From the majority opinion:
The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” …As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. In fact, after this Court in WRTL [the 2007 Wisconsin Right to Life case] adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling.
This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit. Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court — part of an independent branch of government — to the constitutionally protected interests in free expression.” When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden(and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech — harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Consequently, “the censor’s determination may in practice be final.”
This is precisely what WRTL sought to avoid. WRTL said that First Amendment standards “must eschew ‘the open-ended rough-and-tumble of factors,’ which ‘invit[es] complex argument in a trial court and a virtually inevitable appeal.’” Yet, the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.
The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity has been demonstrated.
Anon321 says:
This seems to suggest that even if there are areas in which certain subsets of speech can permissibly be regulated, the attempt to do so is destined to fail, since a general law will sweep too broadly, pulling in protected speech, while a narrowly targeted, highly reticulated scheme will be too prolix and too confusing for most people to understand.
Is the analogy between vague laws and “prolix laws” new, or is this an established part of First Amendment doctrine?
January 21, 2010, 12:48 pmSuperSkeptic says:
Yet, despite that analysis, as Justice Thomas points out, the Court does not strike down “[t]he disclosure, disclaimer, and reporting requirements inBCRA §§201 and 311[.]“
January 21, 2010, 1:49 pmBama 1L says:
I’m always confused which laws from sixteenth- and seventeenth-century England the Constitution abrogates, and which ones it incorporates as part of the Anglo-American tradition.
January 21, 2010, 2:11 pmJames says:
I still say the simplest way to handle the free speech vs. corruption/access problem is to treat campaign contributions like corporate insider information. All contributions should be sent to the FEC, bundled, and given to candidates and politicians without any identifying information. People and companies could give as much as they want to candidates and say whatever they like about them. They just couldn’t publicly disclose or communicate anything about how much money they had contributed. If someone tries to communicate to a politician how much they have contributed or if a politician tries to find out that information, then jail ‘em like Martha Stewart. Of course, politicians will always have some idea who supports and opposes them, but they couldn’t organize their calendars by dollar value. Would Donald Trump still donate the maximum to opposing candidates in the same election if there was no way for the candidate to know where the money was coming from? Maybe the money would follow the politicians’ positions instead of the other way around. It seems like law targeted to speech about the existence/size of contributions would be sufficiently targeted to pass First Amendment muster. But I’m not an election lawyer. So what do I know?
January 21, 2010, 4:20 pmADF Alliance Alert » Supreme Court rolls back campaign spending limits says:
[...] of the Word “Blog” in a Supreme Court Opinion The Scope of the Ban at Issue in Citizens United Citizens United on the Deterrent Effect of Complex Speech Restrictions Citizens United on the Second-Class First Amendment Status of Broadcast TV and [...]
January 21, 2010, 4:55 pmCDU says:
I don’t think a law that prevents someone from telling a politician that they donated money would survive first amendment scrutiny. However, I don’t think it’s necessary to accomplish the goal you have in mind. All you have to do is create a system where it’s impossible to prove whether you donated to a particular politician. All money would go through the FEC as you proposed but a donor wouldn’t get anything that showed who they donated to. Politicians would stop paying attention to people who say “I gave you $2000″ if everybody who wanted something from them could say it without fear of being disproven.
January 21, 2010, 5:22 pmJames says:
Why wouldn’t it survive scrutiny? We already criminalize the sharing of some types of information. The law would be very narrowly tailored and the political value of the speech (dollar amounts of support) is minimal compared with its cost to the integrety of the system. I agree that it is very hard to criminalize speech, especially political speech, but this is a viewpoint neutral, objective, bright-line rule that does not prevent anybody from expressing an opinion in support of or against any issue or stating that view in emphatic terms. The current donation limits already criminialize spending money as speech. This would just alter the balance by eliminating the need to restrict spending with the tradeoff of a very narrow alternative speech restriction.
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January 22, 2010, 2:01 am