[EL] ELB News and Commentary 12/20/11

[Volokh, Eugene]

                One thing I do agree on is that categorical statements that the identity of the speaker is categorically irrelevant are in some measure overstatements.  Justice Brennan's point that there is a "fundamental First Amendment principle that '[t]he inherent worth of ... speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual'" is accurate so far as the examples it gives goes.  But indeed background legal principles, such as that the government may control its own speech by restricting the speech of its subordinate entities, or for that matter that the government has extra power to control the speech of prisoners or military members, do impose a limit on the most general articulation of the statement.  (Note that I quoted Justice Brennan's statement for the proposition that the law may not distinguish speakers based on whether they are the institutional press.)

                My argument does not then turn on simply the categorical claim that all speaker-based distinctions are unconstitutional.  Rather, in this thread my point is simply that Jamie's position, as I understood it from his argument on the list and from his condemnation of Buckley in his past work, would go considerably beyond reversing Citizens United and allowing restrictions on nonmedia business corporations.  Rather, the logic of his argument would allow similar restrictions on media business corporations, and his earlier criticism of Buckley would allow restrictions on individuals' spending their money to express themselves.  My broader support of Citizens United likewise turns on my acknowledging that some speaker-based distinctions may be constitutional, but that the presumption against such restrictions is not rebutted in Citizens United, partly because accepting such restrictions there would also mean accepting such restrictions as to corporate-owned media organizations.

                Eugene

From: Paul Lehto [mailto:lehto.paul at gmail.com]
Sent: Thursday, December 22, 2011 6:24 AM
To: Volokh, Eugene
Cc: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11


On Wed, Dec 21, 2011 at 6:32 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
                I appreciate Jamie's response,  [...]
                As to your questions:  A & B.  I think government entities may restrict the speech of their own subdivisions, just as a corporation (for-profit or nonprofit) may dictate the speech of its subsidiaries.  C.  If the question is whether the federal government may ban states for spending money on speech that supports a candidate, I'd be inclined to say no, though I say it tentatively, since I haven't thought much about the interesting question of the First Amendment and government speech.  D.  I agree with FCC v. League of Women Voters and Regan v. Taxation With Representation that the restrictions on the use of government-supplied money are constitutional only to the extent they leave the recipient free to speak with its own money; so Harvard, the United Way, and the United Church of Christ should be entirely free to speak through 501c4-supplied money (which may be gathered without limit from everyone).  E.  I think foreign-owned business corporations should be free to speak about elections, just as I think noncitizen individuals should be free to speak about elections.

Eugene's answers here, however qualified and limited, nevertheless show that Eugene's views on the First Amendment DO depend on the identity of the speaker, specifically whether or not the speaker is a governmental speaker or corporation such as a municipal corporation.   If a government acts to "dictate the speech of its subsidiaries," to use the approach Eugene mentions above, then it is acting via law to abridge the freedom of speech and violating the "shall make no law abridging the freedom of speech" in its absolutist interpretation.

First Amendment rights then do indeed depend upon the identity of the speaker, at least to the extent that the speaker is a governmental speaker.  The alleged irrelevance of the identity of the speaker to First Amendment analysis is thus disproven, and it is a matter of where the line is drawn, and not a matter of an absolute principle that the identity of the speaker is irrelevant.

Paul Lehto, J.D.

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