Baseball Crank
Covering the Front and Back Pages of the Newspaper
June 26, 2006
LAW: SCOTUS Raps Howard Dean for Suppressing Free Speech

In a case I've been following since 2002 (see here, here and here), Act 64, the draconian Howard Dean-era campaign finance statute in Vermont, has been struck down by the Supreme Court. Go here for the syllabus summarizing how the decision played out, and for links to the opinions by Justices Breyer, Alito, Kennedy, Thomas, Stevens and Souter. Unfortunately, it looks like the arrival of two new Justices has done nothing to prevent the perennial splintering of the Court on this issue, as Roberts and Alito joined Breyer's opinion striking down the statute on what looks (at first glance) on fairly specific grounds, while Kennedy joined only the result, Thomas (joined by Scalia) sought a broader reversal of precedent in this area, and Alito specifically observed that the Court was not considering overruling Buckley v. Valeo because it had not been properly briefed on the stare decisis considerations involved in overturning a prior decision. Reading the tea leaves, there are two votes to overrule Buckley, Alito is signalling that he might be open to do so but refuses to do so unless specifically asked, Kennedy would seem unlikely to consider such a request but has expressed grave dissatisfaction with the workability of the present system, and Roberts isn't showing his cards.

[UPDATE]: Actually, Roberts specifically joined the part of Breyer's opinion refusing to overturn Buckley's holding that expenditure limits violate free speech.

Posted by Baseball Crank at 11:54 AM | Law 2006-08 | Comments (3) | TrackBack (0)

I wouldn't say that the ruling means that Dean "suppressed" free speech. You can lose a lawsuit like this without being labeled a censor. You have to acknowledge that arguments can be made on both sides whether these restrictions are a good idea. It's not the same as, say, Guiliani trying to shut down a public museum over controversial religious art. I am a First Amendment lawyer, and I gotta tellya, campaign finance restrictions are among the most difficult issues out there. On one hand, free speech through campaign contributions. On the other hand, fair elections.

I take it that you agree that campaign contributions are free speech. Do you disagree with Bork et al who say that conduct is not speech? What is your position on flag burning and other cases involving speech-related conduct?

Posted by: Steve at June 27, 2006 10:35 AM

Yeah, but the Court found that these restrictions were really quite draconian, as they were. Of course, I still think any restrictions are an abomination to free speech.

The conduct/speech line is tough to draw clearly. Financing political speech during an election is so obviously the core of the First Amendment that it has to be covered. Nude dancing shouldn't be. Flag burning is a classic example of expressive conduct - it's loathesome but I don't support making it illegal.

Posted by: The Crank at June 27, 2006 1:17 PM

I don't understand how campaign limit proponents can possibly justify it under the 1st Amendment. Fiercely partisan political speech (both orally and through the press) was well known at the time the 1st Amendment went through. Political speech is absolutely the very thing that is supposed to be protected. We may be able to have wranglings around the edges of obscenity laws or something, but political speech (even unfair and partisan) is the very thing that 1st Amendment was designed to protect. I can't understand someone who might think that flag burning is covered by the 1st Amendment who also thinks that political campaigning is not.

Posted by: Sebastian Holsclaw at June 27, 2006 4:20 PM
Site Meter 250wde_2004WeblogAwards_BestSports.jpg