Something old, something new

[Spillenger, Clyde]

OK, I'll bite.  I have always disliked Frankfurter's Dennis concurrence, and
his Kovacs opinion, and all his other references to "Non-Euclidean problems"
and his objection to "deceptive formulas," more, I think, than Eugene does.
So I think that Breyer's reference to the "balancing" idea in the
Frankfurterian mode does him little credit.  Eugene's article on the
inappropriateness of subjecting First Amendment issues to the "balancing"
analysis is quite persuasive to me.

Nevertheless, Breyer's position in Shrink Missouri Government (today's case)
may have more going for it than Frankfurter's in Dennis, although the
passage from Breyer quoted by Eugene does trouble me.  I largely subscribe
to the "social" or "political process" justification for free speech
protection, and I incline toward the views of Fiss and Sunstein (and others)
that at least some campaign finance reforms are appropriate if not necessary
devices to vindicate the values that the First Amendment expresses -- to
wit, the maintenance of an authentic public sphere, one in which the voices
of most people are not wholly obliterated and rendered meaningless by the
power of money (or the money of power).

If you take this view, which many do not, the "competing constitutional
interest" in Breyer's concurrence is not itself unrelated to the free speech
interest championed by the dissent.  In fact, I think that free speech
interests are as vitally implicated on the one side as on the other.
Whereas in Dennis, the "competing constitutional interest" that led
Frankfurter to favor Congress as the ultimate arbiter was national security,
defense against subversion, totalitarianism, etc. -- not really an interest
itself defined in terms of collective self-governance in the way that
campaign finance restrictions are.  For this reason, I think that Breyer's
opinion is more defensible than Frankfurter's.

I do think that Breyer's rhetoric of "balancing" is pernicious, although I'm
not as inclined as Eugene is to think that such judicial opinions have
fateful, irresistible consequences for the future.

Clyde Spillenger
UCLA School of Law
(310) 825-7470
spilleng at mail.law.ucla.edu
Odd word errors may be caused by speech misrecognition or advancing
senility.


> -----Original Message-----
> From: Volokh, Eugene [SMTP:VOLOKH at MAIL.LAW.UCLA.EDU]
> Sent: Monday, January 24, 2000 4:08 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Something old, something new
>
>                 A 1st Am opinion I just read put me much in mind of
> another, equally eloquent and pragmatist one, that I'd read before.  Let
> me lay excerpts (the first is given slightly out of order, but I believe
> not in a way that affects its meaning) of the two cases before you and see
> what you think.
>
>
>
> 1.
>
> Our judgment is solicited on a conflict of interests of the utmost concern
> to the well-being of the country. This conflict of interests cannot be
> resolved by a dogmatic preference for one or the other, nor by a sonorous
> formula which is in fact only a euphemistic disguise for an unresolved
> conflict. If adjudication is to be a rational process, we cannot escape a
> candid examination of the conflicting claims with full recognition that
> both are supported by weighty title-deeds. . . .  The plain fact [is] that
> the interest in speech, profoundly important as it is, is no more
> conclusive in judicial review than other attributes of democracy or than a
> determination of the people's representatives that a measure is necessary
> to assure the safety of government itself. . . .
>
> Just as there are those who regard as invulnerable every measure for which
> the claim of national survival is invoked, there are those who find in the
> Constitution a wholly unfettered right of expression. Such literalness
> treats the words of the Constitution as though they were found on a piece
> of outworn parchment instead of being words that have called into being a
> nation with a past to be preserved for the future. The soil in which the
> Bill of Rights grew was not a soil of arid pedantry. The historic
> antecedents of the First Amendment preclude the notion that its purpose
> was to give unqualified immunity to every expression that touched on
> matters within the range of political interest. . . .
>
> Nor is the argument . . . adequately [decided] by citing isolated cases.
> Adjustment of clash of interests which are at once subtle and fundamental
> is not likely to reveal entire consistency in a series of instances
> presenting the clash. It is not too difficult to find what one seeks in
> the language of decisions reporting the effort to reconcile free speech
> with the interests with which it conflicts. The case for the defendants
> requires that their conviction be tested against the entire body of our
> relevant decisions. . . .
>
> How are competing interests to be assessed? Since they are not subject to
> quantitative ascertainment, the issue necessarily resolves itself into
> asking, who is to make the adjustment? - who is to balance the relevant
> factors and ascertain which interest is in the circumstances to prevail?
> Full responsibility for the choice cannot be given to the courts. Courts
> are not representative bodies. They are not designed to be a good reflex
> of a democratic society. Their judgment is best informed, and therefore
> most dependable, within narrow limits. Their essential quality is
> detachment, founded on independence. History teaches that the independence
> of the judiciary is jeopardized when courts become embroiled in the
> passions of the day and assume primary responsibility in choosing between
> competing political, economic and social pressures.
>
> Primary responsibility for adjusting the interests which compete in the
> situation before us of necessity belongs to the Congress. . . .
>
> 2.
>
> The dissenters accuse the Court of weakening the First Amendment. They
> believe that failing to adopt a "strict scrutiny" standard "balance[s]
> away First Amendment freedoms." But the principal dissent oversimplifies
> [and] takes a difficult constitutional problem and turns it into a
> lopsided dispute between political expression and government censorship.
> Under the cover of this fiction and its accompanying formula, the dissent
> would make the Court absolute arbiter of a difficult question best left,
> in the main, to the political branches. . . .
>
> [T]his is a case where constitutionally protected interests lie on both
> sides of the legal equation. For that reason there is no place for a
> strong presumption against constitutionality, of the sort often thought to
> accompany the words "strict scrutiny." Nor can we expect that mechanical
> application of the tests associated with "strict scrutiny"--the tests of
> "compelling interests" and "least restrictive means"--will properly
> resolve the difficult constitutional problem that campaign finance
> statutes pose. Cf. Kovacs v. Cooper, 336 U. S. 77, 96 (1949) (Frankfurter,
> J., concurring) (objecting, in the First Amendment context, to
> "oversimplified formulas") . . . .
>
> In service of [its important] objectives, the statute imposes restrictions
> of degree. . . . .  Under these circumstances, a presumption against
> constitutionality is out of place. I recognize that [earlier cases] used
> language that could be interpreted to the contrary. . . . But those words
> cannot be taken literally. . . . .
>
> In such circumstances--where a law significantly implicates competing
> constitutionally protected interests in complex ways--the Court has
> closely scrutinized the statute's impact on those interests, but refrained
> from employing a simple test that effectively presumes
> unconstitutionality. Rather, it has balanced interests. And in practice
> that has meant asking whether the statute burdens any one such interest in
> a manner out of proportion to the statute's salutary effects upon the
> others (perhaps, but not necessarily, because of the existence of a
> clearly superior, less restrictive alternative). Where a legislature has
> significantly greater institutional expertise . . . [the Court] in
> practice defers to empirical legislative judgments . . . .
>
>
>
>                 If you scroll down a page, you will see the sources and a
> brief comment.
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>                 The second excerpt is from Justice Breyer's concurrence,
> joined by Justice Ginsburg, in today's campaign finance case, Nixon v.
> Shrink Missouri Government PAC, 2000 WL 48424,
> <http://laws.findlaw.com/US/000/98-963.html>, which upheld a restriction
> on campaign contributions.  The first excerpt is from Justice
> Frankfurter's concurrence in United States v. Dennis, 341 U.S. 494 (1951),
> <http://laws.findlaw.com/US/341/494.html>, which upheld a restriction on
> Communist advocacy.
>
>         Now I do not say this to suggest that campaign finance
> restrictions are exactly the same as are restrictions on Communist
> advocacy, or to suggest that Breyer's concurrence is clearly wrong because
> Frankfurter's was clearly wrong.  In fact, I think that Frankfurter's
> argument was very thoughtful and eloquent, though I ultimately disagree
> with it.
>
>         Rather, I only want to suggest that Breyer's confessed "balancing"
> approach to free speech questions may lead to the same sorts of results as
> Frankfurter's "balancing," which in general (and not just in Dennis)
> proved to be not terribly speech protective.  Maybe that's generally good,
> and maybe that's generally bad, but it seems to me the Frankfurter
> precedent -- and cf. incidentally Breyer's cf. to Frankfurter's Kovacs
> opinion -- is a useful data point to consider when we evaluate such
> balancing proposals.  (See also Freedom of Speech and the Constitutional
> Tension Method, <http://www.law.ucla.edu/faculty/volokh/tension.htm>,
> which elaborates on this point further as to arguments -- many of them
> again Frankfurter's -- which aim to balance free speech against other
> "constitutional values.")
>
>         Any thoughts?
>
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