Linda Greenhouse, former Supreme Court reporter for the New York Times, posted her twice-monthly column Wednesday evening, on the dangers of today’s conservative Supreme Court going “Over the Cliff” in defending...the right to free speech. You read that correctly: A liberal Times reporter is faulting a conservative Supreme Court for being on a "dangerous path" and showing "arid absolutism" by expanding the First Amendment's protections to corporations.
Greenhouse jump-started the discussion with a rarely-cited 1978 Court decision, First National Bank of Boston v. Bellotti:
The case is not well-known today, although it should be. It was the decision that really opened the door to corporate money in politics, leading 32 years later to a very well-known case: Citizens United.
The Bellotti decision declared unconstitutional a Massachusetts law that prohibited corporations from spending money to influence the outcome of a public referendum that did not directly concern the corporation’s own business. Two years earlier, in Buckley v. Valeo, the court had held that in the context of campaign finance, money equals speech. Now the Bellotti majority described corporate spending on public referendums as speech that lay “at the heart of the First Amendment’s protection.”
Greenhouse described liberal Justice William Brennan’s previously unheralded switch of opinion on corporate spending and free speech.
Justice Brennan’s switch -- to the position that liberals occupy today -- is an interesting historical footnote that I don’t believe has been previously reported. (My source is a memo from Justice Brennan to the other justices, contained in the Potter Stewart papers in Yale’s Sterling Memorial Library.) But it’s the dissenting opinion of the Burger court’s most conservative member that most clearly illuminates the dangerous path the current conservative majority is pursuing.
That would be Justice William Rehnquist, later to become Chief Justice.
Not only in commercial speech, but in the area of pure political speech as well, the current majority threatens to drive the First Amendment off a cliff. In June, the court struck down a voluntary public financing system for political campaigns, adopted by Arizona voters in a public referendum 13 years ago in response to corruption scandals. As an incentive to accept public financing, without fear of being outspent by a wealthy, privately financed candidate, the system offered a publicly financed candidate an extra dollar for every dollar that the opponent spent above the law’s cap on public money.
Greenhouse found a Canadian concept she hoped would help limit the meaning of free speech in the U.S. Constitution, a distressingly vague concept called “proportionality,” which sounds like another attempt to make the Constitution mean whatever a judge wants it to mean, as opposed to the “arid absolutism” that insists the document means what it says.
Earlier this month, the American Bar Association traveled north to Toronto for its annual meeting. Doing some homework for a panel I was to moderate, I came upon Section 1 of the Canadian Charter of Rights and Freedoms, added in 1982 to the country’s mid-19th century constitution. Section 1, the “limitation clause,” makes the Charter’s many guarantees subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A Canadian judge assured me that this requirement of “proportionality,” as various European constitutions with a similar principle refer to it, is invoked constantly and forms the basis for Canadian constitutional interpretation.
Proportionality strikes me as worth considering in preference to the arid absolutism that seems to have taken hold of the United States Supreme Court. I wonder what William Rehnquist would say. The old chief, who died in 2005, was a master at seeing around corners, and he lived long enough to see the prediction he made in 1978 come true.