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.

Related Posts (on one page):

  1. The House of Lords on Speech "With Which One May Not Be Sympathetic":
  2. From Equality-Based Restrictions on Campaign Advertising to Equality-Based Restrictions on Other Kinds of Speech?
Let us pause once more in awe of President Sukarno, who gave us the term "guided democracy."
4.17.2008 5:36pm
Allan (mail):
Of course, Britain does not have the first amendment, so the courts are a little less restrained than in the US.

On the other hand, a good point is made. It is very expensive to run for office in the United States and elections may well be decided based upon the amount of money one has. Or, as the judge put it, our policies are decided by the highest bidder.

I'm not sure what to do about the problem. On the one hand, I want free speech and all that. On the other, where there is money, there is corruption.
4.17.2008 5:37pm
I'd be at a loss if it weren't for wealthy individuals and their foundations to tell me how to feel about things.
4.17.2008 5:44pm
A. Zarkov (mail):
In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders.

Another example of contempt European elites display towards the voters. They don't trust the voters to understand that money buys media access and to regard what they hear with skepticism. They just assume that everyone is stupid but them. I hear this from American elites too about the American voter. This is why we see free speech attacked on both continents, and especially on campus.
4.17.2008 5:46pm
Brooks Lyman (mail):
Allan - Yes, it is expensive to run for office, but only a very few (and by no means alwasy successful) wealthy candidates do it on their own. The name of the game is contributions from supporters; if a million people each give your campaign $20, that's a fair amount of money, for any race except President.

Actually, banning free speech is maybe a good idea. We would then discover why the founding fathers put the Second Amendment in the Bill of Rights....
4.17.2008 5:50pm
c.gray (mail):

I'm not sure what to do about the problem. On the one hand, I want free speech and all that. On the other, where there is money, there is corruption.

This conundrum is easily resolved by remembering that when free speech is limited, you get EVEN MORE CORRUPTION.
4.17.2008 5:52pm
another anonVCfan:
"On the other, where there is money, there is corruption."

Where there is power, there is corruption. We've ignored the idea that the government should have limited and enumerated powers, and consequently fear that government may put its nearly unlimited power up for sale. The solution to that problem is to restore old limits on government power, not to impose new limits citizen speech.
4.17.2008 6:30pm
I wonder how honest that judgement is. It may just reflect the appalling conceit of the current legal establishment. Or it could be an insincere way of keeping political advertising off the telly, which (I suspect) the great bulk of the population would agree with. Of course, in a proper democracy one could always consult them in a referendum.
4.17.2008 6:36pm
lostmycookies (mail):

In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders.

Ho ho ho, and who is the biggest spender by far? Hmm, could it be the STATE? And wherefrom the money? Hmm, could it be the rich? And what message do our bureaucratic overlords spend this money on? Hmm, hate the rich?

Let's bring Ayn Rand back from the dead, give her WOW powers, level 99, and unleash her on these folks.
4.17.2008 6:49pm
vassil petrov (mail):
The sentence you rudicule most appears only in Lady Hale's speech (opinion), and not in other four Law Lords' opinions. So when critisize the decision, bear in mind that in UK there is no such thing as the opinion of the court, but individual judges' opinions. In this case hers was not the leading opinion.
4.18.2008 2:12am
What an anti-nuanced position you are taking, Mr. Volokh.

Your better watch out for your slippery slope, because you just fell on your face.
4.18.2008 4:20am
martinned (mail) (www):

@A. Zarkov: Is that why political candidates spend so much money on 3 am television commercials? Because they don't work?
4.18.2008 7:22am
martinned (mail) (www):

@Vassil Petrov: I second that. I was actually surprised that prof. Volokh didn't mention which Law Lord he was quoting straight away. Exactly because each Lord announces their opinion separately, it is usually good custom to quote the ruling while immediately adding which Law Lord one is quoting. (After all, some are also held in higher regard than others.)
4.18.2008 7:24am
martinned (mail) (www):

I've now had the opportunity to read the ruling. As far as I can see, there is conflicting authority from Strasbourg, with the VtG ruling on the one hand, and the ruling in Murphy v Ireland on the other hand. On the balance, I would say that the ECHR would probably rule against the UK on this one, but I can't be sure without further research.

Three further points:
- I think the UK parliament consider they have the right to regulate television in this way for the same reason that the US government claims the right to regulate the display of Janet Jackson's nipple on TV. The public airwaves are a public resource, which the government is entitled to regulate in a way that it would not be entitled to do for any other medium of speech.
- As you can see from the explanation in paragraph 13 of Lord Bingham's opinion, the UK government, in enacting the Human Rights Act, has given itself some room to deviate from the standards set by the ECHR in case it so wishes. This means that, even if this statute violates the Convention, that does not mean there is necessarily a problem under UK law. Plaintiffs would simply be entitled to damages, and that would be it.
- I'm not sure how common such laws are. Neither in my country, the Netherlands, nor on any foreign TV station I can receive at home, have I ever seen any form of political advertising of the kind one sees in the US. On Dutch TV, like on the BBC, there are party political broadcasts which no one watches, but neither on public TV nor on privately owned TV stations have I ever seen an advertisement of a political nature between the ads for laundry detergent and shampoo. I don't know whether this is a matter of custom, of lack of funds, or of law.

P.S. the first section that was quoted comes from the lead opinion by Lord Bingham of Cornhill, and the second quote, as vassili petrov said, was from Baroness Hale's opinion.
4.18.2008 9:02am
Eugene Volokh (www):
Vassil Petrov: I thought I was clear on where the sentences came from. As martinned also pointed out, the quote in item 2 came from an opinion endorsed by a majority of the judges, which is why I described as being the view of the court. The quote in item 3 came from "one of the judges."

Fearless: ???
4.18.2008 11:15am
martinned (mail) (www):

@Prof. Volokh: Nevertheless, it is still good custom to always mention which Law Lord one is quoting, even if the opinion in question has been "endorsed" by some or all of the other Law Lords.
4.18.2008 11:59am
vassil petrov (mail):
Prof. Volokh:
My remarks were directed primarily at the bloggers, not your post. Still I prefer real names, not some faceless expressions like "one of the judges". However low one's opinion about that feminist pseudo-jurist Brenda Hale may be, she is still entitled to be named "Lady". Otherwise I find Lord Bingham's opinion, to put it mildly, very unperuasive.
The problem is that even if the Strassourg court rules in Animal Defenders's favor, there is no way their Lordships' decision be reversed. In a few Council of Europe's countries (including my own - Bulgaria) there are provisions that allow final decisions of the national courts (even decisions of their highest courts) be reconsidered after the Strassourg court has found a violation of the European Convention on Human Rights (ECHR). In my country this is possible in criminal and administrative, but not in civil and commersial cases.
Now, I do think that is unconstitutional, because our Constitution specify that "Supreme Court of Cassation (SCC)/Supreme Administrative Court (SAC)... shall have SUPREME oversight over all courts/in administrative jurisdiction... in the uniform and correct application of the LAW", which means that SCC/SAC have final say over the meaning of every law in force in our country (and the ECHR is a such a law). Still this is a powerful remedy for everyone whose Convention rights have been violated.
The situation resulting is probably analogous to that of Mr. Medellin, after the SCOTUS recent decision - his treaty rights have been violated (so an international court held in the Avena judgment), but the national court claimed the power to have the final say over the meaning of the treaty and to refuse to give effect to the international court's decision.
4.18.2008 12:21pm
martinned (mail) (www):

Indeed, this follows from s. 4 of the Human Rights Act:

4. Declaration of incompatibility.— (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a)that the provision is incompatible with a Convention right, and
(b)that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
(5) In this section “court” means—
(a)the House of Lords;
(b)the Judicial Committee of the Privy Council;
(c)the Courts-Martial Appeal Court;
(d)in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
(e)in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
(6) A declaration under this section ( “a declaration of incompatibility”)—
(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b)is not binding on the parties to the proceedings in which it is made.

And, of course, from the fact that the UK, unlike the US, has a dualist system of international law, whereby treaties (other than the EU Treaties, of course) never have direct effect in the UK legal order.
4.18.2008 12:50pm
Diplomatic Gunboat:
Prof. Volokh:

I appreciate your posts on this important topic. I have a minor semantic quibble with your use of 'unconstitutional' in citing the 2001 European Court of Human Rights (ECtHR) decision 'that held that bans on political broadcast advertising were indeed unconstitutional.'

Though analogous in many ways to American constitutional rights, the European Convention on Human Rights (ECHR) is not a true constitution but a treaty. I'm sure you knew this already and were merely using the closest American analogue concept, but some may be confused by it. I believe a clearer description of the ECtHR's 2001 holding would be that such bans were 'violative of fundamental rights' or that they 'violated freedom of expression.' Yes, it's a minor quibble.

As a relevant and very current illustration of the not-quite-constitutional nature of the Convention, Switzerland has still refused to allow the 1994 pro-animal-rights commercial at issue in that 2001 decision to be broadcast, which has prompted a second trip to the ECtHR and resulted in a second loss for Switzerland. Switzerland asked for and was recently granted referral of the case to the ECtHR's full 17-member Grand Chamber (similar to rehearing en banc). The case has been bouncing around for 14 years now (though I do admit such delays are not unheard of for American constitutional cases).

The EU's proposed European Constitution, of course, failed ratification. Also, the EU and its treaties and bodies are technically unrelated to the ECtHR established by the 1950 ECHR. The EU has confusingly adopted a Charter of Fundamental Rights with similarities to the ECHR but without the teeth--the ECHR as amended allows individuals to bring claims directly against their governments.

Hopefully, the Grand Chamber of the ECtHR will continue to rule that freedom of expression is meaningful and enforce relief (even though I personally find the 'progressive' ideas of the applicants to be silly).


D. Gunboat
4.18.2008 12:57pm
Richard Aubrey (mail):
It's reasonable when you think about it, if you don't think about it too much.
Reasonable people would think it reasonable.
It would not occur to reasonable people that sooner rather than later, when the consideration becomes a settled part of the process, grooved in and running by itself, that unreasonable people are going to have insinuated themselves into the system. But reasonable people, having gone along with it during the two or three years when it was reasonable, are going to have not a single, solitary reason with which to protest.
4.18.2008 1:14pm
Eugene Volokh wrote in original post, April 17, 2008 at 4:24pm:
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 (whether abortion rights, gun rights, health care reform, or whatever else)?
The FCC's old "fairness doctrine" of 47 CFR §73.1910 (distinct from the equal time rule, of 47 USC §315), while not barring "speech aimed at supporting or opposing broader ideological views", did make broadcasters reluctant to air any such speech. Doing so could impose an "equal time" requirement for opposition views. Given the multiplicity of "broader ideological views", the abyss for a broadcaster could be bottomless, so better to stay away from the precipice. The effect was similar, though arguably not as extreme, to the Lords' ban on colorably political broadcasts altogether.

The distantly related doctrine of "equal opportunity" for political candidates remains in 47 CFR §73.1941 and §73.1942. Broadcasters may not impose discriminatory opportunities or rates between political candidates. I think that most would believe this requirement to be fair. But most importantly, determining who is and who is not a candidate for a public office is trivial and objective.

By banning colorably political speech altogether, the Lords have been too clever by half. A major problem with USA's "fairness doctrine" was the inherent subjectivity in determining what was an "issue of public importance" to be granted equal time, and the potentially bottomless abyss of litigation involving that determination. The same problem will manifest in determining what speech to ban, or not.

Likewise, the same problem will manifest in campaign finance restrictions on "speech aimed at supporting or opposing broader ideological views".
4.18.2008 2:39pm