Hellman on Confusing Restrictions with Incentives in McComish v. Bennett
posted by Danielle Citron
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.