Congress Shall Make No Law...
9:10 PM
Is political speech now a second-class citizen under the First Amendment?

On January 28, a federal judge in Maryland handed down a ruling that neatly illustrates how far the U.S. Supreme Court’s precedent has drifted from the idea that political speech is at the core of what the First Amendment was intended to protect.


The case, O’Brien v. City of Baltimore, involved a challenge by a Catholic-based crisis-pregnancy center to a Baltimore ordinance that would have required them to put up a sign in their lobby stating that the center “does not provide or make referral for abortion or birth-control services.”  Because the First Amendment protects not just the right to speak but also the right to choose what one will say, the center objected to the ordinance on the grounds that it unconstitutionally compelled them to speak.


The district court in O’Brien correctly concluded that the required disclaimer was compelled speech and that the ordinance must be subject to the highest level of judicial scrutiny, known as “strict scrutiny.”  The court went on to hold that the law failed strict scrutiny because the government’s alleged interest in combating “deceptive advertising” by crisis-pregnancy centers could have been achieved by simply modifying the city’s existing anti-fraud statute, without compelling the centers to convey a message they would prefer not to convey.


So far so good—except for the fact that the Supreme Court has upheld disclaimers in the campaign finance context for ads that support or oppose candidates.  The district court in O’Brien recognized this and was forced to explicitly distinguish disclaimers in the campaign context from those at issue in the case.  Here’s what the court said:


Strict scrutiny review is a standard traditionally used when examining regulations of fully protected speech rather than the ‘exacting scrutiny’ standard described in Citizens United v. Fed Election Comm’n.,__ U.S. __, 130 S. Ct. 876 (2010) (addressing a First Amendment Challenge to political campaign laws).


In short, speech about a crisis-pregnancy center is “fully protected” under the First Amendment, but speech about candidates is not.  The Framers gave us the First Amendment specifically to allow citizens to, among other things, talk about and criticize their government.  Yet three decades of campaign finance decisions have forced a district court to have to say, in effect, “Unlike political speech, the speech at issue here is entitled to significant First Amendment protection.”  Nonetheless, decisions like the one in O’Brien are important—by exposing the contradictions between our First Amendment rhetoric and our First Amendment as enforced by the courts, it lays bare how far we have drifted from first principles.  And that is the first step to restoring those principles.


Hat tip to The Volokh Conspiracy.


The full text of the O'Brien ruling is available below the break.

O'Brien v. Baltimore (Opinion)