FLAG BURNING AND CAMPAIGN CONTRIBUTIONS—THE SPEECH ACT CONTROVERSY

Now is as good time as any to discuss our willingness to protect speech acts, Donald Trump’s recent “stance” on flag burning notwithstanding. Speech acts are protected under the First Amendment to the United States Constitution as applied to the federal government, and under the Fourteenth Amendment to the United States Constitution as applied to the States.

A.  What is a Speech Act?

A speech act is identified by the context and circumstances under which the act takes place and the motivation, or apparent motivation, of the actor. See Spence v. Washington, 418 U.S.405 1974) (“An intent to convey a particularized message was present, and in the circumstances the likelihood was great that the message would be understood by those who viewed it.”). The seminal case on the regulation of speech acts is United States v. O’Brien, 391 U.S. 367 (1968)— give it a read sometime.

Before O’Brien, the United States Supreme Court afforded protection of communicative acts— for example, in Stromberg v. California, 283 U.S. 359 (1931) the Court held unconstitutional a state prohibition on displaying a “red flag,” and in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Court held unconstitutional a state law that requires students to salute the flag. The Court, in fact, made clear before O’Brien that there is “some kernel of expression in almost every activity a person undertakes,” but the ultimate task of ascertaining when those “kernels” should be afforded full First Amendment protection, such that the Court could legitimately invalidate a Federal or State law, fell to the Court in O’Brien.

In O’Brien, the Supreme Court answered the question whether criminal prosecution of a person for burning a draft card violated his right to free speech under the First Amendment. The Court created a test, which basically states that government can regulate speech acts if the regulation promotes an important government interest that is unrelated to the suppression of free expression and the restrictions do not burden speech more than is necessary to further the governmental interest.

In the end, the Court in O’Brien upheld the prohibition against burning draft cards. The government purportedly had an important interest in preserving draft cards to facilitate military mobilization, and to preserve a document which reminds the recipient to update changes in address or changes related to draft status, among other interest. These interest were unrelated to the suppression of speech.

B.  Flag Burning is a Protected Speech Act

The O’Brien test gave us the holding in Texas v. Johnson, 491 U.S. 397 (1989), aka, the “flag burning case.” The state law at issue in Johnson made it a crime to intentionally or knowingly “deface, damage or otherwise physically mistreat [a state or national flag] in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” The Court held this law unconstitutional because the state had not asserted a government interest promoted by the law that was unrelated to the suppression of free speech. And, in fact, the law applied only when another person was “offended” by another person desecrating a flag:

The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our

precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” . . . It would be odd indeed to conclude both that “if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection,” and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.

Following Texas v. Johnson, a public outcry ensued, with calls for a Constitutional Amendment to prohibit flag desecration. In response, Congress, with signature of the President, enacted the Flag Protection Act of 1989. Only one year later, the Act was before the United States Supreme Court in United States v. Eichman, 496 U.S. 310 (1990) (not that Eichman!).

In Eichman, the Court held unconstitutional the Flag Protection Act of 1989. The Court was split, with Justices Scalia, Kennedy, Brennan, Marshall, and Blackmun in the majority, and Justices Rehnquist, White, Stevens, and O’Connor dissenting. The majority reasoned:

[T]he precise language of the Act's prohibitions confirms Congress’ interest in the communicative impact of flag destruction. The Act criminalizes the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag.” Each of the specified terms – with the possible exception of “burns” – unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value. And the explicit exemption in § 700(a)(2) for disposal of “worn or soiled” flags protects certain acts traditionally associated with patriotic respect for the flag.

. . .

“‘National unity as an end which officials may foster by persuasion and example is not in question.’” Government may create national symbols, promote them, and encourage their respectful treatment. But the Flag Protection Act goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact.

For some people, the Court’s conclusions in Johnson and Eichman are obvious, given the importance of free speech to such public and private goods as Democracy, innovation, personal development and expression, art, and the search for meaning generally. But for others, there are competing public and private goods which deserve equal respect and concern, among those goods are national unity, social stability, security, and respect for the sacrifice of persons in service to the United States, to its citizens, all of which are embodied in the flag as a symbol. Yet, these competing goods, alone, do not demonstrate why others should accept them and question the scope of speech act protection.

C.  Is a Campaign Contribution Protected Speech?

This brings us to campaign contributions. Is a campaign contribution a speech act? This question is usually posed as: “Is money speech?” But this is a misleading question because it leaves out

the context in which the money is exchanged. Obviously, when you hand someone money in exchange for something, there is a “kernel” of expression. If it is the grocer, the “kernel” may just be an understanding on your part or an intent to convey to the cashier that it is the correct tender amount. So, during campaign season, when you give your money to a candidate you support, is there a “kernel” of expression? Of course! Handing money to your candidate of choice is a sign of support, “I support you.” It also may show that you wish for the candidate to act as a proxy for your voice during the election.

The United States Supreme Court has wrestled with campaign contributions and free speech for a long time. The Court has long recognized that “the First Amendment has its ‘fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 223 (1989), Stated another way: “There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign.” McCutcheon v. FEC, 134 S. Ct. 1434, 1440-41(2014).

But even this right to freely engage in political speech has been set against and limited by other public good considerations. Following the Watergate investigation, and a string of other public abuses of office, calls for Government reform were met with the Federal Election Campaign Act of 1971. In an effort to “limit the actuality and appearance of corruption resulting from large individual financial contributions,” the Act was amended in 1974 to add limitations to campaign contributions and expenditures. Individuals or groups could contribute no more than $1000 on a Federal Candidate for office, political committees could contribute no more than $5000, and each contributor could not contribute more than $25,000 to a campaign in any given year. The law also limited expenditures by candidates from their personal funds to $50,000 for presidential or vice-presidential candidates, $35,000 for candidates for the Senate, and $25,000 for House of Representatives candidates. A constitutional challenge subsequently followed.

In Buckley v. Valeo, 424 US. 1 (1976), the Court held that the Act would be viewed with strict scrutiny, as one designed to suppress speech because it operates “in an area of the most fundamental First Amendment activities.” The Court refused to apply the O’Brien test:

Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O’Brien test because the governmental interests advanced in support of the Act involve “suppressing communication.” The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subjected to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O'Brien, where the Selective Service System’s administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged “conduct” of giving or spending money “arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.”

The Court found that the governmental interest in preventing political corruption or the appearance of it was a compelling interest. To the extent the law was tailored to curb quid pro quo corruption, it was upheld. So, the Court distinguished between the contribution restrictions and the expenditure restrictions. The contribution restrictions were upheld, because, as the Court reasoned, these restrictions involved little direct restraint on a person or group’s political communication. He, she, or it may not be able to spend unlimited money, but can always discuss the candidates and issues with others. And, large contributions lie at the heart of actual and potential quid pro quo.

But the Court held unconstitutional the limitations placed on expenditures. The Court reasoned that such restrictions directly limited the quantity and nature of speech and personal expenditures do not present the risk, at least not clearly, of quid pro quo. The government argued that it could regulate expenditures so as to “equalize the relative ability of all citizens to affect the outcome of elections.” The Court rejected this argument:

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”

So the Court split the baby, so to speak. The government could regulate campaign contributions in order to curb quid pro quo corruption, but would need to find a compelling government interest unrelated to regulating speech in order to limit campaign expenditures. The  Court rejected the concern of equality of political influence, which to this day remains a public good sought by pro-campaign reform folks.

The reasoning behind the Court’s decision did not rest well with many legal practitioners and scholars. Justice Thomas captured the spirit of dissent from Buckley best in his dissent in Nixon v. Shrink Mo. Gov’t Pac, 120 S. Ct. 897, 917-921 (2000).

For nearly half a century, this Court has extended First Amendment protection to a multitude of forms of “speech,” such as making false defamatory statements, filing lawsuits, dancing nude, exhibiting drive-in movies with nudity, burning flags, and wearing military uniforms. Not surprisingly, the Courts of Appeals have followed our lead and concluded that the First Amendment protects, for example, begging, shouting obscenities, erecting tables on a sidewalk, and refusing to wear a necktie. In light of the many cases of this sort, today’s decision is a most curious anomaly. Whatever the proper status of such activities under the First Amendment, I am confident that they are less integral to the functioning of our Republic than campaign contributions. Yet the majority today, rather than going out of its way to protect political speech, goes out of its way to avoid protecting it. As I explain below, contributions to political campaigns generate essential political speech. And contribution caps, which place a direct and substantial limit on core speech, should be met with the utmost skepticism and should receive the strictest scrutiny.

. . .

Buckley completely failed in its attempt to provide a basis for permitting government to second-guess the individual choices of citizens partaking in quintessentially democratic activities. “The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.”

Eventually, the Court would strike down a provision in the Bipartisan Campaign Reform Act (BCRA) of 2002, which prohibited corporations and unions from using general treasury funds to make independent expenditures for speech that qualifies as an “electioneering communication or which advocates the election or defeat of a candidate. See Citizens United v. FEC, 558 U.S. 310 (2010). In 1978, the Court had held that “the First Amendment protects the right of corporations to petition legislative and administrative bodies,” and that First Amendment protections do not diminish simply because of the source of speech. See First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978). So, with Buckley’s expenditure holding, it seemed the holding in Citizens United was inevitable, given BCRA’s expenditure restriction.

Following Citizens United, the Court chipped away at Buckley’s willingness to limit campaign contributions in the face of a generic interest—I say generic because often no clear evidence of corruption had been provided to support the need to limit contributions—in preventing political corruption or its appearance. In McCutcheon v. FEC, 134 S. Ct. 1434 (2014), the Court held unconstitutional BCRA’s aggregate limits on individual contributions to candidates or committees, since, the Court reasoned, these aggregate limits do little to address quid pro quo corruption, “while seriously restricting participation in the democratic process.” The Court affirmed BCRA’s base limits, which limit the amount a donor may contribute to a particular political committee or candidate.

So, a person may, without government restriction, spend as much money on elections in any given year, but can only spend a set amount on any one candidate or committee per year. This doesn’t have to make sense to you. It’s just the state of the law. One thing seems to be clear, though, from Supreme Court precedent, campaign contributions certainly qualify as speech and comfortably qualify as speech acts.

D.  What scope of protection should the First Amendment Provide for Speech Acts?

The discussion so far raises an important question: When analyzing the scope of First Amendment protection, is the focus on one or another conception of some “public good” or on the individual’s right and ability to freely engage in speech? If public goods really matter, then everyone should take seriously the concerns that both sides raise when it comes to flag burning and campaign contributions. But this is exactly the area (conceptions of the good, right, or just) where most disagreement lies, and where it is most difficult to garner traction in working toward some sustainable resolution.

This is a difficult question, one that was partly answered in McCutcheon, though, again, not to everyone’s satisfaction. Disagreement notwithstanding, the Court in McCutcheon made it clear that the proper focus in a First Amendment analysis “is on an individual’s right to engage in political speech, not a collective perception of the public good. The whole point of the First Amendment is to protect individual speech that the majority might prefer to restrict, or that legislators or judges might not view as useful to the democratic process.”

At the end of the day, if we collectively wish to pursue or promote any public good over other individual rights, Article V of the United States Constitution provides the procedure by which to

make it happen. But recognize that this is not a permanent solution, and if the losing side strongly values its conception of some counter-public good, it may very well garner equal support in time to make its conception the norm and the law. Maybe that is why it is best to leave government out of selecting appropriate speech and speech acts.