Madison's Music

by Burt Neuborne

  17. A third area where Justice Brennan’s equality-based approach fell short of protecting the franchise was in so-called special-purpose elections, which often limit the franchise to persons directly affected by the election. Salyer Land Company v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973), limiting water allocation votes to landowners, allocating vote by acreage; Ball v. James, 451 U.S. 335 (1981), limiting vote for directors of state water conservation district to local landowners. But see Hill v. Stone, 421 U.S. 289 (1975), striking down property ownership requirement in city bond elections.

  18. Gomillion v. Lightfoot, 364 U.S. 339 (1960).

  19. Lane v. Wilson, 307 U.S. 268 (1939).

  20. Washington v. Davis, 426 U.S. 229 (1976).

  21. City of Mobile v. Bolden, 446 U.S. 55 (1980).

  22. After the Voting Rights Act of 1982 forbade election regulations with the “effect” of denying blacks a fair chance to elect candidates of their choice, and after the Supreme Court ruled that the Voting Rights Act applied to judicial elections, New Orleans was finally divided into two districts. Justice Bernette J. Johnson was elected from the new district in 1994 and sits today as Louisiana’s first black chief justice.

  23. Hunter v. Underwood, 471 U.S. 222 (1985).

  24. Johnson v. Bush, 214 F. Supp.2d 1333 (S.D. Fla. 2002), granting summary judgment for Florida on issue of improper purpose.

  25. Johnson v. Governor, 377 F.3d 1163 (11th Cir. 2004), reversing grant of summary judgment, remanding for further fact-finding.

  26. Johnson v. Governor, 405 F.3d 1214 (11th Cir. 2005), en banc, reinstating district court dismissal, cert. denied, Johnson v. Bush, 564 U.S. 1015 (2005).

  27. United Jewish Organizations of Williamsburg v. Carey, 430 U.S. 144 (1977).

  28. Shaw v. Reno, 509 U.S. 630 (1993); Shaw v. Hunt, 517 U.S. 899 (1996).

  29. Lest you think such a 10:1 disparity is unrealistic, the United States Senate functions under a 72:1 disparity between senators from California, who represent more than 38 million voters, and senators from Montana, who represent about 570,000 voters.

  30. Davis v. Bandemer, 478 U.S. 109 (1986).

  31. Vieth v. Jubilirer, 541 U.S. 267 (2004); LULAC v. Perry, 548 U.S. 399 (2006).

  32. Terry v. Adams, 345 U.S. 461 (1953).

  33. Tashjian v. Republican Party, 479 U.S. 208 (1986).

  34. Rosario v. Rockefeller, 410 U.S. 752 (1973).

  35. Kusper v. Pontikes, 414 U.S. 51 (1973).

  36. American Party of Texas v. White, 415 U.S. 767 (1974).

  37. California Democratic Party v. Jones, 530 U.S. 567 (2000).

  38. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008).

  39. New York State Board of Elections v. Lopez-Torres, 552 U.S. 196 (2008).

  40. Clingman v. Beaver, 544 U.S. 581 (2005).

  41. Williams v. Rhodes, 393 U.S. 23 (1968).

  42. Munro v. Socialist Worker Party, 479 U.S. 189 (1986); Storer v. Brown, 415 U.S. 724 (1974); Jessess v. Fortson, 403 U.S. 431 (1971).

  43. Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

  44. Burdick v. Takushi, 504 U.S. 428 (1992).

  45. McCutcheon v. FEC, 134 S. Ct. 1434 (2014).

  46. Finally, Buckley upheld disclosure rules requiring most campaign contributions to be made public, although Congress has left huge loopholes in the disclosure process, and state disclosure rules are often either nonexistent or toothless.

  47. Buckley v. Valeo, 424 U.S. 1 (1976).

  48. United States v. O’Brien, 391 U.S. 367 (1968).

  49. Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).

  50. Citizens United v. FEC, 558 U.S. 310 (2010).

  51. 531 U.S. 98 (2000), per curiam. The safe-harbor provision emerged from the turbulent Hayes-Tilden presidential election of 1876, in which Tilden won an absolute majority of the popular vote, but lost by 185–184 in the Electoral College after a series of fiercely partisan congressional challenges favored 20 contested Hayes electors from Florida, Louisiana, South Carolina, and Oregon.

  52. Crawford v. Marion County, 553 U.S. 181 (2008).

  53. Hale v. Henkel, 201 U.S. 43, 74–75 (1906).

  54. Braswell v. United States, 487 U.S. 99 (1988).

  55. In fairness, Justice Kennedy argues that hearers would be benefited by granting First Amendment protection to for-profit corporations, while no such third-party benefit is available in the self-incrimination cases. But if Citizens United rests on the alleged benefits of unlimited corporate electioneering, surely Justice Kennedy was obliged to confront the fact that the voter/hearers had overwhelmingly voted to be free from corporate political speech.

  56. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas v. Public Service Comm’n, 447 U.S. 557 (1980).

  57. FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986).

  6. The Democracy-Friendly First Amendment in Action

  1. Anderson v. Cellebreze, 460 U.S. 780 (1983).

  2. Poe v. Ullman, 367 U.S. 497, 523 (1961), J. Harlan dissenting; Griswold v. Connecticut, 381 U.S. 479 (1965).

  3. Roe v. Wade, 410 U.S. 113 (1973).

  4. Moore v. East Cleveland, 431 U.S. 494 (1977).

  5. Lawrence v. Texas, 539 U.S. 558 (2003).

  6. Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978).

  7. The American Political Science Association deems a district contestable if the gap in pre-election party voter registration is less than 55 percent to 45 percent. Districts with a pre-election gap greater than 60 percent to 40 percent are designated landslide districts.

  8. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).

  9. The debate over “instruction” is described briefly in Chapter 10.

  7. Mr. Madison’s Neighborhood

  1. West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 (1943) (banning compulsory flag salutes); Cohen v. California, 403 U.S. 15 (1971) (“Fuck the draft” protected speech); Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990) (burning flags protected).

  2. Galileo was excommunicated and placed under house arrest for challenging the Church’s commitment to Ptolemaic astronomy, which viewed the earth as the center of the universe. See Maurice A. Finnochiario, The Galileo Affair: A Documentary History (Berkeley: University of California Press, 1989). John Milton’s Areopagitica: A Plea for Unlicensed Printing (1644), one of the landmarks in the evolution of free-speech theory, was almost certainly influenced by the young Milton’s visit to Galileo during Galileo’s house arrest. See William Riley Parker, Milton: A Biography (Oxford: Clarendon, 1996).

  3. RAV v. City of St. Paul, 505 U.S. 377 (1992); Wisconsin v. Mitchell, 508 U.S. 476 (1993).

  4. Virginia v. Black, 538 U.S. 343 (2003).

  5. National Socialist Party v. Skokie, 432 U.S. 43 (1977).

  6. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In the years since Chaplinsky, the Supreme Court has never sustained a conviction for using “fighting words.” The case may well be a dead precedent.

  7. Kovacs v. Cooper, 336 U.S. 77 (1949); Ward v. Rock Against Racism, 491 U.S. 781 (1989).

  8. Burson v. Freeman, 504 U.S. 191 (1992). Burson is a rare example of the government winning a strict-scrutiny case.

  9. Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995).

  10. Rowan v. United States Post Office, 397 U.S. 728 (1970).

  11. Frisby v. Schultz, 487 U.S. 474 (1988).

  12. Hill v. Colorado, 530 U.S. 703 (2000).

  13. McCullen v. Coakley, 12-1168, transcript of oral argument, 29, 32, 44.

  14. Lamont v. Postmaster General, 381 U.S. 301 (1965).

  15. See Pell v. Procunier, 417 U.S. 817 (1974) and Saxbe v. Washington Post, 417 U.S. 843 (1974), rejecting an investigatory role for the press.

  16. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994); Turner Broadcas
ting System, Inc. v. FCC, 520 U.S. 180 (1997).

  17. New York Times v. Sullivan, 376 U.S. 254 (1964).

  18. Frederick Schauer is one of the leading proponents of the cautionary approach to government censorship. Frederick Schauer, Free Speech: A Philosophical Enquiry (New York: Cambridge University Press, 1982).

  19. United States v. Alvarez, 132 S. Ct. 2537 (2012).

  20. Snyder v. Phelps, 131 S. Ct. 1207 (2011).

  21. Brown v. Entertainment Merchants’ Ass’n, 131 S. Ct. 2729 (2011).

  22. United States v. Stevens, 559 U.S. 460 (2010).

  23. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terror (New York: W.W. Norton, 2004).

  24. See Dennis v. United States, 341 U.S. 494 (1951), upholding criminal convictions of Communist Party leaders. See generally, Ellen Schrecker, The Age of McCarthyism: A Brief History with Documents (Boston: Bedford/St. Martin’s, 2002); Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998).

  25. For the bad-tendency test in action, see Whitney v. California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652 (1925); Abrams v. New York, 250 U.S. 616 (1919); Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. New York, 249 U.S. 204 (1919); Schenck v. United States, 249 U.S. 47 (1919). The most notorious use of the bad-tendency test in modern times took place in Dennis v. United States, 341 U.S. 494 (1951), when the Court upheld the conviction of the leaders of the American Communist Party for the crime of being leaders of the American Communist Party. Although the Supreme Court used the language of clear and present danger, it deferred to Congress’s assessment of the imminence of the danger posed by a political party pledged to violent revolution at some indefinite time in the future, reducing the judicial role to that of a bystander. Many read Brandenburg v. Ohio, 395 U.S. 444 (1969), per curiam, as overruling Dennis.

  26. See e.g., Tinker v. Des Moines School Board, 393 U.S. 503 (1969), cannot punish student for wearing black armband to class to protest Vietnam War in absence of showing strong likelihood that would disrupt class; Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965) (Cox I); Cox v. Louisiana, 379 U.S 559 (1965) (Cox II), reversing convictions of civil rights marchers.

  27. Brandenburg v. Ohio, 395 U.S. 444 (1969), per curiam.

  28. Cohen v. California, 403 U.S. 15 (1971).

  29. For a description of the conservative intellectual renaissance, see George H. Nash, The Conservative Intellectual Movement in America Since 1945, 2d ed. (Wilmington, DE: ISI Books, 2006); Jeffrey Hart, The Making of the American Conservative Mind: The National Review and Its Times (Wilmington, DE: ISI Books, 2007).

  30. See, for example, Robert Nozik, Anarchy, State, and Utopia (New York: Basic Books, 1974).

  31. I am, of course, referring to the short period of virtually unanimous political support for President James Monroe from 1816 to 1820.

  32. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Justice Brennan wrote for the Court in both cases. The dissenters were Chief Justice Rehnquist and Justices White, Stevens, and O’Connor. Justice Scalia was the swing vote.

  33. Buckley v. Valeo, 424 U.S. 1 (1976), per curiam. The fragmented series of per curiam and individual opinions in Buckley usually shake out to 7–1, with Chief Justice Burger dissenting and Justice Stevens not participating.

  34. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). Justice Blackmun wrote for seven justices, including Brennan and Marshall. Chief Justice Burger wrote a concurrence. Justice Rehnquist was the lone dissenter. Justice Stevens did not participate. The commercial-speech doctrine received its fullest articulation several years later in Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). The eight justices who voted to invalidate a ban on promotional messages by electric companies found it very difficult to identify exactly what falls under commercial speech, proffering four different tests. Chief Justice Rehnquist continued to dissent from the grant of broad First Amendment power to corporations.

  35. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

  36. Although the Court rejected a right to reply to press attacks in Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974), the Court was initially receptive to government efforts to provide dissenting voices with access to the broadcast media. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), upholding “fairness doctrine”; FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978), upholding ban on cross-ownership of newspaper and TV station in same market. See generally Associated Press v. United States, 326 U.S. 1 (1945), applying antitrust laws to media settings. After repeal of the fairness doctrine by the FCC, the Court rejected a First Amendment right of access to broadcast media. CBS v. Democratic National Committee, 412 U. S. 94 (1973). The autonomy of broadcasters was upheld in FCC v. League of Women Voters, 468 U.S. 364 (1984), invalidating ban on editorials by public TV stations; Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666 (1998), upholding exclusion of candidate from debate on public TV; Turner Broadcasting v. FCC, 512 U.S. 622 (1994) (Turner I), rejecting application of Red Lion to cable broadcasting. The chaotic state of current law on media diversity is reflected in Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004); Sinclair Broadcasting, Inc. v. FCC, 284 F.3d 148 (D.C. Cir. 2002); and Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002). Each case rejects an FCC rule on media ownership.

  37. RAV v. City of St. Paul, 505 U.S. 377 (1992), invalidating conviction for cross burning because statute overbroad; Virginia v. Black, 538 U.S. 343 (2003), invalidating convictions for cross burning in absence of proof beyond reasonable doubt of intent to intimidate.

  38. Connick v. Myers, 461 U.S. 138 (1983), limiting freedom to circulate internal criticism at work; Waters v. Churchill, 511 U.S. 661 (1994), upholding dismissal based on employer assessment of disruptive nature; Garcetti v. Ceballos, 543 U.S. 1186 (2005), upholding dismissal of assistant DA for internal criticism of failure to respond to misrepresentations in search warrant.

  39. Bethel School District v. Fraser, 478 U.S. 675 (1986), upholding discipline for student nominating speech with sexual innuendos; Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), upholding principal’s editorial control over official student newspaper; Morse v. Frederick, 551 U.S. 393 (2007), upholding discipline for displaying banner with drug connotations.

  40. Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007).

  41. Knox v. SEIU, 132 S. Ct. 2277 (2012), five members of Court in dicta suggest that employees must opt in to public union decision to use mandatory dues for political purposes; four justices disagree.

  42. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

  43. Citizens United v. FEC, 558 U.S. 50, (2010), Stevens, J., dissenting, joined by Justices Ginsburg, Breyer, and Kagan.

  44. Arizona Free Enterprise Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011), invalidating Arizona matching-fund law 5–4.

  45. McCutcheon v. FEC, 134 S. Ct. 1434 (2014).

  46. Article I, section 10 forbids any state from passing a “Law impairing the Obligation of Contracts.” The Fifth and Fourteenth Amendments forbid both federal and state governments from depriving a “person” of “life, liberty, or property without due process of law.” The Fifth Amendment also provides that “private property [shall not] be taken for public use, without just compensation.”

  47. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (protecting advertising about drug pricing); Central Hudson Gas v. Public Services Comm’n, 447 U.S. 557 (1980) (declining to protect advertising promoting unlawful activities).

  48. Elena Kagan, “Private Speech, Public Purpose: The Role of Government Motive in Free Speech Doctrine,” University of Chicago Law Review 63 (1996): 413.
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br />   49. New York Times v. United States, 403 U.S. 713 (1971).

  50. Gooding v. Wilson, 405 U.S. 518 (1972); Coates v. City of Cincinnati, 402 U.S. 611 (1971).

  51. Smith v. Goguen, 415 U.S. 566 (1974).

  52. Burt Neuborne, “The Gravitational Pull of Race on the Warren Court,” Supreme Court Review 2010, no. 1 (2010): 59, 77.

  53. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983).

  54. Freedman v. Maryland, 380 U.S. 51 (1965).

  55. Turner Broadcasting System v. FCC, 520 U.S. 180 (1997) (Turner II).

  56. Cox v. New Hampshire, 312 U.S. 569 (1941).

  57. For a useful summary of academic articles on the Occupy Wall Street movement, see the forum established by the Berkeley Journal of Sociology, “Understanding the Occupy Movement: Perspectives from the Social Sciences,” bjsonline.org/2011/12/understanding-the-occupy-movement-perspectives-from-the-social-sciences. No summary of the legal confrontations appears to exist, although New York City settled several cases arising out of violent confrontations between the police and the demonstrators.

  58. New York Times v. Sullivan, 376 U.S. 254 (1964).

  8. Divine Madness

  1. The textual evolution of the First Amendment is discussed in Chapter 10.

  2. United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970).

  3. Justice Harlan had joined the majority in Seeger in merely construing the statute to provide the defendant with conscientious-objector status despite his failure to believe in a Supreme Being. In his influential concurrence in Welsh, however, Justice Harlan repudiated his reading of the statute in Seeger and ruled that the Constitution required recognition of claims of secular conscience in both cases. It is Justice Harlan’s concurring opinion that we remember.

  4. Employment Division v. Smith, 494 U.S. 872 (1990).

  5. Prince v. Massachusetts, 321 U.S. 158 (1944), child labor laws.

  6. Gillette v. United States, 401 U.S. 437 (1971), military conscription.

  7. Jimmy Swaggert Ministries v. Board of Equalization, 493 U.S. 378 (1990), sales tax; United States v. Lee, 455 U.S. 252 (1982), Social Security taxes.