Supreme Court
Reason (Volokh Conspiracy): Citizens United Déjà Vu for Malcolm Stewart?
By Josh Blackman
On Wednesday, the Supreme Court heard oral argument in FEC v. Ted Cruz for Senate. This case presented a challenge to a campaign finance law. Malcom Stewart, the veteran from the Solicitor General’s Office, defended the federal law. He has some experience in this arena. Indeed, more than a decade ago, he defended the campaign finance law at issue in Citizens United.
In one of the more memorable exchanges, Justice Alito asked if the “government’s position . . . [would] allow[] the banning of a book if it’s published by a corporation?” Stewart candidly replied, “the electioneering communication restrictions . . . could have been applied to additional media as well.” Even a book. Justice Alito was taken aback by the answer: “That’s pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” The answer was yes.
The government changed its position six months later when the case was re-argued…
In the Ted Cruz case, Justice Alito asked Stewart another piercing hypothetical question:
Reason (Volokh Conspiracy): License Plates, Flagpoles, and Editorial Discretion
By Stephen E. Sachs
Reading the oral arguments in Shurtleff v. Boston raised a concern that I’ve had for a long time. When deciding what flags to put up on a city flagpole, what images to use on a state license plate, or what monuments to install in a public park, the government is often picking and choosing among private speakers. But when the government is exercising this kind of editorial discretion, we don’t have a good doctrinal category to apply.
For private speakers, First Amendment doctrine recognizes editorial discretion as its own form of speech, distinct from that of the writer. Newspaper publishers don’t have to agree with each letter to the editor they print—it’s not their speech—but their choice of letters worth printing is their speech, and the government can’t mandate a right of reply. Books are the speech of the authors, not the bookstore owners; but the bookstore’s choice of books worth selling (even on the basis of viewpoint) is a form of speech too. And so on.
When it comes to government works, though, this sort of curation seems to fall through the doctrinal cracks.
The Courts
The Daily Record: PETA’s free speech claim against Salisbury agency can proceed, judge rules
By Steve Lash
People for the Ethical Treatment of Animals can proceed to trial on its claim that the Salisbury area transit agency violated PETA’s constitutional right to free speech by rejecting its request to post “Close the slaughterhouses” signs on public buses on the poultry-farm-rich lower Eastern Shore, a federal judge has ruled.
Chief U.S. District Judge James K. Bredar last week denied Shore Transit’s motion to dismiss PETA’s bid for a court order requiring the agency to post the signs, ruling the animal rights group has sufficiently alleged that the signs were rejected because of the message they conveyed.
PETA has also sufficiently claimed that Shore Transit’s standard of prohibiting signs it deems “political” or “controversial, offensive, objectionable or in poor taste” is unconstitutionally vague, enabling the agency to arbitrarily restrict speech, Bredar wrote in a memorandum.
Candidates and Campaigns
FiveThirtyEight: Why More Inexperienced Candidates Are Running — And Winning
By Geoffrey Skelley
For starters, inexperienced contenders just don’t face the same barriers they once did in attracting financial support from interest groups and donors. Traditionally, it’s been a challenge for newcomers to attract donations from political action committees, which are often key to congressional candidates raising enough money to win their elections. But Treul and Porter found that ideological PACs — typically interest groups focused on a narrow range of issues or just one — have given more to inexperienced candidates in recent years…
Porter told me that the amount of money spent in politics following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission is likely working in concert with the increased interconnectedness brought about by the internet to collectively boost amateur candidates’ profiles. “We don’t think it’s a coincidence that all of this kind of came to a head at the same time,” said Porter.
