights. * * * If those rights are to be qualified by the larger requirements of modern democratic government, the restrictions should be narrowly and selectively drawn to define and punish the specific conduct which constitutes a clear and present danger to the operations of government. It seems plain to me that that evil has its roots in the coercive activity of those in the hierarchy who have the power to regiment the industrial group or who undertake to do so. To sacrifice the political rights of the industrial workers goes far beyond any demonstrated or demonstrable need. Those rights are too basic and fundamental in our democratic political society to be sacrificed or qualified for anything short of a clear and present danger to the civil service system. No such showing has been made in the case of these industrial

diversity of funding sources and the decentralized manner in which funds are secured, the threat that improper federal influence will be exerted over local stations is not so pressing as to require the total suppression of editorial speech by these stations.27 JUSTICE REHNQUIST’s effort to prop up his position by relying on our decisions upholding certain provisions of the Hatch Act, 5 U.S.C. § 7324 et seq., only reveals his misunderstanding of what is at issue in this case. For example, in both United Public Workers v. Mitchell, 330 U.S. 75 (1947) [p. XXX], and CSC v. Letter Carriers, 413 U.S. 548 (1973) [p. XXX], the Court has upheld § 9(a) of the Hatch Act—a provision that differs from § 399 in three fundamental respects: first, the statute only prohibits Government employees from “active participation in political management and political campaigns,” and, accordingly, “[expressions], public or private, on public affairs, personalities and matters of public interest” are not proscribed, id., at 556; second, the constitutionality of that restriction is grounded in the Government’s substantial and important interest in ensuring effective job performance by its own employees, id., at 564-565; and, finally, these restrictions evolved over a century of governmental experience with less restrictive alternatives that proved to be inadequate to maintain the effective operation of government, id., at 557-563. Here, by contrast, the editorializing ban in § 399 directly suppresses not only political endorsements but all editorial expression on matters of public importance; it applies to independent, nongovernmental entities rather than to the Government’s own employees; and, it is not grounded in any prior governmental experience with less restrictive means.More importantly, in neither of those cases did the Court even consider that the restrictions could be justified simply because these employees were receiving Government funds, nor did it find that a lesser degree of judicial scrutiny was required simply because Government funds were involved.JUSTICE REHNQUIST’s reliance upon Oklahoma v. CSC, 330 U.S. 127 (1947) [p. XXX], is also misplaced. There, a principal issue addressed by the Court was Oklahoma’s claim that § 12 of the Hatch Act invaded the State’s sovereignty in violation of the Tenth Amendment, because it authorized the Civil Service Commission to withhold federal funds from States whose officers violated the Act. * * * After citing Mitchell for the proposition that the Act did not impermissibly interfere with an employee’s freedom of expression in political matters, 330 U.S., at 142, the Court explained: “While the United States is not concerned with, and has no power to regulate, local political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed. The Tenth Amendment does not forbid the exercise of this power in the way that Congress has proceeded in this case.” Id., at 143 (emphasis added). Thus, it was only in the context of rejecting Oklahoma’s Tenth Amendment claim that the Court used the language cited by the dissent. Just as in Mitchell, and Letter Carriers, therefore, the Court never intimated in Oklahoma v. CSC that the mere presence of Government funds was a sufficient reason to uphold the Hatch Act’s restrictions on employee freedoms on the basis of relaxed First Amendment standards.11 The “fairness doctrine” is no answer to the concern that Government-funded organs of mass communication will, overall, take a pro-Government slant in editorializing and thereby create a distortion in the marketplace of ideas. First, the “fairness doctrine” is itself enforced by the Government. Second, that doctrine does not guarantee other speakers access to the microphone if they disagree with editorial opinion expressed by the station on public policy issues. No other voice need be heard if the Government determines that the station’s editorial “fairly” presented the substance of “the” opposing view. Moreover, as appellees argue, editorials from an institution which the public may hold in high regard may carry added weight in the marketplace of ideas. That fact, however, magnifies the evil sought to be avoided, for the danger is that pro-Government views that are not actually shared by that institution will be parroted to curry favor with its benefactor. [Relocated. –Eds.]

123

workers,14 which justifies their political sterilization as distinguished from selective measures aimed at the coercive practices on which the spoils system feeds.

Notes and Questions1. Who is protected, and who is harmed, by the Hatch Act? If you believe that the

employees themselves are helped (by removing pressure to conform to supervisors’ political preferences), do you think the First Amendment permits such paternalism?

2. As a consumer of government services, would you fear unfair treatment if your postal carrier was wearing a button supporting a political candidate you opposed? What if the IRS agent auditing your tax return did the same thing? What if you appeared before a judge who was

14 It is particularly troubling that AETC excluded the only independent candidate but invited all the major-party candidates to participate in the planned debates, regardless of their chances of electoral success. As this Court has recognized, “political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream.”15 Lack of substantial financial support apparently was not a factor in the decision to invite a major-party candidate with even less financial support than Forbes.18 Ironically, it is the standardless character of the decision to exclude Forbes that provides the basis for the Court’s conclusion that the debates were a nonpublic forum rather than a limited public forum. The Court explains that “[a] designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.” If, as AETC claims, it did invite either the entire class of “viable” candidates, or the entire class of “newsworthy” candidates, under the Court’s reasoning, it created a designated public forum.10 This is one of three government interests identified in Buckley. Appellants do not contend that the other two interests, enhancing voters’ ability to evaluate candidates and enforcing contribution limitations, support the disclosure of the names of recipients of campaign disbursements.11 The partial dissent suggests that the government interest in the disclosure of recipients of expenditures is not significantly diminished in the case of minor political parties, since parties with little likelihood of electoral success might nevertheless finance improper campaign activities merely to gain recognition. * * * [But m]ost of the limited resources of minor parties will typically be needed to pay for the ordinary fixed costs of conducting campaigns, such as filing fees, travel expenses, and the expenses incurred in publishing and distributing campaign literature and maintaining offices. * * * We cannot agree, therefore, that minor parties are as likely as major parties to make significant expenditures in funding dirty tricks or other improper campaign activities. Moreover, the expenditure by minor parties of even a substantial portion of their limitod [sic] funds on illegal activities would be unlikely to have a substantial impact.Furthermore, the mere possibility that minor parties will resort to corrupt or unfair tactics cannot justify the substantial infringement on First Amendment interests that would result from compelling the disclosure of recipients of expenditures. * * * We * * * recognized [in Buckley] that the distorting influence of large contributors on elections may not be entirely absent in the context of minor parties. Nevertheless, because we concluded that the government interest in disclosing contributors is substantially reduced in the case of minor parties, we held that minor parties are entitled to an exemption from requirements that contributors be disclosed where they can show a reasonable probability of harassment. 424 U.S., at 70. Because we similarly conclude that the government interest in requiring the disclosure of recipients of expenditures is substantially reduced in the case of minor parties, we hold that the minor-party exemption recognized in Buckley applies to compelled disclosure of expenditures as well.14 The fact that some or even many recipients of campaign expenditures may not be exposed to the risk of public hostility does not detract from the serious threat to the exercise of First Amendment rights of those who are so exposed. We cannot agree with the partial dissent’s assertion that disclosures of disbursements paid to campaign workers and supporters will not increase the probability that they will be subjected to harassment and hostility. Apart from the fact that individuals may work for a candidate in a variety of ways without publicizing their involvement, the application of a disclosure requirement results in a dramatic increase in public exposure. Under Ohio law a person’s affiliation with the party will be recorded in a document that must be kept open to inspection by any one who wishes to examine it for a period of at least six years. The preservation of unorthodox political affiliations in public records substantially increases the potential for harassment above and beyond the risk that an

124

supporting a candidate you opposed?3. In any of the above examples, do you worry about bias because the employee holds a

political opinion, or because the employee has made his political opinion known? In other words, if the postal carrier, the IRS agent, or the judge held the same political views, but kept those views to himself or herself, is the threat of bias any less significant? We will return to these questions when we consider speech of judicial candidates in connection with Republican Party of Minnesota v. White, 536 U.S. 765 (2002) [p. XXX], later in this Chapter.

4. Between Mitchell and Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973) [p. XXX], in which the Court again considered the constitutionality of the Hatch Act, the Court significantly expanded the First Amendment protections of government employees. In 1892, Justice Holmes, then serving on the

individual faces simply as a result of having worked for an unpopular party at one time.16 Moreover, it would be hard to think of many instances in which the state interest in preventing vote-buying and improper campaign activities would be furthered by the disclosure of payments for routine commercial services.20 Some of the recent episodes of threats, harassment, and reprisals agains the SWP and its members occurred outside of Ohio. Anti-SWP occurrences in places such as Chicago (SWP office vandalized) and Pittsburgh (shots fired at SWP building) are certainly relevant to the determination of the public’s attitude toward the SWP in Ohio. * * *Appellants point to the lack of direct evidence linking the Ohio statute’s disclosure requirements to the harassment of campaign contributors or recipients of disbursements. In Buckley, however, we rejected such “unduly strict requirements of proof” in favor of “flexibility in the proof of injury.” [Ibid.] We thus rejected requiring a minor party to “come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear” or prove that “chill and harassment [are] directly attributable to the specific disclosure from which the exemption is sought.” Ibid. We think that these considerations are equally applicable to the proof required to establish a reasonable probability that recipients will be subjected to threats and harassment if their names are disclosed. While the partial dissent appears to agree, its “separately focused inquiry” in reality requires evidence of chill and harassment directly attributable to the expenditure-disclosure requirement.3 [T]he third governmental interest articulated in Buckley—using disclosures to police limitations on contributions and expenditures—has no application to either contributions or expenditures in Ohio, since the Ohio statute sets no limitations on them.6 I therefore disagree with the majority’s suggestion that the government interest in deterring corruption is not furthered by disclosure of all expenditures, including those for commercial services. Even if improprieties are unlikely to occur in expenditures for commercial services, full and verifiable disclosure is needed to ensure that other, improper expenditures are not hidden in commercial accounts.8 The majority does not clearly articulate the standard of review it is applying. By determining that the District Court “properly concluded” that the evidence established a reasonable probability of harassment, the majority seems to apply an independent-review standard.3 [The statute prohibits, inter alia, the printing or distribution of “any . . . publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications . . . unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor.”]4 American names such as Mark Twain (Samuel Langhorne Clemens) and O. Henry (William Sydney Porter) come readily to mind. Benjamin Franklin employed numerous different pseudonyms. Distinguished French authors such as Voltaire (Francois Marie Arouet) and George Sand (Amandine Aurore Lucie Dupin), and British authors such as George Eliot (Mary Ann Evans), Charles Lamb (sometimes wrote as “Elia”), and Charles Dickens (sometimes wrote as “Boz”), also published under assumed names. Indeed, some believe the works of Shakespeare were actually written by the Earl of Oxford rather than by William Shaksper of Stratford-on-Avon.8 Arguably, the disclosure requirement places a more significant burden on advocates of unpopular causes than on defenders of the status quo. For purposes of our analysis, however, we assume the statute evenhandedly burdens all speakers who have a legitimate interest in remaining anonymous.

125

Massachusetts Supreme Judicial Court, famously wrote that an individual fired from the police force because of his membership in a political committee “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892). The Court has since rejected that view, and has extended First Amendment protections to public employees, though the Court has maintained that certain restrictions on the rights of employees are necessary to the employment relationship, and are therefore constitutional. The following case is the seminal case concerning the free-speech rights of public employees. As you read it, consider whether its reasoning undercuts Mitchell’s holding.

13 The same can be said with regard to “libel,” as many * * * Election Code provisions prohibit false statements about candidates. To the extent those provisions may be underinclusive, Ohio courts also enforce the common-law tort of defamation. Like other forms of election fraud, then, Ohio directly attacks the problem of election-related libel; to the extent that the anonymity ban serves the same interest, it is merely a supplement.3 First National Bank of Boston held unconstitutional a ban on corporation-funded electoral advocacy concerning a ballot measure. Buckley struck down portions of the Federal Election Campaign Act, but upheld other portions including one mandating disclosure of campaign contributors. Both cases are extensively discussed in Chapter 9. –Eds.7 Colorado also seems to suggest that it is permissible to mute the voices of those who can afford to pay petition circulators. “But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Buckley v. Valeo, 424 U.S., [at] 48-49. The concern that persons who can pay petition circulators may succeed in getting measures on the ballot when they might otherwise have failed cannot defeat First Amendment rights. As we said in First National Bank of Boston v. Bellotti, 435 U.S. 765, 790-791 (1978) [p. XXX], paid advocacy “may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it. * * * [T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.”16 Persons eligible to vote, we note, would not include “convicted drug felons who have been denied the franchise as part of their punishment,” and could similarly be barred from circulating petitions. The dissent’s concern that hordes of “convicted drug dealers,” will swell the ranks of petition circulators, unstoppable by legitimate state regulation, is therefore undue. Even more imaginary is the dissent’s suggestion that if the merely voter eligible are included among petition circulators, children and citizens of foreign lands will not be far behind. * * *22 JUSTICE O’CONNOR states that “[k]nowing the names of paid circulators and the amounts paid to them [will] allo[w] members of the public to evaluate the sincerity or, alternatively, the potential bias of any circulator that approaches them.” It is not apparent why or how this is so, for the reports containing the names of paid circulators would be filed with the Secretary of State and would not be at hand at the moment the circulators “approac[h].”1 The respondents also presented the example of children who wished to circulate petitions. * * * Because the Court of Appeals held that the age restriction on petition circulation was constitutional, it is unnecessary to point out the absurdity of the respondents’ minority argument. [Relocated. –Eds.]2 The Court dismisses this state interest as “diminished,” by noting that the affidavit requirement identifies residents. Yet even if the interest is diminished, it surely is not eliminated, and it is curious that the Court relies on the affidavit requirement to strike down the elector requirement, but does not use it to preserve that part of the disclosure requirements that also contain information duplicated by the affidavits.4 Discrimination in favor of state residents will be upheld against a Privileges-and-Immunities-Clause challenge if it is “closely related to the advancement of a substantial state interest.” Supreme Court v. Friedman, 487 U.S. 59, 65 (1988). The test under the dormant Commerce Clause is whether the state law “serves a legitimate local purpose” that “could not be served as well by nondiscriminatory means.” Maine v. Taylor, 477 U.S. 131, 138 (1986).5 If you believe that courts are without power to enforce the structural guarantee of democracy without a clause in the Constitution specifically protecting it, do you reach the same conclusion with regard to the Court’s holdings enforcing implicit constitutional limitations on governmental structure stemming from concerns about federalism and the separation of powers? See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996); National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio

126

PICKERING v. BOARD OF EDUCATIONSupreme Court of the United States

391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)

MR. JUSTICE MARSHALL delivered the opinion of the Court [in which MR. CHIEF JUSTICE WARREN, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE FORTAS join].

Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. * * * For the reasons detailed below, we [hold] that appellant’s rights to freedom of speech were violated * * *.

In February of 1961, the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed, and the schools were built with the money raised by the bond sales. In May of 1964, a proposed increase in the tax rate to be used for educational purposes was submitted to the voters

Metropolitan Transportation Authority, 469 U.S. 528 (1985); United States v. Nixon, 418 U.S. 683 (1974); Myers v. United States, 272 U.S. 52 (1926).2 18 U.S.C. § 61h, as amended:

“(a) It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, except a part-time officer or part-time employee without compensation * * * shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For the purposes of this section the term ‘officer’ or ‘employee’ shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nationwide administration of Federal Laws. * * *“(b) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.”

[Relocated. Note that the Hatch Act, including the penalty provision, has been amended. It now permits the offending employee to be suspended without pay for no less than thirty days. 5 U.S.C. § 7326. –Eds.]11 “In discharge of their duties of citizenship, of their right to vote, and in exercise of their constitutional rights of freedom of speech, of the press, of assembly, and the right to engage in political activity, the individual plaintiffs desire to engage in the following acts: write for publication letters and articles in support of candidates for office; be connected editorially with publications which are identified with the legislative program of UFWA [former name of the present union appellant] and candidates who support it; solicit votes, aid in getting out voters, act as accredited checker, watcher, or challenger; transport voters to and from the polls without compensation therefor; participate in and help in organizing political parades; initiate petitions, and canvass for the signatures of others on such petitions; serve as party ward committeeman or other party official; and perform any and all acts not prohibited by any provision of law other than the second sentence of Section 9(a) and Section 15 of the Hatch Act, which constitute taking an active part in political management and political campaigns.”14 Whether the Act, being unconstitutional as applied to Poole, could be separably applied to civil service employees in other categories is a question I do not reach.

127

by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board, and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor * * * that resulted in his dismissal. * * *

The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.

The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing, the Board charged that numerous statements in the letter were false, and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. * * *

The Illinois courts * * * rejected Pickering’s claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position.

* * * “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, [385 U.S. 589,] 605-606 [(1967)]. At the same time, it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

The Board contends that “the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience.” Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made “with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not,” New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964) [p. XXX], should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.

An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school

128

funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus, no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Accordingly, to the extent that the Board’s position here can be taken to suggest that even comments on matters of public concern that are substantially correct * * * may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it.3

We next consider the statements in appellant’s letter which we agree to be false. [Such misstatements reported incorrectly some particulars concerning the amount of money spent on athletic programs. According to the Court, the misstatements were “perfectly consistent with good-faith error, and there is no evidence in the record to show that anything other than carelessness or insufficient information was responsible for their being made.”] * * *

[T]he question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decisionmaking by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant’s errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether, under such circumstances, a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them.

What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have 3 It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases.

129

interfered with the regular operation of the schools generally. In these circumstances, we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.

* * * It is * * * perfectly clear that, were appellant a member of the general public, the State’s power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times. * * *

While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. * * * [I]n a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.

In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant’s letter, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurs in the judgment of the Court [on the ground that First Amendment protections should extend to discussions of all public issues, irrespective of judicial “balancing” of the interests involved].

MR. JUSTICE WHITE, concurring in part and dissenting in part. * * ** * * As I see it, a teacher may be fired without violation of the First Amendment for

knowingly or recklessly making false statements regardless of their harmful impact on the schools. As the Court holds, however, in the absence of special circumstances he may not be fired if his statements were true or only negligently false, even if there is some harm to the school system. I therefore see no basis or necessity for the Court’s foray into fact-finding with respect to whether the record supports a finding as to injury. If Pickering’s false statements were either knowingly or recklessly made, injury to the school system becomes irrelevant, and the First Amendment would not prevent his discharge. For the State to be constitutionally precluded from terminating his employment, reliance on some other constitutional provision would be required. * * *

Notes and Questions1. Pickering remains the seminal case in a line of decisions balancing the First Amendment

rights of public employees to comment on matters of public concern against the government employers’ interest in the efficient operation of their offices. Subsequent decisions have upheld the firing of an assistant district attorney who, upset about a transfer, distributed a questionnaire to other employees seeking their opinion about “transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt

130

pressured to work in political campaigns,” Connick v. Myers, 461 U.S. 138 (1983); and upheld the firing of a nurse who made critical comments about a supervisor, Waters v. Churchill, 511 U.S. 661 (1994), but held unconstitutional the firing of a clerical employee in a county constable’s office who, upon hearing of an assassination attempt on President Reagan, remarked, “if they go for him again, I hope they get him,” Rankin v. McPherson, 483 U.S. 378 (1987).

Most recently, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court upheld the imposition of discipline against a deputy district attorney who became involved in a confrontation with employees of the sheriff’s department and ultimately testified for the defense in a case where he believed the investigation had been improperly conducted. The Court applied a two-part test to determine whether the discipline was constitutionally imposed. First, the employee’s speech must be on a matter of public concern. Private matters—such as complaints about most internal office policies—do not give rise to First Amendment protection against discipline. Second, if the speech is about a matter of public concern, discipline may be imposed only where the speech has the potential of adversely affecting the operations of the office. In other words, government may restrict the speech of employees on matters of public concern only if there is a justification for treating their speech differently from the speech of a nonemployee. Id. at 418. The Court in Ceballos held that because the deputy was acting pursuant to his official duties, that his speech could not be considered to be “on a matter of public concern.” Id. at 421.

2. If challenges such as Mitchell were to be evaluated under this two-part test, an individual’s speech at political conventions or contributions to political candidates, etc., would satisfy the “public concern” part of the test. The controversial part of the analysis would be in assessing whether the interests of the government employer outweigh the interests of the speaker. In that vein, consider McPherson’s rationale for holding that the county constable was prohibited from firing the employee who professed hope for the President’s assassination:

While McPherson’s statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office. The Constable was evidently not afraid that McPherson had disturbed or interrupted other employees—he did not inquire to whom respondent had made the remark and testified that he “was not concerned who she had made it to.” * * *

Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson’s speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson’s statement. * * *

* * * Evidently because McPherson had made the statement, and because the Constable believed that she “meant it,” he decided that she was not a suitable employee to have in a law enforcement agency. But in weighing the State’s interest in discharging an employee based on any claim that the content of a statement made by the employee somehow undermines the mission of the public employer, some attention must be paid to the responsibilities of the employee within the agency. The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails. Where, as here, an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal. We cannot believe that every employee in Constable Rankin’s office, whether computer operator, electrician, or file clerk, is equally required, on pain of discharge, to avoid any statement susceptible of being interpreted by the Constable as an indication that the employee may be unworthy of employment in his law enforcement agency. At some point, such concerns are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.

This is such a case. McPherson’s employment-related interaction with the Constable was apparently negligible. Her duties were purely clerical * * *. There is no indication that she would ever be in a position to further—or indeed to have any involvement with—the minimal law enforcement activity engaged in by the Constable’s office. Given the function of the agency, McPherson’s position in the office, and the nature

131

of her statement, we are not persuaded that Rankin’s interest in discharging her outweighed her rights under the First Amendment.

483 U.S. at 388-92. Justice Scalia, joined by Chief Justice Rehnquist and Justices White and O’Connor, dissented, arguing that “no law enforcement agency is required by the First Amendment to permit one of its employees to ‘ride with the cops and cheer for the robbers.’  ” Id. at 394 (Scalia, J., dissenting). He further argued that the Court’s distinction between policymaking employees and others was misguided: “Nonpolicymaking employees * * * can hurt working relationships and undermine public confidence in an organization every bit as much as policymaking employees.” Id. at 400 (Scalia, J., dissenting).

3. Do decisions such as Pickering and its progeny indicate that Mitchell’s understanding of the First Amendment is out of step with modern jurisprudence? The following case thought not.

UNITED STATES CIVIL SERVICE COMMISSION v. NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO

Supreme Court of the United States413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973)

MR. JUSTICE WHITE delivered the opinion of the Court [in which MR. CHIEF JUSTICE BURGER, MR. JUSTICE STEWART, MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join].

[This case] present[s] the single question whether the prohibition in § 9(a) of the Hatch Act, now codified in 5 U.S.C. § 7324(a)(2), against federal employees taking “an active part in political management or in political campaigns,” is unconstitutional on its face. * * *

[Plaintiffs—the National Association of Letter Carriers, six individual federal employees and certain local Democratic and Republican political committees—filed a complaint, claiming that the Act prevented them from engaging in certain political activity, including running for public office, holding office in a political club, campaigning for others, and writing letters to newspapers.]

We unhesitatingly reaffirm the [United Public Workers v.] Mitchell [330 U.S. 75 (1947)] [p. XXX] holding that Congress had, and has, the power to prevent Mr. Poole and others like him from holding a party office, working at the polls, and acting as party paymaster for other party workers. An Act of Congress going no farther would in our view unquestionably be valid. So would it be if, in plain and understandable language, the statute forbade activities such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention. Our judgment is that neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees. * * *

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or

132

points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone’s vote at the polls.

But, as the Court held in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) [p. XXX], the government has an interest in regulating the conduct and “the speech of its employees that differ[s] significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government—the impartial execution of the laws—it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power—or the party out of power, for that matter—using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another.12 * * * Perhaps Congress at some time will

12 In the 1940 debate over amendments to the Hatch Act, it was frequently stated that the only objectionable provisions were those restrictions in § 9 and the proposed § 12 against voluntary political activity. In response to the

133

come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event. Nor are the management, financing, and conduct of political campaigns wholly free from governmental regulation. We agree with the basic holding of Mitchell that plainly identifiable acts of political management and political campaigning on the part of federal employees may constitutionally be prohibited. * * *

[The Court lastly concluded that the challenged prohibitions were not unconstitutionally vague or overbroad, relying on administrative regulations specifying the prohibited activities. The Court also noted that employees in doubt as to the legality of certain activities may request and receive advisory opinions from the Commission.]

For the foregoing reasons, the judgment of the District Court is reversed.So ordered.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.

The Hatch Act by § 9(a) prohibits federal employees from taking “an active part in political management or in political campaigns.” * * * There is no definition of what “an active part . . . in political campaigns” means. The Act incorporates over 3,000 rulings of the Civil Service Commission between 1886 and 1940, and many hundreds of rulings since 1940. But even with that gloss on the Act, the critical phrases lack precision. In 1971, the Commission published a three-volume work entitled Political Activities Reporter which contains over 800 of its decisions since the enactment of the Hatch Act. One can learn from studying those volumes that it is not “political activity” to march in a band during a political parade or to wear political badges or to “participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise his efficiency or integrity as an employee or the neutrality, efficiency, or integrity of his agency.” 5 CFR § 733.111(a)(13).

That is to say, some things, like marching in a band, are clear. Others are pregnant with ambiguity as “participate fully in public affairs, except as prohibited by law, in a manner which does not materially compromise,” etc. * * *

The chilling effect of these vague and generalized prohibitions is so obvious as not to need elaboration. That effect would not be material to the issue of constitutionality if only the normal contours of the police power were involved. On the run of social and economic matters the “rational basis” standard which United Public Workers v. Mitchell applied would suffice. But what may have been unclear to some in Mitchell should be now be abundantly clear to all. We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby—unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employee’s job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his

inquiry whether he was condemning those “who, without any coercion, voluntarily desire to take a part in politics,” Senator Hatch replied that he “would draw the line if it could be drawn; but I defy . . . [anyone] to draw that line.”

134

wife or to the public in Constitution Hall. If Government employment were only a “privilege,” then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized “on a basis that infringes [the employee’s] constitutionally protected interests—especially, his interest in freedom of speech.” If Government, as the majority stated in Mitchell, may not condition public employment on the basis that the employee will not “take any active part in missionary work,” it is difficult to see why it may condition employment on the basis that the employee not take “an active part . . . in political campaigns.” For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause.

Free discussion of governmental affairs is basic in our constitutional system. Laws that trench on that area must be narrowly and precisely drawn to deal with precise ends. *  * * The present Act cannot be appropriately narrowed to meet the need for narrowly drawn language not embracing First Amendment speech or writing without substantial revision. * * *

The Commission, on a case-by-case approach, has listed 13 categories of prohibited activities, starting with the catch-all “include but are not limited to.” So the Commission ends up with open-end discretion to penalize X or not to penalize him. For example, a “permissible” activity is the employee’s right to “[e]xpress his opinion as an individual privately and publicly on political subjects and candidates.” Yet “soliciting votes” is prohibited. Is an employee safe from punishment if he expresses his opinion that candidate X is the best and candidate Y the worst? Is that crossing the forbidden line of soliciting votes?

A nursing assistant at a veterans’ hospital put an ad in a newspaper reading:

“To All My Many Friends of Poplar Bluff and Butler County I want to take this opportunity to ask your vote and support in the election, TUESDAY, AUGUST 7th. A very special person is seeking the Democratic nomination for Sheriff. I do not have to tell you of his qualifications, his past records stand.

“This person is my dad, Lester (Less) Massingham.“THANK YOU“WALLACE (WALLY) MASSINGHAM”

He was held to have violated the Act.Is a letter a permissible “expression” of views or a prohibited “solicitation?” The Solicitor

General says it is a “permissible” expression; but the Commission ruled otherwise. For an employee who does not have the Solicitor General as counsel great consequences flow from an innocent decision. He may lose his job. Therefore the most prudent thing is to do nothing. Thus is self-imposed censorship imposed on many nervous people who live on narrow economic margins.

I would strike this provision of the law down as unconstitutional so that a new start may be made on this old problem that confuses and restricts nearly five million federal, state, and local public employees today that live under the present Act.

Notes and Questions1. Letter Carriers involved the constitutionality of restrictions on federal employees. On the

day Letter Carriers was decided, the Court upheld similar restrictions on state employees as well. Broadrick v. Oklahoma, 413 U.S. 601 (1973).

2. In 1993, the Hatch Act was amended to permit government employees to engage in more political activity. The current version of the Act, 5 U.S.C. §§ 7321-7326, permits most employees to “take an active part in political management or in political campaigns” when off

135

duty, but employees may not solicit or receive political contributions, and may not run for “a partisan political office.” 5 U.S.C. §§ 7323(a), 7324(a)(1). While the employee is on duty, however, he or she “may not engage in political activity.” 5 U.S.C. § 7324(a)(1). Employees’ political activity is also forbidden in government buildings and vehicles, as well as when the employees are wearing government uniforms. 5 U.S.C. §§ 7324(a)(2)-(4).

3. Problem. May this amended statute be applied constitutionally to forbid grade-school teachers from wearing political buttons while working? See Weingarten v. Board of Education, 591 F. Supp. 2d 511 (S.D.N.Y. 2008). May a public university apply the same prohibition to its faculty? Would the ban on political buttons be constitutional as applied to an industrial worker, like Mr. Poole, who has little or no contact with the public? See 5 C.F.R. § 734.306.

4. Problem. Does the amended statute forbid a postal worker from attaching a political poster to the employee union bulletin board in a non-public area of a post office? See Burrus v. Vegliante, 336 F.3d 82 (2d Cir. 2003). If so, it is constitutional? May a teacher be forbidden from posting political material on a bulletin board in an area closed to students? See Weingarten, supra.

UNITED STATES v. NATIONAL TREASURY EMPLOYEES UNION

Supreme Court of the United States513 U.S. 454, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995)

JUSTICE STEVENS delivered the opinion of the Court [in which JUSTICE KENNEDY, JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join].

In 1989 Congress enacted a law that broadly prohibits federal employees from accepting any compensation for making speeches or writing articles. The prohibition applies even when neither the subject of the speech or article nor the person or group paying for it has any connection with the employee’s official duties. We must decide whether that statutory prohibition comports with the Constitution’s command that “Congress shall make no law . . . abridging the freedom of speech.”  We hold that it does not.

In 1967 Congress authorized the appointment every four years of a special Commission on Executive, Legislative, and Judicial Salaries, whose principal function would be to recommend appropriate levels of compensation for the top positions in all three branches of the Federal Government. * * *

The 1989 Quadrennial Commission’s report noted that inflation had decreased the salary levels for senior Government officials, measured in constant dollars, by approximately 35% since 1969. The report

“also found that because their salaries are so inadequate, many members of Congress are supplementing their official compensation by accepting substantial amounts of ‘honoraria’ for meeting with interest groups which desire to influence their votes. Albeit to a less troubling extent, the practice of accepting honoraria also extends to top officials of the Executive and Judicial branches.”

Accordingly, the Commission recommended that “salary levels for top officials be set at approximately the same amount in constant dollars” as those in effect in 1969 and further that “Congress enact legislation abolishing the practice of accepting honoraria in all three branches.”

The President’s Commission on Federal Ethics Law Reform subsequently issued a report that endorsed the Quadrennial Commission’s views. * * *

136

Although not adopted in their entirety, the two Commissions’ recommendations echo prominently in the Ethics Reform Act of 1989. Section 703 of that Act provided a 25% pay increase to Members of Congress, federal judges, and certain high-level Executive Branch employees above the salary grade GS-15. Another section—the one at issue here—amended § 501(b) of the Ethics in Government Act of 1978 to create an “Honoraria Prohibition,” which reads: “An individual may not receive any honorarium while that individual is a Member, officer or employee.”

Section 505 of the Ethics Reform Act defined “officer or employee” to include nearly all employees of the Federal Government[.] * * * [The Act, as amended in 1992, also defined “honorarium”] as follows:

“(3) The term ‘honorarium’ means a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related te [sic] the individual’s official duties or the payment is made because of the individual’s status with the Government) by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed * * *.”

Section 503(2) of the Ethics Reform Act provides that the statutory provisions governing honoraria for employees of the Executive Branch shall be subject to rules and regulations issued by the Office of Government Ethics (OGE) and administered by designated agency ethics officials. OGE’s regulations permit reimbursement of certain expenses associated with appearances, speeches, and articles. The regulations also confine the reach of each of those terms. Thus, a performance using “an artistic, athletic or other such skill or talent” is not an “appearance”; reading a part in a play or delivering a sermon is not a “speech”; and works of “fiction, poetry, lyrics, or script” are not “article[s].” The regulations permit teaching a course involving multiple presentations at an accredited program or institution. * * *

Each of the individual respondents alleges that he or she has in the past received compensation for writing or speaking on various topics in full compliance with earlier ethics regulations. The record contains a number of affidavits describing respondents’ past activities that the honoraria ban would now prohibit. A mail handler employed by the Postal Service in Arlington, Virginia, had given lectures on the Quaker religion for which he received small payments * * *. An aerospace engineer employed at the Goddard Space Flight Center in Greenbelt, Maryland, had lectured on black history for a fee of $100 per lecture. A microbiologist at the Food and Drug Administration had earned almost $3,000 per year writing articles and making radio and television appearances reviewing dance performances. A tax examiner employed by the Internal Revenue Service in Ogden, Utah, had received comparable pay for articles about the environment.

The District Court granted respondents’ motion for summary judgment, held the statute “unconstitutional insofar as it applies to Executive Branch employees of the United States government,” and enjoined the Government from enforcing the statute against any Executive Branch employee. * * * The Court of Appeals affirmed. * * *

Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas. They include literary giants like Nathaniel Hawthorne and Herman Melville, who were employed by the Customs Service; Walt Whitman, who worked for the Departments of Justice and Interior; and Bret Harte, an employee of the Mint. Respondents have yet to make comparable contributions to American culture, but they share

137

with these great artists important characteristics that are relevant to the issue we confront.Even though respondents work for the Government, they have not relinquished “the First

Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” Pickering v. Board of Ed., 391 U.S. 563, 568 (1968) [p. XXX]. They seek compensation for their expressive activities in their capacity as citizens, not as Government employees. They claim their employment status has no more bearing on the quality or market value of their literary output than it did on that of Hawthorne or Melville. With few exceptions, the content of respondents’ messages has nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the offices in which they work. They do not address audiences composed of co-workers or supervisors; instead, they write or speak for segments of the general public. Neither the character of the authors, the subject matter of their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment.

In Pickering and a number of other cases we have recognized that Congress may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large. When a court is required to determine the validity of such a restraint, it must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S., at 568.

In such cases, which usually have involved disciplinary actions taken in response to a government employee’s speech, we have applied Pickering’s balancing test only when the employee spoke “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.” Connick v. Myers, 461 U.S. 138, 147 (1983) (emphasis added). Thus, private speech that involves nothing more than a complaint about a change in the employee’s own duties may give rise to discipline without imposing any special burden of justification on the government employer. If, however, the speech does involve a matter of public concern, the government bears the burden of justifying its adverse employment action. Respondents’ expressive activities in this case fall within the protected category of citizen comment on matters of public concern rather than employee comment on matters related to personal status in the workplace. The speeches and articles for which they received compensation in the past were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment. * * *

Although § 501(b) neither prohibits any speech nor discriminates among speakers based on the content or viewpoint of their messages, its prohibition on compensation unquestionably imposes a significant burden on expressive activity. Publishers compensate authors because compensation provides a significant incentive toward more expression. By denying respondents that incentive, the honoraria ban induces them to curtail their expression if they wish to continue working for the Government.

The ban imposes a far more significant burden on respondents than on the relatively small group of lawmakers whose past receipt of honoraria motivated its enactment. The absorbing and time-consuming responsibilities of legislators and policymaking executives leave them little opportunity for research or creative expression on subjects unrelated to their official responsibilities. Such officials often receive invitations to appear and talk about subjects related to their work because of their official identities. In contrast, invitations to rank-and-file employees usually depend only on the market value of their messages. The honoraria ban is

138

unlikely to reduce significantly the number of appearances by high-ranking officials as long as travel expense reimbursement for the speaker and one relative is available as an alternative form of remuneration. In contrast, the denial of compensation for lower paid, nonpolicymaking employees will inevitably diminish their expressive output.

The large-scale disincentive to Government employees’ expression also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said. We have no way to measure the true cost of that burden, but we cannot ignore the risk that it might deprive us of the work of a future Melville or Hawthorne.16 The honoraria ban imposes the kind of burden that abridges speech under the First Amendment.

Because the vast majority of the speech at issue in this case does not involve the subject matter of Government employment and takes place outside the workplace, the Government is unable to justify § 501(b) on the grounds of immediate workplace disruption asserted in Pickering and the cases that followed it. Instead, the Government submits that the ban comports with the First Amendment because the prohibited honoraria were “reasonably deemed by Congress to interfere with the efficiency of the public service.” Public Workers v. Mitchell, 330 U.S. 75, 101 (1947) [p. XXX].

In Mitchell we upheld the prohibition of the Hatch Act on partisan political activity by all classified federal employees, including, for example, a skilled mechanic at the mint named Poole who had no policymaking authority. We explained that “[t]here are hundreds of thousands of United States employees with positions no more influential upon policy determination than that of Mr. Poole. Evidently what Congress feared was the cumulative effect on employee morale of political activity by all employees who could be induced to participate actively.” 330 U.S., at 101. In Civil Service Comm’n v. Letter Carriers, 413 U.S. 548 (1973) [p. XXX], we noted that enactment of the Hatch Act in 1939 reflected “the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine.” Id., at 565. An equally important concern was

“to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.” Id., at 566.

Thus, the Hatch Act aimed to protect employees’ rights, notably their right to free expression, rather than to restrict those rights. Like the Hatch Act, the honoraria ban affects hundreds of thousands of federal employees. Unlike partisan political activity, however, honoraria hardly appear to threaten employees’ morale or liberty. Moreover, Congress effectively designed the Hatch Act to combat demonstrated ill effects of Government employees’ partisan political activities. In contrast, the Government has failed to show how it serves the interests it asserts by applying the honoraria ban to respondents.

The Government’s underlying concern is that federal officers not misuse or appear to misuse power by accepting compensation for their unofficial and nonpolitical writing and speaking activities. This interest is undeniably powerful, but the Government cites no evidence of misconduct related to honoraria in the vast rank and file of federal employees below grade GS-

16 These authors’ familiar masterworks would survive the honoraria ban as currently administered. Besides exempting all books, the OGE regulations protect fiction and poetry from the ban’s coverage, although the statute’s language is not so clear. But great artists deal in fact as well as fiction, and some deal in both.

139

16.18 Instead of a concern about the “cumulative effect” of a widespread practice that Congress deemed to “menace the integrity and the competency of the service,” Mitchell, 330 U.S., at 103, the Government relies here on limited evidence of actual or apparent impropriety by legislators and high-level executives, together with the purported administrative costs of avoiding or detecting lower level employees’ violations of established policies.

[T]he Government has based its defense of the ban on abuses of honoraria by Members of Congress. Congress reasonably could assume that payments of honoraria to judges or high-ranking officials in the Executive Branch might generate a similar appearance of improper influence. Congress could not, however, reasonably extend that assumption to all federal employees below grade GS-16, an immense class of workers with negligible power to confer favors on those who might pay to hear them speak or to read their articles. A federal employee, such as a supervisor of mechanics at the Mint, might impair efficiency and morale by using political criteria to judge the performance of his or her staff. But one can envision scant harm, or appearance of harm, resulting from the same employee’s accepting pay to lecture on the Quaker religion or to write dance reviews.

Although operational efficiency is undoubtedly a vital governmental interest, features of the honoraria ban’s text cast serious doubt on the Government’s submission that Congress perceived honoraria as so threatening to the efficiency of the entire federal service as to render the ban a reasonable response to the threat. The first is the rather strange parenthetical reference to “a series of appearances, speeches, or articles” * * * in the definition of the term “honorarium.” The amended definition excludes such a series from the prohibited category unless “the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government.” In other words, accepting pay for a series of articles is prohibited if, and only if, a nexus exists between the author’s employment and either the subject matter of the expression or the identity of the payor. For an individual article or speech, in contrast, pay is taboo even if neither the subject matter nor the payor bears any relationship at all to the author’s duties.

Congress’ decision to provide a total exemption for all unrelated series of speeches undermines application of the ban to individual speeches and articles with no nexus to Government employment. Absent such a nexus, no corrupt bargain or even appearance of impropriety appears likely. The Government’s only argument against a general nexus limitation is that a wholesale prophylactic rule is easier to enforce than one that requires individual nexus determinations. The nexus limitation for series, however, unambiguously reflects a congressional judgment that agency ethics officials and the OGE can enforce the statute when it includes a nexus test. A blanket burden on the speech of nearly 1.7 million federal employees requires a much stronger justification than the Government’s dubious claim of administrative convenience.

The definition’s limitation of “honoraria” to expressive activities also undermines the Government’s submission that the breadth of § 501 is reasonably necessary to protect the efficiency of the public service. * * * One might reasonably argue that expressive activities,

18 The Government cites a report of the General Accounting Office (GAO) to support its assertion that the ban is necessary to prevent widespread improprieties. * * * The GAO Report’s examples of instances that gave rise to serious concerns about real or apparent impropriety were two cases in which high-level employees (a chemist and a physicist) engaged in consulting activities related to the subject matter of their jobs. Its 112 pages contain not one mention of any real or apparent impropriety related to a lower level employee or to any employee engaged in writing or speaking or in any conduct unrelated to his or her Government job.

140

because they occupy a favored position in the constitutional firmament, should be exempt from even a comprehensive ban on outside income. Imposing a greater burden on speech than on other off-duty activities assumed to pose the same threat to the efficiency of the federal service is, at best, anomalous. * * *

* * * The speculative benefits the honoraria ban may provide the Government are not sufficient to justify this crudely crafted burden on respondents’ freedom to engage in expressive activities. Section 501(b) violates the First Amendment. * * *

JUSTICE O’CONNOR, concurring in the judgment in part and dissenting in part. * * ** * * I agree with the Court that § 501 is unconstitutional insofar as it bars the respondent

class of Executive Branch employees from receiving honoraria for non-work-related speeches, appearances, and articles. In contrast to the Court, I would hold § 501 invalid only to that extent.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting. * * *

* * * I cannot say that the balance that Congress has struck between its interests and the interests of its employees to receive compensation for their First Amendment expression is unreasonable. * * *

* * * There is little doubt that Congress reasonably could conclude that its interests in preventing impropriety and the appearance of impropriety in the federal work force outweigh the employees’ interests in receiving compensation for expression that has a nexus to their Government employment. * * *

The Court concedes that in light of the abuses of honoraria by its Members, Congress could reasonably assume that “payments of honoraria to judges or high-ranking officials in the Executive Branch might generate a similar appearance of improper influence,” but it concludes that Congress could not extend this presumption to federal employees below grade GS-16. The theory underlying the Court’s distinction—that federal employees below grade GS-16 have negligible power to confer favors on those who might pay to hear them speak or to read their articles—is seriously flawed. Tax examiners, bank examiners, enforcement officials, or any number of federal employees have substantial power to confer favors even though their compensation level is below grade GS-16.

Furthermore, we rejected the same distinction in Public Workers v. Mitchell: “* * * Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress.”  330 U.S., at 102. Congress was not obliged to draw an infinitely filigreed statute to deal with every subtle distinction between various groups of employees.

The Court dismisses the Hatch Act experience as irrelevant, because it aimed to protect employees’ rights, notably their right to free expression, rather than to restrict those rights. This is, indeed, a strange characterization of § 9(a) of the Hatch Act. * * * [I]t can hardly be said that the Act protected the rights of workers who wished to engage in partisan political activity. One of the purposes of the Act was assuredly to free employees who did not wish to become engaged in politics from requests by their superiors to contribute money or time, but to the extent the Act protected these employees it undoubtedly limited the First Amendment rights of those who did wish to take an active part in politics. * * *

141

The Court observes that because a nexus limitation is retained for a series of speeches, it cannot be that difficult to enforce. The exception that the honoraria ban makes for a “series of appearances, speeches, or articles,” far from undermining the statute’s basic purpose, demonstrates that Congress was sensitive to the need for inhibiting as little speech consistent with its responsibility of ensuring that its employees perform their duties impartially and that there is no appearance of impropriety. One is far less likely to undertake a “series” of speeches or articles without being paid than he is to make a single speech or write a single article without being paid. Congress reasonably could have concluded that the number of cases where an employee wished to deliver a “series” of speeches would be much smaller than the number of requests to give individual speeches or write individual articles.

Unlike our prototypical application of Pickering which normally involves a response to the content of employee speech, the honoraria ban prohibits no speech and is unrelated to the message or the viewpoint expressed by the Government employee. Furthermore, the honoraria ban exempts from its prohibition travel and other expenses related to employee speech. Because there is only a limited burden on respondents’ First Amendment rights, Congress reasonably could have determined that its paramount interests in preventing impropriety and the appearance of impropriety in its work force justified the honoraria ban. * * *

Notes and Questions1. Can Treasury Employees be distinguished from Letter Carriers? In distinguishing the

Court’s analysis of the Hatch Act, Treasury Employees cited the “demonstrated ill effects” of employees’ unregulated political activities. 513 U.S. at 471. Similarly, Justice O’Connor, in an omitted portion of her opinion, noted that the Court upheld the Hatch Act “only after canvassing nearly a century of concrete experience with the evils of the political spoils system.” Id. at 483 (O’Connor, J., concurring in the judgment in part and dissenting in part). Does this mean that the country should have to experience a century of evils before taking action? Should the experience be relevant in assessing the constitutionality of either the Hatch Act or the honorarium ban?

2. Problem. After Treasury Employees, Congress redrafts the definition of honorarium to apply to all payments to employees “for an appearance, speech, or article (including a series of appearances, speeches, or articles), if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government.” Is the amended statute constitutional? Would it be constitutional to apply the amended statute to employees hired after the effective date of the amendment, even after they have left government service?

3. Problem. May the following governmental officials be banned from taking honoraria? In each, assume that a statute prohibits payment for such endeavors.

a. Oliver Wendell Douglas, an accomplished author and farmer before his appointment to the Seventh Circuit, wishes to write books and give speeches about the law, literature, and life on the prairie.

b. Miss Teri Story, a Supreme Court Justice, wishes to publish a treatise on constitutional law and to teach a course on the subject at the Harvard Law School.

c. Sandy Beach, a member of Congress and a former college professor of government, wishes to write about the power of interest groups and the influence they have with legislators.

d. Marvin Pickling, a schoolteacher, wishes to give lectures concerning the expenditure of funds in the school system.

142

4. Treasury Employees holds not only that certain government employees must be permitted to speak, but that they must be permitted to receive payment for speaking. Yet under Mitchell and Letter Carriers, they can be prohibited from speaking or taking actions that have too close an association with partisan politics. Is the line between those two types of cases too fuzzy? Suppose the employee in Treasury Employees who gave lectures on black history were to mention his view of President Obama or the historical significance of his election. Would such a speech fall within the constitutional protection established by Treasury Employees? Should it?

5. Should a speech’s constitutional protection depend on the location where it is delivered? Would, for example, a government employee’s speech be protected if given on a street corner but not if given at a political convention? Would such a result violate the speaker’s, or the party’s, constitutional rights?

6. So-called “resign-to-run” statutes prohibit an office-holder from pursuing a different position unless he or she resigns the first office. Such statutes, like the Hatch Act and the employment discipline at issue in Pickering, discourage government employees from participating in politics. Resign-to-run statutes, however, impose restrictions on persons already holding office (rather than on unelected employees) and do not interfere with office-holders’ right to speak. These differences caused the Court, in Clements v. Fashing, 457 U.S. 957 (1982), to conclude that resign-to-run statutes do not severely interfere with First Amendment rights, and to uphold them under the rational-basis test.

Are resign-to-run statutes good policy? Would it be a good idea to institute them on the national level, requiring, for example, Members of Congress to resign their offices before running for President, or requiring Representatives to resign before running for the Senate? Should sitting Senators be ineligible for judicial nominations?

Suppose that instead of requiring an office-holder to resign his or her office before running for a different post, a state law made an office-holder ineligible for any other office until the expiry of his or her term. Cf. U.S. CONST. art. I, § 6, cl. 2 (“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”). Does a state have a sufficiently important interest in requiring ambitious office-holders to complete their terms so as to overcome the impact such a law has on the First Amendment rights of such would-be candidates and the voters who would support them? See Fashing, 457 U.S. at 966-69 (plurality opinion). What if the disqualification continued for a period after the term of office expired?

H.PATRONAGEIn the Divine Comedy’s Eighth Circle of Hell, Dante finds the Simoniacs, who had sold

Church offices. He speaks to one, Pope Nicholas III, who is stuck upside-down in a rock, with only his feet and legs up to the calf visible and the soles of his feet afire. Nicholas admits to using his power to advance his family and his own wealth, provoking Dante’s condemnation:

Well, tell me now: what was the sum of moneythat holy Peter had to pay our Lordbefore He gave the keys into his keeping?Certainly He asked no more than “Follow me.”Nor did Peter or the rest extort gold coins or silver from Matthias when he was picked to fill the place the evil one [Judas Iscariot] had lost.

143

So stay stuck there, for you are rightly punished * * *.

Inferno, Canto XIX (Mark Musa trans., Penguin Books 1971). The following cases also condemn the dispensation of offices according to considerations other than merit, though the punishment is considerably less severe.

ELROD v. BURNSSupreme Court of the United States

427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which MR. JUSTICE WHITE and MR. JUSTICE MARSHALL joined.

This case presents the question whether public employees who allege that they were discharged or threatened with discharge solely because of their partisan political affiliation or nonaffiliation state a claim for deprivation of constitutional rights secured by the First and Fourteenth Amendments. * * *

In December 1970, the Sheriff of Cook County, [Illinois,] a Republican, was replaced by Richard Elrod, a Democrat. At that time, respondents, all Republicans, were employees of the Cook County Sheriff’s Office. They were non-civil-service employees and, therefore, not covered by any statute, ordinance, or regulation protecting them from arbitrary discharge. One respondent, John Burns, was Chief Deputy of the Process Division and supervised all departments of the Sheriff’s Office working on the seventh floor of the building housing that office. Frank Vargas was a bailiff and security guard at the Juvenile Court of Cook County. Fred L. Buckley was employed as a process server in the office. Joseph Dennard was an employee in the office.

It has been the practice of the Sheriff of Cook County, when he assumes office from a Sheriff of a different political party, to replace non-civil-service employees of the Sheriffs’ Office with members of his own party when the existing employees lack or fail to obtain requisite support from, or fail to affiliate with, that party. Consequently, subsequent to Sheriff Elrod’s assumption of office, respondents * * * were discharged from their employment solely because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders. * * *

The Cook County Sheriff’s practice of dismissing employees on a partisan basis is but one form of the general practice of political patronage. The practice also includes placing loyal supporters in government jobs that may or may not have been made available by political discharges. Nonofficeholders may be the beneficiaries of lucrative government contracts for highway construction, buildings, and supplies. Favored wards may receive improved public services. Members of the judiciary may even engage in the practice through the appointment of receiverships, trusteeships, and refereeships. Although political patronage comprises a broad range of activities, we are here concerned only with the constitutionality of dismissing public employees for partisan reasons.

Patronage practice is not new to American politics. It has existed at the federal level at least since the Presidency of Thomas Jefferson, although its popularization and legitimation primarily occurred later, in the Presidency of Andrew Jackson. The practice is not unique to American politics. It has been used in many European countries, and in darker times, it played a significant role in the Nazi rise to power in Germany and other totalitarian states. More recent times have

144

witnessed a strong decline in its use, particularly with respect to public employment. Indeed, only a few decades after Andrew Jackson’s administration, strong discontent with the corruption and inefficiency of the patronage system of public employment eventuated in the Pendleton Act, the foundation of modern civil service. And on the state and local levels, merit systems have increasingly displaced the practice. * * *

The decline of patronage employment is not, of course, relevant to the question of its constitutionality. It is the practice itself, not the magnitude of its occurrence, the constitutionality of which must be determined. Nor for that matter does any unacceptability of the practice signified by its decline indicate its unconstitutionality. Our inquiry does not begin with the judgment of history, though the actual operation of a practice viewed in retrospect may help to assess its workings with respect to constitutional limitations. Rather, inquiry must commence with identification of the constitutional limitations implicated by a challenged governmental practice. * * *

The cost of the practice of patronage is the restraint it places on freedoms of belief and association. In order to maintain their jobs, respondents were required to pledge their political allegiance to the Democratic Party, work for the election of other candidates of the Democratic Party, contribute a portion of their wages to the Party, or obtain the sponsorship of a member of the Party, usually at the price of one of the first three alternatives. Regardless of the incumbent party’s identity, Democratic or otherwise, the consequences for association and belief are the same. An individual who is a member of the out-party maintains affiliation with his own party at the risk of losing his job. He works for the election of his party’s candidates and espouses its policies at the same risk. The financial and campaign assistance that he is induced to provide to another party furthers the advancement of that party’s policies to the detriment of his party’s views and ultimately his own beliefs, and any assessment of his salary is tantamount to coerced belief. See Buckley v. Valeo, 424 U.S. 1, 19 (1976) [p. XXX]. Even a pledge of allegiance to another party, however ostensible, only serves to compromise the individual’s true beliefs. Since the average public employee is hardly in the financial position to support his party and another, or to lend his time to two parties, the individual’s ability to act according to his beliefs and to associate with others of his political persuasion is constrained, and support for his party is diminished.

It is not only belief and association which are restricted where political patronage is the practice. The free functioning of the electoral process also suffers. Conditioning public employment on partisan support prevents support of competing political interests. Existing employees are deterred from such support, as well as the multitude seeking jobs. As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial and otherwise. Patronage thus tips the electoral process in favor of the incumbent party, and where the practice’s scope is substantial relative to the size of the electorate, the impact on the process can be significant.

Our concern with the impact of patronage on political belief and association does not occur in the abstract, for political belief and association constitute the core of those activities protected by the First Amendment. * * * Patronage, therefore, to the extent it compels or restrains belief and association, is inimical to the process which undergirds our system of government and is “at war with the deeper traditions of democracy embodied in the First Amendment.” As such, the practice unavoidably confronts decisions by this Court either invalidating or recognizing as

145

invalid government action that inhibits belief and association through the conditioning of public employment on political faith.

The Court recognized in United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947) [p. XXX], that “Congress may not ‘enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office . . . .’ ” This principle was reaffirmed in Wieman v. Updegraff, 344 U.S. 183 (1952), which held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. And in Cafeteria Workers v. McElroy, 367 U.S. 886, 898 (1961), the Court recognized again that the government could not deny employment because of previous membership in a particular party.

Particularly pertinent to the constitutionality of the practice of patronage dismissals are Keyishian v. Board of Regents, 385 U.S. 589 (1967), and Perry v. Sindermann, 408 U.S. 593 (1972). In Keyishian, the Court invalidated New York statutes barring employment merely on the basis of membership in “subversive” organizations. Keyishian squarely held that political association alone could not, consistently with the First Amendment, constitute an adequate ground for denying public employment. In Perry, the Court broadly rejected the validity of limitations on First Amendment rights as a condition to the receipt of a governmental benefit, stating that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Such interference with constitutional rights is impermissible.”

Patronage practice falls squarely within the prohibitions of Keyishian and Perry. Under that practice, public employees hold their jobs on the condition that they provide, in some acceptable manner, support for the favored political party. The threat of dismissal for failure to provide that support unquestionably inhibits protected belief and association, and dismissal for failure to provide support only penalizes its exercise. The belief and association which government may not ordain directly are achieved by indirection.13 And regardless of how evenhandedly these restraints may operate in the long run, after political office has changed hands several times, protected interests are still infringed and thus the violation remains. * * *

Although the practice of patronage dismissals clearly infringes First Amendment interests, our inquiry is not at an end, for the prohibition on encroachment of First Amendment protections is not an absolute. Restraints are permitted for appropriate reasons. [Petitioners suggest] that because there is no right to a government benefit, such as public employment, the benefit may be denied for any reason. Perry, however, emphasized that “[f]or at least a quarter-century, this

13 The increasingly pervasive nature of public employment provides officials with substantial power through conditioning jobs on partisan support, particularly in this time of high unemployment. Since the government, however, may not seek to achieve an unlawful end either directly or indirectly, the inducement afforded by placing conditions on a benefit need not be particularly great in order to find that rights have been violated. Rights are infringed both where the government fines a person a penny for being a Republican and where it withholds the grant of a penny for the same reason.

Petitioners contend that even though the government may not provide that public employees may retain their jobs only if they become affiliated with or provide support for the in-party, respondents here have waived any objection to such requirements. The difficulty with this argument is that it completely swallows the rule. Since the qualification may not be constitutionally imposed absent an appropriate justification, to accept the waiver argument is to say that the government may do what it may not do. A finding of waiver in this case, therefore, would be contrary to our view that a partisan job qualification abridges the First Amendment.

146

Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.” Perry and Keyishian properly recognize one such impermissible reason: The denial of a public benefit may not be used by the government for the purpose of creating an incentive enabling it to achieve what it may not command directly. “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” Sherbert v. Verner, 374 U.S. 398, 404 (1963). “[T]his Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’  ” Sugerman v. Dougall, 413 U.S. 634, 644 (1973).

* * * It is firmly established that a significant impairment of First Amendment rights must survive exacting scrutiny. * * * Thus encroachment “cannot be justified upon a mere showing of a legitimate state interest.” The interest advanced must be paramount, one of vital importance, and the burden is on the government to show the existence of such an interest. In the instant case, care must be taken not to confuse the interest of partisan organizations with governmental interests. Only the latter will suffice. Moreover, it is not enough that the means chosen in furtherance of the interest be rationally related to that end. The gain to the subordinating interest provided by the means must outweigh the incurred loss of protected rights, and the government must “emplo[y] means closely drawn to avoid unnecessary abridgment . . . .” * * * In short, if conditioning the retention of public employment on the employee’s support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.

One interest which has been offered in justification of patronage is the need to insure effective government and the efficiency of public employees. It is argued that employees of political persuasions not the same as that of the party in control of public office will not have the incentive to work effectively and may even be motivated to subvert the incumbent administration’s efforts to govern effectively. We are not persuaded. The inefficiency resulting from the wholesale replacement of large numbers of public employees every time political office changes hands belies this justification. And the prospect of dismissal after an election in which the incumbent party has lost is only a disincentive to good work. Further, it is not clear that dismissal in order to make room for a patronage appointment will result in replacement by a person more qualified to do the job since appointment often occurs in exchange for the delivery of votes, or other party service, not job capability. More fundamentally, however, the argument does not succeed because it is doubtful that the mere difference of political persuasion motivates poor performance; nor do we think it legitimately may be used as a basis for imputing such behavior. The Court has consistently recognized that mere political association is an inadequate basis for imputing disposition to ill-willed conduct. Though those cases involved affiliation with the Communist Party, we do not “consider these [respondents’] interest in freely associating with members of the [Republican] Party less worthy of protection than [other] employees’ interest in associating with Communists or former Communists.” At all events, less drastic means for insuring government effectiveness and employee efficiency are available to the State. Specifically, employees may always be discharged for good cause, such as insubordination or poor job performance, when those bases in fact exist.

147

Even if the first argument that patronage serves effectiveness and efficiency be rejected, it still may be argued that patronage serves those interests by giving the employees of an incumbent party the incentive to perform well in order to insure their party’s incumbency and thereby their jobs. Patronage, according to the argument, thus makes employees highly accountable to the public. But the ability of officials more directly accountable to the electorate to discharge employees for cause and the availability of merit systems, growth in the use of which has been quite significant, convince us that means less intrusive than patronage still exist for achieving accountability in the public work force and, thereby, effective and efficient government. The greater effectiveness of patronage over these less drastic means, if any, is at best marginal, a gain outweighed by the absence of intrusion on protected interests under the alternatives.

The lack of any justification for patronage dismissals as a means of furthering government effectiveness and efficiency distinguishes this case from CSC v. Letter Carriers, 413 U.S. 548 (1973) [p. XXX], and United Public Workers v. Mitchell. In both of those cases, legislative restraints on political management and campaigning by public employees were upheld despite their encroachment on First Amendment rights because, inter alia, they did serve in a necessary manner to foster and protect efficient and effective government. Interestingly, the activities that were restrained by the legislation involved in those cases are characteristic of patronage practices. As the Court observed in Mitchell: “The conviction that an actively partisan governmental personnel threatens good administration has deepened since [1882]. Congress recognizes danger to the service in that political rather than official effort may earn advancement and to the public in that governmental favor may be channeled through political connections.”

A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end. Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.

No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration would also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. Thus, the political loyalty “justification is a matter of proof, or at least argument, directed at particular kinds of jobs.” Since, as we have noted, it is the government’s burden to demonstrate an overriding interest in order to validate an encroachment on protected interests, the burden of establishing this justification as to any particular respondent will rest on the petitioners on remand, cases of doubt being resolved in favor of the particular respondent.

It is argued that a third interest supporting patronage dismissals is the preservation of the democratic process. According to petitioners, “we have contrived no system for the support of

148

party that does not place considerable reliance on patronage. The party organization makes a democratic government work and charges a price for its services.” The argument is thus premised on the centrality of partisan politics to the democratic process.

Preservation of the democratic process is certainly an interest protection of which may in some instances justify limitations on First Amendment freedoms. But however important preservation of the two-party system or any system involving a fixed number of parties may or may not be,22 we are not persuaded that the elimination of patronage practice or, as is specifically involved here, the interdiction of patronage dismissals, will bring about the demise of party politics. Political parties existed in the absence of active patronage practice prior to the administration of Andrew Jackson, and they have survived substantial reduction in their patronage power through the establishment of merit systems.

Patronage dismissals thus are not the least restrictive alternative to achieving the contribution they may make to the democratic process. The process functions as well without the practice, perhaps even better, for patronage dismissals clearly also retard that process. Patronage can result in the entrenchment of one or a few parties to the exclusion of others. And most indisputably, as we recognized at the outset, patronage is a very effective impediment to the associational and speech freedoms which are essential to a meaningful system of democratic government. Thus, if patronage contributes at all to the elective process, that contribution is diminished by the practice’s impairment of the same. Indeed, unlike the gain to representative government provided by the Hatch Act in CSC v. Letter Carriers and United Public Workers v. Mitchell, the gain to representative government provided by the practice of patronage, if any, would be insufficient to justify its sacrifice of First Amendment rights.

To be sure, Letter Carriers and Mitchell upheld Hatch Act restraints sacrificing political campaigning and management, activities themselves protected by the First Amendment. But in those cases it was the Court’s judgment that congressional subordination of those activities was permissible to safeguard the core interests of individual belief and association. Subordination of some First Amendment activity was permissible to protect other such activity. Today, we hold that subordination of other First Amendment activity, that is, patronage dismissals, not only is permissible, but also is mandated by the First Amendment. And since patronage dismissals fall within the category of political campaigning and management, this conclusion irresistibly flows from Mitchell and Letter Carriers. For if the First Amendment did not place individual belief and association above political campaigning and management, at least in the setting of public employment, the restraints on those latter activities could not have been judged permissible in Mitchell and Letter Carriers.27

22 Partisan politics bears the imprimatur only of tradition, not the Constitution.“It may be correct that the patronage system has been followed for ‘almost two hundred years’ and therefore was in existence when the Constitution was adopted. However, the notoriety of the practice in the administration of Andrew Jackson in 1828 implies that it was not prevalent theretofore; we are not aware of any discussion of the practice during the drafting of the Constitution or the First Amendment. In any event, if the age of a pernicious practice were a sufficient reason for its continued acceptance, the constitutional attack on racial discrimination would, of course, have been doomed to failure.” Illinois State Employees Union v. Lewis, 473 F.2d 561, 568 n.14 (CA7 1972) [(STEVENS, J.)].

27 The judgment that the First Amendment interests in political campaigning and management must, in the setting of public employment, give way to the First Amendment interests in individual belief and association does not necessarily extend to other contexts. Restraining political campaigning and management in the area of public employment leaves it free to continue in other settings. The consequence of no such restraint, however, is the complete restriction of individual belief and association for each public employee affected.

149

It is apparent that at bottom we are required to engage in the resolution of conflicting interests under the First Amendment. The constitutional adjudication called for by this task is well within our province. The illuminating source to which we turn in performing the task is the system of government the First Amendment was intended protect, a democratic system whose proper functioning is indispensably dependent on the unfettered judgment of each citizen on matters of political concern. Our decision in obedience to the guidance of that source does not outlaw political parties or political campaigning and management. Parties are free to exist and their concomitant activities are free to continue. We require only that the rights of every citizen to believe as he will and to act and associate according to his beliefs be free to continue as well.

In summary, patronage dismissals severely restrict political belief and association. Though there is a vital need for government efficiency and effectiveness, such dismissals are on balance not the least restrictive means for fostering that end. There is also a need to insure that policies which the electorate has sanctioned are effectively implemented. That interest can be fully satisfied by limiting patronage dismissals to policymaking positions. Finally, patronage dismissals cannot be justified by their contribution to the proper functioning of our democratic process through their assistance to partisan politics since political parties are nurtured by other, less intrusive and equally effective methods. More fundamentally, however, any contribution of patronage dismissals to the democratic process does not suffice to override their severe encroachment on First Amendment freedoms. We hold, therefore, that the practice of patronage dismissals is unconstitutional under the First and Fourteenth Amendments, and that respondents thus stated a valid claim for relief. * * *

The judgment of the Court of Appeals isAffirmed.

MR. JUSTICE STEVENS did not participate in the consideration or decision of this case.

MR. JUSTICE STEWART, with whom MR. JUSTICE BLACKMUN joins, concurring in the judgment. * * *

This case does not require us to consider the broad contours of the so-called patronage system, with all its variations and permutations. In particular, it does not require us to consider the constitutional validity of a system that confines the hiring of some governmental employees to those of a particular political party, and I would intimate no views whatever on that question.

The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.

MR. CHIEF JUSTICE BURGER, dissenting.The Court’s decision today represents a significant intrusion into the area of legislative and

policy concerns[.] * * * Constant inroads on the powers of the States to manage their own affairs cannot fail to complicate our system and centralize more power in Washington. * * *

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.

The Court holds unconstitutional a practice as old as the Republic, a practice which has contributed significantly to the democratization of American politics. This decision is urged on

150

us in the name of First Amendment rights, but in my view the judgment neither is constitutionally required nor serves the interest of a representative democracy. It also may well disserve rather than promote core values of the First Amendment. I therefore dissent. * * *

Partisan politics, as we now know them, did not assume a prominent role in national politics immediately after the adoption of the Constitution. Nonetheless, [President] Washington tended to confine appointments even of customs officials and postmasters to Federalists, as opposed to anti-Federalists. As the role of parties expanded, partisan considerations quickly influenced employment decisions. John Adams removed some Republicans from minor posts, and Jefferson, the first President to succeed a President of an opposing party, made significant patronage use of the appointment and removal powers. The administrations of Madison, Monroe, and John Quincy Adams provided no occasion for conspicuous patronage practice in employment, as each succeeded a copartisan. Jackson, of course, used patronage extensively when he became the first President since Jefferson to succeed an antagonistic administration.

It thus appears that patronage employment practices emerged on the national level at an early date, and that they were conspicuous during Jackson’s Presidency largely because of their necessary dormancy during the long succession of Republican Presidents. During that period, however, patronage in hiring was practiced widely in the States, especially in New York and Pennsylvania. This afforded a theoretical and popular legitimacy to patronage, helping to lay the groundwork for acceptance of Jackson’s actions on the national level.

It is recognized that patronage in employment played a significant role in democratizing American politics. Before patronage practices developed fully, an “aristocratic” class dominated political affairs, a tendency that persisted in areas where patronage did not become prevalent. Patronage practices broadened the base of political participation by providing incentives to take part in the process, thereby increasing the volume of political discourse in society. Patronage also strengthened parties, and hence encouraged the development of institutional responsibility to the electorate on a permanent basis. * * *

In many situations patronage employment practices also entailed costs to government efficiency. These costs led eventually to reforms placing most federal and state civil service employment on a nonpatronage basis. But the course of such reform is of limited relevance to the task of constitutional adjudication in this case. It is pertinent to note, however, that a perceived impingement on employees’ political beliefs by the patronage system was not a significant impetus to such reform. * * *

[Petitioners] apparently accepted patronage jobs knowingly and willingly, while fully familiar with the “tenure” practices long prevailing in the Sheriff’s Office. Such employees have benefited from their political beliefs and activities; they have not been penalized for them. In these circumstances, I am inclined to [believe] that beneficiaries of a patronage system may not be heard to challenge it when it comes their turn to be replaced. * * * In any event, I am forced to turn to the question addressed by the plurality * * *.

* * * In concluding that patronage hiring practices are unconstitutional, the plurality seriously underestimates the strength of the government interest especially at the local level in allowing some patronage hiring practices, and it exaggerates the perceived burden on First Amendment rights.

151

As indicated above, patronage hiring practices have contributed to American democracy by stimulating political activity and by strengthening parties, thereby helping to make government accountable.6 It cannot be questioned seriously that these contributions promote important state interests. * * *

We also have recognized the strong government interests in encouraging stable political parties and avoiding excessive political fragmentation. Through the medium of established parties the “people . . . are presented with understandable choices and the winner in the general election with sufficient support to govern effectively,” Storer v. Brown, 415 U.S. 724, 735 (1974) [p. XXX], while “splintered parties and unrestrained factionalism [might] do significant damage to the fabric of government.”

Without analysis, however, the plurality opinion disparages the contribution of patronage hiring practices in advancing these state interests. It merely asserts that such practices cause the “free functioning of the electoral process [to suffer],” and that “we are not persuaded that the elimination of . . . patronage dismissals, will bring about the demise of party politics.” One cannot avoid the impression, however, that even a threatened demise of parties would not trouble the plurality. In my view, this thinking reflects a disturbing insensitivity to the political realities relevant to the disposition of this case.

The complaining parties are or were employees of the Sheriff. In many communities, the sheriff’s duties are as routine as process serving, and his election attracts little or no general public interest. * * * Unless the candidates for these offices are able to dispense the traditional patronage that has accrued to the offices, they also are unlikely to attract donations of time or money from voluntary groups. * * * Long experience teaches that at this local level traditional patronage practices contribute significantly to the democratic process. The candidates for these offices derive their support at the precinct level, and their modest funding for publicity, from cadres of friends and political associates who hope to benefit if their “man” is elected. The activities of the latter are often the principal source of political information for the voting public. The “robust” political discourse that the plurality opinion properly emphasizes is furthered—not restricted—by the time-honored system.

Patronage hiring practices also enable party organizations to persist and function at the local level. Such organizations become visible to the electorate at large only at election time, but the dull periods between elections require ongoing activities: precinct organizations must be maintained; new voters registered; and minor political “chores” performed for citizens who otherwise may have no practical means of access to officeholders. In some communities, party organizations and clubs also render helpful social services.

It is naive to think that these types of political activities are motivated at these levels by some academic interest in “democracy” or other public service impulse. For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties. It is difficult to overestimate the contributions to our system by the major political parties, fortunately limited in number compared to the fractionalization that has made the continued existence of democratic government doubtful in some other countries. Parties generally are stable, high-profile, and permanent institutions. When the names on a long

6 Some commentators have believed that patronage hiring practices promote other social interests as well: “Patronage is peculiarly important for minority groups, involving much more than the mere spoils of office. Each first appointment given a member of any underdog element is a boost in that element’s struggle for social acceptance. It means that another barrier to their advance has been lifted, another shut door has swung open.” S. Lubell, The Future of American Politics 76-77 (1952).

152

ballot are meaningless to the average voter, party affiliation affords a guidepost by which voters may rationalize a myriad of political choices. Voters can and do hold parties to long-term accountability, and it is not too much to say that, in their absence, responsive and responsible performance in low-profile offices, particularly, is difficult to maintain.

It is against decades of experience to the contrary, then, that the plurality opinion concludes that patronage hiring practices interfere with the “free functioning of the electoral process.” This ad hoc judicial judgment runs counter to the judgments of the representatives of the people in state and local governments, representatives who have chosen, in most instances, to retain some patronage practices in combination with a merit-oriented civil service. One would think that elected representatives of the people are better equipped than we to weigh the need for some continuation of patronage practices in light of the interests above identified, and particularly in view of local conditions.10 Against this background, the assertion in the plurality opinion that “[p]atronage dismissals . . . are not the least restrictive alternative to achieving [any] contribution they may make to the democratic process” is unconvincing, especially since no alternative to some continuation of patronage practices is suggested.

I thus conclude that patronage hiring practices sufficiently serve important state interests, including some interests sought to be advanced by the First Amendment, to justify a tolerable intrusion on the First Amendment interests of employees or potential employees.

* * * This case differs materially from previous cases involving the imposition of political conditions on employment, see, e.g., Garner v. Los Angeles Board, 341 U.S. 716 (1951), cases where there was an attempt to exclude “a minority group . . . odious to the majority.” In that context there was a danger that governmental action was directed toward the elimination of political beliefs by penalizing adherents to them. But patronage hiring practices have been consistent historically with vigorous ideological competition in the political “marketplace.” And even after one becomes a beneficiary, the system leaves significant room for individual political expression. Employees, regardless of affiliation, may vote freely11 and express themselves on some political issues. The principal intrusion of patronage hiring practices on First Amendment interests thus arises from the coercion on associational choices that may be created by one’s desire initially to obtain employment. This intrusion, while not insignificant, must be measured in light of the limited role of patronage hiring in most government employment. The pressure to abandon one’s beliefs and associations to obtain government employment—especially employment of such uncertain duration—does not seem to me to assume impermissible proportions in light of the interests to be served. * * * 12

10 The judgment today is limited to nonpolicymaking positions. A “policy-making” exception, however, will not allow substantial advancement of the state interests undercut by the Court’s holding, as it is doubtful that any significant number of employees can be identified as policymakers in a sheriff’s office. States have chosen to provide for the election of many local officials who have little or no genuine policymaking functions, and the subordinates of such officials are even less likely to have such functions. It thus is predictable that the holding today will terminate almost completely the contributions of patronage hiring practices to the democratic process. The probability of this result is increased to the extent that the needs of efficiency in local government require that policymaking positions be included in a merit-oriented, nonpolitical civil service. 11 It appears that before the adoption of the Australian ballot, one’s access to or retention of a government job sometimes could depend on voting “correctly.” Today this ultimate core of political expression is beyond the reach of any coercive effects of the patronage system.12 In concluding that the Constitution does not require the invalidation of state and local patronage systems, I wish to make clear that approval of any particular type of system or of the practice in any particular State, city, or community is not implied. I believe that the prevailing practice is to establish a broad base of merit-oriented civil service, but to leave some room for the operation of traditional patronage. I must say that the “mix” in Cook County

153

Notes and Questions1. Who is in a better position to assess the wisdom of patronage hiring practices—elected

officials, as Justice Powell argued, or electorally unaccountable judges, as the plurality implied?2. Four years after Elrod, the Court was presented with the question whether assistant

public defenders could be discharged because of their political affiliations or sympathies. The Court held that they could not, but in so doing the Court appeared to revise the Elrod standard for determining which employees could be dismissed on political grounds. While Elrod had focused on whether the position had “policymaking” responsibilities or required confidentiality, Branti v. Finkel, 445 U.S. 507, 518-20 (1980), asked whether “party affiliation is an appropriate requirement for the effective performance of the public office involved”:

[I]t is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered. Under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character. As one obvious example, if a State’s election laws require that precincts be supervised by two election judges of different parties, a Republican judge could be legitimately discharged solely for changing his party registration. That conclusion would not depend on any finding that the job involved participation in policy decisions or access to confidential information. Rather, it would simply rest on the fact that party membership was essential to the discharge of the employee’s governmental responsibilities.

It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

Having thus framed the issue, it is manifest that the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State. * * *

Thus, whatever policymaking occurs in the public defender’s office must relate to the needs of individual clients and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public defender’s office to make his tenure dependent on his allegiance to the dominant political party.

Justice Powell, in a dissent joined by then-Justice Rehnquist and in part by Justice Stewart, criticized the Court for going beyond Elrod in holding that even some policymaking officials would be insulated from patronage dismissals if their political affiliation was not relevant to the job. He further argued that the “appropriate[ness]” standard was so vague as to raise the possibility of litigation over a wide range of jobs, making the judiciary the “final arbiters as to who federal, state, and local governments may employ.” Id. at 525 (Powell, J., dissenting). In a portion of the dissent joined only by then-Justice Rehnquist, Justice Powell reiterated the view he expressed in Elrod that patronage was valuable in supporting the two-party system. He further argued that “[b]ecause voters certainly may elect governmental officials [including public defenders and their assistants] on the basis of party ties, it is difficult to perceive a

154

constitutional reason for prohibiting them from delegating that same authority to legislators and appointed officials.” Id. at 533-34 (Powell, J., dissenting). Justice Stewart also filed a dissenting opinion, in which he argued that the “confidential” nature of the job of an assistant public defender distinguished Branti from Elrod. See id. at 520-21 (Stewart, J., dissenting).

3. What explains Chief Justice Burger’s switch from dissenting in Elrod to joining the Branti majority?

4. Lower courts have consistently held that in evaluating whether an employee may be dismissed for political reasons, the responsibilities specified in the job description, rather than the duties that the employee customarily performed, are controlling. As explained in Sanders v. Montoya, 982 P.2d 1064 (N.M. Ct. App. 1999), focusing on the job description lessens the burden on courts by making it unnecessary to reevaluate every job whenever there is a shift in the way office administration is handled. Further, the job-description approach provides certainty to litigants and allows the new administration to fill certain positions with political allies, regardless of the ways in which the prior administration had been using its employees.

5. Should the First Amendment provide protection against dismissal for an employee who is running for election against her boss? In Carver v. Dennis, 104 F.3d 847 (6th Cir. 1997), the plaintiff was a deputy county clerk. She was fired because she planned to run against the incumbent county clerk. The court held that there was a distinction between dismissals based on one’s political affiliation, political beliefs, or the expression of those beliefs, on the one hand, and one’s political candidacy, on the other. The court concluded that only the first category received protection under Elrod and Branti: “This was not a patronage dismissal. It was not a dismissal because of political beliefs or affiliations. It was not a dismissal based on politics at all, except to the extent that running for public office is a political exercise in its broad sense.” Id. at 850. See also Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993); Bart v. Telford, 677 F.2d 622 (7th Cir. 1982). Does this explanation understate the importance to democracy of running for office? See Click v. Copeland, 970 F.2d 106, 112 (5th Cir. 1992). Is there a constitutional difference between firing the employee and subjecting him or her to retaliatory harassment? See Wallace v. Benware, 67 F.3d 655, 661 (7th Cir. 1995) (holding that a sheriff could dismiss or demote a deputy who had run against him, but could not subject him to “a campaign of petty harassment”).

6. Judge Easterbrook of the Seventh Circuit has argued that the Supreme Court’s decisions upholding the Hatch Act and resign-to-run statutes, see supra § G, foreclose the possibility that public employees would be protected from dismissal based on their decision to run for office. See Wilbur, 3 F.3d at 219-21 (Easterbrook, J., concurring in judgment). The majority, in an opinion by Judge Posner, responded that “it would be rather a stretch of the Hatch Act cases to interpret them as authorizing a public official selectively to apply a ‘resign to run’ provision to his political enemies.” Id. at 216 (opinion of the court). Judge Easterbrook countered that a public official is not behaving selectively when he discharges every employee who runs against him—“[a]nyone running for his seat is an incumbent’s enemy”—and that it would be ironic to encourage, in the name of the First Amendment, a policy mandating dismissal of employees who run for office. Id. at 220 (Easterbrook, J., concurring in judgment). Who has the better of the argument?

7. Would the result change if the employee were running for Congress, rather than for the boss’s position? See Newcomb v. Brennan, 558 F.2d 825 (7th Cir. 1977).

What if the candidate were not the employee herself, but her son? Would the employee receive protection from the employer’s decision to fire her because of her son’s candidacy? See

155

Smith v. Frye, 488 F.3d 263 (4th Cir.), cert. denied, 552 U.S. 1039 (2007). What if an employee is subject to retaliation neither for her political affiliation nor for her relative’s candidacy per se, but for her campaigning on behalf of her relative who was running against a candidate supported by her superiors? See Riddell v. Gordon, 2008 U.S. Dist. LEXIS 88410 (D. Del. 2008).

Suppose instead that after an election for county clerk in which the incumbent is defeated, the new office-holder fires an employee who is the wife of his former opponent. See Lowe v. Padgett, 740 F. Supp. 481 (E.D. Tenn. 1989), aff’d 897 F.2d 529 (6th Cir. 1990). Cf. McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994) (holding that a police chief acted constitutionally when he transferred his secretary because he feared the secretary’s marriage to another police officer might compromise her loyalty and her ability to keep confidences).

8. Problem. Barney Fife, deputy sheriff of Mayberry, decides to challenge incumbent sheriff Andy Taylor in the next election. Another deputy, Floyd D. Barber, and jailer Otis Campbell decide to support Fife, and spend off-duty time distributing leaflets and otherwise campaigning for him. Taylor is upset at the challenge, and fires Fife as well as Barber and Campbell. Should the Constitution be interpreted to provide all three employees with the same protection, or are there significant distinctions owing to their positions or their activities? See Jantzen v. Hawkins, 188 F.3d 1247 (10th Cir. 1999).

RUTAN v. REPUBLICAN PARTY OF ILLINOISSupreme Court of the United States

497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990)

JUSTICE BRENNAN delivered the opinion of the Court [in which JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join].

To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns, 427 U.S. 347 (1976) [p. XXX], and Branti v. Finkel, 445 U.S. 507 (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices―whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.

The petition and cross-petition before us arise from a lawsuit protesting certain employment policies and practices instituted by Governor James Thompson of Illinois. On November 12, 1980, the Governor issued an executive order proclaiming a hiring freeze for every agency, bureau, board, or commission subject to his control. The order prohibits state officials from hiring any employee, filling any vacancy, creating any new position, or taking any similar action. It affects approximately 60,000 state positions. More than 5,000 of these become available each year as a result of resignations, retirements, deaths, expansions, and reorganizations. The order proclaims that “no exceptions” are permitted without the Governor’s “express permission after submission of appropriate requests to [his] office.”

Requests for the Governor’s “express permission” have allegedly become routine. Permission has been granted or withheld through an agency expressly created for this purpose, the Governor’s Office of Personnel (Governor’s Office). Agencies have been screening applicants under Illinois’ civil service system, making their personnel choices, and submitting them as requests to be approved or disapproved by the Governor’s Office. Among the

156

employment decisions for which approvals have been required are new hires, promotions, transfers, and recalls after layoffs.

By means of the freeze, according to petitioners and cross-respondents, the Governor has been using the Governor’s Office to operate a political patronage system to limit state employment and beneficial employment-related decisions to those who are supported by the Republican Party. In reviewing an agency’s request that a particular applicant be approved for a particular position, the Governor’s Office has looked at whether the applicant voted in Republican primaries in past election years, whether the applicant has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of Republican Party officials at state or local levels.

Five people (including the three petitioners) brought suit * * * alleg[ing] that they had suffered discrimination with respect to state employment because they had not been supporters of the State’s Republican Party and that this discrimination violates the First Amendment. Cynthia B. Rutan has been working for the State since 1974 as a rehabilitation counselor. She claims that since 1981 she has been repeatedly denied promotions to supervisory positions for which she was qualified because she had not worked for or supported the Republican Party. Franklin Taylor, who operates road equipment for the Illinois Department of Transportation, claims that he was denied a promotion in 1983 because he did not have the support of the local Republican Party. Taylor also maintains that he was denied a transfer to an office nearer to his home because of opposition from the Republican Party chairmen in the counties in which he worked and to which he requested a transfer. James W. Moore claims that he has been repeatedly denied state employment as a prison guard because he did not have the support of Republican Party officials. The two other plaintiffs, before the Court as cross-respondents, allege that they were not recalled after layoffs because they lacked Republican credentials. * * *

The District Court dismissed the complaint with prejudice[.] * * * Noting that this Court had previously determined that the patronage practice of discharging public employees on the basis of their political affiliation violates the First Amendment, the Court of Appeals held that other patronage practices violate the First Amendment only when they are the “substantial equivalent of a dismissal.” The court explained that an employment decision is equivalent to a dismissal when it is one that would lead a reasonable person to resign. * * *

* * * We granted certiorari to decide the important question whether the First Amendment’s proscription of patronage dismissals recognized in Elrod and Branti extends to promotion, transfer, recall, or hiring decisions involving public employment positions for which party affiliation is not an appropriate requirement.

We first address the claims of the four current or former employees. Respondents urge us to view Elrod and Branti as inapplicable because the patronage dismissals at issue in those cases are different in kind from failure to promote, failure to transfer, and failure to recall after layoff. Respondents initially contend that the employee[s’] First Amendment rights have not been infringed because they have no entitlement to promotion, transfer, or rehire. We rejected just such an argument in Elrod and Branti, as both cases involved state workers who were employees at will with no legal entitlement to continued employment. In Perry [v. Sindermann, 408 U.S. 593 (1972)] we held explicitly that the plaintiff teacher’s lack of a contractual or tenure right to re-employment was immaterial to his First Amendment claim. We explained the viability of his First Amendment claim as follows:

157

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests―especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Such interference with constitutional rights is impermissible.” (emphasis added).

Likewise, we find the assertion here that the employee petitioners and cross-respondents had no legal entitlement to promotion, transfer, or recall beside the point.

Respondents next argue that the employment decisions at issue here do not violate the First Amendment because the decisions are not punitive, do not in any way adversely affect the terms of employment, and therefore do not chill the exercise of protected belief and association by public employees. This is not credible. Employees who find themselves in dead-end positions due to their political backgrounds are adversely affected. They will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold, in order to progress up the career ladder. Employees denied transfers to workplaces reasonably close to their homes until they join and work for the Republican Party will feel a daily pressure from their long commutes to do so. And employees who have been laid

158

off may well feel compelled to engage in whatever political activity is necessary to regain

159

regular paychecks and positions corresponding to their skill and experience.7 The same First Amendment concerns that underlay our decisions in Elrod and Branti are

implicated here. Employees who do not compromise their beliefs stand to lose the considerable increases in pay and job satisfaction attendant to promotions, the hours and maintenance expenses that are consumed by long daily commutes, and even their jobs if they are not rehired after a “temporary” layoff. These are significant penalties and are imposed for the exercise of rights guaranteed by the First Amendment. Unless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms.

We find, however, that our conclusions in Elrod and Branti are equally applicable to the patronage practices at issue here. A government’s interest in securing effective employees can be met by discharging, demoting, or transferring staff members whose work is deficient. A government’s interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views. Likewise, the “preservation of the democratic process” is no more furthered by the patronage promotions, transfers, and rehires at issue here than it is by patronage dismissals. First, “political parties are nurtured by other, less intrusive and equally effective methods.” Political parties have already survived the substantial decline in patronage employment practices in this century. Second, patronage decidedly impairs the elective process by discouraging free political expression by public employees. Respondents, who include the Governor of Illinois and other state officials, do not suggest any other overriding government interest in favoring Republican Party supporters for promotion, transfer, and rehire.

We therefore determine that promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees. * * * The First Amendment is not a tenure provision, protecting public employees from actual or constructive discharge. [But it] prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees’ freedom to believe and associate, or to not believe and not associate. * * *

Petitioner James W. Moore presents the closely related question whether patronage hiring violates the First Amendment. Patronage hiring places burdens on free speech and association similar to those imposed by the patronage practices discussed above. A state job is valuable. Like most employment, it provides regular paychecks, health insurance, and other benefits. In addition, there may be openings with the State when business in the private sector is slow. There are also occupations for which the government is a major (or the only) source of employment, such as social workers, elementary school teachers, and prison guards. Thus, denial of a state job is a serious privation.

Nonetheless, respondents contend that the burden imposed is not of constitutional magnitude. Decades of decisions by this Court belie such a claim. We premised Tornado v. Watkins, 367 U.S. 488 (1961), on our understanding that loss of a job opportunity for failure to compromise one’s convictions states a constitutional claim. We held that Maryland could not refuse an appointee a commission for the position of notary public on the ground that he refused to declare his belief in God, because the required oath “unconstitutionally invades the appellant’s freedom of belief and religion.” Id., at 496. In Keyishian v. Board of Regents of Univ. of New York, 385 U.S. 589, 609-610 (1967), we held a law affecting appointment and retention of teachers invalid because it premised employment on an unconstitutional restriction

160

of political belief and association. In Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), we struck down a loyalty oath which was a prerequisite for public employment.

Almost half a century ago, this Court made clear that the government “may not enact a regulation providing that no Republican . . . shall be appointed to federal office.” Public Workers v. Mitchell, 330 U.S. 75, 100 (1947) [p. XXX]. What the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly. Under our sustained precedent, conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so. We find no such government interest here, for the same reasons that we found that the government lacks justification for patronage promotions, transfers, or recalls. * * *

We hold that the rule of Elrod and Branti extends to promotion, transfer, recall, and hiring decisions based on party affiliation and support and that all of the petitioners and cross-respondents have stated claims upon which relief may be granted.

[Affirmed in part, reversed in part, and remanded.]

[The concurring opinion of JUSTICE STEVENS, responding to JUSTICE SCALIA’s dissent, is omitted.]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE [REHNQUIST] and JUSTICE KENNEDY join, and with whom JUSTICE O’CONNOR joins as to Parts II and III, dissenting.

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an “appropriate requirement.” It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil service legislation at both the state and federal levels. But there is another point of view * * *. As the merit principle has been extended and its effects increasingly felt[,] * * * we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by “party discipline,” before the demands of small and cohesive interest groups.

The choice between patronage and the merit principle―or, to be more realistic about it, the choice between the desirable mix of merit and patronage principles in widely varying federal, state, and local political contexts―is not so clear that I would be prepared, as an original matter, to chisel a single, inflexible prescription into the Constitution. Fourteen years ago, in Elrod v. Burns, the Court did that. Elrod was limited however, as was the later decision of Branti v. Finkel, to patronage firings, leaving it to state and federal legislatures to determine when and where political affiliation could be taken into account in hirings and promotions. Today the Court makes its constitutional civil service reform absolute, extending to all decisions regarding

161

government employment. Because the First Amendment has never been thought to require this disposition, which may well have disastrous consequences for our political system, I dissent.

IThe restrictions that the Constitution places upon the government in its capacity as

lawmaker, i.e., as the regulator of private conduct, are not the same as the restrictions that it places upon the government in its capacity as employer. We have recognized this in many contexts, with respect to many different constitutional guarantees. * * * With regard to freedom of speech in particular: Private citizens cannot be punished for speech of merely private concern, but government employees can be fired for that reason. Connick v. Myers, 461 U.S. 138, 147 (1983). Private citizens cannot be punished for partisan political activity, but federal and state employees can be dismissed and otherwise punished for that reason. Public Workers v. Mitchell, 330 U.S. 75, 101 (1947) [p. XXX]; Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 556 (1973) [p. XXX]; Broadrick v. Oklahoma, 413 U.S. 601, 616-617 (1973).

Once it is acknowledged that the Constitution’s prohibition against laws “abridging the freedom of speech” does not apply to laws enacted in the government’s capacity as employer in the same way that it does to laws enacted in the government’s capacity as regulator of private conduct, it may sometimes be difficult to assess what employment practices are permissible and what are not. That seems to me not a difficult question, however, in the present context. The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for

162

striking it down.1 Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices are to be figured out. When it appears that the latest “rule,” or “three-part test,” or “balancing test” devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court.

I will not describe at length the claim of patronage to landmark status as one of our accepted political traditions. Justice Powell discussed it in his dissenting opinions in Elrod and Branti. Suffice it to say that patronage was, without any thought that it could be unconstitutional, a basis for government employment from the earliest days of the Republic until Elrod―and has continued unabated since Elrod, to the extent still permitted by that unfortunate decision. Given that unbroken tradition regarding the application of an ambiguous constitutional text, there was in my view no basis for holding that patronage-based dismissals violated the First Amendment―much less for holding, as the Court does today, that even patronage hiring does so.

IIEven accepting the Court’s own mode of analysis, however, and engaging in “balancing” a

tradition that ought to be part of the scales, Elrod, Branti, and today’s extension of them seem to me wrong.

The Court limits patronage on the ground that the individual’s interest in uncoerced belief and expression outweighs the systemic interests invoked to justify the practice. The opinion indicates that the government may prevail only if it proves that the practice is “narrowly tailored to further vital government interests.”

That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when “the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage [its] internal operatio[ns] .  . . .” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961). When dealing with its own employees, the government may not act in a manner that is “patently arbitrary or discriminatory,” but its regulations are valid if they bear a “rational connection” to the governmental end sought to be served, Kelley v. Johnson, 425 U.S. 238, 247 (1976).

In particular, restrictions on speech by public employees are not judged by the test applicable to similar restrictions on speech by nonemployees. We have said that “[a] governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government.” Brown v. Glines, 444 U.S. 348, 356, n.13 (1980). In Public Workers v. Mitchell, 330 U.S., at 101, upholding provisions of the Hatch Act which prohibit political activities by federal employees, we said that “it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service.” We reaffirmed Mitchell in Civil Service Comm’n v. Letter

163

Carriers, over a dissent by Justice Douglas arguing against application of a special standard to Government employees, except insofar as their “job performance” is concerned. We did not say that the Hatch Act was narrowly tailored to meet the government’s interest, but merely deferred to the judgment of Congress, which we were not “in any position to dispute.” Indeed, we recognized that the Act was not indispensably necessary to achieve those ends, since we repeatedly noted that “Congress at some time [may] come to a different view.” In Broadrick v. Oklahoma, we upheld similar restrictions on state employees, though directed “at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments.”

To the same effect are cases that specifically concern adverse employment action taken against public employees because of their speech. In Pickering v. Board of Education of Township High School Dist., 391 U.S. 563, 568 (1968) [p. XXX], we recognized:

“[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Because the restriction on speech is more attenuated when the government conditions employment than when it imposes criminal penalties, and because “government offices could not function if every employment decision became a constitutional matter,” we have held that government employment decisions taken on the basis of an employee’s speech do not “abridg[e] the freedom of speech” merely because they fail the narrow-tailoring and compelling-interest tests applicable to direct regulation of speech. We have not subjected such decisions to strict scrutiny, but have accorded “a wide degree of deference to the employer’s judgment” that an employee’s speech will interfere with close working relationships.

When the government takes adverse action against an employee on the basis of his political affiliation (an interest whose constitutional protection is derived from the interest in speech), the same analysis applies. That is why both the Elrod plurality, and the opinion concurring in the judgment, as well as Branti, and the Court today, rely on Perry v. Sindermann, 408 U.S. 593 (1972), a case that applied the test announced in Pickering, not the strict-scrutiny test applied to restrictions imposed on the public at large. Since the government may dismiss an employee for political speech “reasonably deemed by Congress to interfere with the efficiency of the public service,” Public Workers v. Mitchell, it follows, a fortiori, that the government may dismiss an employee for political affiliation if “reasonably necessary to promote effective government.”

While it is clear from the above cases that the normal “strict scrutiny” that we accord to government regulation of speech is not applicable in this field, the precise test that replaces it is not so clear; we have used various formulations. The one that appears in the case dealing with an employment practice closest in its effects to patronage is whether the practice could be “reasonably deemed” by the enacting legislature to further a legitimate goal. Public Workers v. Mitchell. For purposes of my ensuing discussion, however, I will apply a less permissive standard that seems more in accord with our general “balancing” test: Can the governmental advantages of this employment practice reasonably be deemed to outweigh its “coercive” effects? * * *

* * * The Court holds that the governmental benefits of patronage cannot reasonably be thought to outweigh its “coercive” effects (even the lesser “coercive” effects of patronage hiring

164

as opposed to patronage firing) not merely in 1990 in the State of Illinois, but at any time in any of the numerous political subdivisions of this vast country. It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting political stability and facilitating the social and political integration of previously powerless groups.

The whole point of my dissent is that the desirability of patronage is a policy question to be decided by the people’s representatives; I do not mean, therefore, to endorse that system. But in order to demonstrate that a legislature could reasonably determine that its benefits outweigh its “coercive” effects, I must describe those benefits as the proponents of patronage see them: As Justice Powell discussed at length in his Elrod dissent, patronage stabilizes political parties and prevents excessive political fragmentation―both of which are results in which States have a strong governmental interest. Party strength requires the efforts of the rank and file, especially in “the dull periods between elections,” to perform such tasks as organizing precincts, registering new voters, and providing constituent services. Even the most enthusiastic supporter of a party’s program will shrink before such drudgery, and it is folly to think that ideological conviction alone will motivate sufficient numbers to keep the party going through the off years. * * *

The Court simply refuses to acknowledge the link between patronage and party discipline, and between that and party success. * * * It is unpersuasive to claim, as the Court does, that party workers are obsolete because campaigns are now conducted through media and other money-intensive means. Those techniques have supplemented but not supplanted personal contacts. Certainly they have not made personal contacts unnecessary in campaigns for the lower level offices that are the foundations of party strength, nor have they replaced the myriad functions performed by party regulars not directly related to campaigning. And to the extent such techniques have replaced older methods of campaigning (partly in response to the limitations the Court has placed on patronage), the political system is not clearly better off. Increased reliance on money-intensive campaign techniques tends to entrench those in power much more effectively than patronage―but without the attendant benefit of strengthening the party system. A challenger can more easily obtain the support of party workers (who can expect to be rewarded even if the candidate loses―if not this year, then the next) than the financial support of political action committees (which will generally support incumbents, who are likely to prevail).

It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, “[p]olitical parties have already survived the substantial decline in patronage employment practices in this century.” This is almost verbatim what was said in Elrod. Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 18 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 98% of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, the statement that “political parties have already survived” has a positively whistling-in-the-graveyard character to it. Parties have assuredly survived―but as what? As the forges upon which many of the essential compromises of American political life are hammered out? Or merely as convenient vehicles for the conducting of national Presidential elections?

165

The patronage system does not, of course, merely foster political parties in general; it fosters the two-party system in particular. When getting a job, as opposed to effectuating a particular substantive policy, is an available incentive for party workers, those attracted by that incentive are likely to work for the party that has the best chance of displacing the “ins,” rather than for some splinter group that has a more attractive political philosophy but little hope of success. Not only is a two-party system more likely to emerge, but the differences between those parties are more likely to be moderated, as each has a relatively greater interest in appealing to a majority of the electorate and a relatively lesser interest in furthering philosophies or programs that are far from the mainstream. The stabilizing effects of such a system are obvious. In the context of electoral laws we have approved the States’ pursuit of such stability, and their avoidance of the “splintered parties and unrestrained factionalism [that] may do significant damage to the fabric of government.” Storer v. Brown, 415 U.S. 724, 736 (1974) [p. XXX] (upholding law disqualifying persons from running as independents if affiliated with a party in the past year).

Equally apparent is the relatively destabilizing nature of a system in which candidates cannot rely upon patronage-based party loyalty for their campaign support, but must attract workers and raise funds by appealing to various interest groups. * * *

Patronage, moreover, has been a powerful means of achieving the social and political integration of excluded groups. By supporting and ultimately dominating a particular party “machine,” racial and ethnic minorities have―on the basis of their politics rather than their race or ethnicity―acquired the patronage awards the machine had power to confer. No one disputes the historical accuracy of this observation, and there is no reason to think that patronage can no longer serve that function. The abolition of patronage, however, prevents groups that have only recently obtained political power, especially blacks, from following this path to economic and social advancement. * * *

While the patronage system has the benefits argued for above, it also has undoubted disadvantages. It facilitates financial corruption, such as salary kickbacks and partisan political activity on government-paid time. It reduces the efficiency of government, because it creates incentives to hire more and less-qualified workers and because highly qualified workers are reluctant to accept jobs that may only last until the next election. And, of course, it applies some greater or lesser inducement for individuals to join and work for the party in power.

To hear the Court tell it, this last is the greatest evil. That is not my view, and it has not historically been the view of the American people. Corruption and inefficiency, rather than abridgment of liberty, have been the major criticisms leading to enactment of the civil service laws―for the very good reason that the patronage system does not have as harsh an effect upon conscience, expression, and association as the Court suggests. As described above, it is the nature of the pragmatic, patronage-based, two-party system to build alliances and to suppress rather than foster ideological tests for participation in the division of political “spoils.” What the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself rather than a set of political beliefs. He is generally free to urge within the organization the adoption of any political position; but if that position is rejected he must vote and work for the party nonetheless. The diversity of political expression (other than expression of party loyalty) is channeled, in other words, to a different stage―to the contests for party endorsement rather than the partisan elections. It is undeniable, of course, that the patronage system entails some constraint upon the expression of views, particularly at the partisan-election stage, and considerable constraint upon the employee’s right to associate with the other party. It greatly exaggerates these, however, to describe them as a general “coercion of belief.” Indeed, it

166

greatly exaggerates them to call them “coercion” at all, since we generally make a distinction between inducement and compulsion. The public official offered a bribe is not “coerced” to violate the law, and the private citizen offered a patronage job is not “coerced” to work for the party. In sum, I do not deny that the patronage system influences or redirects, perhaps to a substantial degree, individual political expression and political association. But like the many generations of Americans that have preceded us, I do not consider that a significant impairment of free speech or free association.

In emphasizing the advantages and minimizing the disadvantages (or at least minimizing one of the disadvantages) of the patronage system, I do not mean to suggest that that system is best. It may not always be; it may never be. To oppose our Elrod-Branti jurisprudence, one need not believe that the patronage system is necessarily desirable; nor even that it is always and everywhere arguably desirable; but merely that it is a political arrangement that may sometimes be a reasonable choice, and should therefore be left to the judgment of the people’s elected representatives. The choice in question, I emphasize, is not just between patronage and a merit-based civil service, but rather among various combinations of the two that may suit different political units and different eras: permitting patronage hiring, for example, but prohibiting patronage dismissal; permitting patronage in most municipal agencies but prohibiting it in the police department; or permitting it in the mayor’s office but prohibiting it everywhere else. I find it impossible to say that, always and everywhere, all of these choices fail our “balancing” test.

The last point explains why Elrod and Branti should be overruled, rather than merely not extended. Even in the field of constitutional adjudication, where the pull of stare decisis is at its weakest, one is reluctant to depart from precedent. But when that precedent is not only wrong, not only recent, not only contradicted by a long prior tradition, but also has proved unworkable in practice, then all reluctance ought to disappear. In my view that is the situation here. Though unwilling to leave it to the political process to draw the line between desirable and undesirable patronage, the Court has neither been prepared to rule that no such line exists (i.e., that all patronage is unconstitutional) nor able to design the line itself in a manner that judges, lawyers, and public employees can understand. Elrod allowed patronage dismissals of persons in “policymaking” or “confidential” positions. Branti retreated from that formulation, asking instead “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” What that means is anybody’s guess. * * *

Since the current doctrine leaves many employees utterly in the dark about whether their jobs are protected, they are likely to play it safe. On the other side, the exception was designed to permit the government to implement its electoral mandate. But unless the government is fairly sure that dismissal is permitted, it will leave the politically uncongenial official in place, since an incorrect decision will expose it to lengthy litigation and a large damages award, perhaps even against the responsible officials personally.

This uncertainty and confusion are not the result of the fact that Elrod, and then Branti, chose the wrong “line.” My point is that there is no right line―or at least no right line that can be nationally applied and that is known by judges. Once we reject as the criterion a long political tradition showing that party-based employment is entirely permissible, yet are unwilling (as any reasonable person must be) to replace it with the principle that party-based employment is entirely impermissible, we have left the realm of law and entered the domain of political science, seeking to ascertain when and where the undoubted benefits of political hiring and firing are worth its undoubted costs. The answer to that will vary from State to State, and indeed from city

167

to city, even if one rejects out of hand (as the Branti line does) the benefits associated with party stability. Indeed, the answer will even vary from year to year. During one period, for example, it may be desirable for the manager of a municipally owned public utility to be a career specialist, insulated from the political system. During another, when the efficient operation of that utility or even its very existence has become a burning political issue, it may be desirable that he be hired and fired on a political basis. The appropriate “mix” of party-based employment is a political question if there ever was one, and we should give it back to the voters of the various political units to decide, through civil service legislation crafted to suit the time and place, which mix is best.

IIIEven were I not convinced that Elrod and Branti were wrongly decided, I would hold that

they should not be extended beyond their facts, viz., actual discharge of employees for their political affiliation. Those cases invalidated patronage firing in order to prevent the “restraint it places on freedoms of belief and association.” The loss of one’s current livelihood is an appreciably greater constraint than such other disappointments as the failure to obtain a promotion or selection for an uncongenial transfer. * * *

Notes and Questions1. Justices Brennan, Powell, and Scalia engaged in a lively debate in Elrod, Branti, and

Rutan over the importance of patronage for the well-being of political parties. Who had the better of that argument? In that regard, consider Cynthia Grant Bowman, “We Don’t Want Anybody Anybody Sent”: The Death of Patronage Hiring in Chicago, 86 NW. U. L. REV. 57 (1991), which contends that in practice political patronage has not been generally beneficial to political parties. For example, Bowman argues that, in many cities, political patronage often did not aid disadvantaged immigrant and minority groups, in part due to the limited number of jobs that could be filled by such patronage.

2. In their dissenting opinions, Justice Powell and Justice Scalia made much of the capacity of patronage to promote the two-party system. How significant do you think the government interest is in limiting the number of competing parties? We consider that question more extensively in Chapter 6, § D.

3. Assuming it is proper for the government to promote a stable two-party system, is patronage necessary to achieve that end? Duverger’s Law holds that an electoral structure of single-member districts with plurality winners itself encourages the development of two (and only two) centrist parties. The “Law” is not universal—regional parties have been successful in nations that use single-member, first-past-the-post systems—but perhaps it indicates that the viability of the two-party system is not jeopardized by the Elrod/Branti/Rutan holdings. See generally William H. Riker, The Two-Party System and Duverger’s Law: An Essay on the History of Political Science, 76 AM. POL. SCI. REV. 753 (1982); Maurice Duverger, Factors in a Two-Party and Multiparty System, in PARTY POLITICS AND PRESSURE GROUPS 23 (1972).

4. In the latter part of the twentieth century, many political campaigns at the national, state, and local levels have been characterized as being candidate-driven with regard to strategy, fund- raising, and the mobilization of workers, with the party itself taking a largely secondary role. Is it fair to attribute, even in part, this decline of the power of political parties to cases like Elrod and its progeny? Or did these cases mainly follow rather than cause this trend? For an argument in favor of the latter view, see Richard L. Hasen, Patronage, in 4 ENCYCLOPEDIA OF THE

168

AMERICAN CONSTITUTION 1885, 1886 (Leonard W. Levy & Kenneth L. Karst eds., 2d ed. 2000).

5. Whatever the precise linkage between patronage and the health of political parties, one apparent effect of Elrod and its progeny was to route patronage away from government jobs and toward government contracts with private firms. This trend was exacerbated by stagnation or declines in public employment, and increasing efforts to privatize certain traditionally governmental functions. Cynthia Grant Bowman, The Supreme Court’s Patronage Decisions and the Theory and Practice of Politics, in THE U.S. SUPREME COURT AND THE ELECTORAL PROCESS 126, 140-42 (David K. Ryden ed., 2d ed. 2002). Should patronage contracting be treated the same way as patronage in employment?

The Supreme Court confronted this issue in the companion cases of Board of County Commissioners, Wabaunsee County v. Umbehr, 518 U.S. 668 (1996), and O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996). In Umbehr, the Court held that when a county cancelled a trash-hauling contract, allegedly because of the hauler’s criticism of the county, the hauler had a cause of action for violation of his First Amendment rights. In O’Hare, the Court held that an independent contractor, allegedly dropped from a regularly used list due to the failure to make campaign contributions to the mayor, also had a cause of action for violation of free-speech rights. In both cases, the Court engaged in a case-by-case balancing of the interests of the government to contract, and of the free-speech rights of contractors, drawing in part on cases such as Pickering v. Board of Education, 391 U.S. 563 (1968) [p. XXX], involving public employees. The Court held (in O’Hare) that such a balancing of interests had not been appropriate in Elrod or Branti, since in those cases there had been a “raw test of political affiliation.” Justice Scalia, joined by Justice Thomas, dissented in both Umbehr and O’Hare. Chief Justice Rehnquist, Justice Kennedy, and Justice O’Connor, each of whom had dissented in Rutan, were in the majority in both cases; the latter two Justices wrote the majority opinions in O’Hare and Umbehr, respectively. In his dissent, Justice Scalia approved of the use of a Pickering-type balancing test to resolve those cases, but argued that Umbehr and O’Hare were incoherent in attempting to distinguish intrusions on rights of “free speech” (to which balancing applied) and of political affiliation (to which the Elrod/Branti/Rutan rules applied).

6. In Rutan, Justice Scalia pointed out the difficulties in determining the jobs for which political affiliation would be a relevant qualification. Consider how one court has grappled with this issue. The United States Court of Appeals for the Sixth Circuit considered the following government jobs to fall within the exception: (1) positions specifically named in law to which discretionary authority is granted concerning law enforcement or policy “of political concern”; (2) positions to which a significant amount of such discretionary authority has been explicitly or implicitly delegated; (3) confidential advisors to such position-holders; or (4) positions that are filled by balancing out political party representation or by balancing out selections made by government parties. McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996). A court should consider the inherent duties of a position, rather than the actual tasks undertaken by an employee, and a position need not fit perfectly into one of these categories in order to fit under the exception. Silberstein v. City of Dayton, 440 F.3d 306, 319 (6th Cir. 2006). How easy or difficult is it to apply these multi-factor tests?

7. Problem. Analyze whether persons holding the following government positions should receive First Amendment protection against patronage-based dismissals:

A. Assistant County Attorneys, charged with “representing the County in court cases and in the performance of other legal work.” See Gordon v. County of Rockland, 110 F.3d

169

886 (2d Cir. 1997); Fazio v. City and County of San Francisco, 125 F.3d 1328 (9th Cir. 1997); Finkelstein v. Bergna, 924 F.2d 1449 (9th Cir. 1991). See also Shade v. Rackauckas, 2004 WL 1859799 (Cal. Ct. App. 2004) (drawing a distinction between “assistant district attorneys” and “senior deputy district attorneys” and characterizing only the former as possessing policymaking responsibilities).

B. An attorney employed by a private firm that does work for the City Attorney, fired after public officials told the firm that it would lose City work unless the plaintiff’s political opposition to the mayor were stopped. See Biggs v. Best, 189 F.3d 989 (9th Cir. 1999).

C. Deputy sheriff. Compare Hall v. Tollett, 128 F.3d 418 (6th Cir. 1997) (granting protection), with Cutliffe v. Cochran, 117 F.3d 1353 (11th Cir. 1997) and Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991) (denying it). See also DiRuzza v. County of Tehama, 206 F.3d 1304 (9th Cir. 2000).

D. Chief deputy sheriff, which differs from the position of deputy sheriff only in that the chief deputy would assume the responsibilities of the sheriff if the sheriff were unable to perform. See Hall, 128 F.3d at 425-26.

E. Correctional officer. See Flenner v. Sheahan, 107 F.3d 459 (7th Cir. 1997).F. Administrative assistant to the mayor. Faughender v. City of North Olmstead, 927

F.2d 909 (6th Cir. 1991).G. Administrative assistants in the County Prosecutor’s Office. See Hobler v. Brueher,

325 F.3d 1145 (9th Cir. 2003).H. Administrative assistant to the county engineer or the state Department of

Transportation. See Smith v. Sushka, 117 F.3d 965 (6th Cir. 1997); Rice v. Ohio Department of Transportation, 14 F.3d 1133 (6th Cir. 1994).

I. Director of administrative services for the State Treasurer’s Office. See Garcia-Montoya v. State Treasurer’s Office, 16 P.3d 1084 (N.M. 2001).8. In his dissent in Rutan, Justice Scalia wryly observed that federal judges, many of whom

themselves were nominated by Presidents based on political affiliation, were now holding that public officials could not hire or fire based on such affiliations. If state judges are appointed based, in whole or in part, on their political affiliation, does that violate the rights of lawyers, wishing to be considered for such appointments, who do not share such affiliations? In Ohio, for example, judges are selected via competitive, non-partisan elections. The governor is granted unfettered authority in the Ohio constitution to fill judicial vacancies, and the appointee, to retain his office, must then run in the next election. There is considerable evidence that, with very few exceptions, Ohio governors have filled such vacancies based on political affiliation, that is, restricting consideration to lawyers from their parties.

In Newman v. Voinovich, 986 F.2d 159 (6th Cir. 1993), a Democratic lawyer was not considered to fill a vacancy by a Republican governor. (Note: One of the authors of this casebook served as co-counsel for the plaintiff.) The court held that this practice did not state a claim under Elrod and Branti. State judges, the court held, fell under the exception of those cases, since “judges are policymakers because their political beliefs influence and dictate their decisions on important jurisprudential matters.” Id. at 163. Is this a proper application of the exception as described in Branti? Is “party affiliation . . . an appropriate requirement for the effective performance” of a judicial office? Should it matter that judges work in a branch of government separate from the appointer? Or that a state has, in effect, chosen to permit the governor to take political considerations into account in filling judicial vacancies? Or that Ohio law provides that judicial elections be officially non-partisan? For discussion, see Michael E.

170

Solimine, Constitutional Restrictions on the Partisan Appointment of Federal and State Judges, 61 U. CIN. L. REV. 955 (1993).

9. Relatedly, does the First Amendment protect administrative law judges from dismissal based on political ideology or affiliation? See Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58 (1st Cir. 1997). What about domestic-relations-court referees? See Mumford v. Zieba, 4 F.3d 429 (6th Cir. 1993).

10. Public Workers v. Mitchell opined that “a regulation providing that no Republican . . . shall be appointed to federal office” would be unconstitutional. If you think the Court was wrong in Elrod, Branti, and Rutan to construct a constitutional right against the use of patronage as a qualification for certain types of government service, do you also disagree with Mitchell’s dictum?

I. JUDICIAL CANDIDATES’ SPEECHThirty-nine states elect some or all of their judges, either in contested elections or “retention”

elections. Within the former category, some states use partisan elections, in which the candidates’ parties are identified on the ballot, while other states use nonpartisan elections. Even in states with nonpartisan ballots, however, parties (just like every other private association) may endorse and campaign for candidates. See Geary v. Renne, 911 F.2d 280 (9th Cir. 1990) (en banc). In retention elections, a sitting judge (initially selected by appointment) appears unopposed on the ballot, and voters are asked whether he or she should be retained in office. The appointment/retention system is known alternately as the Missouri Plan, after the state that first implemented it, or, misleadingly, as “merit selection.” See Michael R. Dimino, The Futile Quest for a System of Judicial “Merit” Selection, 67 ALB. L. REV. 803, 803 (2004) (calling “merit selection “a propagandistic misnomer [because] nothing ensures that judges chosen under that plan will be better than judges under any other system”).

Despite the fact that the vast majority of state judges must face the voters to continue in office, judicial candidates until recently had been restricted in their campaign speech by state codes of judicial conduct. Drafters of the codes reasoned that judicial candidates’ appeals to voters are inconsistent with the judicial function—judges should seek to apply the law rather than to achieve results that will be popular with the electorate. Opponents saw the restrictions not only as paternalistic and inconsistent with the very idea of electing judges, but as a means to promote the continuance in office of judges with unpopular views. The following case struck down one limitation on judicial campaign speech, but the constitutionality of other speech restrictions remains to be decided.

171

REPUBLICAN PARTY OF MINNESOTA v. WHITESupreme Court of the United States

536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002)

JUSTICE SCALIA delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST, JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE THOMAS join].

The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.

ISince Minnesota’s admission to the Union in 1858, the State’s Constitution has provided for

the selection of all state judges by popular election. Since 1912, those elections have been nonpartisan. Since 1974, they have been subject to a legal restriction which states that a “candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” This prohibition, promulgated by the Minnesota Supreme Court and based on Canon 7(B) of the 1972 American Bar Association (ABA) Model Code of Judicial Conduct, is known as the “announce clause.” Incumbent judges who violate it are subject to discipline, including removal, censure, civil penalties, and suspension without pay. Lawyers who run for judicial office also must comply with the announce clause. Those who violate it are subject to, inter alia, disbarment, suspension, and probation. * * *

[Gregory] Wersal [a candidate for the Minnesota Supreme Court in 1996 and 1998] filed this lawsuit * * *, seeking, inter alia, a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. Other plaintiffs in the suit, including the Minnesota Republican Party, alleged that, because the clause kept Wersal from announcing his views, they

(where only about half of the employees in the Sheriff’s Office are within the merit system) seems disproportionate. On the other hand, there are smaller communities—e.g., where nonpartisan, council-manager forms of government exist—in which the merit system embraces the vast majority of public employees. Political scientists and students of government differ, and their views also have varied from time to time, as to the best means of structuring state and local government employment in the public interest. Nor is the answer necessarily the same for every community without regard to its size, form of government, or other local conditions. My conviction, as indicated in the opinion above, is that we should not foreclose local options in the name of a constitutional right perceived to be applicable for the first time after nearly two centuries.7 The complaint in this case states that Dan O’Brien was driven to do exactly this. After being rejected for recall by the Governor’s Office, he allegedly pursued the support of a Republican Party official, despite his previous interest in the Democratic Party. 1 The customary invocation of Brown v. Board of Education, 347 U.S. 483 (1954), as demonstrating the dangerous consequences of this principle, is unsupportable. I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution. In my view the Fourteenth Amendment’s requirement of “equal protection of the laws,” combined with the Thirteenth Amendment’s abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century the principle of “separate-but-equal” had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices. See Plessy v. Ferguson, 163 U.S. 537, 555-556 (1896) (Harlan, J., dissenting).

172

were unable to learn those views and support or oppose his candidacy accordingly. The parties filed cross-motions for summary judgment, and the District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. [T]he United States Court of Appeals for the Eighth Circuit affirmed. We granted certiorari.

II Before considering the constitutionality of the announce clause, we must be clear about its

meaning. * * * We know that “announcing . . . views” on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidate’s mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so-called “pledges or promises” clause, which separately prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office”—a prohibition that is not challenged here and on which we express no view.

There are, however, some limitations that the Minnesota Supreme Court has placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text. The statements that formed the basis of the complaint against Wersal in 1996 included criticism of past decisions of the Minnesota Supreme Court. One piece of campaign literature stated that “the Minnesota Supreme Court has issued decisions which are marked by their disregard for the Legislature and a lack of common sense.” It went on to criticize a decision excluding from evidence confessions by criminal defendants that were not tape-recorded, asking “should we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?” It criticized a decision striking down a state law restricting welfare benefits, asserting that “it’s the Legislature which should set our spending policies.” And it criticized a decision requiring public financing of abortions for poor women as “unprecedented” and a “pro-abortion stance.” Although one would think that all of these statements touched on disputed legal or political issues, they did not (or at least do not now) fall within the scope of the announce clause. The Judicial Board issued an opinion stating that judicial candidates may criticize past decisions, and the Lawyers Board refused to discipline Wersal for the foregoing statements because, in part, it thought they did not violate the announce clause. The Eighth Circuit relied on the Judicial Board’s opinion in upholding the announce clause, and the Minnesota Supreme Court recently embraced the Eighth Circuit’s interpretation.

There are yet further limitations upon the apparent plain meaning of the announce clause: In light of the constitutional concerns, the District Court construed the clause to reach only disputed issues that are likely to come before the candidate if he is elected judge. The Eighth Circuit accepted this limiting interpretation by the District Court, and in addition construed the clause to allow general discussions of case law and judicial philosophy. The Supreme Court of Minnesota adopted these interpretations as well * * *.

It seems to us, however, that—like the text of the announce clause itself—these limitations upon the text of the announce clause are not all that they appear to be. First, respondents acknowledged at oral argument that statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis. Thus, candidates must choose between stating their views critical of past decisions and stating their views in opposition to stare decisis. Or, to look at it more concretely, they may state their view that prior decisions were erroneous only if they do not assert that they, if elected, have any power to eliminate erroneous decisions. Second, limiting the scope of the clause to issues likely to come before a

173

court is not much of a limitation at all. One would hardly expect the “disputed legal or political issues” raised in the course of a state judicial election to include such matters as whether the Federal Government should end the embargo of Cuba. Quite obviously, they will be those legal or political disputes that are the proper (or by past decisions have been made the improper) business of the state courts. And within that relevant category, “there is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction.” Third, construing the clause to allow “general” discussions of case law and judicial philosophy turns out to be of little help in an election campaign. At oral argument, respondents gave, as an example of this exception, that a candidate is free to assert that he is a “strict constructionist.” But that, like most other philosophical generalities, has little meaningful content for the electorate unless it is exemplified by application to a particular issue of construction likely to come before a court—for example, whether a particular statute runs afoul of any provision of the Constitution. Respondents conceded that the announce clause would prohibit the candidate from exemplifying his philosophy in this fashion. Without such application to real-life issues, all candidates can claim to be “strict constructionists” with equal (and unhelpful) plausibility.

In any event, it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions—and in the latter context as well, if he expresses the view that he is not bound by stare decisis.5

Respondents contend that this still leaves plenty of topics for discussion on the campaign trail. These include a candidate’s “character,” “education,” “work habits,” and “how [he] would handle administrative duties if elected.” Indeed, the Judicial Board has printed a list of preapproved questions which judicial candidates are allowed to answer. These include how the candidate feels about cameras in the courtroom, how he would go about reducing the caseload, how the costs of judicial administration can be reduced, and how he proposes to ensure that minorities and women are treated more fairly by the court system. Whether this list of preapproved subjects, and other topics not prohibited by the announce clause, adequately fulfill the First Amendment’s guarantee of freedom of speech is the question to which we now turn.

IIIAs the Court of Appeals recognized, the announce clause both prohibits speech on the basis

of its content and burdens a category of speech that is “at the core of our First Amendment freedoms”—speech about the qualifications of candidates for public office. The Court of Appeals concluded that the proper test to be applied to determine the constitutionality of such a restriction is what our cases have called strict scrutiny; the parties do not dispute that this is correct. Under the strict-scrutiny test, respondents have the burden to prove that the announce clause is (1) narrowly tailored, to serve (2) a compelling state interest. E.g., Eu v. San Francisco

5 In 1990, in response to concerns that its 1972 Model Canon—which was the basis for Minnesota’s announce clause—violated the First Amendment, the ABA replaced that canon with a provision that prohibits a judicial candidate from making “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” ABA Model Code of Judicial Conduct, Canon 5(A)(3)(d)(ii) (2000). At oral argument, respondents argued that the limiting constructions placed upon Minnesota’s announce clause by the Eighth Circuit, and adopted by the Minnesota Supreme Court, render the scope of the clause no broader than the ABA’s 1990 canon. * * * We do not know whether the announce clause (as interpreted by state authorities) and the 1990 ABA canon are one and the same. No aspect of our constitutional analysis turns on this question.

174

County Democratic Central Comm., 489 U.S. 214, 222 (1989) [p. XXX]. In order for respondents to show that the announce clause is narrowly tailored, they must demonstrate that it does not “unnecessarily circumscribe protected expression.” Brown v. Hartlage, 456 U.S. 45, 54 (1982) [p. XXX].

The Court of Appeals concluded that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the impartiality of the state judiciary and preserving the appearance of the impartiality of the state judiciary. Respondents reassert these two interests before us, arguing that the first is compelling because it protects the due process rights of litigants, and that the second is compelling because it preserves public confidence in the judiciary. Respondents are rather vague, however, about what they mean by “impartiality.” * * *

AOne meaning of “impartiality” in the judicial context—and of course its root meaning—is the

lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process. Tumey v. Ohio, 273 U.S. 510, 523, 531-534 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822-825 (1986) (same); Ward v. Monroeville, 409 U.S. 57, 58-62 (1972) (same).

We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues. To be sure, when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or favoritism toward the other party. Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly.

BIt is perhaps possible to use the term “impartiality” in the judicial context (though this is

certainly not a common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality in this sense may well be an interest served by the announce clause, but it is not a compelling state interest, as strict scrutiny requires. A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-JUSTICE REHNQUIST observed of our own Court: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous

175

legal careers.” Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” Ibid. * * * And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the “appearance” of that type of impartiality can hardly be a compelling state interest either.

CA third possible meaning of “impartiality” (again not a common one) might be described as

openmindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose.

Respondents argue that the announce clause serves the interest in openmindedness, or at least in the appearance of openmindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. More common still is a judge’s confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior expression will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudication—in classes that they conduct, and in books and speeches. Like the ABA Codes of Judicial Conduct, the Minnesota Code not only permits but encourages this. That is quite incompatible with the notion that the need for openmindedness (or for the appearance of openmindedness) lies behind the prohibition at issue here.

The short of the matter is this: In Minnesota, a candidate for judicial office may not say “I think it is constitutional for the legislature to prohibit same-sex marriages.” He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. As a means of pursuing the objective of openmindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous.

JUSTICE STEVENS asserts that statements made in an election campaign pose a special threat to openmindedness because the candidate, when elected judge, will have a particular reluctance to contradict them. That might be plausible, perhaps, with regard to campaign promises. A candidate who says “If elected, I will vote to uphold the legislature’s power to prohibit same-sex marriages” will positively be breaking his word if he does not do so (although one would be naive not to recognize that campaign promises are—by long democratic tradition—the least binding form of human commitment). But, as noted earlier, the Minnesota Supreme Court has adopted a separate prohibition on campaign “pledges or promises,” which is not challenged here. The proposition that judges feel significantly greater compulsion, or appear to feel significantly

176

greater compulsion, to maintain consistency with nonpromissory statements made during a judicial campaign than with such statements made before or after the campaign is not self-evidently true. * * * In any event, it suffices to say that respondents have not carried the burden imposed by our strict-scrutiny test to establish this proposition (that campaign statements are uniquely destructive of openmindedness) on which the validity of the announce clause rests.

Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. “Debate on the qualifications of candidates” is “at the core of our electoral process and of the First Amendment freedoms,” not at the edges. Eu, 489 U.S., at 222-223. “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.” Brown, 456 U.S., at 60. We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.

JUSTICE GINSBURG would do so—and much of her dissent confirms rather than refutes our conclusion that the purpose behind the announce clause is not openmindedness in the judiciary, but the undermining of judicial elections. She contends that the announce clause must be constitutional because due process would be denied if an elected judge sat in a case involving an issue on which he had previously announced his view. She reaches this conclusion because, she says, such a judge would have a “direct, personal, substantial, and pecuniary interest” in ruling consistently with his previously announced view, in order to reduce the risk that he will be “voted off the bench and thereby lose [his] salary and emoluments.” But elected judges—regardless of whether they have announced any views beforehand—always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue. So if, as JUSTICE GINSBURG claims, it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then—quite simply—the practice of electing judges is itself a violation of due process. It is not difficult to understand how one with these views would approve the election-nullifying effect of the announce clause. They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted.

JUSTICE GINSBURG devotes the rest of her dissent to attacking arguments we do not make. For example, * * * we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office. What we do assert, and what JUSTICE GINSBURG ignores, is that, even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fails strict scrutiny because it is woefully underinclusive, prohibiting announcements by judges (and would-be judges) only at certain times and in certain forms. We rely on the cases involving speech during elections only to make the obvious point that this underinclusiveness cannot be explained by resort to the notion that the First Amendment provides less protection during an election campaign than at other times.11

11 Nor do we assert that candidates for judicial office should be compelled to announce their views on disputed legal issues. Thus, JUSTICE GINSBURG’s repeated invocation of instances in which nominees to this Court declined to announce such views during Senate confirmation hearings is pointless. [T]he practice of voluntarily demurring does not establish the legitimacy of legal compulsion to demur * * *.

177

But in any case, JUSTICE GINSBURG greatly exaggerates the difference between judicial and legislative elections. She asserts that “the rationale underlying unconstrained speech in elections for political office—that representative government depends on the public’s ability to choose agents who will act at its behest—does not carry over to campaigns for the bench.” This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. Which is precisely why the election of state judges became popular.12

IV * * *There is an obvious tension between the article of Minnesota’s popularly approved

Constitution which provides that judges shall be elected, and the Minnesota Supreme Court’s announce clause which places most subjects of interest to the voters off limits. (The candidate-speech restrictions of all the other States that have them are also the product of judicial fiat.) The disparity is perhaps unsurprising, since the ABA, which originated the announce clause, has long been an opponent of judicial elections. That opposition may be well taken (it certainly had the support of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. “The greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process . . . the First Amendment rights that attach to their roles.” Renne v. Geary, 501 U.S. 312, 349 (1991) (Marshall, J., dissenting).

The Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. Accordingly, we reverse the grant of summary judgment to respondents and remand the case for proceedings consistent with this opinion.

It is so ordered.

JUSTICE O’CONNOR, concurring.I join the opinion of the Court but write separately to express my concerns about judicial

elections generally. Respondents claim that “the Announce Clause is necessary . . . to protect the State’s compelling governmental interest in an actual and perceived . . . impartial judiciary.” I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest.

* * * Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects. Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.

12 * * * Even if the policymaking capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny [because] the announce clause * * * applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed. * * *

178

Moreover, contested elections generally entail campaigning. And campaigning for a judicial post today can require substantial funds. * * * Yet relying on campaign donations may leave judges feeling indebted to certain parties or interest groups. Even if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary. * * *

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.

JUSTICE KENNEDY, concurring.I agree with the Court that Minnesota’s prohibition on judicial candidates’ announcing their

legal views is an unconstitutional abridgment of the freedom of speech. There is authority for the Court to apply strict scrutiny analysis to resolve some First Amendment cases, and the Court explains in clear and forceful terms why the Minnesota regulatory scheme fails that test. So I join its opinion.

I adhere to my view, however, that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests. * * * The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of government to impose. * * *

Minnesota may choose to have an elected judiciary. It may strive to define those characteristics that exemplify judicial excellence. It may enshrine its definitions in a code of judicial conduct. It may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards. What Minnesota may not do, however, is censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer. Deciding the relevance of candidate speech is the right of the voters, not the State. See Brown v. Hartlage, 456 U.S., [at] 60. The law in question here contradicts the principle that unabridged speech is the foundation of political freedom. * * *

* * * The State may not regulate the content of candidate speech merely because the speakers are candidates. This case does not present the question whether a State may restrict the speech of judges because they are judges—for example, as part of a code of judicial conduct; the law at issue here regulates judges only when and because they are candidates. Whether the rationale of [cases concerning the speech of government employees] could be extended to allow a general speech restriction on sitting judges—regardless of whether they are campaigning—in order to promote the efficient administration of justice, is not an issue raised here.

Petitioner Gregory Wersal was not a sitting judge but a challenger; he had not voluntarily entered into an employment relationship with the State or surrendered any First Amendment rights. His speech may not be controlled or abridged in this manner. Even the undoubted interest of the State in the excellence of its judiciary does not allow it to restrain candidate speech by reason of its content. Minnesota’s attempt to regulate campaign speech is impermissible.

179

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. * * *

There is a critical difference between the work of the judge and the work of other public officials. In a democracy, issues of policy are properly decided by majority vote; it is the business of legislators and executives to be popular. But in litigation, issues of law or fact should not be determined by popular vote; it is the business of judges to be indifferent to unpopularity. * * *

Consistent with that fundamental attribute of the office, countless judges in countless cases routinely make rulings that are unpopular and surely disliked by at least 50 percent of the litigants who appear before them. It is equally common for them to enforce rules that they think unwise, or that are contrary to their personal predilections. For this reason, opinions that a lawyer may have expressed before becoming a judge, or a judicial candidate, do not disqualify anyone for judicial service because every good judge is fully aware of the distinction between the law and a personal point of view. It is equally clear, however, that such expressions after a lawyer has been nominated to judicial office shed little, if any, light on his capacity for judicial service. Indeed, to the extent that such statements seek to enhance the popularity of the candidate by indicating how he would rule in specific cases if elected, they evidence a lack of fitness for the office.

Of course, any judge who faces reelection may believe that he retains his office only so long as his decisions are popular. Nevertheless, the elected judge, like the lifetime appointee, does not serve a constituency while holding that office. He has a duty to uphold the law and to follow the dictates of the Constitution. If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls.2

He may make common law, but judged on the merits of individual cases, not as a mandate from the voters.

By recognizing a conflict between the demands of electoral politics and the distinct characteristics of the judiciary, we do not have to put States to an all or nothing choice of abandoning judicial elections or having elections in which anything goes. * * * [A] judicial candidate, who announces his views in the context of a campaign, is effectively telling the electorate: “Vote for me because I believe X, and I will judge cases accordingly.” Once elected, he may feel free to disregard his campaign statements, but that does not change the fact that the judge announced his position on an issue likely to come before him as a reason to vote for him. Minnesota has a compelling interest in sanctioning such statements. * * *

The Court boldly asserts that respondents have failed to carry their burden of demonstrating “that campaign statements are uniquely destructive of openmindedness.” But the very purpose of most statements prohibited by the announce clause is to convey the message that the candidate’s mind is not open on a particular issue. The lawyer who writes an article advocating harsher penalties for polluters surely does not commit to that position to the same degree as the candidate who says “vote for me because I believe all polluters deserve harsher penalties.” At the very least, such statements obscure the appearance of openmindedness. More importantly, like the reasoning in the Court’s opinion, they create the false impression that the standards for the election of political candidates apply equally to candidates for judicial office.4 * * *

2 The Court largely ignores the fact that judicial elections are not limited to races for the highest court in the State. Even if announcing one’s views in the context of a campaign for the State Supreme Court might be permissible, the same statements are surely less appropriate when one is running for an intermediate or trial court judgeship. * * *4 JUSTICE KENNEDY would go even further and hold that no content-based restriction of a judicial candidate’s speech is permitted under the First Amendment. While he does not say so explicitly, this extreme position would preclude

180

JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE BREYER join, dissenting.

Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people’s elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; “judges represent the Law.” Chisom v. Roemer, 501 U.S. 380, 411 (1991) (SCALIA, J., dissenting). Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide “individual cases and controversies” on individual records, neutrally applying legal principles, and, when necessary, “standing up to what is generally supreme in a democracy: the popular will,” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989). * * *

The speech restriction must fail, in the Court’s view, because an electoral process is at stake; if Minnesota opts to elect its judges, the Court asserts, the State may not rein in what candidates may say. I do not agree with this unilocular, “an election is an election,” approach. * * *

* * * Even when they develop common law or give concrete meaning to constitutional text, judges act only in the context of individual cases, the outcome of which cannot depend on the will of the public. Thus, the rationale underlying unconstrained speech in elections for political office—that representative government depends on the public’s ability to choose agents who will act at its behest—does not carry over to campaigns for the bench. * * *

All parties to this case agree that, whatever the validity of the Announce Clause, the State may constitutionally prohibit judicial candidates from pledging or promising certain results. The reasons for this agreement are apparent. Pledges or promises of conduct in office, however commonplace in races for the political branches, are inconsistent “with the judge’s obligation to decide cases in accordance with his or her role.” This judicial obligation to avoid prejudgment corresponds to the litigant’s right, protected by the Due Process Clause of the Fourteenth Amendment, to “an impartial and disinterested tribunal in both civil and criminal cases.” The proscription against pledges or promises thus represents an accommodation of “constitutionally protected interests [that] lie on both sides of the legal equation.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400 (2000) [p. XXX] (BREYER, J., concurring). Balanced against the candidate’s interest in free expression is the litigant’s “powerful and independent constitutional interest in fair adjudicative procedure.” * * *

[I]n Tumey v. Ohio, we held that due process was violated where a judge received a portion of the fines collected from defendants whom he found guilty. Such an arrangement, we said, gave the judge a “direct, personal, substantial[, and] pecuniary interest” in reaching a particular outcome and thereby denied the defendant his right to an impartial arbiter. [273 U.S.], at 523. Ward v. Monroeville extended Tumey’s reasoning, holding that due process was similarly violated where fines collected from guilty defendants constituted a large part of a village’s finances, for which the judge, who also served as the village mayor, was responsible. Even though the mayor did not personally share in those fines, we concluded, he “perforce occupied two practically and seriously inconsistent positions, one partisan and the other judicial.” 409 U.S., at 60.

even Minnesota’s prohibition against “pledges or promises” by a candidate for judicial office. A candidate could say “vote for me because I promise to never reverse a rape conviction,” and the Board could do nothing to formally sanction that candidate. The unwisdom of this proposal illustrates why the same standards should not apply to speech in campaigns for judicial and legislative office.

181

We applied the principle of Tumey and Ward most recently in Aetna Life Ins. Co. v. Lavoie. That decision invalidated a ruling of the Alabama Supreme Court written by a justice who had a personal interest in the resolution of a dispositive issue. The Alabama Supreme Court’s ruling was issued while the justice was pursuing a separate lawsuit in an Alabama lower court, and its outcome “had the clear and immediate effect of enhancing both the legal status and the settlement value” of that separate suit. [475 U.S.], at 824. As in Ward and Tumey, we held, the justice therefore had an interest in the outcome of the decision that unsuited him to participate in the judgment. It mattered not whether the justice was actually influenced by this interest; “the Due Process Clause,” we observed, “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” Id., at 825.

These cases establish three propositions important to this dispute. First, a litigant is deprived of due process where the judge who hears his case has a “direct, personal, substantial, and pecuniary” interest in ruling against him. Second, this interest need not be as direct as it was in Tumey, where the judge was essentially compensated for each conviction he obtained; the interest may stem, as in Ward, from the judge’s knowledge that his success and tenure in office depend on certain outcomes. “The test,” we have said, “is whether the .  . . situation is one ‘which would offer a possible temptation to the average man as a judge [that] might lead him not to hold the balance nice, clear, and true.’ ” Ward, 409 U.S., at 60 (quoting Tumey, 273 U.S., at 532). And third, due process does not require a showing that the judge is actually biased as a result of his self-interest. Rather, our cases have “always endeavored to prevent even the probability of unfairness.” * * *

The justification for the pledges or promises prohibition follows from these principles. When a judicial candidate promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest. If successful in her bid for office, the judicial candidate will become a judge, and in that capacity she will be under pressure to resist the pleas of litigants who advance positions contrary to her pledges on the campaign trail. If the judge fails to honor her campaign promises, she will not only face abandonment by supporters of her professed views, she will also “risk being assailed as a dissembler,” willing to say one thing to win an election and to do the opposite once in office. A judge in this position therefore may be thought to have a “direct, personal, substantial, [and] pecuniary interest” in ruling against certain litigants, for she may be voted off the bench and thereby lose her salary and emoluments unless she honors the pledge that secured her election. * * *

In addition to protecting litigants’ due process rights, * * * [p]rohibiting a judicial candidate from pledging or promising certain results if elected directly promotes the State’s interest in preserving public faith in the bench. When a candidate makes such a promise during a campaign, the public will no doubt perceive that she is doing so in the hope of garnering votes. And the public will in turn likely conclude that when the candidate decides an issue in accord with that promise, she does so at least in part to discharge her undertaking to the voters in the previous election and to prevent voter abandonment in the next. The perception of that unseemly quid pro quo—a judicial candidate’s promises on issues in return for the electorate’s votes at the polls—inevitably diminishes the public’s faith in the ability of judges to administer the law without regard to personal or political self-interest.4 * * *4 The author of the Court’s opinion declined on precisely these grounds to tell the Senate whether he would overrule a particular case: “Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in

182

Uncoupled from the Announce Clause, the ban on pledges or promises is easily circumvented. By prefacing a campaign commitment with the caveat, “although I cannot promise anything,” or by simply avoiding the language of promises or pledges altogether, a candidate could declare with impunity how she would decide specific issues. Semantic sanitizing of the candidate’s commitment would not, however, diminish its pernicious effects on actual and perceived judicial impartiality. * * *

By targeting statements that do not technically constitute pledges or promises but nevertheless “publicly make known how [the candidate] would decide” legal issues, the Announce Clause prevents this end run around the letter and spirit of its companion provision. No less than the pledges or promises clause itself, the Announce Clause is an indispensable part of Minnesota’s effort to maintain the health of its judiciary, and is therefore constitutional for the same reasons. * * *

Notes and Questions1. The Court avoids addressing whether judicial openmindedness and the appearance of

judicial openmindedness are compelling state interests because, the Court concludes, Minnesota did not adopt the announce clause for those purposes. Why should it matter whether the state had the purpose of achieving certain compelling interests, if the statute does in fact serve them? In the Court’s view, the prohibition was “so woefully underinclusive” that it would fail the narrow-tailoring portion of the strict-scrutiny analysis even if openmindedness and its appearance were compelling interests. Could a speech limitation be drafted so as to advance judicial openmindedness in a narrowly tailored way?

2. Is openmindedness a compelling interest? Is it of compelling importance for judges to remain open to persuasion by the most frivolous arguments? See Michael R. Dimino, Pay No Attention to That Man Behind the Robe: Judicial Elections, the First Amendment, and Judges as Politicians, 21 YALE L. & POL’Y REV. 301, 343-46 (2003).

3. The Court in Republican Party v. White proclaimed that it was not taking any position on the constitutionality of bans on judicial candidates’ pledging and promising particular conduct in office. Are such restrictions constitutional? How can one distinguish “pledges or promises” from announcements of legal or political views, so as not to chill the exercise of protected speech?

4. Is it constitutional for a state (taking a cue from the 1990 ABA Model Code of Judicial Conduct) to ban judicial candidates from making statements that “commit or appear to commit” them with respect to issues likely to come before the court? Is there any way for a candidate to announce his views on a disputed legal or political issue” without “appearing to commit” himself to such a view?

5. Restrictions on judicial conduct and campaign speech do not prevent judges or judicial candidates from holding views on legal or political issues; rather, they prevent others from discovering those views. Accordingly, the principal benefit of such restrictions is not in promoting judicial neutrality, but in promoting an image of judicial neutrality. Is that interest compelling? Compare Charles Gardner Geyh, Straddling the Fence Between Truth and Pretense: The Role of Law and Preference in Judicial Decision Making and the Future of Judicial Independence, 22 NOTRE DAME J.L., ETHICS & PUB. POL’Y 435, 448 (2008), with Dimino, Pay No Attention, supra, at 346. Does respect for the courts depend on the public’s belief that judges do not have views on such matters? See James L. Gibson, Challenges to the Impartiality of State

a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter.” (hearings before the Senate Judiciary Committee on the nomination of then-Judge Scalia).

183

Supreme Courts: Legitimacy Theory and “New-Style” Judicial Campaigns, 102 AM. POL. SCI. REV. 59 (2008). If promoting respect for the courts is a compelling state interest, would promoting respect for other branches of government justify restrictions on speech in, say, legislative or presidential campaigns? Cf. Sedition Act, 1 Stat. 596 (1798) (forbidding the publication of “any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the[m] * * *, or to bring them, or either of them, into contempt or disrepute * * *”).

6. Why do you suppose that Justice Souter, who usually is quite solicitous of First Amendment claims, and Chief Justice Rehnquist, who is usually not, flipped sides in this case? See Michael R. Dimino, Counter-Majoritarian Power and Judges’ Political Speech, 58 FLA. L. REV. 53 (2006).

7. Should the Court have treated elected judges as government employees, with restrictions on their political activities evaluated under United Public Workers v. Mitchell, 330 U.S. 75 (1947)? May states restrict the speech of appointed judges on a government-employment theory? May states restrict the speech of lawyers on the theory that the license to practice law is a state-conferred benefit that may be conditioned on maintaining public respect for the legal system?

8. The dissenters argued that states should be able to adopt a middle road between fully competitive elections and appointive systems. Thus, in Justice Stevens’s words, the Court unwisely “put States to an all or nothing choice of abandoning judicial elections or having elections in which anything goes.” 536 U.S. at 800 (Stevens, J., dissenting). The majority, by contrast, adopted the view that “the greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance.” Throughout this course you have seen and will see many variants of the greater-includes-the-lesser argument. Usually the argument runs into difficulty where the “lesser” power isn’t really part of the greater one, but is instead a different power. For example, a state need not have elected school boards, but if it chooses to have them, the elections must comply with the constitutional guarantee of equality. See Kramer v. Union Free School District No. 15, 395 U.S. 621, 628-30 & n.11 (1969) [p. XXX]. Likewise here, the power to appoint judges may not be the same as the power to limit speech by or about judges.

Do you agree with the dissenters that a middle road is possible? Do you think that a state could adopt such a middle approach for presidential elections, on the rationale that the state legislature need not have popular elections for presidential electors at all? See McPherson v. Blacker, 146 U.S. 1, 27 (1892). Would it be constitutional for a state to hold judicial elections, but to deviate from the requirements of one-person, one-vote? See Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff’d 409 U.S. 1095 (per curiam) (holding judicial elections immune from one person, one vote).

9. Underlying the dissenters’ argument is the conviction that states are entitled to treat judicial offices differently from “political” ones because of the differences in their respective duties. Should states be able to make this choice for the people? That is, should a state be able to restrict speech in judicial elections because it wants the judicial function to be (and to be recognized as) non-political, if the people want to vote based on campaign statements? See generally Dimino, Pay No Attention, supra.

10. If you agree with the dissenters in White, how much freedom do you believe states should be given to define the independence of state offices? Should states be able to adopt a Burkean approach to the legislature or executive, and argue that undue electioneering risks pandering to

184

the public, which could destroy the officials’ ability to exercise their own consciences? Which officials in the executive and legislative branches have an obligation to apply the law irrespective of public opinion? See, e.g., U.S. CONST. art. II, § 3 (providing that the President “shall take Care that the Laws be faithfully executed”); United States v. Nixon, 418 U.S. 683 (1974) (requiring the President to comply with a subpoena); Cooper v. Aaron, 358 U.S. 1, 18-19 (1959) (requiring states to abide by the Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954)); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 168 (1803) (stating that the Jefferson administration’s refusal to provide Marbury his commission “is a plain violation” of Marbury’s right to the document, “for which the laws of his country afford him a remedy”). Would the White dissenters uphold restrictions on campaign speech in elections for district attorney, secretary of state, or coroner?

11. As you will see in Chapter 9, Justice Ginsburg’s argument that the announce clause is necessary to prevent evasion of the pledges-and-promises clause is analogous to the argument that stringent campaign-finance restrictions are necessary to ensure that other limits are not evaded. Such house-that-Jack-built arguments are not limited to election law. Cf. Wickard v. Filburn, 317 U.S. 111, 127-29 (1942); M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 417 (1819).

12. Is the entire enterprise of electing judges inconsistent with the ideal of an independent judiciary that can defend the rule of law? See, e.g., Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689 (1995); Michael R. Dimino, Sr., Accountability Before the Fact, 22 NOTRE DAME J.L., ETHICS & PUB. POL’Y 451 (2008); Charles Gardner Geyh, Why Judicial Elections Stink, 64 OHIO ST. L.J. 43 (2003); David E. Pozen, The Irony of Judicial Elections, 108 COLUM. L. REV. 265 (2008). Consider New York Board of Elections v. López Torres, 552 U.S. 196, 212 (2008) [p. XXX] (Kennedy, J., joined by Breyer, J., concurring in the judgment):

When one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence. The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges. And it may seem difficult to reconcile these aspirations with elections.

Still, though the Framers did not provide for elections of federal judges, most States have made the opposite choice, at least to some extent. In light of this longstanding practice and tradition in the States, the appropriate practical response is not to reject judicial elections outright but to find ways to use elections to select judges with the highest qualifications. A judicial election system presents the opportunity, indeed the civic obligation, for voters and the community as a whole to become engaged in the legal process. Judicial elections, if fair and open, could be an essential forum for society to discuss and define the attributes of judicial excellence and to find ways to discern those qualities in the candidates. The organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy must engage in this process.

Justice Stevens more bluntly suggested that problems observed in judicial elections “lend support to the * * * proposition that very practice of electing judges is unwise.” Id. at 209 (Stevens, J., joined by Souter, J., concurring). Ultimately, however, Justice Stevens concluded that “[t]he Constitution does not prohibit legislatures from enacting stupid laws.” Id.

13. Despite the Court’s apparently unanimous view in López Torres that states may constitutionally select their judges by popular elections, Caperton v. A.T. Massey Coal Co., 556 U.S. __, 129 S. Ct. 2252 (2009), decided the following year by a 5-4 margin, may indicate that

185

there are constitutional concerns surrounding the election of judges. In Caperton, the Court held that the Due Process Clause required the recusal of an elected state-supreme-court justice in a case reviewing the legality of a $50 million judgment. The CEO of the company against which the judgment was entered had spent $3 million in support of the judge’s election. Almost all of the $3 million was spent independently of the judge’s campaign, however, and the company itself spent nothing. The Court held that due process was compromised, but was careful to state that the “extreme” facts of Caperton should serve to differentiate that case from more common instances in which litigants have supported the selection of judges hearing their cases. The Court’s test for determining when the Due Process Clause has been violated, however, was vague:

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

129 S. Ct. at 2263-64. Are you satisfied that judicial elections can continue after Caperton, or will recusal motions hamper the effective operation of elected courts?

14. On remand in Republican Party v. White, the en banc Eighth Circuit struck down two of Minnesota’s restrictions on judicial campaign conduct, in addition to the announce clause. The first, the partisan-activities clause, prohibited judicial candidates from identifying themselves as members of parties, as well as attending political gatherings or pursuing party endorsements. The second, the solicitation clause, prohibited judicial candidates from personally soliciting campaign funds. Such funds were instead to be raised by a campaign committee separate from the candidate. Are either of those restrictions narrowly tailored to serve a compelling interest? Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (en banc). See also Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2003); Siefert v. Alexander, 597 F. Supp. 2d 860 (2009).

186