The Roberts Court's First Amendment: Where the Lochner Court Dare Not Tread

Last week, the Supreme Court came down with their latest attempt to destroy democracy by carving it up for purchase. The decision was Arizona Free Enterprise Club v. Bennett, a case challenging Arizona's opt-in public financing scheme. The scheme worked like this: Any candidate may agree to public financing, meaning that he receives funding from the state, and is limited to that funding. If, however, his opponent is privately financed and outspends him, the state gives him 94 cents on the dollar in matching funds, up to three times the original amount. Anything in excess of that, and he was out of luck. The Supreme Court struck this down as a violation of the speech rights of the privately funded candidate.

Think about this for a second. Where this provision cannot be said to do anything but create more speech, the Court struck it down because it suppressed the efficacy of the private spender's speech. Justice Kagan's dissent doesn't pull punches in pointing out the absurdity:

This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker's ideas to another's. But the candidates bringing this challenge do not make that claim--because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges. (internal citation ommitted)

(I kind of love the fact that she can write "chutzpah" in an opinion and expect it to be widely understood, but I digress.)

It has become vogue among First Amendment scholars to compare this strain of First Amendment analysis to one of the most reviled and repudiated line of cases in Supreme Court history: Lochner v. New York and its brethren. While comparison to Lochner has become something of the Godwin's Law of constitutional law, this analogy is accurate rather than hyperbolic, and I agree wholeheartedly, so I'll lay it out here. (I also don't remember if I've written here about Lochner before, but I can't seem to find anything, so if you know it, bear with me.) The Lochner line of cases stretched from 1920 until 1937 or so, with the New Deal constitutional revolution. Lochner itself was a case striking down a maximum hour law for bakers in New York. The law was passed on the reasoning that bakers needed time to be able to go home and rest so as not to injure themselves in the overheated, dangerous conditions in which they worked. The Court struck it down on the theory that it interfered with an indiviudal's right to contract; that is, if an individual agrees to work too many hours, who is the government to stop him? (Sound familiar?) The Court then struck down other similar laws, most notably minimum wage laws, on the same rationale.

This line of cases is widely understood as an incredibly wrongheaded effort to say that the Constitution requires these absolutist free market theories. In fact, because we're seeing the rise of the same sorts of extreme free market theories politically, some legal scholars, are now openly trying to rehabilitate Lochner. But more importantly to this post, the Roberts Court's First Amendment decisions track this perfectly, at least until this last one.

Kathleen Sullivan wrote an article last year on the Citizens United Court and the two versions of the First Amendment in operation here. She says that the "liberal" justices on the Court see free speech in terms of equality; that is, people should all have an equal opportunity to have their ideas heard. The conservatives, on the other hand, see it as a question of liberty, which to them means government noninterference. Now, I have a huge problem with this definition of liberty, and I believe Sullivan gives the conservatives on the Court too much credit for this view, but as a descriptive matter, she's obviously right:

The second vision of free speech, by contrast, sees free speech as serving the interest of political liberty. On this view, discussed in Part II, the First Amendment is a negative check on government tyranny, and treats with skepticism all government efforts at speech suppres-sion that might skew the private ordering of ideas. And on this view, members of the public are trusted to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive reasons. Government intervention might be warranted to correct certain allocative inefficiencies in the way that speech transactions take place, but otherwise, ideas are best left to a freely competitive ideological market. (emphasis mine)

When I say Sullivan is giving them too much credit, I mean that she uses the phrase "ideological market" rather than "market". Because when she mentions "private ordering," that's what she's talking about - free speech has become an absolutist economic free market, where government may not interfere with private ordering of purchased speech. In light of this, the Court's decision in Bennett is not actually that surprising, even as extreme as it is. If the Court is simply looking at whether government is interfering with private ordering, then yes, it is.

However, I want to go back to the Lochner analogy in order to explain just how extreme this decision is. The Lochner era court struck down minimum wage laws under the rationale that if the workers didn't want to make so little money, they didn't have to take the job. That's equivalent to Citizens United, which reasoned that if you want to affect the public discourse more, you could always spend more. Fine, both are awful and willfully ignorant of reality. Bennett actually goes a step further. The wage equivalent of Bennett is if a government said to the employers: "It's fine if you want to pay the workers too little, but we will send them a check up to a living wage to compensate for whatever you don't pay them." Then the Court would have to come in and strike down this law because it distorts the market.  I'm not sure the Lochner would even have gone that far, but in 2011, that is the state of campaign finance law.