The Supreme Court of Free Speech

Ronald J. Pestritto

July 1, 2002

In the midst of the recent major Supreme Court rulings on drug testing and private-school vouchers, the Court’s decision on judicial campaigns in Minnesota received little notice. Yet this case may turn out to be of importance as an indicator of the direction the Court is likely to take on campaign finance legislation; and the dispute over campaign finance legislation may prove decisive in determining whether free speech has a future in America.

Congress recently passed legislation that continues the practice of regulating donations to federal campaigns and initiates limitations on the manner in which independent groups can advertise their views of races in the days leading up to an election. The new law doesn’t directly regulate what can be said, attempting instead to thwart issue-advocacy through a complex set of limitations on how it is funded.

For years, Congress had the good sense to shy away from this kind of regulation, at least in part because it seemed an attack on the First Amendment and on a bedrock principle of our democracy—the right to express and disseminate opinions about political affairs and about those who seek public office. Since Congress reversed course and passed campaign finance legislation, defenders of free speech have taken their fight to the federal courts.

As even the casual observer of recent Supreme Court sessions knows, most of the crucial decisions have come in the form of 5-4 splits among the justices. The fate of landmark cases frequently rests with two justices in particular—Kennedy and O’Connor—who constitute the swing votes.

While decisions over the last few years have given opponents of campaign finance legislation little hope, the recent ruling on Minnesota judicial elections may be promising precisely because both swing justices came down squarely in defense of free speech. Not only did justices Kennedy and O’Connor side with the majority in striking down a Minnesota regulation that prevented candidates for judicial office from speaking in public about disputed legal or political issues. But Justice Kennedy also took the additional step of writing a separate concurrence that was remarkable for its uncompromising defense of political speech.

The Court’s majority said that Minnesota’s desire for judicial “impartiality” wasn’t a sufficient reason to justify the restrictions it placed on the speech of candidates. Justice Kennedy wrote separately that the right to political speech was so central to the First Amendment that the restriction of it could not be justified, regardless of the reason. He explains that “judicial integrity” is “a state interest of the highest order,” but regulations designed to ensure this state interest “may not be used by the State to abridge the speech of aspiring judges.” This is because the Minnesota law “contradicts the principle that unabridged speech is the foundation of political freedom.”

Parts of Justice Kennedy’s opinion would seem to bear directly upon the question of campaign finance regulation. Supporters of the legislation point to the compelling interest of the government in curtailing the threat that fundraising and wealth allegedly pose to the electoral process. Justice Kennedy implies that, in spite of such threats, there can be no justification for restricting speech. He observes that “judicial campaigns in an age of frenetic fundraising and mass media may foster disrespect for the legal system. Indeed, from the beginning there have been those who believed that the rough-and-tumble of politics would bring our governmental institutions into ill repute. And some have sought to cure this tendency with governmental restrictions on political speech . . . Cooler heads have always recognized, however, that these measures abridge the freedom of speech.”

Justice Kennedy’s opinion is also important because it interprets the First Amendment in a manner contrary to the liberal trend of recent decades. The original intention of the Amendment was to protect the freedom of political speech, and not to prevent communities from regulating the various kinds of obscenity that pass for freedom of expression these days. The modern Court (with the occasional participation of Justice Kennedy himself) has inverted this original understanding, regularly using the First Amendment to strike down restrictions on obscenity and pornography, while allowing all kinds of governmental intrusions into the realm of political speech. Yet Justice Kennedy’s opinion in the Minnesota case seems to reject this trend by reiterating that “the political speech of candidates is at the heart of the First Amendment.”

Opponents of campaign finance legislation should be careful to view this case soberly, realizing that justices Kennedy and O’Connor, to put it politely, are not known for their consistency, and are even more infamous for bowing to the pressure of elite opinion. We should also understand that the issues at stake in campaign finance and the Minnesota judicial case are not completely analogous—the Minnesota case deals with content-based speech restriction while the campaign finance case does not.

But the vigorous defense of political speech in principle may, nonetheless, bode well for the attitude the Court will take toward the restrictions on it which are at the heart of the new campaign finance legislation. Let us hope so.

Pestritto is an Adjunct Fellow of the Ashbrook Center and an Associate Professor of Politics at the University of Dallas.