A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? As long as the faith expressions of Tim Tebow and his imitators don’t implicate the government, then the Constitution, which generally concerns only the government’s actions, is not triggered. Whether non-governmental entities such as the NFL or the Broncos wish to place limits on Tebowing—e.g., as “excessive celebration” prohibited by NFL Rule 12 § 3 art. 1(d)—is a matter that could potentially infringe players’ rights under federal or state civil rights statutes. But neither the First Amendment to the Constitution’s ban on religious establishments nor its guarantee of religious free exercise would come into play.

The conduct of Tim Tebow, alas, has not been confined either to Tim Tebow or to non-governmental settings. At least two public school students in New York, for instance, were suspended last month after Tebowing in a school hallway, allegedly for causing an obstruction. Whether or not their First Amendment speech and religion rights were violated is unknown—have all hallway obstructions led to such punishments?—but there can be no doubt that Constitution applies to the school’s actions.

Nor has Tebow-related conduct been confined to students. In Columbia, South Carolina, a high school coach seemingly encourages his athletes to be religious in the manner of Tim Tebow. That is entirely fine as a sentiment, but if it translates to pre- or post-game prayers led or promoted by the coach, then the Establishment Clause would almost certainly make such conduct unconstitutional. The same might even be true of Tebow-like touchdown prayers by players if encouraged, let alone directed, by the coaching staff.

To be sure, it was in the context of a public high school football game that even student-initiated and student-led prayer, when using the school’s public address system on school property and under school faculty supervision, was held by the U.S. Supreme Court to be unconstitutional under the Establishment Clause. Although the Court noted that “nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday,” it further remarked “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

In summary, Tebowing or other Tebow-like conduct may in some instances be protected by the Constitution’s First Amendment, while in others it may be circumscribed if not absolutely prohibited. Such calls, of course, will ultimately be made not by zebra-striped referees on the field of play but by black-robed judges in a court of law, with no set limit on either challenges or the use of instant replay footage.

One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban?  The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is.

The expression of political speech receives the greatest protection under the First Amendment when it takes place in a public forum:

Speech restrictions in traditional public forums are generally subject to the most exacting forms of judicial scrutiny. A government entity may never restrict all forms of communicative activity in these spaces. Public forum doctrine also requires that all restrictions based upon the content of the speech must be subject to strict scrutiny; that is, they must further a compelling state interest in a narrowly tailored way. Courts strike down restrictions on speech in traditional public forums when the restrictions do not satisfy strict scrutiny. In traditional public forums a government may, however, impose content-neutral time, place, and manner restrictions as long as those restrictions are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Michael J. Friedman, Dazed and Confused: Explaining Judicial Determinations of Traditional Public Forum Status, 82 TUL. L. REV. 929, 933 (2008).

In contrast, a far lower form of judicial scrutiny applies to evaluate speech restrictions in nonpublic forums. In a nonpublic forum, speech restrictions need only be reasonable and viewpoint-neutral. See id. at 935.

In Gaylor v. Thompson, 939 F. Supp. 1363 (W.D. Wis. 1996), District Judge Barbara Crabb held that the Wisconsin State Capitol is a public forum. This ruling is unsurprising. The interior of the Wisconsin State Capitol building has traditionally been a site for public expression and protest. As a result, any restrictions on speech within the Wisconsin State Capitol building must meet the stricter standard described above.  As stated by Judge Crabb:

In this instance, the state of Wisconsin has opened the capitol rotunda to a variety of displays and exhibits and must be considered a public forum for the purpose of First Amendment analysis. However, that decision does not mean that the state is prohibited from imposing certain regulations on the time, place and manner of the displays. The state can implement such restrictions provided they “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

However, in the case of Bynum v. U.S. Capitol Police Bd., 93 F. Supp.2d 50 (D.D.C. 2000) the court ruled that the United States Capitol is not a public forum.  The court noted that as early as 1946 the U.S. Congress had passed a law banning protests and demonstrations inside of the U.S. Capitol. That law, coupled with a lack of a tradition of public access to the U.S. Capitol building for protests, and the exclusive control that Congress exercises over the District of Columbia, led the court to conclude that the U.S. Capitol is not a public forum:

Which brings the Court to what may seem a somewhat surprising conclusion that the inside of the United States Capitol is a nonpublic forum for First Amendment forum analysis purposes. While in many respects the Capitol must be viewed as sui generis, it appears that its designation as a nonpublic forum most closely conforms with Congress’ intent and the forum-based approach adopted by the Supreme Court. As a nonpublic forum, the government may restrict First Amendment activity in the Capitol so long as the restrictions are “viewpoint neutral” and “reasonable in light of the purpose served by the forum.” [citations omitted]

Because it found the U.S. Capitol building to be a non-public forum, the court evaluated restrictions on speech within the U.S. Capitol building under the more forgiving standard of reasonableness.

However, it is important to note that, even under this lower constitutional standard, the court still found that the only reasonable justification for government rules restricting speech would be the disruptive effect of the protestor’s conduct. Therefore, even under the nonpublic forum standard, the United States Capitol Police were still prohibited from banning expressive conduct that was non-disruptive.

In the case of plaintiff Bynum, he was a pastor who led a small group in prayer and meditation, in a conversational tone, within Statutory Hall and other portions of the Capitol Building. The Bynum court held:

The Court, however, cannot conclude that the regulation is reasonable in light of the purposes it could legitimately serve. While the regulation is justified by the need expressed in the statute to prevent disruptive conduct in the Capitol, it sweeps too broadly by inviting the Capitol Police to restrict behavior that is in no way disruptive, such as “speechmaking . . . or other expressive conduct. . . .” Because the regulation’s proscriptions are not limited to the legitimate purposes set forth in the statute, it is an unreasonable and therefore an unconstitutional restriction on speech. [citation omitted]

The Bynum court issued an injunction ordering the U.S. Capitol Police not to enforce restrictions on First Amendment conduct within the Capitol Building unless they are addressed towards disruptive or obstructive conduct.

Therefore, even under the lesser standards applicable in a nonpublic forum, the First Amendment prevents the U.S. Capitol Police from completely banning small, non-disruptive protests within the U.S. Capitol building. Any statement in the current written policy of the U.S. Capitol Police that purports to completely ban protests inside of the U.S. Capitol cannot be enforced. For example, in one highly publicized recent case, the U.S. Capitol Police apologized to an individual for mistakenly removing her from the Capitol Gallery for wearing a T-shirt with a political slogan.

[Note: Unlike the interior of the U.S. Capitol building, the grounds surrounding the building are a public forum. See Lederman v. United States, 291 F.3d 36 ( D.C. Cir. 2002).]

The bottom line is that it makes a difference for the constitutional analysis of the new DOA policy that the Wisconsin State Capitol is a public forum.

Might the legislators in Madison pass a bill declaring that the Wisconsin State Capitol is no longer a public forum? Not really, because once a location has become a public forum by tradition the government may not arbitrarily remove that status. In any event, such a law would violate the Wisconsin State Constitution, which provides that the doors of the State Capitol shall remain open while the legislature is in session. There is, of course, no analogue for this provision in the federal Constitution. Even though the Wisconsin Supreme Court has recently treated the “open doors” provision of the Wisconsin Constitution in a rather cavalier manner, it is difficult to conceive how any legislative attempt to completely foreclose protests within the State Capitol building could survive a state constitutional challenge.

It should be obvious by now that the permit policies currently in place at the United States Capitol are completely irrelevant to the First Amendment analysis that applies to a public forum like the Wisconsin State Capitol. As I previously wrote, the new DOA policy is overbroad because it allows fees to be imposed on the indigent as a condition of protesting, it vests unbounded discretion in the Capitol police to determine whether to impose advance fees for security costs, and it requires permits from small groups of four or more protesters. These restrictions fail to meet the strict standards used to evaluate limitations on speech in a public forum. Even in a nonpublic forum like the U.S. Capitol, the federal courts have enjoined attempts to prevent small groups from engaging in non-disruptive protests without a permit.

By looking to the policies in place at the U.S. Capitol, the defenders of the DOA policy have fallen into a logical trap. The advocate thinks to himself, “If only I can argue Proposition X, then I will win the argument.” So the advocate searches high and low for evidence in support of Proposition X. Alas, arguing backwards from a conclusion never works.

Here, Proposition X is the assertion that “Restrictions on speech in the United States Capitol reflect what may be constitutionally restricted in the Wisconsin State Capitol.” As the above discussion illustrates, this assertion rests upon a myriad of mistaken assumptions.

By drafting an overbroad policy with little or no guidance for how the security staff is supposed to implement it, the Department of Administration has placed the Wisconsin State Capitol Police in a very difficult position. Rather than continue in its attempts to justify restrictions that indefensibly infringe upon the First Amendment rights of citizens, the DOA should withdraw its new policy and start from scratch.

The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.”

The requirement that a fee be paid in advance of the exercise of First Amendment rights constitutes a prior restraint on the exercise of free speech. See Forsyth County, Ga. V. Nationalist Movement, 505 U.S. 123 (1992). Advance fee requirements are recognized as a prior restraint because some individuals will forego the exercise of their rights rather than apply for advance permission or pay the fee. Prior restraints on the exercise of free speech are highly disfavored under constitutional law. While they are not per se unconstitutional, prior restraints will be subjected to heightened scrutiny. The Supreme Court has articulated the following standard for evaluating the constitutionality of government permitting schemes:

Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

Nathan Kellum, Permit Schemes: Under Current Jurisprudence, What Permits Are Permitted?, 56 DRAKE L. REV. 381 (1985).

The Supreme Court’s precedent in the First Amendment area has been criticized by academics for lacking a clearly articulated standard that successfully reconciles the Court’s various (and varied) holdings. This is a common complaint in areas such as First Amendment jurisprudence, where the Court’s decisions are typically closely tied to the particular facts of the case before it. Nonetheless, in the context of fees charged in advance as a condition of exercising the right of free speech, the Court’s precedent establishes at least three principles:

1. Fees Cannot Be Imposed If They Deny Speech to the Indigent

The Court has emphasized that the indigent cannot be denied their First Amendment rights solely because they are unable to pay a required fee. The lack of an “indigency waiver” is not fatal in circumstances where an alternative means of expression exists that is available to the demonstrator, however where no such alternative exists there is ample precedent striking down restrictions on speech that do not take into account the demonstrators ability to pay. See Sullivan v. City of Augusta, 511 F.3d 16, at footnote 15 (1st Cir. 2007).

This conclusion is not surprising. As summarized by Professor Eric Neisser:

In addition to what is formally referred to as the public forum doctrine, there are other strands of law designed to maintain ready access to opportunities for public expression. For example, even avenues of expression not strictly designated as public forums, such as the voting booth or the elective ballot, must be kept open to persons or groups of limited income, although it remains unclear which avenues will be held subject to indigents’ access and how poor one must be to qualify for protection. Clearly however, financial obligations cannot be fixed at a level or applied to groups or persons in a manner that effectively bars access to protected forums.

Eric Neisser, Charging for Free Speech: User Fees and Insurance in the Market For Free Ideas, 74 GEO. L. J. 257 ( 1985).

The State Capitol building is a unique location for the expression of protected speech, and there is no equivalent alternative location available to would be protestors.

2. Fees May Not Be Imposed By Government Officials Left With Unbounded Discretion

The Supreme Court has struck down advance payment requirements when officials are left with unbounded discretion to determine when the fee may be required and when it may be waived. Instead, the Court has demanded that the official charged with implementing the fee requirement must be given objective criteria to guide their decision. The ability to impose or waive a fee without any objective criteria allows the government official the ability to favor one viewpoint over another, and unbounded discretion transforms an otherwise content neutral regulation into a regulation that is directed at the content of the speech.

In the Forsyth County, Ga. Case, the Supreme Court struck down a permit process that gave the county administrator unbounded discretion to assess advance fees from a nominal amount up to $1,000 in order to defray security expenses. The Court said:

Based on the county’s implementation and construction of the ordinance, it simply cannot be said that there are any “narrowly drawn, reasonable and definite standards” guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time–or even whether to charge at all–is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official. [citations omitted]

The new DOA policy allows the State Capitol police to determine, with no objective criteria, whether or not to impose advance fees for public safety and in what amount, all in the context of groups containing as few as four protestors.

There is some argument over whether fee policies must still contain written objective criteria for police in the context of parades and marches. The First Circuit has held that no objective written criteria are necessary when police officials estimate costs related to traffic control, street closures and parade security. See Sullivan v. City of Augusta, 511 F. 3d 15 (1st Cir. 2007). However, the Ninth Circuit has disagreed and ruled that the delegation of unbounded discretion to the police is a violation of the First Amendment even when it occurs in the parade context. Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation v. City of Seattle, 550 F.3d 788 (9th Cir. 2008). And, in the context of a march and rally, the Eleventh Circuit struck down a regulation that allowed police to pass along the costs of additional police protection to those demonstrating in a public forum as a pre-condition to the granting of a permit. See Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir. 1985).

Regardless, the new DOA policy does not apply to parades, but rather to government facilities and in particular the State Capitol building. There is no dispute that the lack of objective criteria for the police to determine whether extra security is required violates the Forsyth prohibition on unbounded discretion when it occurs outside of the parade context — such as when advance fees are charged to cover security for campus speeches, Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010). See also Driver v. Town of Richmond, 570 F. Supp.2d 269 (D. R.I. 2008) (involving unbounded police discretion to issue permits for permission to post signage).

3. Fees May Only Be Imposed When Necessary to Advance Significant Government Interests

The government may not use fees on First Amendment activities as a revenue raising device, but instead must clearly demonstrate that any fee is necessary to advance a legitimate interest in regulating the time, place and manner of speech. See Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943). The state does have a significant interest in safeguarding public safety and property. However, the new DOA policy allows the police to charge for extra security for groups as small as four persons.

The legitimate state interest in safeguarding public safety is not advanced by charging advance fees for groups of such small size. The state cannot demonstrate that a group of four persons will of necessity require the assignment of any extra security at all. Parades, rallies and concerts, where large numbers of attendees are expected, may justify the need for extra security and therefore may provide the state with a sufficient interest in charging an advance fee for security expenses. See, e.g., Thomas v. Chicago Park District, 534 U.S. 316 (2002) (upholding advance permit requirement for events of 50 or more people). However, the fact that fees may be imposed on events attended by large groups does not lead to the conclusion that fees may be imposed in advance any time the state wishes.

The Supreme Court has expressed concern over regulations that act to restrict the political expression of individuals or of small groups of people. In the case of Watchtower Bible & Tract Society v. Village of Stratton, 536 U. S. 150 (2002), the Supreme Court struck down a village ordinance that required advance permitting of every door to door solicitor, saying:

The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to “residents casually soliciting the votes of neighbors,” or ringing doorbells to enlist support for employing a more efficient garbage collector.

The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.

Reviewing the First Amendment precedent, attorney Nathan Kellum concludes:

The constitutional hurdle of demonstrating a legitimate governmental interest before any regulation of speech can be constitutionally valid leads to inquiries about the size of the group impacted by a permit scheme and whether the government has an interest in regulating singular individuals and small gatherings. One of the most frequent justifications for the use of a prior restraint is the preservation of public safety and order. This oft-cited purpose of safety and order only gains practical legitimacy, however, if the ordinance in question seeks to regulate large group activities, such as parades and rallies. Courts entertaining this issue routinely hold that a permit requirement imposed on individual or small group speech to be overly burdensome.

See Nathan Kellum, Permit Schemes, supra.

The Ninth Circuit summarized the precedent on the issue in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009):

It is therefore not surprising that we and almost every other circuit to have considered the issue have refused to uphold registration requirements that apply to individual speakers or small groups in a public forum. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039 (9th Cir. 2006) (“As the cautionary language in our earlier opinions indicates, the significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sidewalks.”); see also Grossman, 33 F.3d at 1206 (holding that the possibility that the ordinance at issue could reach “the actions of single protestors” rendered it unconstitutional); Rosen, 641 F.2d at 1247-48 (invalidating a one-day advance registration requirement because it applied to individuals and therefore “regulate[d] far more than mass conduct that necessarily interferes with the use of public facilities”); Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005) (“[U]nflinching application” of a permitting requirement “to groups as small as two or three renders it constitutionally infirm.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“[A]pplying the permit requirement to groups as small as ten persons compounds our conclusion that the parade permit ordinance is not narrowly tailored [to advance the government's interest in protecting the safety and convenience of users of public sidewalks and streets.]“); American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down a permit requirement as “hopelessly overbroad” on the ground that the requirement could conceivably apply to groups as small as “two or more persons”).

In summary, the new DOA policy is susceptible to legal challenge on the grounds that it is a facially overbroad infringement upon the First Amendment rights of protestors. This is because, as written, the new policy can be applied in a way that allows the state to impose advance fees on the indigent, on the basis of unbounded police discretion, and in circumstances where the size of the group affected does not justify any purported state interest in public safety. Potential plaintiffs do not need to wait and bring an “as applied” challenge to the law when it is actually applied against them in an unconstitutional fashion. This is because there is a long established First Amendment exception to the “as applied” rule that will permit a facial challenge to be brought. See Forsyth County, Ga., supra.

The federal courts have approved advance fee requirements in certain contexts, such as overnight camping, parades and rallies. However, courts have consistently rejected regulations on the exercise of free speech that are so broad that they reach expressive conduct by small groups of people, whether by regulatory design or because government officials possess the discretion to apply the rules in such a fashion. The drafters of the new DOA policy seem to have taken language from a variety of permitting policies from other jurisdictions that have survived constitutional challenge, without regard to whether advance fees were imposed by those policies, or the relative size of the groups affected by the policies, or the context in which public expression was subjected to those policies. It is a mistake to assume that because advance fees may be imposed under the First Amendment in some circumstances that fees therefore may be imposed any time the state wishes.

The state is not prevented from charging advance fees that are tied to objective criteria, such as the number of anticipated attendees, and that do not violate the three principles discussed above. The state is not prevented from assessing fees after the fact, in order to receive compensation for any damage actually caused by protestors. However, any prior restraint on the exercise of free speech should be designed carefully and crafted narrowly. The new DOA policy announced on December 1 does not meet this standard.

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII.

Among other things, the FCC’s revised policy, as described by the Second Circuit, “establish[ed] a ‘presumptive prohibition’ on the use of the F- and S-Words unless their use is ‘demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance,’ or the words are uttered in the course of a ‘bona fide news’ program.” Of course, the policy is not limited to these specific words—they are paradigmatic but not exclusive—and can include instances of nudity, sexual activity, or other words with the same cultural significance as the F- and S-words. More significantly, the FCC policy has been characterized as contextual, depending on the circumstances surrounding each utterance.

Concerns of vagueness and overbreadth naturally abound in the case, and such concerns often provide a judicially attractive way to analyze and invalidate laws without getting unduly entangled in the difficult line-drawing inherent in actually having to define the parameters and boundaries of constitutional protection. But judicial invalidations on the basis of vagueness, in particular, are often just means to delay an inevitable ruling on the merits, and in the case of the FCC indecency rules, the vagueness card has already been played. At some point, such diversionary measures may begin to appear transparent and even unsatisfactory.

At the doctrinal heart of the case (at least from the FCC’s perspective) is a traditional distinction between limited-airwave broadcast media (such as radio and at least earlier versions of television) and the not-so-limited-bandwidth media (such as the internet and its many outlets). According to the FCC’s brief on the merits, the Supreme Court “has long applied less demanding First Amendment scrutiny to regulation of broadcast speech than to regulation of other communications media. That established rule has historically been premised on the scarcity of available broadcast frequencies, the pervasive presence of broadcast media, and the unique accessibility of broadcast programming to children. Those characteristics of broadcasting remain true today.” Historical deference aside, however, each of these characteristics today does not have nearly the force that it possessed in decades past.

Much of the reason that these characteristics have lost persuasive force can be attributable to the final major variable, namely, technological change. With cable, satellite, and internet television and radio (which are generally not regulated by the FCC), it is difficult to speak of “the scarcity of available . . . frequencies.” Moreover, with the prevalence of alternative media devices, from smart phones to tablets, and the diminished role of traditional broadcast media, it is hard to suggest that these traditional media comparatively exhibit a distinctly “pervasive presence.” Lastly, given the content and availability of the internet, not just on PCs but on so many other devices, it is fanciful to speak of “the unique accessibility of broadcast programming to children,” especially when one considers the filtering capabilities built into modern televisions and other media devices and programs.

In the end, this is an important case precisely because it situates the Court at a decisive crossroads. Either the Court can maintain and perhaps try to rework the distinctions that were originally developed amid an era marked by a vastly different technological landscape (and arguably a different cultural milieu) or it can consider revamping its doctrine in a principled way that takes full account of these changes and also anticipates future developments. The latter course need not require the Court to overrule any of its prior decisions, as long as it acknowledges with candor the need to alter its doctrine and maintains fidelity to the deeper import or principles of those cases. Likewise, the latter course also need not lead inexorably to an invalidation of the FCC’s indecency rules, but it would require the Court to chart a new and imaginative course within this branch of the First Amendment.

The worst outcome, I believe, would be a ruling—whether upholding or invalidating the FCC rules—that purports to reach its holding entirely within the existing framework without acknowledging the limited utility of that framework, the vast technological and other changes that exert pressures on the framework’s ongoing viability, and the possibility that the extant framework may (or will) eventually become obsolete.

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school.

Immediately she filed a charge of discrimination and retaliation with the EEOC, which eventually initiated a federal district court action against the school. Though the school prevailed at the district court level, it then lost before the Sixth Circuit Court of Appeals.

Underlying the district court’s ruling, and rejected by the Court of Appeals, is a doctrine called the “ministerial exception.” Her case—and indeed the fate of the ministerial exception—are now before the U.S. Supreme Court, which granted review of the Sixth Circuit’s decision last spring and is scheduled to hear oral arguments on October 5.

What, then, is this “ministerial exception” and why is her case potentially of great significance? In essence the ministerial exception is a judge-made exemption from several federal civil rights statutes, such as Title VII and the Americans with Disabilities Act, that the courts believe is compelled by the Constitution’s religion clauses. The exemption extends to religious organizations’ employment decisions where the employee, regardless of his or her title, serves functions comparable to those of traditional clergy. Importantly, it is a categorical exemption, potentially barring suits alleging discrimination on any statutorily protected basis, including race and gender.

From the petitioner’s initial standpoint, as evidenced in its principal brief on the merits, the issue was simply the Sixth Circuit’s application (or, in its view, misapplication) of the exception. The respondent, however, has effectively challenged the validity of the exception itself, capitalizing on two critical realities: first, that the Supreme Court itself has never adopted the exception, even though every federal circuit court (beginning in the 1970s) has done so, and second, that the exception is seemingly at odds with the Supreme Court’s free exercise doctrine, which it substantially reworked in 1990. It thus comes as no surprise that the bulk of the petitioner’s reply brief only cursorily dwells on Cheryl Perich’s actual circumstances and instead spends most of its pages vigorously defending the exception itself.

Thus, all of a sudden, though not entirely unpredictably, the case has now become a vehicle for potentially abrogating over thirty years of lower court rulings. Will the Court view the exception as a misapplication of the Free Exercise Clause, which in 1990 it held does not ordinarily shield religious conduct from the application of neutral and generally applicable laws? Or will the Court view the exception as a viable component of the Establishment Clause insofar as the government is unduly entangling itself in the internal affairs of religious bodies? The fact that the lower courts have unanimously adopted the exception in one form or another is, to be frank, not necessarily the Court’s problem or concern, and the fact that the lower courts have grounded and conceptualized the doctrine in several ways only works against the supposed significance of their unanimity.

The October 5th oral arguments will ideally shed light on the Court’s inclinations, but given the stakes and the multi-tiered nature of the case, not to mention the very able counsel on both sides and a literal deluge of amicus briefs, the likelihood of such illumination is not great. The only definite aspect of the case, it seems, is that Cheryl Perich and her disability-related claims—the very genesis of the litigation—have become merely a secondary story in what is now a major contest over the First Amendment.

So what’s to like – or at least protect – about violent video games?  The opinion is clear that video games are protected by the First Amendment.  Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”  The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction.  The Court goes on to state that last term’s opinion in United States v. Stevens controls.  Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” (564 U.S. at 3)  Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors.  The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”  “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)

Justice Scalia’s opinion emphasizes that we have no tradition in this country of sheltering children from violent depictions, and he catalogues many gory examples from books that children routinely read: Grimm’s Fairy Tales, The Odyssey, The Inferno, and The Lord of the Flies are a few of his examples.  His point is well-taken:  the image of poor, fat Piggy being killed by other children in The Lord of the Flies remains vivid in my mind forty years after I read the book.  Another of Scalia’s points is well-taken as well: such an account is not “just” fiction; it carries various social messages.  As a child, I had neither the size nor the personality to be a bully, but reading about Piggy’s plight, far from turning me into a violent attacker, made me empathize even more with those kids who were further down the social food chain than I was.

To me, the most interesting and thought-provoking thing about the opinion in this case, and the thing most likely to generate lots of commentary, is that the free speech right being protected here is not primarily that of the video game producers – it is instead the right of minors to have access to protected speech, unless their parents have made a prior objection to their receipt of that information.  The majority cites a 1975 case, Erznoznik v. Jacksonville (which struck down an ordinance forbidding owners of drive-in movies to show films containing nudity), for the proposition that “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” (564 U.S. at 7)   Justice Scalia distinguishes between the government enforcing or supporting a parental ban (which would be permissible) and, as in the case of the California statute, the government imposing its own ban on what materials minors can access (which is unconstitutional).

There will likely be much discussion in the future of where and how to draw the line between governmental support of parents’ restrictions on their own children, and governmental  interference with a child’s right to access protected speech.  This will be very interesting, and will include, no doubt, some violent differences of opinion to which minors, presumably, will have access.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.  In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides.  In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience. 

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship.   Even after the dust settles on the particular aspects of the budget bill that have engendered controversy (collective bargaining rights, public school funding, control over state health care programs, etc.), there will remain three broad issues that call out for reform, both in Wisconsin and nationwide.  Everyone in Wisconsin (and that includes Democrats, Republicans, and Independents) shares an interest in preserving a system of government in which it is the voters of the state who hold the ultimate political power.  Overlooked amidst the partisan bickering between Governor Walker and the Democratic 14 are serious fault lines that threaten the long term stability of the democratic process.

1. Political Accountability

The Supreme Court has often stressed that our system of government only works when elected officials are accountable to the voters.  The Court’s interpretation of the U.S. Constitution has elevated the idea of political accountability into a basic structural component of both the separation of powers and federalism.  For example, in the case of Clinton v. City of New York, the Court struck down the Line Item Veto Act.  Justice Kennedy wrote a separate concurrence stressing the manner in which the technique of the line item veto impermissibly allows Congress to avoid being held politically accountable for its spending decisions.  Similarly, in Printz v. United States, the Supreme Court struck down certain provisions of the Brady Bill that required local law enforcement to perform background checks on handgun purchases.  Justice Scalia’s majority opinion stressed the manner in which the Brady Bill acted to shift unpopular enforcement responsibilities away from the federal government and onto the shoulders of state officials.    

From this perspective, the Walker administration’s budget bill was objectionable, on process grounds.  The budget bill incorporated fundamental policy provisions into a fiscal bill that was required in order to fund the state government.  Both political parties in Wisconsin have engaged in this practice in the past, and it is easy to see why.  First, the exigencies of passing a budget, and the desire to keep state government’s services and benefits flowing, work to create time pressures that preclude any reasoned deliberation and debate over the policy changes.  Second, the inescapable need to pass a budget bill in some form typically creates political “cover” for politicians who can vote in favor of the bill in its totality while still claiming to have privately opposed the passage of specific policy provisions.  The result of combining basic policy provisions with budgetary provisions, however, is that it allows elected officials to avoid taking responsibility for their votes.

The number of significant policy changes contained within the Wisconsin budget bill is sufficient to lead to the conclusion that the entire bill was designed to allow Republican legislators to avoid political accountability.  A false sense of urgency was created, using the fiscal needs of the government as an excuse, and the vote on the bill was fast tracked in order to limit public debate.  In addition, items that clearly would have generated a storm of controversy if introduced as a stand-alone bill were quietly buried in the budget bill.  This move allowed nervous Republicans to vote for the entire bill while maintaining plausible deniability with constituents who opposed the controversial provisions.

It is only due to the actions of the Democratic 14, who left the State in order to deny the Senate a quorum, that the issue of collective bargaining rights for public employees was separated from the overall budget provisions in the minds of the voting public.  As a result, and much to their chagrin, individual Republican legislators were forced to take a position on the issue in the face of public scrutiny.  All of these legislators, Democrat and Republican, are now accountable to the voters, who can exercise their power to recall legislators on either side as they see fit.  Contrary to today’s bizarre editorial in the Milwaukee Journal Sentinel, criticizing the recall efforts already underway, the accountability of elected politicians to the voters is a good thing.      

Procedural tricks designed to protect nervous lawmakers from being held accountable for their votes have no place in a democracy.  The Supreme Court is correct: the desire of the Framers to place the ultimate political power in the hands of the voters is meaningless unless political accountability is rigorously enforced.  “Handshake” agreements between the two political parties, whereby they make vague promises to keep policy proposals out of the biennial budget, are too easy to avoid.  Informal practices should be replaced with strong proscriptions that enforce such separation.

2. Money Matters (A Lot)

Even Wisconsin’s Senate Majority Leader admits that the collective bargaining provision contained in the budget bill strikes at the Democrats’ fundraising capability.  The vast sums of money needed to run a modern statewide campaign (primarily due to the cost of mass media advertising) has created an arms race between the two political parties in which both sides endeavor to raise ever increasing sums of cash.  Much of the money raised goes to pay for mass media advertising that solicits even more contributions, and for the salaries of professional fundraisers.    

Both political parties have become dependent upon collective entities, as opposed to individual contributors, for their financial needs.  Unions are the collective entity that provides the Democrats with a large portion of their funding.  Corporations are the collective entity that provides the Republicans with the bulk of their funding.  Both sides attempt to restrict or eliminate the source of their opponent’s funding, while preserving their own.

In the context of public employee unions, some people have complained that the unions are funded by taxpayer-supported salaries, and that these unions merely recycle those dollars to advance self-interested objectives that many taxpayers oppose.  That may be true to a certain extent, but the same point applies to corporations as well.  Corporations spend monies for political purposes that would otherwise flow back to the owners of the corporation.  In the case of publicly traded corporations, a large percentage of the company’s shareholder-owners are pension funds investing the retirement money of teachers and other government employees.  I doubt that the beneficiaries of these pension funds appreciate the fact that profits in companies that they own are being used to fund political speech (oftentimes hostile towards unions) rather than being paid out to them as dividends.

Rather than spend their time and energy plotting to defund their opponent’s main source of campaign dollars, our legislators should enact meaningful campaign finance reform.  This would entail limitations on the disproportionate influence exerted by collective entities on both sides, and force candidates for office to rely more heavily on individual contributions.  Campaign finance reform would also make public financing available for candidates who wish to forego contributions from collective entities (thereby allowing the emergence of candidates who are not financially beholden to either unions or corporations).  We are fortunate to have a national expert on campaign finance reform, Senator Russ Feingold, as a Visiting Professor here at Marquette.

If you include “issue ads,” such as the message advertising that Governor Walker alluded to in his phone call with the pseudo-David Koch, the general public already ends up footing most of the bill for campaign spending by collective entities.  For some of us, these funds are collected from our paychecks in the form of mandatory union dues.  For others, these campaign funds are derived from the cost of goods that we purchase from the dues paying members of Wisconsin Manufacturers & Commerce or members of other corporate lobbying groups.  A process that forces us to indirectly support the political spending of collective entities merely allows the middlemen to leverage our own dollars in exchange for their political influence.  The public should have the right to decide to cut out the middleman, and to support political candidates directly through publicly funded campaigns. 

The roadblock here is the United States Supreme Court.  I have already posted on this Blog concerning the case of Citizens United v. FEC.  I find the majority opinion in that case to be extremely misguided.  The Supreme Court has taken an absolutist view of the First Amendment in the context of campaign finance.  As a result of the Court’s holding in Citizens United, lawsuits have been filed challenging not only legislation seeking to limit the influence of collective entities on the political process, but also challenging the constitutionality of laws that provide for the public funding of candidates.  In essence, the voting public is being told that we are not allowed to regulate the electoral process, and that we have no choice but to accept the status quo.  I continue to maintain that the First Amendment was not intended to provide collective entities with a constitutional right to participate in the electoral process.     

3. Legislative Districting Reform

The third and final area that calls for reform involves the manner in which legislative districts have been drawn so as to amplify the power and influence of the extremes of both major political parties at the expense of the “moderate middle.”  An interesting post from the Washington Post blog looks at the congressional districts in Wisconsin, and considers whether the state legislature can re-district in order to increase the number of safe Republican seats.  The answer, apparently, is that current districts are already gerrymandered to the maximum extent possible.

I have blogged on this topic before as well.  The problem is that legislative districts are specifically designed to amplify a particular political affiliation among the voters, thereby providing a disproportionate influence to the extreme wing of that party.  Politicians elected from politically gerrymandered districts are often warned that they can expect a primary challenge if they stray too far from the extreme position, even though a majority of the voters who self-identify with that party would prefer a more moderate approach to the issue.  Superior organization and fundraising, coupled with lower turnout numbers in primary elections, combine to give a small number of energized activists the ability to mount successful challenges to the incumbent from the extreme wing of the party.  However, this is only possible because districts are drawn on a partisan basis so that the victor of the primary is highly likely to win the general election. 

If legislative districts were not gerrymandered along political lines, then politicians would have a greater incentive to appeal to moderate voters as opposed to “the base.”  Politicians might even recognize that their constituents hold a variety of different views on the issues, instead of dividing the electorate into two categories: opponents versus “one of us.”  Compromise and progress might even replace gridlock and frustration in both the state and national legislatures.  Instead, we find that our elected officials are increasingly polarized.

In 2004, the Supreme Court had the opportunity to do something about this in the case of Veith v. Jubelirer.  Instead, the majority of the Court ruled that the nature and extent of districts gerrymandered on a partisan basis raised a political question that the Supreme Court could not resolve.  As a result, the only way that partisan gerrymandering will end is if the politicians elected via that very process decide on their own to end it.

Contrast this result with the Supreme Court’s 1962 decision in Baker v. Carr .  There, the Court ruled that state legislative districts that resulted in some voting districts having greater representation than others did not present a political question and could therefore be challenged in court.  As recounted in a recent biography of Justice Brennan by Seth Stern and Stephen Wermiel, Justice Clark, who had been tasked with researching alternative ways other than litigation in which the advocates for electoral reform might accomplish their objectives, concluded in a note to his colleagues: “I am sorry to say that I cannot find any practical course that the people could take in bringing this about except through the federal courts.”  Justice Clark’s vote was the crucial fifth vote in the case.  As a result, the Supreme Court created a mechanism whereby an electoral process that had become petrified and detached from the interests of the voters could be challenged in court, struck down, and reformed.             

We are at a similar impasse today with legislative districts that are drawn in order to favor the two extremes of the political spectrum at the expense of the majority of the voters (who reside well within the ideological middle).  However, this time the only institution capable of reforming the system has decided to sit on the sidelines.

The democratic process needs certain fundamental characteristics in order to work.  These necessary components include: holding legislators accountable for their votes, curbing the influence of collective entities so that the interests of individuals can take precedence, and drawing legislative districts in such a way that candidates can successfully appeal to moderate voters.  An electoral process that lacks these three features is doomed to become captured by special interests.  It may well be that we the voters are incapable of governing ourselves, and that my belief in the democratic process is just a myth.  But even so, it is a myth worth fighting for.

What is happening in Madison, Wisconsin, is monumental, and I am not solely referring to the proposals contained in the bill.  What is exceptionally important here is that we are able to see the expression of constitutional rights in a most obvious way, a fact that I think has received little attention.

All last week (and undoubtedly continuing this week), protestors against the bill have flocked to the Capitol, bearing signs and chanting slogans, all of them exercising their constitutionally guaranteed rights of free speech and peaceful assembly.  They want to be heard.  Last Saturday, for the first time during the week of protests, there arrived opposition to the opposition. Pro-bill supporters arrived in the Capitol for a rally at noon and many remained throughout the afternoon, stationed at various points on the Capitol square or walking in the protest crowd.  And it was peaceful.  On Saturday, the most crowded day on the square, there was not one protest-related arrest.  In fact, during the course of all last week, ten people were ticketed for disorderly conduct, a number lower than citations issued during some Badger football home game days.

Whether the protests will have their intended effect remains to be seen.  Voting on the bill has been stalled because, after all fourteen of the Democrat Senators left the state on Thursday, the Senate lacks a quorum to call the vote.  The Democrats say they’ll return if Governor Walker will negotiate the bill’s provisions, a prospect that does not appear likely.  More to the point here is that we are able to see a sustained non-violent opposition process at work.  The state has long been a leader for progressive ideas.  It would be nice to say that it is also leader in showing how peaceful opposition to government works.

Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

Bynum begins his analysis by describing Europe’s commitment to renewable energy and the highs and lows of the offshore windpower industry abroad.  He then explores the federal and state regulatory regimes that govern such projects in Wisconsin and observes that there are significant obstacles facing developers.  Bynum argues that we should learn from the European experience and concludes by offering several proposals, such as providing federal loan guarantees and creating a new state office of “offshore wind coordinator,” to promote the development of offshore wind projects in Wisconsin.

Donald Stroud’s comment, which garnered the Silver Quill Award last spring, focuses on the use of Wisconsin’s Deceptive Trade Practices Act (DTPA) to adjudicate simple breach of contract claims in commercial transactions.  He describes the Wisconsin Supreme Court’s decision in K & S Tool & Die Corporation v. Perfection Machinery Sales, Inc. (2007), which created a way for a contracting party to avoid legitimate but unfavorable terms (in K&S, a restrictive forum selection clause) in the contract by asserting a DTPA claim.  Stroud observes that indiscriminate applications of the DTPA may (1) disrupt expectations and risk allocations that are fairly negotiated into contracts, (2) conflict with UCC provisions, and (3) go beyond the intent behind DTPA.  He recommends the adoption of a “public interest standard” to distinguish between cases that fall within the ambit of the DTPA and those that should be governed by ordinary contract law.  He also suggests that the UCC should trump the DTPA whenever the two are in conflict.

Jessica Farley’s comment undertakes an examination of the conflict between Wisconsin’s open records law and the intellectual property interests of private companies that keep public records on behalf of municipalities in a copyrighted format.  Farley criticizes the state supreme court decision in WIREdata, Inc. v. Village of Sussex (2008), which held that a municipality complied with the state’s open records law when it provided the plaintiff with PDF versions of requested records, even though the data contained in such files were not manipulable and, therefore, useless to the plaintiff.  She observes that the court dodged the central issue in the case – whether the open records law requires a municipality to provide records in a more usable format when so requested – and argues that the statutory language and purpose of the open records law demand meaningful access to information.  Farley concludes that in light of this important public interest copyright must yield, and proposes an amendment to the law that would include usability as a factor for determining compliance with the open records law.

Last but not least, Rachel Helmers has written a comment critiquing federal courts’ treatment of negative equity that is rolled into a new car loan as a purchase money security interest (PMSI).  PMSI status not only grants super-priority on the collateral (here, the car) to the lender under the UCC, but it also protects the lender from cramdown under the 2005 amendments to the Bankruptcy Code.  Helmers argues that shielding the negative equity portion of a car loan from cramdown in a Chapter 13 bankruptcy does not effectuate congressional intent in the 2005 amendments and fails to treat similarly-situated creditors alike.  She urges courts to follow the “dual status” rule, which would separate the negative equity from the remaining amount of the loan used to purchase the car and treat only the latter as a PMSI.

Paul Secunda helpfully places Garcetti‘s formalism in a broader jurisprudential context in a new paper on SSRN, “Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law.”  

More specifically, he connects Garcetti and similar public employment cases to the “unconsitutional conditions” cases outside the employment setting, in which the Court has embraced a distinction between government subsidies and penalties.  As to subsidy programs, the Court will permit the government to act in ways that burden a constitutionally protected actitivity as long as there remain opportunities to engage in the activity.  In both lines of cases, Paul accuses the Court of ignoring the practical consequences of its decisions.  He writes, “The solution to this cold and insensitive neoformalist approach is to argue for more standards and balancing of interests than bright-line rules.”  (47)

The paper will appear in the San Diego Law Review.  Here is the abstract:

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, a new version of the unconstitutional conditions doctrine has been increasingly used to rob public employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the subsidy approach in the government as employer context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as its own and regulates it freely. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law.

This article argues for the restoration of Pickering, its constitutional balancing standard, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to speak without fear of retribution, assume the role of the vanguard of the citizenry, and protect fellow citizens from government fraud, waste, and abuse.

The response to Citizens United has been, in my view, overstated. 

At least two members of Congress have said that it is the worst decision since Dred Scott. The equation of permitting incorporated entities to spend money to influence election with the denial of basic legal protections to an entire class of people on the basis of the color of their skin strikes me as rather substantially overwrought. While the decision certainly removed certain formal barriers to the influence of corporate dollars in federal elections, it’s doctrinal impact on corporations was rather limited. The Court’ had already held in Wisconsin Right to Life v. FEC that corporate treasury funds could be used for “issue” advocacy – defined as communications capable of no construction other than as the call for the election or defeat of a candidate.

That it is setting the limbo bar at ten feet. If a corporation could not spend money on an election after WRTL, it needed a new lawyer and a better consultant. Not surprisingly, shortly after Citizens United was decided, two prominent Democratic and Republican political operatives visited my Election Law class. Both were, it is fair to say, underwhelmed by its potential impact.

Still, I think that the opposition to Citizens United does reflect a basic philosophical disagreement about the law of political participation. A majority of the Court has decisively rejected a postion that many supporters of regulation favor. But that rejection was already clear at the time that Citizens United was decided. The critical decision was, I think, Davis. v. FEC.

Davis involved a challenge to a provision in the Bipartisan Campaign Reform Act (better known as McCain-Feingold) known as the millionaire’s amendment. Essentially, it lifted certain limitiations on campaign contributions and coordinated expenditures for those candidates facing a self-financing candidate who had spent more than a trigger amount on his or her own race. The Court struck down the amendment as an unconstitutional burden on the speech rights of the self financing canidate (on the theory that the state was “punishing” the exercise of those rights by assisting his or her opponent). 

Whatever one thinks of that, a majority of the Court in Davis made clear that the government cannot justify restrictions on campaign speech from a desire to “level the playing field” or to achieve what some commentators call “barometric equality” – the notion that financial support for candidates should reflect some apparently a priori support among the electorate.

Once this justification is rejected, restrictions must generally be justified on the basis of avoiding some form of corruption of its appearance. That strongly suggested the abandonment of the distinction between issue and independent advocacy that may turn out to be Citizen United‘s major innovation. When the problem can only be corruption, it becomes less clear to me why Microsoft’s expenditures are more problematic than Bill Gates.

This doesn’t bother me as much as it does others because I don’t have a great deal of confidence in the state’s ability to achieve “barometric equality” or to “level the playing field” in an area in which legislators are strongly self interested.  I tend to favor a Madisonian response to the problem of faction and special interests emphasizing competition over control.

While one might say that corporations present peculiar problems because of the divide betweem management and shareholders, this strikes me as a problem best addressed by disclosure. It is not clear to me, moreover, in a world in which corporations are routinely urged to – and do – spend shareholder money on the interests of “stakeholders” or “good corporate citizenship” in ways that shareholder that might raise sharp shareholder objections, why politics is unique. It’s not evident why, from the perspective of corporate democracy, contributions to Planned Parenthood or Wisconsin Right to Life are different in kind from expenditures supporting John McCain or Barack Obama.

But, in any event, I think Citizens United – or something an awful like it – flowed rather easily from WRTL – and Davis.

According to the report, the law imposes a $1,000 fine for selling violent video games to anyone under the age of 18.  Violent video games are defined as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive way,” or a way that appeals to “deviant or morbid interests” while lacking “serious literary, artistic, political or scientific value.” 

Justice Scalia’s comments and questions made it seem like he is leaning against the law, since he pointedly questioned both the definition of a “deviant violent video game,” and queried whether, since Grimm’s Fairy Tales are indeed grim, whether they, too should be banned. 

He went on to point out that American free speech tradition has never been successfully used by the government to ban portrayals of violence, and that the drafters of the First Amendment would have found the idea odd.  Questions by other members of the Court revealed a reticence to make it easier to regulate whole categories of speech, such as speech concerning violence.

I am guessing that a lot of things about this case would have struck the Framers as odd: television and video games for starters.  Moreover, there are legitimate concerns about creating less-protected categories of speech based on content.  Although some would argue that this has already happened in the case of speech with sexual content that has crossed into pornography, speech about violence seems more established in the American tradition, and it seems more difficult to differentiate between violent speech and “deviant” violent speech.  Another category where we know it when we see it could be problematic.

On the other hand, there are legitimate concerns with exposing children to violence.  Children who have survived actual violence or threats of violence, such as maltreated children or children who have witnessed domestic violence or wartime violence, often suffer psychological harm including post-traumatic stress syndrome, depression, or anxiety.  The concern with video games is less about trauma and more about what children might learn from the games.  The military famously used video game-like simulations to train soldiers to overcome their natural inhibitions against shooting other human beings.  Many people fear that video games allow children to become habituated to violence, such that they will act more aggressively in real-life situations.  Yet, at least a generation has now reached adulthood after having played many sorts of video games, and there is no reliable evidence demonstrating an increased population of serial killers or sadists.

The tough issue here, in my view, is whether the government can — or should — impose regulations like this as a means of helping parents to control the media to which their children are exposed.  Earlier attempts to regulate websites with sexual content have failed constitutional tests, partly because they make it harder for adults to access the materials.  Here, a store can certainly card customers to ascertain whether they are over 18 (in the same way people are carded for liquor or cigarette purchases), and this will not seriously interfere with adult purchase of the games in question. 

The goal of preventing minors from obtaining access to violent video games – unless their parents consent – is an impossible dream, in my opinion.  On the other hand, a law that sets such a goal might convey a powerful message to minors about society’s dim view of sadistic and gratuitous violence.  Grimm’s Fairy Tales and similar tales often included subtle or not so subtle moral messages in a way that (I’m guessing) Postal 2 does not.  A fairy tale wicked witch who suffered a terrible fate is a bit of a cautionary tale to children about the wages of sin.  Where a video game does not carry a similar message, perhaps we should let the legislature at least weigh in about society’s view of “deviant” violence.

If Tuesday’s “On the Issues with Mike Gousha” program at Eckstein Hall had been a meeting of foreign diplomats, the statement afterward would have described the session as “cordial but frank.”  Two of the most prominent Wisconsin voices in the debate about whether to and how to regulate money spent on political campaigning presented their views with wit and warmth, but with no masking their widely different positions.

Heck, executive director of Common Cause Wisconsin, said elections in Wisconsin and nationally had devolved over the last several decades and regulation of election spending was a matter of restoring confidence in the political system.

Esenberg, a professor at Marquette University Law School and an attorney involved in a case currently challenging regulatory plans in Wisconsin, did not accept that the damage being done by current levels of spending was so serious. Limiting free speech related to elections presents, among many things, a constitutional problem and is a bad idea that often has unintended negative consequences. 

The two appeared to be close to agreement on one thing: Disclosure of who funds political advocacy is a good idea, provided it is focused on those engaged in large scale efforts such as television ad campaigns.

Esenberg said Wisconsin law as it stands requires anyone spending more than $25 to register as being involved in political activity, which he said covered people who paint a political sign on the side of a barn or engage in other small-scale activities.

Heck said no one wants to enforce or is enforcing the law against those spending small amounts, although Esenberg said he knew of a case in which people who had spent $100 on food for an event ended up nearly being prosecuted. Heck said the focus of attention is on those spending large amounts.

Esenberg said some disclose laws were actually aimed at stopping advocacy. “I think disclosure is fine as long as the purpose is disclosure,” he said.  

Heck said the public has lost confidence in government as campaign spending has soared, and many people believe the legislative process can be bought by those spending the most money. In Wisconsin, he said, $2.8 million was spent on campaigning for governor in 1986, including the costs for both major candidates. About $50 million will be spent this year, with about 60% of it coming from groups not directly connected to either major candidate.

“I am very concerned about the effects, the corrupting influence of the money,” Heck said. He also said the negativity of campaigns has increased in recent election cycles.

Esenberg said “Negative campaigning has been with us always and will be with us always.” He said it is just part of the process and that, overall, allowing speech to be as free and unfettered as possible was the best course. The amount spent on political campaigns, including advertising, is a small fraction of what is spent on consumer advertising, he said.

Heck said, “It’s human nature to be beholden and to feel good toward those who have helped you,” and politicians inevitably favor those who make large donations to their campaigns. That creates the need to regulate spending and especially to disclose who is behind spending. Many of the independent advertising campaigns under way currently are run in ways that allow for funders’ identities to be kept secret.

Esenberg said he agreed with Heck that it is human nature to favor those who give you something, “but that’s part of the process” of politics, he said. “I become concerned that the cure is worse than the disease,” he said. Esenberg said there is a lot of evidence that campaign spending actually influences very few people.

The program was one of several election-related sessions scheduled to be moderated by Gousha at Eckstein Hall before the Nov. 2 election, including debates between candidates for U.S. Senate, governor, and attorney general. The chairmen of the Democratic and Republican parties also are scheduled to make a joint appearance.

For nearly six months, Andrew Shirvell, an assistant attorney general for the state of Michigan, has waged an Internet campaign against college student Chris Armstrong, the openly gay student assembly president at the University of Michigan in Ann Arbor.

Using the online moniker “Concerned Michigan Alumnus,” Shirvell launched his blog in late April.

“Welcome to ‘Chris Armstrong Watch,’” Shirvell wrote in his inaugural blog post.  “This is a site for concerned University of Michigan alumni, students, and others who oppose the recent election of Chris Armstrong — a RADICAL HOMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR — as the new head of student government.”

Among other things, Shirvell has published blog posts that accuse Armstrong of going back on a campaign promise he made to minority students; engaging in “flagrant sexual promiscuity” with another male member of the student government; sexually seducing and influencing “a previously conservative [male] student,” so much so that the student, according to Shirvell, “morphed into a proponent of the radical homosexual agenda”; hosting a gay orgy in his dorm room in October 2009; and trying to recruit incoming first-year students “to join the homosexual ‘lifestyle.’”

Should Shirvell continue to be employed as a representative of the State of Michigan?

Shirvell talks of being a Christian citizen exercising his First Amendment rights on his own time, but even off-duty speech or actions can have an impact on someone’s public employment. Because he is now identified as Michigan state attorney and his craziness is national news, can’t it be said that he is substantially disrupting the Michigan Attorney General office by becoming the news and undermining the impartiality and good judgment of his office.  Under a Pickering balance, the analysis would appear to support adverse employment action against Shirvell to protect the effectiveness and efficiency of the government service.

I think if he is fired, the State of Michigan should be free of First Amendment liability, whether he is talking as a private citizen and whether he refuses to discuss his public employment himself.

Hat Tip: Denise Faili

My initial take on the rule is here.  Apart from a statutory issue, there a few broad constitutional problems. The first is that, although the United States Supreme Court has upheld disclosure requirements in the case of what the Court calls express advocacy, the GAB rule applies more broadly to what the Court has held to be “issue advocacy” which criticizes or supports a candidate’s record or stance on the issues. It is not clear that the interest in disclosure is the same.

The second is the scope of the rule and the way in that may affect the state’s interest in requiring registration and disclosure. It is not limited to broadcast advertising but applies to a variety of grass roots advertising, i.e., pamphleting, blogging, etc.

One issue that is not yet presented is the potential for “as applied” challenges where disclosure will subject donors to retaliation.

The majority opinion and dissent continue to reflect the sharp and bitted divisons on the Court. I wish that would get better.

I have an article on judicial recusal coming out in the Wake Forest Law Review, so it’s a subject that I have been thinking about. I have the following quick observations on the Court’s decision. 

First, I think that the rules on the impact of contributions and expenditures are clearly correct – as far as they go. To say that a legal contribution or expenditure cannot be the sole cause of a duty to recuse seems unexceptional to me and is perfectly consistent with the Supreme Court’s decision in Caperton (in which Justice Kennedy repeatedly referred to the unusual nature of the facts involved in that case.)

Of course, this is not to say that a legal contribution or expenditure cannot be a factor – perhaps even a predominant factor – leading to a duty to recuse. Caperton, for example, involved a perfectly legal (albeit very large) independent expenditure coupled with a very significant and imminent case.

To be sure, there is much more to say about what may and may not lead to a duty to recuse – not only with respect to contributions and expenditures, but also with respect to other matters such as candidate speech and support. (It is not apparent that a duty to recuse cannot arise from candidate speech or the endorsement of a litigant or those associated in some way with a litigant. These are some of the things that I try to address in the Wake Forest piece, although whether and to what extent these matters should and can be addressed by rule (and who should make the rule)constitues a different set of questions.

Second, I think Justice Bradley misses the connection between aggressive recusal rules and burdens on political participation. More than Justice Roggensack, I would address, not only the right to vote, but the rights of expression and association regarding judicial elections and related issues. If the price of speech is that your candidate – if successful – can’t act, then your speech has been burdened. While this may be tolerable in the case of individual litigants like the A.T. Massey Coal Co, it becomes more problematic if recusal is based upon support from trade associations and unions. 
In fact, some academics have urged tough recusal standards as a way to suppress what they believe to be improper (although constitutionally protected)campaign speech in judicial elections and as a way to return judicial elections to quiet contests of low salience.

Third, the rule regarding solicitation of funds from litigants or potential litigants presents a slightly different set of concerns. While it doesn’t seem that it alone should create a duty to recuse (such a rule might very well bar, for example, solicitations sent to a union’s membership list or the arrangement of fundraisers in which invitations are sent based upon organizational affiliation or in which potentially interested parties attend and are then asked to contribute), I think that, as the comments suggest, there is a potential such solicitation will to the “something else” that may create a recusal issue.

Fourth, I think the emphasis on who wrote the rule is more about atmospherics than substance. If the rule is a good rule, it doesn’t matter that WMC or the Realtors proposed it. It it is a bad rule, it’d be just as bad if written, in the first instance, by members of the Court.

Cross posted at Shark and Shepherd

An interesting constitutional question was embedded within the writings of the Prosser and Abrahamson  groups.

 SCR 60.06(3) provides that a candidate for judicial office “shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.”  To avoid what it saw as potential First Amendment challenges, the Prosser group would limit its application to  “objectively false statements” by which they seem to mean statements that are literally false without further consideration of their context or how they would be understood by the listener.

The Abrahamson group would have determined the message that the ad was intended to and could be reasonably expected to convey and apply the rule’s test of truth and falsity and scienter requirement to that message.

Although not adopted by either group of Justices, one member of the three judge panel, Ralph Adam Fine, construed the rule in the same way as the Abrahamson group, i.e., to prohibit messages that, even though composed of a series of literally true statements, convey a message that is false and that are made with knowledge of or in reckless disregard of its falsity. But he would find that prohibition, at least as applied to core political speech, to be unconstitutional.

The First Amendment mavens among us will appreciate that one of the issues in play here is the applicability of the New York Times v. Sullivan line of cases to nondefamatory political speech. There are lower court cases going both ways.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren’t playing beanbag. As a consultant on my side told me, we can’t play nice when the other guys play nasty. I couldn’t argue with her. It’s a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.

But the attacks on Mark Block as a “convicted criminal” or “criminal fundraiser” are another matter and may themselves have legal consequences.

The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of culpability on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture.

As a complaint filed by my friend Mike Dean (L ’85) on behalf of James Zeiler points out, Russ Feingold’s campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.

Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.

The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to “knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.

There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.

Now I don’t think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. Tate is not a lawyer and may not have understood the difference between criminal and civil and between compromise and adjudication. 

I do not expect political consultants to discover the value of civility.  A liberal friend who listened attended a WisPolitics lunch in Madison earlier this week told me that we are a likely to suffer from a hyperbole shortage by November. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.

But I am still naive enough to wish for a little more care.

Cross posted in different form at Shark and Shepherd

My argument was that these asymetrical financing systems are probably unconstitutional and that, as a result, any public financing system will be dwarfed by self financed candidates, independent expenditures or, increasingly, opposition campaigns whose use of the Internet and bundling is likely to dwarf any politically feasible amount of public financing.

The argument was based, in significant part, on the Supreme Court’s decision in Davis v. FEC in which the Court struck down the McCain-Feingold’s Millionaire Amendment — a provision that, among other things, raised the campaign contribution limits for those facing self-financed candidates who exceed a certain expenditure amount. The majority saw this as an impermissable burden on the speech rights of the self financing candidate.

Some argue that providing additional funding is different than raising contribution limits. I don’t think so and explain why in the Harvard JL & PP piece.

We may soon find out. In McComish v. Bennett, the Ninth Circuit reversed a district court decision invalidating the rescue funds provisions (referred to as trigger funds) of Arizona’s Clean Elections Act.

But the Supreme Court has stayed the mandate of the Ninth Circuit (leaving the district court’s injunction against the disbursement of the trigger funds in place) pending resolution of any petition for certiorari.

I see a reversal of the Ninth Circuit. Given the Court’s willingness, in the zero sum game of an election, to see a benefit to one’s opponent that is triggered by constitutionally protected speech as a burden on that speech and its rejection (in both Davis and Citizens United) of the idea that burdens on speech can be justified by a desire to level the playing field, I continue to believe that rescue fund schemes are extremely vulnerable to constitutional challenge.

Cross Posted at Point of Law.

In addition to recounting Pickering’s colorful life story and the history of the case that made him famous, Paul’s paper also critically appraises the post-Pickering cases that have pared back the First Amendment rights of public employees.  The paper appears as a chapter in the book First Amendment Law Stories.  An abstract appears after the jump. 

The story of Pickering v. Bd. of Education, a foundational case in public employment law, prominently foreshadows more generally the coming prominence of the doctrine of unconstitutional conditions in constitutional law. Under that doctrine, the Supreme Court limits a government actor, like a government employer, from being able to condition governmental benefits, like public employment, on the basis of individuals forfeiting their constitutional rights. It would thus seem to follow that a public employee should not have to sacrifice constitutionally-protected rights in order to enjoy the benefits and privileges of public employment. Yet, today, that is far from the actual case.

So why have First Amendment public employee speech rights, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, suddenly diminished in recent years? I want to suggest in this contribution to First Amendment Law Stories that a certain jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Under the subsidy school of thought, in contexts as different as abortion funding to the provision of tax exemptions, the unconstitutional conditions doctrine has become largely toothless, as government actors can simply compel a given result by saying they are doing nothing but subsidizing (or not subsidizing) a right a citizen or public employee already has under the Constitution.

In order to more concretely illustrate the genesis of the unconstitutional conditions doctrine, and its recent distortions, this Chapter returns to an in-depth exploration of the case that started it all: Pickering v. Bd. of Education. Although the Court decided this case in Marvin Pickering’s favor, the resulting framework has, over the years, been interpreted by the Supreme Court in a manner that significantly limits public employee free speech rights.

The Wisconsin Legislature showed some of that political bravery this month when it passed the state’s first reporter’s shield law (although some members still seem a little sheepish about it). The new statute, signed into law by Gov. Jim Doyle on May 20, gives “news persons” protection from certain subpoenas seeking their testimony, work products or confidential information, including the identities of their unnamed sources.

Journalists have been fighting for these statutory protections since 1972 when the U.S. Supreme Court refused to recognize a First Amendment reporter’s privilege in Branzburg v. Hayes. Wisconsin is now the 39th state to have responded by adopting concrete statutory protections for journalists.

As anchorman Ron Burgundy might say, this is kind of a big deal. But so far the response has been muted: no significant news coverage, no pubic outcry, no dancing in the streets.

There are a couple of reasons for this. One is that the new statute is not quite revolutionary, because Wisconsin courts are already reasonably attentive to reporters’ newsgathering rights, having recognized some protections under both the state and federal constitutions.

The other reason is that supporters of the new law have deliberately flown it under the radar and have presented more as a boon for citizen-watchdogs than reporters. As Sen. Pat Kreitlow insisted, the new law is “not about protecting the journalists so much as protecting the whistleblowers and their ability to come forward without the fear.”

Supporters of the law have also tried to recast it as a generic public-accountability law by calling it the Whistleblower Protection Act, even though its substantive provisions are parallel to those of most reporter shield laws.

The Milwaukee Journal-Sentinel reinforced this perception by describing the law as a shield for “[j]ournalists and whistleblowers who dig up waste, fraud and abuse.”

There are several problems with all of these characterizations.

First, the Journal-Sentinel description is misleading because it implies that the protection is reserved for people who are attempting to expose institutional graft. But there are no motivation-based triggers in the law. The strength of the protection depends more on the substantiality of the subpoenaing party’s need for the information than on the purposes or public value of the source’s disclosures.

Second, the name of the law seems like an artifice. The Whistleblower Protection Act does not protect whistleblowers; it protects reporters. It gives reporters the legal leverage they need to withhold confidential-source information, if they so choose. Nothing in the law compels them to protect their sources.

To some extent this is a distinction without a difference. Whistleblowers will certainly be empowered by this law, even if the protections flow to them indirectly. But they cannot invoke the law independently, so the name and all of these associated characterizations could give whistleblowers a false sense of security.

Third, much of the discussion about the law ignores the fact that it protects reporters even in the absence of a confidential source. The whistleblower law provides qualified protection for reporters when subpoenaed for nonconfidential information (e.g., notes, digital files, outtakes).

This is critical, because 90 percent of the subpoenas received by media organizations do not seek confidential information. This also illustrates that there is a macro purpose to the law, which is to preserve the strong, presumptive separation between the press and government and to guard against harassment, intimidation and the risk that reporters could effectively be turned into government investigators. All of those risks are present whether a subpoena seeks confidential information or not.

By framing the law as a protection for sources rather than reporters, proponents encourage people to view the law (and the reporter’s privilege generally) as a narrow, utilitarian device for eliciting leaks rather than a broader and more principled means of preserving the autonomy of the press.

This erodes and truncates the theoretical foundation for the privilege, leading lawmakers to favor more circumscribed shield laws – like the federal version being considered in the U.S. Senate, which is entirely focused on confidentiality – and leading judges to discount the need for rigorous scrutiny of nonconfidential subpoenas.

Despite these quibbles, the supporters of the new law should be commended. This statute will add an additional layer of protection for the state’s journalists, it will bring additional clarity to the law, and it will ultimately expand and quicken the free flow of information in the state.

I would just like to see more of an effort by journalists, judges and lawmakers to frame the privilege as an essential feature of our constitutional design rather than a simple and narrowly applicable policy preference. And I would like to see people start calling the law what it is instead of resorting to politically safe euphemisms.

As the story develops, the burning of a statue of President Obama in West Allis may be in the company of the latter behavior.   TMJ4 reported that at the Yester Year’s bar, patrons lit a bust of Obama on fire.  The video footage was blurry given the room’s darkness and only focused on the statue placed on the bar, though “hoots and hollers” can be heard in the background.  Though West Allis is investigating whether the burning violated the city’s municipal fire code, the Milwaukee District Attorney’s Office will not charge anyone involved in this incident, and the Secret Service has terminated its own investigation.

This incident may very well not prompt legal action beyond those for possible fire code violations.  One cannot help but wonder, however, if the First Amendment would provide protection for burning an Obama effigy. 

After all, burning effigies have become a staple of political protest, and political speech has generally been given the greatest amount of First Amendment protection.

However, burning things, such as flags, Texas v. Johnson, 491 U.S. 397 (1989), and Selective Service registration certificates, United States v. O’Brien, 391 U.S. 367 (1968), constitute what the courts have treated as “symbolic speech,” and that speech has been given less protection than the paradigmatic form of speech, the use of language.  Moreover, that is not to say that any act of setting something on fire amounts to speech protected by the First Amendment.  To the contrary, in order to qualify for First Amendment protection, the speech must be “sufficiently imbued with elements of communication.”  Spence v. Washington, 418 U.S. 405, 409 (1974).

Though burning effigies in the context of political protests usually are done with a communicative purpose, one would be strained to find such a purpose here.  In fact, the owner of the bar has tried to disclaim substantive reasons for the burning, such as racial prejudice, instead claiming that it only resulted from a few too many drinks.  Though the background context is missing from the news reports and the video, there is no indication that starting this bust of Obama on fire was done with an intent to convey any particular kind of message.  Without being able to figure out whether there was a message in the first place and what the content of the message was, it becomes even more difficult to determine that there is a great “likelihood . . . that the message would be understood by those who viewed it,” as is also required for symbolic speech to be subject to First Amendment protection.  Spence, 418 U.S. at 410-11.

Even if the statue’s burning fell within the ambit of the First Amendment, West Allis taking action for the fire code violations would probably pass constitutional muster.  With the lesser protections afforded symbolic speech, “sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”  O’Brien, 391 U.S. at 376.  Thus, the Court has “limited the applicability of O’Brien‘s relatively lenient standard to those cases in which ‘the governmental interest is unrelated to the suppression of free speech.’”  Johnson, 491 U.S. at 407 (quoting O’Brien, 391 U.S. at 377). 

A Supreme Court of Ohio case, Bellecourt v. City of Cleveland, 820 N.E.2d 309 (2004), involving a protest where effigies of the Cleveland Indians’ mascot were set ablaze, is particularly on point.  There, the court noted that efforts by police officers in that case were not directed at censoring the speech; instead, they were acting out of concern for the public safety posed by smoldering effigies.  Similarly, violations of a fire code imperil those inside the building, especially where the occupants are inebriated enough to start an uncontrolled fire in the first place.  If the effigy was knocked over by a disoriented patron, an even bigger flame could have engulfed the bar.  Furthermore, there is no indication here that West Allis’s pursuit of these violations is a pretext for what amounts to a political disagreement with whatever speech can be found in the Obama effigy burning.

Though the First Amendment has been known to protect a broad swath of questionable speech and conduct, it does not provide any shelter here.

Tech nerds and media junkies have been buzzing lately about Google’s announcement that it will soon rollout Google-TV — a new device/platform that will turn people’s televisions into portals for online video and other web content.

Google representatives unveiled the project last week at a developers conference where they staged a Steve Jobs-like showcase that included animated demonstrations and bold statements about the end of TV as we know it.

Much of this was puffery, of course, but there is no denying Google’s determination to expand its dominion over the communications universe, nor the inevitability of the web’s eventual absorption of traditional television.

These two things terrify broadcast and cable executives. But the advent of web television might benefit traditional TV businesses –- particularly cable companies –- in one important category: First Amendment protection.

Even though the courts have long acknowledged that cable television is a First Amendment-protected medium, they have assigned it a kind of second-class constitutional status, based on the premise that cable markets are not sufficiently competitive.

In 1994, the U.S. Supreme Court held in Turner Broadcasting v. FCC that cable companies operate as effective monopolies, creating bottlenecks for the dissemination of video content in the communities where they operate. As a result, most government regulation of cable is subject to only an intermediate level of First Amendment scrutiny.

In Turner, the Court upheld the constitutionality of the must-carry rules, which require cable operators like Time Warner and Comcast to add the signals of local broadcast stations to their channel lineups. In addition, cable operators must set aside channels for leased-access by third parties, and they can be compelled to subsidize and disseminate public, educational and governmental (PEG) programming, among other things.

These regulations are constitutional only because of the lack of competition that existed when the laws were adopted in the early 1990s. But a lot has changed since then.

Phone companies, such as AT&T and Verizon, now offer cable service (which they were not allowed to do until 1996), DirecTV and Dish Network offer DBS service to nearly every home in the country, and video content is now ubiquitous on the web, even without the seamless packaging of Google-TV. The bottleneck, in short, has broken.

The disconnect between these policies and their underlying premises is not merely a public policy problem; it is a constitutional problem. All of these regulations interfere with the expressive autonomy of cable operators and put special burdens on them that are not imposed on newspapers, magazines or web communicators. (Imagine how quickly the courts would strike down a must-carry law requiring newspapers to set aside a few pages of each issue for use by competitors).

These problems are acute when the government moves from what are arguably structural regulations to more content-based restraints and mandates. There are several of these, most of which target the programming practices of the cable networks (e.g., Comedy Central, ESPN, Nickelodeon).

The federal courts have shot down attempts by the government to regulate indecent content on cable, applying something close to strict scrutiny in those cases. But there are many other content-based restrictions that remain in effect.

Cable networks cannot accept tobacco advertising. They must limit the amount of advertising time during children’s programs. They must provide equal opportunities to political candidates whose opponents appear on those networks in non-exempt programming. And they must abide by the payola rules, which prohibit non-disclosed payments made by third parties in exchange for airtime.

None of these restrictions would be tolerated if imposed on print or web communicators. Yet they continue to be enforced against cable communicators, despite the absence of a cogent regulatory rationale.

It is probably hard for most people to get exercised about the rights of giant cable companies, with their ever-expanding rates and outsourced customer service. But they are constitutionally protected speakers, and the claim that they are differently situated than their competitors using other media just isn’t credible anymore.

It is time for Congress and the FCC to scrap the current regulatory scheme and for the courts to reconsider cable’s constitutional status in light of the new technological and market realities.

Maybe Google-TV will provide the impetus for the end of cable regulation as we know it.

Paul’s paper, entitled “Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment,” appeared in the Yale Law Journal Online here.  The abstract appears after the jump. 

Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known impact of this watershed case might have a significant impact in the workplace: It may permit employers to hold political mandatory captive audience meetings with their employees. To eliminate this danger, and consistent with the First Amendment framework for election law issues post-Citizen United, this Article urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act Law, SB 519 (effective Jan. 1, 2010). SB 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers. Such a federal law would constitute permissible employment standards legislation and also would not run afoul of the First Amendment speech rights of employers under Citizens United. Employers would still able to communicate their views about political candidates and parties with their employees as the First Amendment now contemplates, but they will not be able to force them to listen to such speeches at the risk of losing their jobs or other benefits of employment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.”

We begin, as we so often do, with John Marshall.  Justice Marshall’s reading of the Constitution was clearly a reading that respected the rights of property.  As R. Kent Newmyer succinctly summarized it, in his book “John Marshall and the Heroic Age of the Supreme Court,” Marshall understood the rights of property ownership to include an individual’s right “to acquire property and deploy it creatively as he saw fit and to enjoy its fruits without hindrance.” (Newmyer p. 264)  But this does not mean that Marshall embraced Adam Smith’s theory of completely free markets, where private business enterprises act completely free from government regulation.  First of all, not even Adam Smith advocated for markets that were sealed off from all government regulation.  Second of all, while the Framers of the Constitution were aware of Adam Smith, there is little evidence that Smith’s economic theories influenced the Constitution.

John Marshall’s understanding of how the Constitution protected property rights was, characteristically, derived from his understanding of federalism.  Justice Marshall struck down state laws that interfered with private property rights, for example in Fletcher v. Peck and Dartmouth College v. Woodward, because those laws violated the Contract Clause of the Constitution.  However, Marshall’s motivation was not to protect private economic activity from all forms of government regulation.  His motivation was to protect national economic interests from protectionist state laws.  Marshall viewed the states less as political units and more as local interest groups that would pass legislation favoring parochial economic interests over interests from out of state.  If the young United States of America was to build a truly nationwide economy, private enterprise had to be able to grow free from the constant parade of protectionist legislation being passed by the states.  As stated by Newmyer: “What he feared . . . was state legislative meddling with contracts, either by passing laws that undercut contracts between individuals or by reneging on its own.” (Newmyer p. 265)

Marshall’s protection of the rights of property, therefore, is not inconsistent with the idea of uniform, federal regulation of private enterprise when in the public interest.  (Kutler, infra, p. 67) Marshall simply never faced this issue.  The corporations in existence at the time of his opinions were not national in scope, and corporate activity that exploited labor or endangered consumers would not become common until the industrial revolution.  Marshall used the text of the Contracts Clause to clear local state laws from the path of private enterprise, and no more.  He sought to support a system of federalism where national interests could act free from state constraints.  He did not seek to completely immunize private enterprise from all government regulation. (Kutler, infra, p. 179)

Those who put their faith in the “invisible hand” of the marketplace often assert that the owners of a private enterprise have a natural law right to use their property as they see fit, free from any government interference.  The Supreme Court rejected this argument shortly after John Marshall’s death when, in 1837 the Court decided the Charles River Bridge Case.  The majority of the Court held that the Massachusetts legislature, by granting a charter to the proprietors of a toll bridge, did not violate the Contract Clause of the Constitution by subsequently chartering the construction of a competing (and free) bridge.  As explained by University of Wisconsin law professor Stanley Kutler in his classic book, “Privilege and Creative Destruction,” the case strongly affirmed the power of government to regulate the use of private property.  In the words of Chief Justice Taney, “The continued existence of a government would be of no great value, if . . . it was disarmed of the powers necessary to accomplish the ends of its creations; and the functions [government] was designed to perform, transferred to the hands of privileged corporations.” (Kutler p. 91)  The Constitution has never been interpreted to preclude government regulation of a private business enterprise for the public good.

The specific treatment of corporations under the Constitution is entirely consistent with this treatment of private property in general.  There is no evidence that the Framers’ generation understood corporations to have any rights under the Constitution separate from the rights of the persons who owned the corporation.  In fact, for most of our nation’s history, the Supreme Court denied the existence of any rights for corporations under the Constitution at all.

This history is usefully summarized in a forthcoming article by David Gans and Douglas Kendall.  In 1809, Justice John Marshall wrote in Bank of U.S. v. Deveaux that corporations were not “citizens” as that word was used in Article III of the Constitution.  Unfortunately, the result of the ruling was that corporations evaded the jurisdiction of the federal courts in order to avoid paying their debts.  Therefore, the Court quickly overruled Deveaux and adopted the legal fiction that corporations could be deemed “citizens” for purposes of suing or being sued in federal court.  The Court’s motivation in adopting this legal fiction, however, was to preserve the ability of natural persons harmed by a corporation to avail themselves of the diversity jurisdiction of the federal courts.

In 1839 the Court specifically ruled that the treatment of corporations as “persons” for diversity jurisdiction purposes did not grant corporations any of the other rights that the Constitution granted to natural persons.  The Court never extended any of the individual rights provisions of the Constitution to corporations until the end of the 19^th century.  Nor did the Court ever suggest that the federal government lacked the power to regulate corporate activity, so long as the government did not violate the literal terms of the corporate charter.

The first case extending constitutional rights to corporations came in 1897, under the Equal Protection Clause of the 14^th Amendment, and it ushered in the Lochner era when the Supreme Court used theories of substantive due process to assert that the Constitution protected corporations from federal economic regulation.  It is significant that this innovation came via an interpretation of a Reconstruction-era constitutional amendment, and not from a purported interpretation of the original text.  Moreover, in non-economic areas, such as the rights of self-incrimination, the Court continued to refuse to recognize any constitutional right for corporations.  Also, during this era, two giants of the law, Oliver Wendell Holmes and Louis Brandeis, dissented often and aggressively from all extensions of constitutional rights to corporations.

The Lochner era ended in 1937, after President Roosevelt threatened to pack the Supreme Court.  The Supreme Court retreated from its Lochner line of cases and once again began to uphold the federal power to regulate corporate affairs.  Over time, however, the Supreme Court began to hold that this power to regulate corporate activity was tempered by the existence of constitutional rights for corporations under the 14^th Amendment and under the criminal procedure provisions of the Constitution.

The true revolution occurred in 1978, when the Supreme Court ruled in First National Bank of Boston v. Bellotti that a state law limiting the ability of corporations to spend money on referenda elections that didn’t affect their property was unconstitutional.  The ruling did not explicitly hold that corporations had a First Amendment right, but it did say that the protection of speech was so important that it didn’t matter who was doing the talking.  This ruling was revolutionary because it was a departure from precedent that, with the exception of the Lochner era, had held that the distinction between the regulation of corporations and the regulation of individuals is an important distinction under the Constitution.

However, the Bellotti opinion was careful to preserve the power of the government to regulate corporate spending in the context of candidate elections, as opposed to referenda.  The Court continued to recognize this power to regulate corporate money in FEC v. National Right to Work Committee, in Austin v. Michigan Chamber of Commerce, and in McConnell v. FEC.  These latter two cases contained spirited dissents from Justices Scalia and Kennedy arguing that the First Amendment right that protected corporations in Bellotti should be extended to the context of candidate elections.

In Citizens United v. FEC, these dissents become the majority opinion, and the Austin and McConnell decisions were overruled insofar as they allowed the federal government to prevent corporations from making independent expenditures on behalf of candidates for office.  Not only are these prior cases overruled, but the history of the Court’s treatment of corporations under the Constitution is ignored.  Ignored, as well, is the Court’s pre-Lochner understanding that the Constitution permits the government to regulate corporate activity when it is contrary to the public interest.

Instead, what we get in the Citizens United opinion is the textualist assertion that the language of the First Amendment does not distinguish between whose speech is being regulated, so the government must therefore lack the power to makes a similar distinction.  We are told that the benefits of political speech are the same, whether the source of that speech is an individual or a corporation.  And we are told that media corporations, that report the news, might be subjected to government control if we do not recognize a First Amendment right for corporations.

Similar arguments were rejected by Robert Bork.  Bork clearly did not understand the First Amendment to require a complete absence of government regulation over speech.  For example, in his 1971 Indiana Law Journal article, Bork argued that the First Amendment does not prevent the government from regulating speech outside of the political context if that speech causes public harm.  Bork wrote that the Framers “displayed a determination to punish speech thought dangerous to government.”  For him, it was the impact of the speech at issue on the political process (positive or negative) that determined whether the speech was protected under the First Amendment, and not an absolutist interpretation of the text.

Justice Kennedy’s arguments were also rejected by Justice William Rehnquist, who dissented in Bellotti. Rehnquist stressed that “early in our history” the Supreme Court had declined to extend constitutional rights to corporations.  He viewed the Bellotti majority as acting inconsistently with this original understanding.  Therefore, the so-called “orginalism” that Justice Kennedy says requires us to depart from longstanding precedent is in fact contrary to earlier interpretations of the First Amendment by two notable originalists.

Justice Stevens’ dissent in Citizens United contains a devastatingly accurate characterization of Justice Kennedy’s argument:

As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral activity.  As a matter of original meaning, it likewise seems baseless – unless one elevates the First Amendment’s ‘principles’ or its ‘purpose’ at such a high level of generality that the historical understandings of the Amendment cease to be a meaningful constraint on the judicial task.  This case sheds a revelatory light on the assumption of some that an impartial judge’s application of an originalist methodology is likely to yield more determinate answers, or to play a more decisive role in the decisional process, than his or her views about sound policy. 

What does support the majority’s interpretation of the First Amendment in Citizens United?  We are left with Justice Kennedy’s personal preference that corporations should have a voice in the political arena.  Except what is this “corporate voice” that needs protection?  It is most assuredly not the voice of the shareholders.  State law provides them with no mechanism to approve in advance the use of corporate funds for political activity, and under state law shareholders have little prospect for successfully punishing management after the fact for the use of corporate funds to sponsor political activity that they disagree with.  In addition, given that during 2009 the average share of stock was bought and sold two and one half times, shareholders will probably not own their shares long enough to care what management does with corporate money.  With the turnover in corporate ownership today, we do not have share-holders, we have share- renters.  In this context, the corporate voice is reduced to the voice of top management, who will use corporate money to fund political views that these highly compensated individuals are fully capable of funding out of their own pocket.

When it comes to the First Amendment, therefore, it seems that an ideological preference for free markets trumps traditional notions of federalism and free speech.    

Note:  The photo accompanying this post depicts the cover of Harper’s Weekly January 21, 1888 and is entitled “Not Even-Handed Justice: Crushing the Scorpion of Anarchy But Sparing the Octopus of Monopoly.”  A framed copy hangs in my office.