free speech

Arizona Free Enterprise v. Bennett; McComish v. Bennett (consolidated)

Issues

1. Under Citizens United v. Federal Election Commission and Davis v. Federal Election Commission, does the matching public funding provision of Arizona’s Citizens Clean Elections Act violate the First Amendment protection of political speech?

2. Does the Citizens Clean Elections Act advance a compelling state interest in preventing corruption, or does it unconstitutionally burden protected political speech?

 

At issue in these consolidated cases is the constitutionality of Arizona’s Citizens Clean Elections Act. Petitioners—several past and present candidates for elected office, and two political action committees—claim that the matching public funding provision of the Act burdens the free speech of candidates who do not utilize public funding. Respondent, Ken Bennett, in his official capacity as Arizona Secretary of State, contends that the Act is designed to prevent corruption and does not impose any actual burden on protected political speech. The Ninth Circuit Court of Appeals held that the Act did not violate the First Amendment, because it furthered a compelling government interest in preventing corruption. In resolving this question, the Supreme Court must strike a balance between the First Amendment right to protected political speech and clean election measures implemented by a state. This decision will affect state and national elections that utilize matching public funding schemes.

Questions as Framed for the Court by the Parties

Arizona Free Enterprise

In Davis v. FEC, 128 S. Ct. 2759 (2008), this Court held that the First Amendment forbids the government from attempting to level the playing field in elections by raising contribution limits for candidates who are outspent by self-financed opponents. Arizona's Citizens Clean Elections Act achieves a similar result by providing extra subsidies in the form of "matching funds" to publicly financed candidates who are outspent by independent expenditure groups and privately financed candidates. The questions presented are:

1. Whether the First Amendment forbids Arizona from providing additional government subsidies to publicly financed candidates that are triggered by independent expenditure groups' speech against such candidates?

2. Whether the First Amendment forbids Arizona from providing additional government subsidies to publicly financed candidates that are triggered by the fundraising or expenditures by these candidates' privately financed opponents?

McComish

1. Whether Citizens United v. Federal Election Comm'n, 130 S. Ct. 876 (2010), and Davis v. Federal Election Comm'n, 128 S. Ct. 2759 (2008), require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it penalizes and deters free speech by forcing privately-financed candidates and their supporters to finance the dissemination of hostile political speech whenever they raise or spend private money, or when independent expenditures are made, above a "spending limit."

2. Whether Citizens United and Davis require this Court to strike down Arizona's matching funds trigger under the First and Fourteenth Amendments because it regulates campaign financing in order to equalize "influence" and financial resources among competing candidates and interest groups, rather than to advance directly a compelling state interest in the least restrictive manner.

In 1998, the State of Arizona passed the Citizens Clean Election Act (“the Act”), which created a framework through which the state provides public financing to candidates for statewide political offices. See McComish v. Bennett , 611 F.3d 510, 513 (9th Cir. 2010) .

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Additional Resources

The New York Times, Adam Liptak: Justices to Assess Arizona Campaign Financing (Nov. 29, 2010)

CNN, Bill Mears: High Court to Review Arizona Election Finance Law (Nov. 29, 2010)

Huffington Post, Paul Davenport: Supreme Court Blocks Public Financing in Arizona Elections (June 8, 2010)

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Elonis v. United States

Issues

Does a conviction for threatening another person in interstate communications require proof of the defendant’s subjective intent to threaten and, if not, does the First Amendment prevent a conviction based only on a showing that a reasonable person would regard the statement as threatening?

The Supreme Court granted certiorari to address a circuit split on the question of whether the 18 U.S.C. § 875(c) (“§ 875(c)”) requires a showing of subjective intent in order to convict and, if not, whether conviction based only on a showing that a reasonable person would regard the statement as threatening violates the First Amendment. In this case, Anthony D. Elonis was convicted for publishing a series of Facebook posts describing committing acts of violence towards various people in violation of § 875(c). Elonis contends that the government must offer proof of a subjective intent to threaten, and that his speech is protected by the First Amendment. The United States, however, argues that § 875(c) requires only proof of general intent and that threats as defined in § 875(c) should not receive First Amendment protection. The Supreme Court’s ruling in this case could affect free speech rights as well as the rights of those who are victims of threats.

Questions as Framed for the Court by the Parties

It is a federal crime to “transmit[] in interstate or foreign commerce any communication containing * * * any threat to injure the person of another,” 18 U.S.C. § 875(c). Numerous states have adopted analogous crimes. The question presented is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

IN ADDITION TO THE QUESTION PRESENTED BY THE PETITION, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. §875(c) requires proof of the defendant’s subjective intent to threaten.”

Anthony D. Elonis was indicted with five counts of making threats in violation of 18 U.S.C. § 875(c) (“§ 875(c)”). United States v. Elonis, 730 F.3d 321, 327 (3rd Cir. 2013). Section 875(c) provides that it shall be illegal to transmit “in interstate or foreign commerce any communication containing . . .

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Federal Election Commission v. Ted Cruz for Senate

Issues

Does Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which imposes a $250,000 cap on the amount of post-election funds a campaign can use to reimburse a candidate’s personal loans, impermissibly burden a candidate’s First Amendment right to free speech; and does a party seeking to invalidate a regulation implemented pursuant to that statutory provision have standing to challenge the statute?

This case asks the Supreme Court to decide whether Section 304 of the Bipartisan Campaign Reform Act (“BCRA”), which bars a campaign from disbursing more than $250,000 in post-election contributions to refund a candidate’s personal loans, violates the First Amendment. The Federal Election Commission (“the FEC”) contends that Senator Cruz’s current inability to obtain full reimbursement for his loan was not caused by Section 304, and that Cruz therefore lacks standing to challenge Section 304. Senator Ted Cruz and Ted Cruz for Senate (collectively, “Ted Cruz”) counter that Section 304 directly injures them, and that the statute should be held unconstitutional under the First Amendment for unjustifiably deterring candidates from exercising their free speech right to contribute to their own campaigns. The outcome of this case has implications for litigants who must establish standing to challenge allegedly unconstitutional government action in the courts, and the constitutionality of limits on the use of post-election funds for loan-repayment.

Questions as Framed for the Court by the Parties

Whether appellees have standing to challenge the statutory loan-repayment limit; and whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.

In order to guard against actual and apparent quid pro quo corruption, Congress promulgated federal campaign financing restrictions through the Federal Election Campaign Act of 1971 (“FECA”). Ted Cruz for Senate v. Fed.

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Federal Election Commission v. Wisconsin Right to Life; McCain v. Wisconsin Right to Life

Issues

Is the Electioneering Communication prohibition of the Bipartisan Campaign Reform Act unconstitutional as applied to grassroots lobbying ads, such as those that Wisconsin Right to Life wanted to run in 2004?

 

In July 2004, Wisconsin Right to Life aired a series of advertisements encouraging Wisconsin voters to urge their U.S. Senators, Russell Feingold and Herb Kohl, to oppose efforts to filibuster President Bush’s federal judicial nominees. The ads came into conflict with the limitations of the Bipartisan Campaign Reform Act because they coincided with Senator Feingold’s November 2004 re-election bid. The provision at issue prohibits corporations and unions from running ads targeted at a specific candidate within 30 days of a primary or 60 days of a general election. WRTL argues that the Act should not be applied to its ads because they were grassroots “issue ads,” and not “electioneering ads” covered by this Act. The Federal Election Commission contends that the WRTL ads were intended to sway voters in the federal election, and thus the Bipartisan Campaign Reform Act should be applied. The Supreme Court’s decision in this case will have an important effect on the delicate balance between the free speech rights guaranteed by the First Amendment and the interests of campaign finance reformers seeking to limit the electoral involvement of special interests, such as corporations and unions, which may improperly influence the electoral process.

Questions as Framed for the Court by the Parties

F.E.C. v. Wisconsin Right to Life

Whether the three-judge district court erred in holding that the federal statutory prohibition on a corporation’s use of general treasury funds to finance “electioneering communications” is unconstitutional as applied to three broadcast advertisements that appellee proposed to run in 2004.

McCain v. Wisconsin Right to Life

Whether the three-judge district court erred in holding that Section 203 of the Bipartisan Campaign Reform Act, 2 U.S.C. § 441b, is unconstitutional as applied to the three advertisements that appellee Wisconsin Right to Life, Inc. sought to broadcast in 2004.

In 2004, many political experts anticipated that members of the U.S. Senate would try to further delay a Senate vote on President George Bush’s judicial nominees with continued filibustering.

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Iancu v. Brunetti

Issues

Does the Lanham Act’s prohibition on registration of scandalous or immoral trademarks violate free speech rights guaranteed by the First Amendment?

Erik Brunetti founded a clothing brand named “FUCT” and applied to register the name as a trademark. The registration was denied by the examining attorney at the United States Patent and Trademark Office for not complying with Section 2(a) of the Lanham Act, which prohibits registration of scandalous or immoral marks. On appeal, the United States Court of Appeals for the Federal Circuit concluded that the provision was an unconstitutional violation of the First Amendment of the Constitution. Brunetti asks the Court to affirm the lower court’s invalidation of the provision because it amounts to viewpoint discrimination warranting strict scrutiny review, which the provision then fails. Iancu asks the Court to reverse the lower court decision because the scandalous marks provision is viewpoint neutral and does not impose an unconstitutional burden on speech. Iancu argues that the Court should instead apply the rational basis review standard and recognize that the provision serves legitimate government interests in protecting the moral sensibilities of all audiences as well as the orderly flow of commerce. The Court’s decision may have a chilling effect on free speech in commercial contexts and make it difficult for owners of marks deemed scandalous or immoral to reap commercial benefits from their marks.

Questions as Framed for the Court by the Parties

Whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.

Respondent Erik Brunetti founded a clothing brand, “FUCT,” in 1990. In re: Erik Brunetti, 877 F.3d 1330 (Fed. Cir.

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Janus v. American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”)

Issues

Should Abood v. Detroit Board of Education be overruled, rendering public sector agency fee arrangements, which require non-union employees to pay a fee to the union, unconstitutional under the First Amendment?

This case will decide whether public-sector workers represented by a union can be required to pay agency fees. Janus argues that requiring public-sector workers to pay agency fees constitutes compelled speech and association, imposing undue restrictions on workers’ First Amendment rights. The American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”) argues that imposing agency fees on all workers allows unions to appropriately and fairly represent all workers’ interests, which unions are legally required to do. This issue affects every dues-paying, public sector worker. Accordingly, this case will impact the way unions organize and represent public-sector workers.

Questions as Framed for the Court by the Parties

Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.

In 2015, the governor of Illinois filed suit challenging provisions of the Illinois Public Labor Relations Act (“IPLRA”) on First Amendment grounds. Janus v. AFSCME, Council 31, 851 F.3d 746, 747 (7th Cir. 2017). By filing the lawsuit, the governor of Illinois sought to overrule Abood v.

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Acknowledgments

The authors would like to thank Cornell Law School Professor Angela Cornell for her insight into this case.

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libel

Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person's reputation; exposes a person to public hatred, contempt or ridicule; or injures a person in their business or profession.

Mahanoy Area School District v. B.L.

Issues

Can a school regulate student speech that may be disruptive to the school environment if that speech occurs off campus?

This case asks the Court to decide whether school officials may regulate and punish students for disruptive speech that occurs off the school campus. Petitioner Mahanoy Area School District argues that schools can regulate speech that is directed at school operations and which causes off-campus harm under Tinker v. Des Moines Independent Community School District, even when that speech is made off campus. Respondent B.L. counters that schools only have the authority to regulate students’ speech when that speech is made on the school campus or under the supervision or sponsorship of the school, not merely because the speech’s topic has some relationship to school functions. This case has implications for the extent of students’ free-speech rights and schools’ ability to prevent off-campus bullying.

Questions as Framed for the Court by the Parties

Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

Respondent B.L., a student at Mahanoy Area High School (“MAHS”), tried out for the cheerleading team during her freshman year of high school and made the junior varsity (“JV”) squad. B.L. v. Mahanoy Area School District at 1. She tried out again as a sophomore and was again assigned to JV. Id. B.L.

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