Justice Brennan’s Change of Heart on Government Campaign Speech
One of my recent projects explores longstanding controversies over government speech on contested ballot and legislature campaigns – and when, if ever, such speech is sufficiently dangerous to justify a departure from the general rule that government’s own speech is insulated from free speech clause review.
Governmental speech on issue (as opposed to candidate) campaigns takes a wide variety of forms, and may be delivered by a broad range of government speakers. Examples include not only government officials’ statements and press releases critical or supportive of pending ballot or legislative measures, but also government agencies’ reports and analyses, as well as flyers, pamphlets, newsletter articles, online postings, and print and broadcast advertisements communicating their view of such measures to the public. Controversies over such expression include those over the Eisenhower Administration’s advocacy on behalf of its proposed health care legislation, state human rights agencies’ communications in support of the Equal Rights Amendment, and local school boards’ expressive support for school bond measures. Such debates still rage today: The Fourth Circuit recently considered a First Amendment challenge to a public school board’s communications to potential voters in opposition to pending school voucher legislation, and a sharply divided Sixth Circuit rejected a similar challenge to a town’s use of public funds to express its position on ballot measures related to the local fire department’s financing and organization.
Critics of government speech on issue campaigns generally voice one or both of two objections. Some urge that government should not seek to persuade the public on such matters because its status as sovereign means that its voice will inevitably coerce listeners’ beliefs. Others also (or instead) argue that government’s voice threatens to drown out or otherwise unfairly disadvantage dissenting speakers.
In writing this paper, as I have found with past projects, I seemed to stumble across the most interesting stuff while looking for something else. Justice Brennan’s change of heart on this issue is one example.
Among the earliest – and subsequently most influential – objections to government’s campaign speech on contested ballot measures was that by Justice-to-be William Brennan in Citizens to Protect Public Funds v. Board of Ed. of Parsippany-Troy Hills when he served on the New Jersey Supreme Court. A school board had appropriated a few hundred dollars in public funds for the printing and dissemination of an 18-page booklet that urged voters to support a bond referendum that would finance the expansion of several school buildings – an expansion, the board maintained, necessary to ensure adequate educational facilities for the town’s children. In dictum that proved persuasive to many later courts, Brennan characterized the government’s advocacy as fundamentally unfair to those with different views:
“[T]he board made use of public funds to advocate one side only of the controversial question without affording the dissenters the opportunity by means of that financed medium to present their side, and thus imperiled the propriety of the entire expenditure. The public funds entrusted to the board belong equally to the proponents and opponents of the proposition, and the use of the funds to finance not the presentation of facts merely but also arguments to persuade the voters that only one side has merit, gives the dissenters just cause for complaint. The expenditure is then not within the implied power and is not lawful in the absence of express authority from the legislature. . . . We are persuaded, however, that simple fairness and justice to the rights of dissenters require that the use of public bodies of public funds for advocacy be restrained within those limits in the absence of a legislative grant in express terms of the broader power.”
Many other courts thereafter cited Brennan to uphold challenges to government’s participation in such debates in a wide range of settings, such as initiatives and referenda involving the financing of public schools and other government services, as well as government entities’ advocacy in support of ratification of the Equal Rights Amendment.
But in a significant turnaround, Justice Brennan himself later embraced the value of government speech on issue campaigns when he sat on the United States Supreme Court. There — years after repudiating government’s persuasive efforts in support of contested ballot measures — he stayed a state court’s order that had enjoined the city of Boston from spending public funds to urge support of a ballot referendum on residential and commercial property tax rates. This change of heart emerged shortly after the Supreme Court’s ruling in First National Bank of Boston v. Bellotti that struck down, on First Amendment grounds, Massachusetts’ campaign finance law that had limited corporate campaign expenditures on pending ballot measures – a ruling that newly empowered corporate participation in this debate and that had thus triggered Boston’s efforts to rebut such corporate speech with expression of its own. In determining that “the balance of equities” justified a stay, Justice Brennan emphasized the value of government’s voice in informing the voters on contested ballot measures — especially in countering powerful private speech:
“In light of Bellotti, corporate industrial and commercial opponents of the referendum are free to finance their opposition. On the other hand, unless the stay is granted, the city is forever denied any opportunity to finance communication to the statewide electorate of its views in support of the referendum as required in the interests of all taxpayers, including residential property owners.”
Justice Brennan was thus among the first (and few) to see a link between government speech and campaign finance reform. Consistent with Justice Brennan’s later views, my paper concludes that transparently governmental speech on issue campaigns furthers, rather than frustrates, First Amendment values: it enhances political accountability by informing voters of their governments’ priorities and preferences; it provides a valuable heuristic for those who do not have the time or inclination to evaluate the competing arguments for themselves; and it adds to the marketplace of available ideas and arguments, especially (but not only) as a counter to expression from powerful private sources.