The Second Circuit just handed down Husain v. Springer, which strikes me as quite odd. The case is complex, but the short version is this:
A college student newspaper endorsed a slate of candidates for student government. The university president thought this was unfair and a violation of student government election rules, so she canceled the election, suggesting that she would cancel future elections if the student newspaper made similar endorsements in the future. The Second Circuit held that this cancellation of the election violated the student newspaper’s First Amendment rights, because it was “designed to chill the speech contained in future editions.”
What makes this a strange First Amendment case, of course, is that the newspaper wasn’t ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose — “if you keep endorsing candidates, we’ll make sure that your endorsed candidates don’t get elected.”
I’m unaware of any First Amendment case that remotely reaches this sort of “chill[ing of] speech”; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).
But let’s turn to the merits: Does your right to urge result X really include the right to prevent the government from making result X impossible (even when the government is retaliating against your speech)?
Say, for instance, that a newspaper — not even a student newspaper — urges the government to do something. A government official doesn’t like what it sees as improper meddling (perhaps the government thinks the newspaper’s justification interferes with government decisionmaking, or is based on some improper reason, such as someone’s race, religion, sexual orientation, or what have you). The official then says “You want us to hire [or not hire] a gay candidate because he’s gay. [Assume, just for the sake of simplicity, that there’s no legal prohibition on sexual orientation discrimination.] I disapprove of this argument, and I feel it taints the entire selection process. Instead, we will just start the hiring process over in six months.”
Or “You want us to hold a State History Appreciation Day event — we were planning to, but now that you’ve started a campaign aimed at characterizing the event as partly a commemoration of our state’s Confederate history, we feel that the event would be tainted in people’s minds, so we’ll cancel it.” Or “You threatened to use our Veteran Appreciation Day event as a vehicle for your ‘God Hates Fags’ / ‘Thank God for Dead Soldiers’ demonstration, so we’ll cancel the event altogether and deprive you of your excuse.”
Does that really violate the First Amendment rights of the speakers whom the government disapproves of? It seems to me the answer is no, but the Second Circuit’s decision would suggest that the answer would be yes.
Nor is there something special here about canceling the student election. As far as the opinion is concerned, there was nothing otherwise illegal about the president’s decision to cancel the election — the decision was within the president’s power.
If the cancellation decision was illegal, then it would have had to be challenged under whatever state law made the decision illegal, not as a violation of the newspaper’s First Amendment rights. For instance, if a governor canceled a statewide election because he disapproved of some newspaper endorsements, I’m sure this would be illegal, because governors generally aren’t allowed to cancel elections at their own discretion. But the illegality would be a violation of state law, not of the newspaper’s First Amendment rights.
The Second Circuit decision basically reasons that the government may not “engag[e] in conduct designed to chill the speech contained in future editions” of the speaker’s speech, even when the “conduct” is simply the government’s decision not to allow its government processes to be used to accomplish the results the speaker urges. Doesn’t seem quite right to me, but I’d love to hear what others think.