Freedom of Expression and Expressions of Freedom

By Slade, David C. | The World and I, November 1999 | Go to article overview

Freedom of Expression and Expressions of Freedom


Slade, David C., The World and I


One need not read far in our Bill of Rights to find the constitutional protection of our freedom of expression. Within the First Amendment is the prohibition that Congress shall make no law "abridging the freedom of speech." Indeed, freedom of speech is one of this country's cardinal freedoms, a beacon of liberty viewed with envy by more people of the world deprived of it than those who have it.

The importance of this freedom can also be seen in the number of First Amendment cases the Supreme Court will hear during its 1999 term. By the end of August the Court had agreed to hear 30 cases, an astounding one-sixth (5 of the 30) of which concern freedom of expression. One might well wonder what it is that police lists of arrested suspects, campaign contribution limits, nude dancing, "adult" television broadcasting, and student fees have in common. They are the subject matters of these five "freedom of speech" cases that the Court has agreed to take on.

Los Angeles Police Department v. United Reporting Publishing Corp. This case involves "commercial free speech." Law enforcement agencies commonly collect the names and addresses of individuals who are arrested. United Reporting Publishing has for many years sold these lists of "arrestees" to law firms, insurance companies, drug and alcohol counselors, and others. In an effort to protect the privacy rights of arrestees (who had not yet been convicted of anything), in 1996 the California legislature enacted a law prohibiting the use of arrestee information for "commercial" purposes, although using this information for "a scholarly, journalistic, political, or governmental purpose, or for investigation purposes by a licensed private investigator" was still permitted. The law cut off a lucrative portion of United Reporting's business, so the company sued the L.A. Police Department in federal court, alleging that the 1996 law violated its First Amendment right to commercial free speech. The district court agreed, noting that the list of arrestees could still be "published in newspapers, broadcast on television, and/or obtained by an employer or even an enemy. These are potentially much more pervasive invasions of privacy, yet the statute allows them." The court ruled that the law violated the First Amendment. On appeal, the 9th Circuit affirmed.

Nixon v. Shrink Missouri Government PAC. This case involves "political free speech." Since the 1972 Nixon/McGovern presidential race, campaign finance reform has been a leading issue in this country because of the public's perception that large corporations and wealthy Americans could "buy" influence with their contributions to political candidates. In response, Congress passed the Federal Election Campaign Act (FECA), which limited individuals' contributions to candidates for federal office to no more than $1,000. In short order this $1,000 limit was challenged as an unconstitutional infringement on individuals' First Amendment rights to engage in "political expression"--a bedrock right in a democracy. But in 1976 the Supreme Court upheld the $1,000 limit. Although the Court recognized that the limit did have a "limited effect upon First Amendment freedoms," the limit was nonetheless justified by the "weighty interest" of addressing both real and perceived corruption surrounding campaign contributions.

In 1994, Missouri enacted similar legislation, setting a limit of $1,075--slightly higher than the FECA limit for federal campaigns. Nonetheless, the 8th U.S. Circuit Court of Appeals struck down this Missouri limit on First Amendment grounds. "All campaign contribution limits restrict political speech, and thus implicate the First Amendment," the court noted. Further, the state had failed to prove "that there is real or perceived undue influence or corruption attributable to larger political contributions ... and that [the $1,075 limits] are narrowly tailored to address that reality or perception." Thus the 8th Circuit struck down a state campaign contribution limit even though it was higher than the federal limit upheld by the Supreme Court. …

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