From Equality-Based Restrictions on Campaign Advertising to Equality-Based Restrictions on Other Kinds of Speech?

1. One problem with the "equalization" argument for campaign finance restrictions — especially those applied to independent spending by individuals or organizations — is that their logic reaches considerably beyond campaigns. If fairness concerns justify barring expensive speech aimed at backing or defeating a candidate or ballot measure, why not speech aimed at supporting or opposing broader ideological views (whether abortion rights, gun rights, health care reform, or whatever else)?

After all, changes in public attitudes about issues may quickly affect candidates and ballot measures. More broadly, if broader "constitutional values," such as democratic self-government, justify restraining the spending of some to "level the playing field," one would think that these values would have the same effect in all aspects of democratic self-government — and First Amendment law has of course recognized that rights of "democratic self-government" extend to opinion formation generally and not just to election campaigns.

We see the same when we look at some of the rhetoric of those who would support broad campaign finance speech restrictions. For instance, Justice Stevens justifies his position in favor upholding such restrictions on the grounds that "money is property; it is not speech," and

Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.

Exactly the same argument would apply to political debate generally, and not just election campaigns. (Justice Stevens does try to limit his argument by suggesting that spending might be protected by broader property rights "unrelated to the First Amendment," and by suggesting that his argument wouldn't apply when "the prohibition entirely forecloses a channel of communication"; yet constitutional property rights, especially outside the right to compensation for physical takings, are notoriously weak compared to the First Amendment, and many restrictions could dramatically affect public debate without entirely foreclosing some medium.) Arguments focused on the risk of corrupting politicians through implicit quid pro quo would not apply quite as sharply, but Justice Stevens is obviously going beyond that.

Likewise, Justice Breyer's and Ginsburg's argument for "balanc[ing] interests" where "constitutionally protected interests lie on both sides of the legal equation" — which Justice Breyer applies to election campaign speech — would apply to pre-campaign speech about public issues as well. If "by limiting the size of the largest contributions, [campaign-related] restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process," then by limiting expensive speech on broader public issues, these broader restrictions would aim to democratize the influence that money itself may bring to bear upon the opinion-forming process, and thus indirectly the electoral process. (More on this here.) And of course many of the past and present arguments in favor of the Fairness Doctrine have explicitly urged equality and fairness as justification in favor of coercive regulations related to public debate broadly (regulations that imposed expensive obligations on stations that carried controversial speech, in order to ensure supposedly fair treatment for rival speech).

2. The reason I mention all this now is I just read a remarkable implementation of this very sort of broad speech-restrictive approach, in last month's House of Lords Decision in R v. Secretary of State for Culture, Media and Sport. English law, it turns out, bans all paid "religious or political" advertising on television and radio — and the House of Lords upheld this ban, precisely on the sorts of equality grounds I described above. And this ban is not at all limited to political campaigns; the loser in the court decision was a pro-animal-rights group that wanted to run a "My Mate's a Primate" campaign aimed at "directing public attention towards the use of primates by humans and the threat presented by such use to the survival of primates." (I take it "mate" was used in the British/Commonwealth sense of "friend.")

What was the rationale? The same sort of equality argument that we see commonly made about election-related speech in America:

[I]t is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated.... It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

Now of course the court assures us that there are still "other media ... open to the appellant: newspapers and magazines, direct mailshots, billboards, public meetings and marches." But the court also says (as a justification for the selective ban on radio and television advertising) that "there is a pressing social need for a blanket prohibition of political advertising on television and radio" because of "the greater immediacy and impact of television and radio advertising." So people are free to use other media, but precisely because those media are less effective.

Likewise, the court assures us that "It is the duty of broadcasters to achieve [the] object [of providing for expression of differing views] by presenting balanced programmes in which all lawful views may be ventilated." But that of course just means that public debate is within the power of the media elites that run broadcasters, and that run the government agencies that can pressure broadcasters. Outsider organizations are locked out, unable to broadcast their views the way they choose to express them.

Interestingly, the House of Lords here departs from a 2001 European Court of Human Rights decision that held that bans on political broadcast advertising were indeed unconstitutional.

3. Moreover, one of the judges specifically tied the argument to her rejection of the American free speech model, as exemplified in Buckley v. Valeo:

There was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times: it is estimated that the disputed 2000 elections for President and Congress cost as much as US$3 billion. Attempts to regulate campaign spending are struck down in the name of the First Amendment: “Congress shall make no law ... abridging the freedom of speech, or of the press": see particularly Buckley v [Valeo], 424 US 1 (1976). A fortiori there is no limit to the amount that pressure groups can spend on getting their message across in the most powerful and pervasive media available. In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. “Within the sphere of democratic politics, we confront each other as moral equals” (Ackerman and Ayres, Voting with Dollars, 2003, p 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring. So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality....

So the English judge — and I expect her colleagues as well — saw the connection between the equality rationale for restricting expensive campaign-related speech and the equality rationale for restricting expensive speech more broadly. She flatly rejected Buckley's approach to campaign-related speech. ("There are aspects of the ban on broadcasting political advertisements which no-one disputes: in particular, advertising by candidates for election, or by political parties, whether or not at election times.") And she went from there to rejecting free speech protection for payments for issue-oriented speech more broadly.

So if you're skeptical that the progression I outlined in item 1 would indeed take place in America, keep in mind what has happened in England.