Speech and the Self-Governance Value
Murchison, Brian C., The William and Mary Bill of Rights Journal
What divides the justices of the Supreme Court in a number of contemporary cases involving speech at the core of the First Amendment? The near uniformity of vision that sparked the Court's renovation of libel law in New York Times Co. v. Sullivan1 in the 1960s, its barricade against prior restraint in the 1970s,2 and its philosophy of openness in the access-to-court cases of the 1980s and 1990s3 has fragmented dramatically, yet the sources ofthe Court's intellectual divisions over free speech are strangely elusive. A debate is in full force, but it is barely audible - or composed in a hidden language. So the question is: Halfway through the first decade of a new century, "Where do we find ourselves?"4 What accounts for the 7-2 split in Mclntyre v. Ohio Elections Commission,5 where a citizen successfully invoked the First Amendment to avoid penalties for distributing anonymous handbills in violation of state law? And what differences prompted the Court's 6-3 split in Bartnicki v. Vopper,6 where a radio host escaped liability for broadcasting an intercepted cell phone conversation? Why did the Court divide 5-4 in Republican Party of Minnesota v. White,1 where the majority upheld a judicial candidate's claim that state limitations on campaign comments violated his freedom of speech? And did the differences in these cases have any bearing on those in McConnell v. Federal Election Commission,8 where another 5-4 configuration upheld limitations on issue advocacy in federal campaigns?
Some might shrug off the questions, attributing disagreements on the Court to ideology and isolating a "liberal" understanding of free speech and a "conservative" rejoinder. But political tags are not necessarily illuminating in speech cases. Consider, for example, Hurley v. Irish- American Gay, Lesbian & Bisexual Group of Boston, Inc.9 where the Court ruled without dissent that a St. Patrick's Day parade is a "form of expression"10 and that private organizers have a First Amendment right to exclude would-be participants who wish to convey a message (in that case, a message about sexual orientation) different from the organizers' own.11 Ideology, sexual or otherwise, seemed a non-factor. Still, even if Hurley confounds explanation-by-ideology, what are we to make of the groupings of justices in the four cases before us - Mclntyre, Bartnicki, White, and McConnell! Justices considered left-of-center tended to vote together in those cases, as did justices considered right-of-center, but the significance of the groupings is murky at best. Neither bloc aligned consistently with pro- or anti-speech results: Justices in the left-of-center bloc voted against the speech-based challenges in McConnell and White, but for speech-based challenges in Bartnicki and Mclntyre, and justices in the other bloc followed the opposite course (although Justice Thomas deserted his bloc in Mclntyre). Moreover, even within blocs, justices often filed separate opinions. For example, Iustice Breyer concurred with the left-of-center justices in Bartnicki but on far narrower grounds, and Justice Kennedy concurred with the right-of-center justices in White, but on far broader grounds. And Justice O'Connor, after joining Justice Breyer's rationale in Bartnicki, filed a concurrence with the right-of-center bloc in White before migrating to the left-of-center bloc in McConnell.
Can doctrine explain what ideology cannot? Each of the four cases was a battle over the meaning of precedent and the choice and application of legal tests, perhaps illustrating Justice Scalia' s point that an abundance of doctrinal categories in First Amendment jurisprudence has led to "disuniformity" of analysis, even to "ineffable" calculations in individual cases.12 But is doctrinal haggling the best explanation we can venture for divisions in these cases? Surely that question points to the further problem of what drives a justice's choice of frameworks. For this, we must examine what Ronald Dworkin has called the judge' s sense of "some overall point purpose to the Amendment's abstract guarantee of 'freedom of speech or of the press. …