Hellman on Confusing Restrictions with Incentives in McComish v. Bennett

My colleague Deborah Hellman has kindly offered to share her thoughts on McComish v. Bennett.  Our CoOp readers will remember our all-star symposium on Hellman’s important work Money Talks But It Isn’t Speech.  Here is her post:

Imagine you are an advisor to Presidential candidate Sarah Palin in the next election.  As you think about what she should say and when, you will no doubt consider the Tina Fey factor.  How will Fey respond?  Will a Fey sketch of Palin be too damaging?  Fey’s impersonation of Palin could even cause Palin to self-censor or even speak less.  Can we therefore conclude that Fey restricts Palin’s speech?  Of course Fey herself has a right to speak, so Palin has no grounds to complain but still the claim that Fey is restricting Palin’s speech is patently ridiculous.   But that is essentially the argument made by the Petitioners in McComish v. Bennett, the Arizona matching funds case argued yesterday in the Supreme Court.  The Petitioners argued that the Arizona law at issue unconstitutionally restricts the speech of candidates who do not avail themselves of public financing because, for example, “Arizona Taxpayers (one of the PACs challenging the law) chose not to speak in opposition to a publicly financed candidate to avoid triggering matching funds to that candidate.” Surely it isn’t enough that the law creates incentives for the petitioners not to spend money and speak, otherwise there would be a good argument for the claim that Fey’s comedy restricts Palin’s speech, and there is not!

Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy.  If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit.  Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?

Of course, commercial speech is not political speech, but that’s beside the point.  The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.

The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced.  Chilling speech through sanctions is problematic; chilling speech by more speech is not.

The broader point is that not all laws that affect incentives to speak restrict speech.  How these incentives work matters.  Consider Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board (1991) in which the Supreme Court invalidated a New York law that required that all proceeds earned by accused or convicted criminals  from descriptions of their crimes be escrowed  in order to be available to victims of these crimes.  The petitioners cite this case with approval, but its reasoning is deeply flawed.

While the New York law surely reduces the incentives of criminals to write about their crimes, this fact is insufficient by itself to conclude that the law burdens speech in a way cognizable by the First Amendment.  The following analogy shows why.  Federal law prohibits paying people to vote.  By reducing the incentives to vote, fewer people likely vote.  Yet we would be unlikely to conclude, therefore, that this law unconstitutionally burdens the right to vote.  The fact that incentives to exercise a constitutionally protected right are affected does not, on its own, determine that the law violates the underlying right.  The means matter.

In a recent article, I discuss that case and others in developing the argument that the fact money incentivizes or facilitates speech is not enough to show that a law that affects these incentives thereby restricts speech.  It is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586377

The Arizona law surely affects the incentives of privately funded candidates to spend and thereby to speak.  But because it does so by itself supporting speech and offers this support to all candidates, the law does not violate the First Amendment rights of anyone.

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12 Responses

  1. Howard Wasserman says:

    I agree that the law is valid and I have been struggling to find an analogy that works. The problem with the snack/fruit hypo is that the responsive speech probably would be deemed government speech (either directly or under some sort of Rust v. Sullivan theory), while the candidate’s speech funded through the public-finance scheme would not be.

    So we need an example where government funds purely private speech in response to other private speech. Is there one?

  2. Joe says:

    Is this “purely private speech” given elections are deemed “public” in nature? I’m thinking of the white primary cases in particular.

  3. Howard Wasserman says:

    But it was not the candidates who were deemed state actors–it was the party that was given power to run the election. I don’t think anyone could argue that those who speak within an election (candidates or otherwise) should be anything other than private actors.

  4. JKM says:

    Had some random, private, rich group of donors promised to give money (assume, arguendo, no limits) to the democratic candidate in order to balance each and every time the republican candidate or his supporters spoke, then there would be no First Amendment violation. The problem in this case is that it’s the government — the state of Arizona — that does approximately that.

    On this ground, the Tina Fey hypo fails. Unlike Arizona, Tina Fey is not a state government.

    To the well-meaning law professors who might be reading this: if you can’t find a hypo that “works,” then perhaps you should reconsider your stance that this scheme is constitutional.

  5. Joe says:

    Back to the actual law, it isn’t based on balancing parties, or “every time they spoke” etc. That’s useful to remember too. It is a public financing law. At some point, not some constantly changing point, more funds (up to a point) is triggered. This applies to candidates. If two Dems alone ran, it would apply. It isn’t a party thing.

    Thanks for the reply Prof. Wasserman. But, I’m not totally sold. What if the food ads aren’t scripted by the government or anything? The government merely gives money to fruit providers to promote their product. If there is a lot of advertising for sugary desserts, the government at some point gives more. The providers can write their own advertising. Is the speech still “purely private”? If not, why is it different from giving to candidates in public financing schemes?

  6. Andrew says:

    Joe, you answered your own question. It’s not “purely private” but it is the government subsidizing speech it likes a la Rust, and therefore your version of the snack hypo is fine. It differs from public financing in that it’s content-based preferencing of speech, but that should put the fruit hypo on weaker constitutional ground than even the public financing.

    As a second point, your first intuition makes sense too–the white primary cases. Elections are just different than snack advertising; they are the only way to get to office and are highly regulated by the state. The end goal of election advertising is an election, while the end goal of snack advertising is the advertising itself. (Or if you want to push the analogy, the end goal of both types are selling a product–the candidate or snacks–but the election always has another essential step.) This end goal is as the heart of the weird state action issues in the white primary cases and other party cases, and it matters here, again making it more permissible to do this than even the tweaked snack hypo, which should be constitutional.

  7. Joe says:

    I appreciate the comments Andrew.

    To remove the content-based aspect, let’s say the government wants people to make informed dietary choices and fears that money is corrupting their ability to do so. And, the result is distrust in the food system overall etc.

    A public financing scheme is in place for food producers akin to this one, everyone can join to get subsided advertising, or opt out. If those who opt out spend ‘x’ dollars, the subsidy for those who opt in might ‘trigger’ like in this law.

  8. S.M. Abeles says:

    The best analogy is probably the cable tv/public access issue. In exchange for cable franchise, the cable provider must set aside channels for the public to opine on any issue it wishes. Cable co. argues its incentives to operate franchise in the area (i.e., engage/facilitate private speech) are diminished because it must also fund private speech by Wayne’s World type oddballs, etc. Court has held such requirements constitutional. It’s not exactly the same issue, but here you have the government requiring funding of private speech in light of private speech of another, with diminishing incentives to speak from the triggering speaker.

  9. JKM says:

    ME:
    “Had some random, private, rich group of donors promised to give money (assume, arguendo, no limits) to the democratic candidate in order to balance each and every time the republican candidate or his supporters spoke, then there would be no First Amendment violation. The problem in this case is that it’s the government — the state of Arizona — that does approximately that. On this ground, the Tina Fey hypo fails. Unlike Arizona, Tina Fey is not a state government.”

    JOE:
    “Back to the actual law, it isn’t based on balancing parties, or ‘every time they spoke’ etc. That’s useful to remember too. It is a public financing law. At some point, not some constantly changing point, more funds (up to a point) is triggered. This applies to candidates. If two Dems alone ran, it would apply. It isn’t a party thing.”

    —-

    Joe,

    Please tell me why that’s useful to remember in terms of the First Amendment analysis. I say your distinction was useless and would love to hear why I’m wrong.

    Also, this scheme applies to democrats against republicans. Two democrats don’t run against each other in general elections. Are you really arguing otherwise?

  10. Joe says:

    It’s useful to remember JKM because your hypos specifically are about supporting one political party and doing so each and every time except for a “trigger” that only allows for a certain amount of public spending as a whole. Your hypos are thus both more content based and intrusive. Why this is “useless” to take into consideration is unclear.

    As to D v. R., the respondent’s brief notes “both the primary and general elections the Act divides the distribution of public funding into two parts,” so I’m unclear if we are merely talking about the general election. Also, there need not only be a person running from each party in the general, unless (it doesn’t seem like it) there are only two parties in the state.

    Again, the money is given to the candidate and a trigger (not triggers every single time money is spent) met means more money up until the limit. This goes to the candidate, I presume including in primary elections when the opposition might be of the same party.

  11. Joe says:

    It’s useful to remember JKM because your hypos specifically are about supporting one political party and doing so each and every time. The actual law doesn’t do that. Your hypos are thus both more content based and intrusive. Why this is “useless” to take into consideration is unclear.

    As to D v. R., the respondent’s brief notes “both the primary and general elections the Act divides the distribution of public funding into two parts,” so I’m unclear if we are merely talking about the general election. Also, there need not only be a person running from each party in the general, unless (it doesn’t seem like it) there are only two parties in the state.

    Again, the money is given to the candidate and a trigger (not triggers every single time money is spent) met means more money up until the limit. This goes to the candidate, I presume including in primary elections when the opposition might be of the same party.

    [sorry for any duplicate]

  12. JKM says:

    “Again, the money is given to the candidate and a trigger (not triggers every single time money is spent) met means more money up until the limit.”

    The only precondition to the trigger is that the self-financed candidate spends the same amount of money that the state gave his rival. Once that precondition is met, then there are triggers every single time money is spent up until the limit.