The Volokh Conspiracy - Does the Proposed Auto Bailout Violate the Petition Clause of the First Amendment:

The proposed bill provides, among other things,

(g) WITHDRAWAL FROM CERTAIN ACTIONS. — The terms of any financial assistance under this Act shall prohibit the eligible automobile manufacturer from participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards.

My friend, Notre Dame lawprof Rick Garnett, asks: Does this violate the First Amendment? Here are a few tentative thoughts:

1. The Petition Clause: To begin with, filing nonfrivolous lawsuits is generally protected by the First Amendment, which protects "the right of the people ... to petition the Government for a redress of grievances." This is solidly established First Amendment law. I can't speak to any original meaning evidence on the subject (since I haven't investigated the matter), but the precedent is clear.

2. Conditioning Grants on Refraining from First Amendment-Protected Activity: It's also well established that the government generally may not condition a grant of money on the speaker's refraining from the use of the speaker's own unsubsidized money for First Amendment-protected activity. That's the holding of FCC v. League of Women Voters (1984). (League of Women Voters was a 5-4 decision, but one the Court has not retreated from, and has indeed cited favorably.) The government is free to attach certain strings (though not all strings) to the use of government-provided money. That's what justifies the decision in Rust v. Sullivan allowing the government to subsidize only speech about contraceptives and not speech about abortion, the limits on electioneering by nonprofits that benefit from the charitable tax exemption, and the like. But the government generally can't limit what subsidy recipients do with money they get from nongovernmental sources.

To be sure, because money is fungible, this League of Women Voters principle in effect does stop the government from making sure that its subsidies aren't indirectly used for certain speech. If the government gives someone $1 million, and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant — the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech. But the Court considered that argument in League of Women Voters and rejected it.

3. Ban on Viewpoint Discriminatory Conditions Attached Even to Government-Provided Money (So Long as The Money Is Used for Private Speech): It's also possible that the government may not attach viewpoint-discriminatory conditions to the use of its own money, so long as the money is used for private speech — which would here include petitioning the government via the court system — rather than the government's own speech. That's suggested by Legal Services Corp. v. Velazquez (another 5-4 opinion). But Locke v. Davey concludes that this principle is limited to programs that are intended to "encourage a diversity of views from private speakers." Given that the funding program here is aimed not at encouraging a diversity of views, but rather at funding GM's general operation (incidentally including a wide range of GM litigation and speech that would normally happen in the course of GM's general operation, except for this one particular kind of litigation position on GM's part), perhaps Locke v. Davey governs instead of Velazquez.

* * *

In any case, those are my tentative thoughts on the subject. Some of the cases I cite were controversial when decided, and may remain controversial now; nor do I vouch for their correctness as a matter of sound constitutional logic. Moreover, while there are structural similarities between this situation and some of the past cases, it's pretty clear that they were decided in contexts vastly different from this one, and it's not clear how far the Court would take those cases' logic here. Finally, it's odd that the government would be free to constrain GM's speech if it simply nationalized it — or, if you prefer, bought all its stock — but not if it took the less intrusive step of offering it various financial benefits (though that might be an oddity that is an inherent part of unconstitutional conditions doctrine in this area).

So I don't know what should be the right result as a matter of deep constitutional principles, or even what is doctrinally mandated here. But I hope that the cases I cite above provide something of a starting point for analysis.

	[Eugene Volokh, December 9, 2008 at 12:40pm] Trackbacks Does the Proposed Auto Bailout Violate the Petition Clause of the First Amendment: The proposed bill provides, among other things, (g) WITHDRAWAL FROM CERTAIN ACTIONS. — The terms of any financial assistance under this Act shall prohibit the eligible automobile manufacturer from participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards. My friend, Notre Dame lawprof Rick Garnett, asks: Does this violate the First Amendment? Here are a few tentative thoughts: 1. The Petition Clause: To begin with, filing nonfrivolous lawsuits is generally protected by the First Amendment, which protects "the right of the people ... to petition the Government for a redress of grievances." This is solidly established First Amendment law. I can't speak to any original meaning evidence on the subject (since I haven't investigated the matter), but the precedent is clear. 2. Conditioning Grants on Refraining from First Amendment-Protected Activity: It's also well established that the government generally may not condition a grant of money on the speaker's refraining from the use of the speaker's own unsubsidized money for First Amendment-protected activity. That's the holding of FCC v. League of Women Voters (1984). (League of Women Voters was a 5-4 decision, but one the Court has not retreated from, and has indeed cited favorably.) The government is free to attach certain strings (though not all strings) to the use of government-provided money. That's what justifies the decision in Rust v. Sullivan allowing the government to subsidize only speech about contraceptives and not speech about abortion, the limits on electioneering by nonprofits that benefit from the charitable tax exemption, and the like. But the government generally can't limit what subsidy recipients do with money they get from nongovernmental sources. To be sure, because money is fungible, this League of Women Voters principle in effect does stop the government from making sure that its subsidies aren't indirectly used for certain speech. If the government gives someone $1 million, and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant — the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech. But the Court considered that argument in League of Women Voters and rejected it. 3. Ban on Viewpoint Discriminatory Conditions Attached Even to Government-Provided Money (So Long as The Money Is Used for Private Speech): It's also possible that the government may not attach viewpoint-discriminatory conditions to the use of its own money, so long as the money is used for private speech — which would here include petitioning the government via the court system — rather than the government's own speech. That's suggested by Legal Services Corp. v. Velazquez (another 5-4 opinion). But Locke v. Davey concludes that this principle is limited to programs that are intended to "encourage a diversity of views from private speakers." Given that the funding program here is aimed not at encouraging a diversity of views, but rather at funding GM's general operation (incidentally including a wide range of GM litigation and speech that would normally happen in the course of GM's general operation, except for this one particular kind of litigation position on GM's part), perhaps Locke v. Davey governs instead of Velazquez. * * * In any case, those are my tentative thoughts on the subject. Some of the cases I cite were controversial when decided, and may remain controversial now; nor do I vouch for their correctness as a matter of sound constitutional logic. Moreover, while there are structural similarities between this situation and some of the past cases, it's pretty clear that they were decided in contexts vastly different from this one, and it's not clear how far the Court would take those cases' logic here. Finally, it's odd that the government would be free to constrain GM's speech if it simply nationalized it — or, if you prefer, bought all its stock — but not if it took the less intrusive step of offering it various financial benefits (though that might be an oddity that is an inherent part of unconstitutional conditions doctrine in this area). So I don't know what should be the right result as a matter of deep constitutional principles, or even what is doctrinally mandated here. But I hope that the cases I cite above provide something of a starting point for analysis.