Freedom of Speech Patriotism, flag burning and the first amendment – Texas v Johnson (1989) Contributions as Free Speech Citizens United v Federal Election Commission (2010)

Flag Burning: Texas v Johnson (1989) In 1984 Gregory Lee Johnson burned an American flag outside Dallas City Hall in protest at Reagan administration Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.

Texas v Johnson (1989) Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment

Texas v Johnson (1989) The Texas law stated desecration is illegal if "the actor knows it will seriously offend one or more persons," which the Court held was a deliberate attempt at suppressing free speech, and therefore was unconstitutional Johnson had the right to invoke First Amendment protection because the burning occurred in the context of a political protest.

Free Speech The First Amendment specifically disallows the abridgment of "speech," but the court reiterated its long recognition that its protection does not end at the spoken or written word In determining the case, the court considered the question of whether the First Amendment reached non-speech acts, and whether Johnson's burning of the flag constituted expressive conduct

Texas v Johnson (1989) Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression does not justify prohibitions of speech The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages

Free Speech “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” Rehnquist dissent – the "uniqueness" of the flag "justifies a governmental prohibition against flag burning in the way respondent Johnson did here”

Free Speech Steven dissent: the flag "is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations...The value of the flag as a symbol cannot be measured."

Free Speech Congress did, however, pass a statute, the 1989 Flag Protection Act, making it a federal crime to desecrate the flag In the case of United States v. Eichman, that law was struck down by the same five person majority of justices as in Johnson

Free Speech “The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech” Anthony Kennedy, 1992

Lobbying and Money Long standing concern about influence of money and lobbyists in US politics “At least since Madison railed about the mischiefs of faction, critics of US political institutions have worried about the influence of organized interests” (Hall and Wayman, 1990 P797)

Lobbying as free speech Representative Democracy and Accountability Lobbying as a legitimate part of the democratic process Constitutional protected right of free speech “But there is a darker side to lobbying, a side that is responsible for the sinister connotation that lobbying has…Too often the suspicions seem to be well founded. Too often the needs of the people are overridden by interest groups clamouring for favored treatment” Kennedy & Stafford, 1975

Lobbying Regulation Influence and Access Campaign finance as a lever of influence 1971 Federal Election Campaign Act Limited the amount any individual could contribute 2002 Bipartisan Campaign Reform Act McCain-Feingold Bans the solicitation of ‘soft-money’ 527’s Despite these reforms the amount of money raised and spent in election campaigns has continued to increase Citizens United v FEC 2010

Citizens United Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president.

Citizens United Supreme Court held by a majority of 5 to 4 that the First Amendment prohibited the government from restricting political expenditures by corporations Stevens dissent "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."

Citizens United In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Section 203 of the BCRA prevents corporations or labour unions from funding such communication from their general treasuries.

Citizens United Citizens United argued that: Section 203 violates the First Amendment on its face and when applied to The Movie and its related advertisements The United States District Court denied the injunction. Held that The Movie was the functional equivalent of express advocacy, as it attempted to inform voters that Clinton was unfit for office

Citizens United By a 5-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited The majority led by Roberts maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation.

Citizens United Held disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources Upheld the disclosure requirements for political advertising sponsors and upheld the ban on direct contributions to candidates from corporations and unions.

Citizens United Scalia also wrote a separate opinion, joined by Alito and Thomas, criticizing Stevens' understanding of the Framer's view towards corporations. Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations' ability to spend money during local and national elections “Corporations are people” Mitt Romney

Citizens United – Barack Obama “This ruling strikes at our democracy itself” "I can't think of anything more devastating to the public interest“ “the SC reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities”

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Citizens United