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Speech-facilitating conduct.

Table of Contents

I.    Basic Principles
      A.  Expressive and Nonexpressive Conduct
      B.  Doctrinal Possibilities
      C.  Anti-Targeting
II.   Before Arcara
      A.  Information Gathering
      B.  Campaign Contributions
      C.  Compelled Subsidies
      D.  Associational Rights
          1.  Compelled-disclosure cases
          2.  Associational-membership cases
III.  Current Doctrine
      A.  Information Gathering
      B.  Campaign Contributions
      C.  Compelled Subsidies
      D.  Associational Rights
          1.  Compelled-disclosure cases
          2.  Associational-membership cases
      E.  History and Speech-Facilitating Conduct
IV.   Anti-Targeting and Disproportionate Burdens
      A.  Disproportionate Burden Claims
      B.  Recording Restrictions
V.    Defending Anti-Targeting
      A.  Protecting Nonexpressive Conduct
      B.  Problems with Conduct-Based Approaches
          1.  Domain-specific approaches
          2.  Substantial-burdens approaches
      C.  Advantages of an Anti-Targeting Approach


A familiar, if sometimes nebulous, distinction between "expression" and "nonexpressive conduct" undergirds modern free speech doctrine. (1) Expressive acts--from speaking and publishing to burning flags and dancing in the nude--generally "bring the First Amendment into play," triggering closer judicial scrutiny. (2) But when the regulated conduct is nonexpressive, courts often say that the First Amendment does not apply at all. (3) Expressive conduct does not have to convey "a narrow, succinctly articulable message," (4) but the Supreme Court has derided the idea that "an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." (5)

Yet it is widely recognized that some protections for nonexpressive conduct are essential to basic First Amendment freedoms. Ordinary commercial transactions are not expressive, for instance, but prohibitions on the distribution or acquisition of printing presses or computers would raise obvious First Amendment concerns. (6) Picture taking and video recording are often not expressive, (7) but courts have ridiculed the "extreme" and "extraordinary" idea that such conduct "is wholly unprotected by the First Amendment." (8) Similarly, although financial transfers are often thought of as nonspeech, "virtually every means of communicating ideas in today's mass society requires the expenditure of money." (9)

In this vein, the Supreme Court has recognized some First Amendment protection for the speech process, and not merely the expressive end product. "Laws enacted to control or suppress speech may operate at different points in the speech process," the Court recently explained. (10) To many, this notion of protection for the speech process is intuitive. We can hardly "disaggregate Picasso from his brushes and canvas," or "value Beethoven without the benefit of strings and woodwinds," one court of appeals colorfully opined. (11)

But full First Amendment coverage for nonexpressive acts that are tied to speech would quickly become unwieldy. "[F]ew restrictions on action," the Court observed fifty years ago, "could not be clothed by ingenious argument in the garb of decreased data flow." (12) Confronted with claims for protection of nonexpressive acts that facilitate speech, the Court has steadfastly remained "unwilling to embark the judiciary on a long and difficult journey to ... an uncertain destination." (13) How, then, should courts decide whether to apply some form of elevated First Amendment scrutiny to governmental restrictions of nonexpressive conduct?

The academic literature about First Amendment coverage for speech-facilitating conduct generally falls into three camps. First are studies that focus on particular types of conduct, like gathering information, financing campaigns, engaging in scientific research, or associating with others. (14) A second group of scholars takes a much broader approach by considering all incidental burdens on speech, whether falling on expressive or nonexpressive conduct. (15) Finally, a third camp denies that a claimant's expressive purposes implicate the First Amendment when the government regulates nonexpressive conduct, but this group of scholars does not explore other ways that free speech doctrine might cover nonexpressive conduct. (16)

This Article charts a different path by considering speech-facilitating conduct as a distinct category within First Amendment law. (17) The nonexpressive conduct involved in these cases may come before speech (e.g., donating money or traveling to a protest) or afterward (e.g., receiving speaker fees or traveling home). The potential reach of these rights is broad, but this Article does not address protection for actions that count as "expressive" on their own, like writing or delivering books. (18) Rather, it explores the coverage that the Supreme Court has provided and denied to nonexpressive conduct, addressing only whether the First Amendment applies at all--not whether any particular restriction can survive some form of elevated scrutiny. (19)

By looking at speech-facilitating conduct as a distinct category, an overarching framework can bring together, descriptively and normatively, otherwise disparate strands of First Amendment law. The guiding principle of this framework is that coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech--including speech-related rules that target the speech process. (20) Applications of this "anti-targeting" principle vary by context, (21) but the general concept offers a surprisingly comprehensive account of most on-point Supreme Court decisions.

Examining speech-facilitating conduct as a distinct category also reveals a substantial, yet mostly unannounced, shift in the Supreme Court's approach to First Amendment coverage for nonexpressive conduct. Prior to the mid-1980s, the Supreme Court often treated all sorts of incidental burdens on speech as implicating the First Amendment, even when the laws being applied did not explicitly target speech. (22) During this bygone era, the Court issued rulings that continue to undergird some of the most significant and contentious areas of free speech law, including newsgathering privileges, campaign finance law, compelled-subsidy doctrine, and associational rights.

Ever since its 1986 decision in Arcara v. Cloud Books, Inc., (23) however, the Court has mostly stopped applying First Amendment scrutiny to general (i.e., nontargeted) regulations of nonexpressive conduct (24) When nonexpressive conduct is regulated, only the law--not individual expressive aims--can bring the First Amendment into play. Conceptually, free speech rights in this Field operate as rules about rules, not as "shields," "immunities," or "trumps" that protect particular forms of speech-facilitating conduct against governmental infringement. (25)

The Court's decision in Arcara did not require overruling prior decisions, and the Justices failed to mention their significant departure from earlier reasoning--what some have described as "stealth overruling." (26) Confusion has been widespread ever since. Scholarly assessments of newsgathering privileges, campaign finance law, compelled-subsidy doctrine, and associational rights, for instance, continue to rely on the outdated reasoning in seminal decisions like Branzburg v. Hayes, (27) Buckley v. Valeo, (28) Abood v. Detroit Board of Education, (29) and Roberts v. United States Jaycees (30) Broader analyses of the Court's approach to incidental burdens on speech similarly depend on old cases. In particular, this Article takes issue with the arguments of Michael Dorf and Geoffrey Stone that significant incidental burdens trigger heightened scrutiny. (31) And beyond these lines of cases, the failure to grapple with the Court's shift has skewed discussions of novel questions involving nonexpressive conduct, like how courts should assess the constitutionality of restrictions on photography and other forms of audiovisual recording. (32)

In sum, reexamining the Supreme Court's approach to speech-facilitating conduct offers fresh insights on a broad swath of free speech law. Part I begins this effort by explaining the terms and categories that guide current free speech doctrine. Part II turns to the pre-Arcara cases, showing that the Supreme Court gave broad recognition to incidental-burden claims across a wide array of free speech cases, even when laws did not target speech. This Part focuses on major decisions relating to information gathering, campaign finance, compelled subsidies, and associational rights.

Arcara and its progeny are examined in Part III. Two features, I argue, define these cases. First, the government faces a heightened burden when it singles out speech. This principle is relatively uncontroversial, (33) but this Article helps to explain its proper scope, particularly in Part IV. A law that targets conduct closely related to speech--singling out newsprint for a special tax, for instance--raises a First Amendment problem even if it does not target the expressive end product. But while free speech doctrine is structured in part to combat improper governmental motives, the anti-targeting approach focuses on what the relevant law does, and not what actually motivated legislators. (34) Second, and more controversially, regulations of nonexpressive conduct do not raise free speech problems when the government does not target speech. In short, the First Amendment does not provide an "affirmative" right to engage in speech-facilitating conduct. Rather, coverage for speech-facilitating conduct is "negative," protecting against targeted governmental interference with the speech process. (35)

This framework suggests that selective enforcement of general rules could create a First Amendment problem. (36) Nonetheless, this Article focuses solely on challenges to legal rules and leaves enforcement questions for another day. Critically, however, by viewing free speech rights in this area as a bar against certain governmental actions rather than as a shield around particular conduct, (37) the anti-targeting framework rejects "as applied" First Amendment challenges to general laws neutrally applied to nonexpressive conduct. (38) (This Article, however, does not challenge the viability of "as applied" claims when the restricted conduct is expressive.) (39)

The anti-targeting principle makes sense of Supreme Court holdings that others have described as "remarkably erratic and fragmented." (40) In doing so, it answers several looming First Amendment questions, including how to evaluate free speech claims involving incidental burdens on expressive associations, compelled subsidies for speech (e.g., bar dues and union-shop dues), and putative newsgathering privileges for journalists. To flesh out how the anti-targeting principle operates, Part IV considers its application to restrictions on audiovisual recording--one of the most interesting emerging issues in free speech law.

Beyond its historical and doctrinal arguments, this Article concludes in Part V by sketching a brief normative defense of the anti-targeting approach. That defense begins with the common recognition that values undergirding the First Amendment readily support some measure of constitutional protection for speech-facilitating conduct. But unlike most of its counterparts, the anti-targeting framework eschews case-by-case balancing or doctrinal tests that vary by speaker or subject. It further avoids assessments of the "significance" of incidental burdens, or other questions that might depend on cumbersome and indeterminate empirical inquiries. When it comes to nonexpressive conduct, anti-targeting thus provides a doctrinal framework that is more stable and predictable than its alternatives. Though all approaches involve tradeoffs, focusing doctrine on laws rather than individual expressive purposes adequately accounts for speech interests and concerns of judicial economy.

I. Basic Principles

A. Expressive and Nonexpressive Conduct

"First Amendment law," a prominent commentator explains, "view[s] expressive and nonexpressive activity as meaningfully different, even though drawing a line between the two raises hard questions." (41) Writing and speaking are, of course, quintessential "speech," but the First Amendment also provides qualified protection to a wide array of "expressive conduct," including so-called "symbolic speech." (42) Burning flags, wearing black armbands, participating in a parade, and even dancing in the nude are well-known examples. (43) To determine whether conduct is expressive, courts ask whether the conduct is "imbued with elements of communication." (44) Expressive conduct need not convey "a narrow, succinctly articulable message," (45) but mere intent to communicate an idea or feeling is insufficient. (46)

Generally speaking, regulations of expressive conduct "bring the First Amendment into play," even when that conduct is circumscribed by a law having nothing to do with speech. (47) This Article--which emphasizes laws rather than conduct when it comes to nonexpressive acts--does not challenge the general rule that restrictions of expressive acts trigger the First Amendment, regardless of the law at issue. (48) Applying a breach-of-the-peace statute to a rowdy protestor, for instance, implicates free speech principles even though the statute does not single out expression. The First Amendment, in other words, usually "covers" expressive conduct, (49) meaning that whenever a law incidentally regulates expressive conduct, courts apply some form of elevated judicial scrutiny. (50)

But what happens when the incidence of a law falls on nonexpressive conduct? Suppose a journalist needs to eavesdrop on a source to complete an expose. Or a scientist needs to circumvent a ban on destroying embryonic stem cells to create a publishable article. Or a photographer takes photographs without obeying state privacy laws. How should courts decide whether to apply some form of elevated scrutiny to these restrictions of nonexpressive conduct?

B. Doctrinal Possibilities

Approaches to coverage for speech-facilitating conduct generally fall on a continuum that focuses on the speaker, not the government. (51) At one pole, free speech coverage is denied for all claims involving nonexpressive conduct regardless of expressive aims or indirect effects on speech. (52) A limitation on giving money to an expressive group, for instance, would not raise a First Amendment problem unless the act of giving money counted as "expressive." Some cases suggest this approach. "[A]lthough the Supreme Court has defined the boundaries of expression broadly," one Court of Appeals has opined, "it never has extended the protections of the First Amendment to non-expressive conduct." (53) At this pole, the distinction between expressive and non-expressive conduct is absolutely crucial; restrictions of nonexpressive conduct do not implicate the First Amendment at all.

At the other pole, heightened First Amendment scrutiny applies whenever a regulation of nonexpressive conduct burdens an expressive goal--most commonly when someone wants to engage in nonexpressive conduct for an expressive reason. (54) On this view, a limitation on giving money to an expressive group would raise a free speech problem by diminishing the supply of money used for speech. At this pole, the distinction between expressive and nonexpressive conduct is less important, and the scope of First Amendment coverage is extraordinarily broad. Tax laws, environmental standards, and labor laws, for instance, all routinely impose costs that could have derivative effects on the supply of speech.

Not surprisingly, most scholarly accounts fall somewhere between these extremes. Scholars who advocate First Amendment coverage for nonexpressive conduct based on the effects on speech usually craft limiting principles, lest expressive purposes trigger heightened review of nearly any law. (55)

The most frequent proposals define First Amendment boundaries by subject, asking what expressive goal is at stake. Scholars have debated an array of possibilities. Subject-specific First Amendment rights could include a right to gather news (which facilitates publishing news), (56) a right to give money to political campaigns (which facilitates political speech), (57) a right to be free from compelled giving (which otherwise facilitates undesired speech), (58) and a right to engage in scientific research (which facilitates publishing scientific articles). (59) These categories could be further delineated--limiting information-gathering claims, for example, to instances where the desired information is of public rather than private concern. (60)

Other proposals seek to limit who gets First Amendment protection. News-reporting privileges, for instance, might be confined to journalists. (61) Coverage could similarly depend on where the nonexpressive conduct takes place, (62) or on the degree to which the regulations burden certain speakers. (63) Geoffrey Stone and Michael Dorf both argue that significant incidental burdens on speech ought to trigger elevated scrutiny. (64) Finally, many scholars assert that First Amendment interests should give way when the rights of others are infringed. (65)

Speaker-focused approaches rest on the familiar distinction between protected and unprotected conduct--the idea that some conduct is constitutionally privileged, while other conduct is not. (66) That distinction reflects how we typically talk about rights, (67) and it fits with a commonsense understanding that rights protect individuals. "From the perspective of a rightholder," Dorf points out, "the severity of a law's impact has no necessary connection to whether the law directly or incidentally burdens the right's exercise." (68) In other words, usually people care most about whether their actions are lawful, not why they might be unlawful. Modern substantive due process doctrine seems to exemplify this way of thinking about rights as protecting certain types of conduct against governmental infringement (69) And, as explained in Part II, the Supreme Court focused on protection for certain types of conduct in many of its decisions prior to the mid-1980s.

But speech rights do not have to fall on this speaker-focused continuum. The First Amendment could instead "direct our attention to the law rather than to the conduct prohibited by a particular application." (70) Indeed, as Matthew Adler observes, many constitutional rights--including some free speech rights--"function not as shields around particular actions, but as shields against particular rules." (71) The Supreme Court has mostly adopted that view of the Free Exercise Clause, holding that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" (72) Individuals, in other words, cannot obtain constitutional exemptions when laws happen to conflict with their religious beliefs and practices; the "right" of free exercise is a rule about rules, not a shield around particular behavior. Justice Scalia has advocated (without success) for an analogous principle in free speech cases, proposing that heightened scrutiny should be limited to situations "[w]here the government prohibits conduct precisely because of its communicative attributes." (73)

C. Anti-Targeting

How would a focus on laws rather than conduct work in the context of restrictions of speech-facilitating conduct? This question is explored in greater depth in Parts III and IV, which argue that the Supreme Court now uses a law-focused approach to assess regulations of nonexpressive conduct. But it is useful to offer a preliminary sketch. In short, a law-focused approach can be based on an anti-targeting concept. Laws regulating nonexpressive conduct raise free speech concerns when those laws single out speech--including speech-related rules that target the speech process. At the same time, however, the speech-restrictive effects of general (i.e., nontargeted) laws do not trigger heightened scrutiny when those laws are neutrally applied to regulate nonexpressive conduct.

In most cases, applying the anti-targeting principle is straightforward. For example, riding a public subway is not expressive, and therefore standard metro hours are immune from a First Amendment challenge. If a late-night protestor insisted that a public subway extend its usual hours of operation for his convenience, he and his free speech argument would get nowhere. An ordinance barring the use of the subway to attend protests, however, would raise clear First Amendment problems. (74)

Still, targeting could be defined in different ways. The concept could refer, for instance, to the subjective intentions of governmental actors, asking whether they are motivated by speech-related effects. Targeting could also refer to whether the law, evaluated objectively on its face, singles out speech. (75)

For purposes of this Article, targeting refers to an objective concept, thus avoiding unwieldy inquiries into subjective intentions and maintaining greater consistency with current law across a wide array of constitutional doctrines.76 At the same time, however, the anti-targeting principle bars not only laws that facially single out speech but also laws that, evaluated contextually, have an apparent disproportionate effect on speech. This caveat, common in other areas of constitutional law, helps avoid the common problem of "gerrymandering." A special tax on newsprint, for instance, would facially target only a particular type of printing paper--not expression itself--but its disproportionate effects on expression would be facially apparent.

Readers might wonder how the anti-targeting framework--which accounts for a law's anticipated ejects--differs from a speaker-focused approach that applies heightened scrutiny based on indirect effects on speech. The answer is that the anti-targeting framework focuses on laws rather than on individuals. A speaker-focused approach allows for free speech exemptions when otherwise valid laws happen to burden speech. A proponent of this view, for instance, might argue that journalists should sometimes be allowed to disregard general laws, or that newspapers should be able to hire low-cost teenagers to deliver papers notwithstanding child labor laws. The anti-targeting approach, by contrast, rejects the idea of exemptions from general laws when the restriction falls on nonexpressive conduct. Instead, the anti-targeting principle focuses on whether the relevant law targets speech either on its face or by targeting conduct that is closely related to speech. (77)

Deciding whether a law has an apparent disproportionate effect on speech will sometimes be difficult. Part IV explores this challenge in greater detail, but it is worth emphasizing up front that this Article eschews any claim to clarity in all cases. Close questions are inevitable, and some ambiguity in this area may even be a benefit, allowing doctrine to develop over time as judges confront real cases. Importantly, however, a focus on laws rather than on individual conduct provides substantial predictability for speakers--giving precedents a well-defined effect (i.e., laws are either constitutional or not), while moving doctrine away from a rigid reliance on the speech/conduct distinction. (78) Part V offers a normative defense of anti-targeting and takes a closer look at its challenges and tradeoffs, but for now we can return to a brief sketch of the concept.

Laws that single out nonexpressive acts undertaken for an expressive purpose present the clearest example of targeting. Consider the example mentioned above: an ordinance barring use of public subways to attend a protest. Ordinary travel on a subway is not expressive, but the ordinance raises free speech concerns because it singles out speech activities for particular disadvantage. The same issue arises even if the incidence of the law does not fall directly on conduct that facilitates speech. An ordinance barring subway use by groups of speakers--journalists or lobbyists, for example--would not directly target speech-facilitating conduct, but it would nonetheless target speech by using a speech-related rule.

These hypothetical ordinances could be viewed as direct regulations of speech under the "unconstitutional conditions" doctrine. (79) But the anti-targeting principle applies even when that characterization is unwarranted. Consider, for instance, campaign contribution caps. Assuming that campaign donations facilitate speech but are not themselves expressive acts, campaign contribution ceilings do not directly burden expressive conduct. Nonetheless, contribution caps plainly target speech-facilitating conduct by singling out donations used for campaigning. (80) Compelled monetary transfers that are designed to fund someone else's speech present a similar problem. (81) As these examples illustrate, the anti-targeting principle ensures that the government stays presumptively neutral not only toward speech acts and speakers but also toward "conduct commonly associated with expression." (82) This idea--as Part IV argues--calls for heightened scrutiny when laws target conventional means of expression (that is, objects conventionally used for expressive reasons), such as phones, televisions, computers, printers, and so forth. (83)

II. Before Arcara

In order to understand current doctrine, we need to appreciate how the Supreme Court's approach has evolved. This Part, which explores the Court's treatment of speech-facilitating conduct prior to its 1986 decision in Arcara, focuses on four lines of cases: (1) information-gathering cases; (2) campaign finance law; (3) compelled-subsidy doctrine; and (4) associational rights. Part III then reevaluates each of these areas, exposing dramatic changes in the Court's jurisprudence along with confusion sown by the Court's failure to identify or grapple with those shifts.

A. Information Gathering

Information-gathering cases arise when someone asserts a qualified right to gather information--often "newsworthy" information--for use in subsequent expressive acts. (84) Prior to the mid-1980s, the outcomes in information-gathering cases were consistent with the anti-targeting principle, but the Supreme Court's reasoning sometimes revealed an approach that let indirect effects on speech trigger First Amendment coverage.

Information-gathering claims had a rocky start. In Zemel v. Rusk--a free speech challenge to the Cuba travel embargo--the Court flatly denied that "a First Amendment right ... [was] involved" in merely gathering information. (85) Writing for the Court, Chief Justice Warren explained:
   [T]he Secretary's refusal to validate passports for Cuba ... is an
   inhibition of action. There are few restrictions on action which
   could not be clothed by ingenious argument in the garb of decreased
   data flow. For example, the prohibition of unauthorized entry into
   the White House diminishes the citizen's opportunities to gather
   information he might find relevant to his opinion of the way the
   country is being run, but that does not make entry into the White
   House a First Amendment right. The right to speak and publish does
   not carry with it the unrestrained right to gather information.

Importantly, the Court noted that the restriction on travel had not "resulted] from any expression or association." (87) The travel restriction, in other words, did not target speech.

Several years later in Branzburg v. Hayes, (88) however, the Supreme Court seemed more receptive to the possibility of constitutional protection for newsgathering. Branzburg involved journalists who objected to testifying about their confidential sources. Revealing this information to grand juries, they argued, would deter their sources "from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment." (89)

For the most part, the Court squarely rejected the journalists' claims. (90) Though acknowledging that "without some protection for seeking out the news, freedom of the press could be eviscerated," (91) the five-justice majority was acutely concerned with the potential breadth of newsgathering rights. "It is clear," Justice White wrote for the majority, "that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability." (92) Pointing to Zemel v. Rusk, he observed that "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally," (93) and that it would be "frivolous" to claim a constitutional right to violate otherwise valid criminal laws. (94) "Although stealing documents or private wiretapping could provide newsworthy information," Justice White explained, "neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news." (95)

Yet the Branzburg decision is frustratingly ambiguous. To begin with, the Court framed its discussion by observing that "a State's interest must be 'compelling' or 'paramount' to justify even an indirect burden on First Amendment rights." (96) It then proceeded to apply elevated scrutiny. "On the records now before us," the Court remarked--intimating a possible limitation on its holding--there was "no basis" for giving constitutional priority to journalists based on a "consequential, but uncertain, burden on news gathering." (97) The effect of subpoenas on newsgathering was "unclear" and "to a great extent speculative," producing "widely divergent" estimates. (98) Worried about where recognition of journalist privileges might lead, the majority cautioned that it was "unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination." (99) With more clarity about the speech effects of reporter subpoenas, however, perhaps the Court's conclusion would have changed.

Justice Powell--one of the five Justices who joined the majority opinion--wrote a short concurrence. A claimed privilege, he emphasized, "should be judged on its facts," balancing governmental interests against the freedom of the press. (100) "The balance of these vital constitutional and societal interests on a case-by-case basis," he argued, "accords with the tried and traditional way of adjudicating such questions." (101)

No wonder lower courts were thoroughly confused by Branzburg. The majority had rejected the asserted privilege, seemingly in categorical terms. But the Court nonetheless applied heightened scrutiny, and Justice Powell's "enigmatic" concurrence--as the dissenting Justices put it (102)--provided further hope to proponents of a reporter's privilege. Following the decision, many lower courts read the unusual combination of opinions as supporting the availability of a reporter's privilege in certain cases. (103)

Subsequent information-gathering cases ventured down the same trail. The Court, for the most part, steadfastly rejected case-specific exemptions. But the Justices often applied some form of heightened scrutiny to determine whether certain categories of speech-related conduct should be constitutionally protected. In Kleindienst v. Mandel, for instance, the Court acknowledged that the First Amendment was "implicated" by the application of a travel restriction that barred a communist from entering the country to speak at an academic conference. (104) Like in Branzburg, however, the Court nevertheless rejected the asserted right because it "would prove too much." (105) Were courts to recognize such a right, either "every claim would prevail," thus nullifying the travel restriction, or "courts in each case would be required to weigh the strength of the audience's interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard." (106)

A series of "access" cases raised the same concern, reflecting continued divisions about how to approach speech-facilitating conduct. (107) In Houchins v. KQED, Inc., (108) for instance, the Court split over whether journalists should be exempt from certain prison visitation rules. The plurality opinion of Chief Justice Burger Firmly rejected the journalists' First Amendment claim, explaining that it would require judges "to fashion ad hoc standards, in individual cases, according to their own ideas of what seems 'desirable' or 'expedient.'" (109) A constitutional interest was at stake, he acknowledged, but this interest did not justify a First Amendment right to nonpublic information. "The public's interest in knowing about its government is protected by the guarantee of a Free Press," the Chief explained, "but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." (110) Justice Stevens dissented, joined by Justices Brennan and Powell. "Without some protection for the acquisition of information about the operation of public institutions," they claimed, "the process of self-governance contemplated by the Framers would be stripped of its substance." (111)

The contours of doctrine were thus heavily contested as the Supreme Court entered the 1980s. Although the Court had consistently rejected information-gathering claims, the shifting majorities, pluralities, and concurring opinions varied in their approaches to threshold questions. Most importantly, the Justices remained divided about whether First Amendment coverage should depend on the distinction between expressive and nonexpressive conduct.

The Court's first putative recognition of an information-gathering right came in a pair of access decisions in the early 1980s addressing whether the closure of a criminal courtroom abridges the freedom of speech. Justice Brennan's view, which the Court adopted in 1982, deserves the most attention. "Read with care and in context," Justice Brennan wrote in Richmond Newspapers, Inc. v. Virginia, prior cases indicated that "access to governmental information is subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality." (112) Interestingly, however, Justice Brennan did not locate an access right in the First Amendment's ordinary guarantee "to protect communication between speaker and listener." (113) "[T]he First Amendment," he explained, "embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government." (114) This structural component, he insisted, "links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself, but also for the indispensable conditions of meaningful communication." (115)

Justice Brennan recognized the practical challenges of applying First Amendment protection to nonexpressive conduct that facilitates speech. "[T]he stretch of this protection is theoretically endless," he acknowledged, and therefore "must be invoked with discrimination and temperance." (116) At first glance, he seemed to endorse a case-by-case balancing test, "considering the information sought and the opposing interests invaded." (117) Yet he tethered this open-ended statement to two sturdier principles. Consideration of "public access claims in individual cases," he wrote, "must be strongly influenced by the weight of historical practice and by an assessment of the specific structural value of public access in the circumstances." (118) Using these historical and structural guideposts, Justice Brennan concluded that the Constitution presumptively guarantees a public right of access to criminal trials. (119) Thus, as late as the early 1980s, the Court was still willing to recognize a speech right based on the incidental effects of a general rule.

B. Campaign Contributions

Governmental restrictions on contributions to political campaigns raise a similar concern about coverage for speech-facilitating conduct, and not merely for the expressive end product.

In the watershed case of Buckley v. Valeo, (120) the Supreme Court famously distinguished between limits on how much money campaigns may spend and limits on how much money individuals may contribute. Restrictions on campaign expenditures, the Court held, were essentially restrictions on speech itself. (121) But contributions were less protected by the First Amendment, thus triggering a lower level of scrutiny. (122)

For purposes of this Article, the pivotal question is why campaign contribution limits implicate the First Amendment at all. The Buckley opinion offers two possibilities. First, contributions to political candidates "may result in political expression ... by someone other than the contributor." (123) In other words, contributions are covered by the First Amendment because they facilitate speech. Second, the Court seems to have recognized that campaign contributions might be expressive. "A contribution serves as a general expression of support for the candidate and his views," the Court explained, "but does not communicate the underlying basis for the support." (124)

This Article takes no position on whether campaign contributions are sufficiently expressive to count as "speech" under the First Amendment--an issue that strikes me as mostly an irrelevant distraction. (125) Supreme Court opinions and scholarly discussions point in both directions. (126)

For present purposes, the key point is that Buckley focused on the effects of contributions. To be sure, the Court described contributing as a "general expression of support" and a "symbolic act," (127) but these comments were made to disparage the expressive value of the contributions. Buckley, we must remember, came at a time when the speech/conduct distinction was still being worked out and did not yet have threshold doctrinal significance. Thus, as Kathleen Sullivan aptly explains, the doctrinally relevant point in Buckley was that monetary contributions are conduct that "merely facilitate[s] or associate[s] the contributor with speech," whereas individual expenditures "are more directly expressive." (128) In this way, Buckley supports a speaker-focused rather than law-focused approach to First Amendment coverage for nonexpressive conduct. (129)
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Title Annotation:Introduction through II. Before Arcara B. Campaign Contributions, p. 1-34
Author:Campbell, Wesley J.
Publication:Stanford Law Review
Date:Jan 1, 2016
Previous Article:In memory of J. Paul Lomio: Director, Robert Crown Law Library.
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