POLITICAL COMMUNICATION

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Of all the forms of speech that the founders sought to protect, most scholars believe that political communication received their highest priority. Certainly the courts have often concurred.¹ After all it was political communication that allowed the founders to translate the theories of John Locke, Jean Jacques Rouseau, John Milton and John Stuart Mill into a pragmatic plan for government. It was political communication that allowed the arguments of Thomas Payne to flow through the propaganda machine of Samuel Adams to help foment revolution. From the great speeches of Patrick Henry to the intense debates surrounding the ratification of the Constitution and the Bill of Rights, political communication played a major role in refining democratic republicanism.

Once the new nation was established, political communication continued to play a large role. Thomas Jefferson and James Madison defended American's rights against the Alien and Sedition Acts. Frederick Douglass and Angelina Grimke spoke out against slavery. Native American chiefs pled the case of their peoples before Congress. Abraham Lincoln and Stephen Douglas debated states rights. Woodrow Wilson and Franklin Roosevelt justified entries in world wars on the grounds that American values should be spread to the rest of the world.

However, not all political communication has been as high minded. During the Alien and Sedition crisis (1796-1801)Federalists accused Jefferson of harboring subversives in his State Department and their opponents of being traitors. Lincoln accused Douglas of being part of a government conspiracy to spread slavery into the territories. Wilson justified a witch hunt to locate "reds" during and after World War I; Roosevelt justified the internment of Americans of Japanese descent during World War II. Senator Joseph McCarthy engaged in a campaign of exaggeration, guilt by association, and outright lies in the early 1950s. Currently, America faces a crisis of confidence in political communication contained in sound bites on the evening news and campaign commercials made on Madison Avenue.

All of this rhetoric is protected because our system of government is based on important Enlightenment principles. Jefferson put it best when he said, "For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left to combat it." Nonetheless, Congress regularly tries to level the playing field among politicians and these efforts sometimes cross constitutional lines.

We begin our investigation of the restrictions imposed on political speech by exploring attempts to control and reform political communication. This investigation requires a review of the rationale for restrictions on political speech.

I. Historic Censorship of Political Speech

There are various rationales for curtailing freedom of expression. These include defamation, libel, slander, obscenity, and communication that presents a clear and present danger to another or to the nation. Some of these have been used to curtail political speakers.

For example, by 1798, the year the Alien and Sedition Laws were passed, over 300 United States ships had been sunk or commandeered by the French. The nine-year-old French revolution had fallen into the hands of the radical Directory. Hundreds of nobles, including the King and Queen of France, had been sent to the guillotine. The Directory vowed to spread its ideology across Europe by force.

Vice President Jefferson and members of his party debated Federalists about the extent to which that threat was real for the United States. Jefferson had been Minister to France during its revolution. He had also been Secretary of State of the United States. As Vice President, he tried to dampen fears of a foreign invasion and openly opposed President Adam’s call for a more stringent policy of immigration. The Federalists countered by arguing that the external threat of war with France was only one part of the story. The other was an internal threat from “Philosophes” and “Jacobins” who had infiltrated the country and, according to Congressman Otis, even served in Jefferson’s State Department.

Federalists under the direction of Alexander Hamilton produced an ambitious legislative package, which resulted in the passage of the following laws. The Naturalization Act forbade aliens from being admitted to citizenship unless they had has resided in the United States for at least fourteen years. No native, citizen, subject, or resident of a country with which the United States was at war could be admitted to citizenship. The Alien Act allowed the president to order all aliens that he judged to be dangerous to the peace and safety of the United States to depart. The Alien Enemies Act held that when war is declared or invasion threatened, all natives, citizens, denizens, or subjects of the hostile nation, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.² The Sedition Act held that any persons combining or conspiring with intent to oppose any measure or measures of the government of the United States shall be liable to fines up to $5,000 and imprisonment up to five years. Any person writing, uttering, or publishing any false, scandalous and malicious writing or writings against the government, the Congress, or the president shall be liable to fine up to $2,000 and imprisonment up to two years.

Eventually, war with France was avoided and Jefferson was elected president. The above laws had a sunset clause set for the day of Jefferson’s inaugural. He rightly allowed the laws to lapse and in his inaugural address called tolerance and freedom of expression.

During the Civil War, President Lincoln suspended the writ of habeas corpus first in Maryland and then in southern Ohio because of its sympathy for slavery and states' rights and its geographic location. Reluctantly, Lincoln took the action against Maryland so that he could prevent its legislature from meeting and voting for secession. In September of 1861, nine members of the Maryland legislature were arrested. It was the first time a president of the United States had prevented a state legislature from meeting and was a clear violation of their constitutional rights. However, the threat of Civil War was so severe that Lincoln felt justified in his unprecedented action.

The same would be true in Ohio. During his campaign for governor of Ohio, Congressman Clement L. Vallandigham gave a fiery speech in southern Ohio in support of the rebel effort. When General Burnside read reports of the speech in the newspaper, he had Vallandigham arrested and sent to Boston for trial. Lincoln eventually exiled the Congressman to the South because he had some doubts about incarcerating a sitting congressman for delivering a political campaign speech. Vallandingham continued to support the Southern cause from abroad and eventually became the famous “man without a country.”

Two other cases established contrary precedents during and after the Civil War. The Merryman case stemmed for the suspension of rights in Maryland and was brought to bar to determine whether the President or the Congress had the power to suspend the writ of habeas corpus. It began on May 25, 1861, when John Merryman, a southern sympathizer and secessionist from Maryland, was taken into military custody. He immediately asked to be released under a writ of habeas corpus.

In one of the oddities of history, the Chief Justice of the Supreme Court Roger B. Taney, a Democrat appointed by President Jackson, sat in judgment on the case as the circuit judge. Taney had penned the infamous Dred Scott decision of 1857 which Lincoln had consistently criticized in his campaign for president. Now Taney and Lincoln crossed swords again.

In arguing for the President's power to suspend the writ, Attorney General Bates contended that the three great branches of the Government are coordinate; the executive cannot rightly be subjected to the judiciary. The President, he maintained, is in a peculiar manner their preserver and protector as the defender of the Constitution.³ Moreover, it is the President's duty to put down a rebellion because the courts are too weak to do so. Bates pointed out that the power of the Presidency does open the way for possible abuse; however, it is just as true that a legislature may be factious or a court corrupt. The President cannot be required to appear before a judge to answer for his official acts because the court would be usurping the authority of Executive Branch.⁴ Bates contended that for any breach of trust the President is answerable before the high court of impeachment and no other tribunal.

In filing his opinion, Taney responded that the President had no lawful power to issue such an order and that a writ of habeas corpus should preside. In Ex parte Merryman Taney claimed that only Congress could suspend the privilege of the writ and that the President, though sworn to "take care that the laws be faithfully executed," had broken the laws himself. In a clever rhetorical ploy, Taney invoked the rule of construction according to context. He pointed out that the provision regarding habeas corpus appears in that portion of the Constitution that pertains to legislative powers; therefore, its suspension was a Congressional, not an executive prerogative. Taney argued further that the military authorities should reveal the day and cause of the capture of Merryman and explain the reasons for his detention.⁵ Such requirements were, of course, usual in civil affairs, but not in military ones.

In a message to Congress on July 4, 1861, Lincoln answered Taney. He began by pointing out that he was reluctant to suspend the writ, but that dire threats to the nation in general and the military in particular required such action:

Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus . . . This authority has purposely been exercised but very sparingly. Nevertheless, . . . the attention of the country has been called to proposition that one who is sworn to "take care that the laws be faithfully executed" should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted . . . in nearly one-third of the States. Must they be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, are in such extreme tenderness of the citizens liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated? . . . But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution . . . is equivalent to a provision - is a provision - that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion . . .⁶

As with Dred Scott, Taney stuck to the letter of the law and read the Constitution strictly. Lincoln sought refuge in a higher law: the law of survival. He gave his defenders grist for their propaganda mills by claiming that his suspension of the privilege of the writ of habeas corpus did not violate any law. According to Lincoln, the Constitution was "silent as to . . . who, is to exercise the power" of suspension.⁷ He would not release Merryman, even in the face of Taney's writ. In 1863, the Congress passed the Habeas Corpus Act, giving Lincoln the power he had already exercised.

Lambdin P. Milligan was arrested on October 5, 1864, by order of General Hovey, in command at Indianapolis; he brought Milligan before a military commission on charges of 1) conspiring against the government of the United States; 2) affording aid and comfort to the Rebellion against the authorities of the United States; 3) inciting an insurrection; 4) disloyal practices; 5) violation of the laws of war.⁸ Milligan, along with others, was a suspected member of Vallandigham's secret anti-war society, the Sons of Liberty. Milligan's threat to the Union would appear on the surface to be much greater than Vallandigham's and have much less to do with First Amendment issues. However, since the case would reverse Vallandigham and finally overrule what Lincoln did with Merryman, it is important that we consider it.

The military commission sentenced Milligan to be hanged on May 19, 1865. Milligan petitioned the United States Circuit Court for a writ of habeas corpus. The controversy over Congressional versus Presidential power was re-ignited. Attorney General Stanbery and Benjamin F. Butler argued that:

The Commander-in-Chief has full power to make an effectual use of his forces. He must . . . have the power to arrest and punish one who arms men to join the enemy in the field against him; one who holds correspondence with the enemy; one who is an officer in an armed force organized to oppose him; one who is preparing to seize arsenals and release prisoners of war taken in battle and confined within his military lines . . . During the war his powers must be without limit, because if defending, the means of offense may be nearly illimitable.⁹

Milligan insisted, however, that the Military Commission had no jurisdiction to try him upon the charges preferred, or upon any charge whatever, because he was a citizen of the United States and the state of Indiana. Moreover, he contended that the right to a trial by a jury of peers was guaranteed to him by the Constitution of the United States.¹⁰

The Milligan case was decided in April, 1866. Justice Davis announced the court's opinion:

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgement . . . [T]he Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances . . . [O]ne of the plainest constitutional provisions was infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges . . . [A]nother guarantee of freedom was broken when Milligan was denied a trial by jury . . . Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real . . . It is difficult to see how the safety of the country required martial law in Indiana . . . Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.

Chief Justice Chase concurred:

The power to make the necessary laws is in Congress; the power to execute in the President . . . But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people . . . nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offenses, either of soldiers or civilians, unless in cases of controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature . . . What we do maintain is that when the nation is involved in war . . . it is within the power of Congress to determine to what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.

Thus, the Court declared that the guarantees of such freedoms as safeguard against arbitrary arrest, fair trial and Fifth Amendment privilege are not to be set aside during war. Milligan's trial and conviction by a military commission were overturned. The Court decided that there was no indictment against Milligan, since the Habeas Corpus Act of 1863 stated that political prisoners who could not be indicted by the grand jury should be released. Had the war not ended before the Court decided Milligan’s fate, the result might have been the same as Merryman’s.

The tendency of the Supreme Court to uphold convictions of persons criticizing war policy continued into the twentieth century. Three of the most important cases are, Schenck v. United States (1919), Abrams v. United States (1919) and Gitlow v. New York (1925).

The courts found Abrams guilty of violating the law because he distributed literature that called for a general strike and criticized President Wilson's policy of sending troops into Russia opposing the Bolsheviks during the Russian civil war at the end of World War I. In dissent Oliver Wendell Holmes coined his famous phrase about protecting speech in the "free marketplace of ideas." Claiming Abrams leaflets were "silly," he argued that:

[The Socialists'] pronunciamentos in no way attack the form of government of the United States. . . . I do not see how anyone can find the intent required by the statute in any of the defendants' words. . . . In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution. . . . [T]he best test of truth is the power of the thought to get itself accepted in the competition of the market. . . . [T]he United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed.

Holmes echoes Jefferson's challenge to a democratic republic to allow error as others are free to refute it.¹¹

Schenck was the secretary of the Socialist Party of Philadelphia who circulated a paper that gave specific instructions on how to avoid and obstruct the draft. It also endorsed acts of insubordination by military personnel. The circular clearly violated the Espionage Act of 1917. The question was whether the act was constitutional. This time Holmes wrote the majority position, arguing that Schenck presented "a clear and present danger" to nation; therefore, his speech was not protected. It was tantamount to "action." The most famous section of Holmes decision reads:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight . . .¹²

This last line demonstrates that Holmes is in the tradition of Lincoln. The entire opinion demonstrates that for Holmes the question of harm is a matter of “ proximity and degree,”¹³ standards that return again and again in such cases.¹⁴

We should also note that the Schenck decision flows from English philosopher John Stuart Mill’s famous position that the primary function of government was protect its citizens from harm. In his book On Liberty, Mill attempted differentiate between providing the greatest good for the greatest number from overriding individual liberties. Both Holmes and Mill argue that individual liberties are worth very little if personal security is not guaranteed. Hence speech that presents a clear and present danger must be curtailed.

Gitlow was also a Socialist agitator arrested in New York for his advocacy. In this famous 1925 case, the Supreme Court incorporated the First Amendment through the Fourteenth and applied it against the states for the first time. Their rationale was that freedom of expression was part of "due process" and "equal protection of the law." Just as important was Justice Holmes' dissenting opinion that "Every idea is an incitement," in fact, if something is worth saying, it is going to offend someone.¹⁵ Thus, we need to be very careful about what we censure in the name of preventing violence.

The related issue of pamphleteering and demonstrating in some areas and not in others has been examined by the Supreme Court in several cases. Government usually claims that the restrictions are mere restrictions of time, place and manner, but do not affect content of expression. In Heffron v. International Society for Krishna, 452 U.S. 640 (1981) the Supreme Court ruled that agencies had the right to limit to stations the sale of materials and the solicitation of contributions. However, the Court set out a four part test for such ordinances: 1) The restriction cannot be based on content. 2) It must advance a government interest. 3) The agency must prove that there were no less restrictive means available to advance the government interest. 4) The regulation is valid if alternate means of expression are available. The Courts have also allowed bans on the grounds that demonstrators and even Paparazzi invade privacy and/or endanger clients.¹⁶

During the early 1950s, the Supreme Court ruled that the Smith Act of 1939, which prohibited calling for the violent overthrow of the government, was constitutional. The case establishing this principle began in July, 1948, when the Federal Bureau of Investigation arrested six members of the Communist Party in their New York City offices. Eventually eleven members of the leadership of the Party were brought to trial for teaching and advocating "the overthrow and destroying any government in the United States by force and violence," a violation of the Smith Act of 1939.¹⁷

The eleven, which included Eugene Dennis, Secretary of the Communist Party, were convicted despite protests from presidential candidate and former Vice President Henry Wallace and the American Civil Liberties Union. They were fined $10,000 each and sentenced to five years in jail. In 1951 the Supreme Court upheld the Dennis decision with Justices Hugo Black and William O. Douglas strongly dissenting.¹⁸

Chief Justice Vinson wrote the plurality decision in which he argued that the leader of a group who instructs it about violent action is as guilty as the group who commits the action. Vinson relied on Judge Learned Hand's theory that the speech is transformed into action at the moment of incitement or instigation.¹⁹ Had we not been at war with Communist China in Korea at the time of this decision, it might have been different. Or had the country not been in the grip of a paralyzing fear of Communism because it had spread over half of Europe and a large portion of Asia, the Supreme Court might have returned to its previous position of protecting membership in the Communist Party in America saying it was a movement no different from many others.²⁰ In his dissent in Dennis v. U.S., Justice Douglas said:

Communists in this country have never made a respectable or serious showing in any election. I would doubt that there is a village, let alone a city or county or state, which the Communists could carry. Communism in the world scene is no bogeyman; but Communism as a political faction or party in this country clearly is. . . . The First Amendment . . . . does not mean that the Nation need hold its hand until it is in such weakened condition that there is no time to protect itself from incitement to revolution. Seditious conduct can always be punished. But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech. . . . the First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy. . . . Unless and until extreme and necessitous circumstances are shown our aim should be to keep speech unfettered and to allow the processes of law to be evoked only when the provocateurs among us move from speech to action.²¹

Thus, Douglas and Black sought to draw a definitive line between speech and conduct and keep the Congress from crossing it.

Four years after the "police action" ended in Korea and three years after the fall of Senator McCarthy, the Supreme Court ruled in Yates v. United States (1957) that fourteen members of the Communist Party who had been arrested in California for calling for the violent overthrow of the government were not guilt of advocating specific illegal activity. They were instead engaged in advocacy of an ideology. The crucial opinion in Yates was written by Justice Harlan, who believed that there was a significant difference between speech (belief) and action.²² This ruling effectively gutted the Smith Act of 1939, though it remains on the books to this day. Yates was later revised further in the Brandenburg case (see Chapter 6), which gave even further latitude to speakers advocating violent activity.

The Vietnam War caused another set of important cases to come before the Supreme Court, the most important of which were U.S. v. O’Brien (1968 ) and Cohen v. California (1971). Violating a federal law against destruction of draft cards, O’Brien burned his draft card on the steps of a Boston courthouse to protest the war in Vietnam. He appealed his conviction on the grounds that his act was symbolic speech protected by the First Amendment. When the case reached the Supreme Court, it established a four part test for determining whether expressive conduct could be punished. In the Supreme Court’s words, the government could regulate speech “if it is within the constitutional power of the government; if it furthers an important or substantial interest governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.” ²³ In O’Brien the Court found for the government by making a distinction between conduct, which could be regulated, and expression, which could not. Chief Justice Warren, writing for the Court, concluded that “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”²⁴ The conduct of burning the card violated a specific law which advanced a significant government interest: the Selective Service’s ability to check the draft status of citizens.²⁵

Paul Robert Cohen challenged the war in a different way. While walking in a corridor of the Los Angeles County Courthouse, Cohen was arrested wearing a jacket with the words “Fuck the Draft” written on the back. He arraigned under a law which prohibited “maliciously and willfully disturb[ing] the peace . . . by offensive conduct” and sentenced to 30 days in jail. Cohen claimed his First Amendment rights were violated because he intended no act of violence and only meant to comment on the draft for what he believed was an immoral war. The Supreme Court ruled in favor of Cohen on the grounds that the law punished only his speech, and not his conduct. Justice Harlan spoke for the majority when he wrote, “This case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon showing that such a form was employed. This is not, for example, an obscenity case.”²⁶

The Court revisited this issue in Texas v. Johnson.²⁷ During the 1984 Republican Convention in Dallas, Gregory Johnson burned a U.S. Flag to protest the policies of the Reagan administration. His act violated a Texas law against burning the U.S. flag. In a five to four decision, the majority of the Court overturned the Texas law as it would later overturn a U.S. law on the same subject. Writing the majority, Justice Brennan claimed that Johnson’s case differed with that of O’Brien because Johnson’s action was expressive and no compelling government interest would be advanced by suppressing it. “The state need not worry that our holding will disable it from preserving the peace.” Furthermore, unlike the law under which O’Brien was prosecuted, the Texas law was not content neutral.²⁸

The history and cases reviewed above are important because they provide lessons for contemporary society. On September 11, 2002, for example, the United States sustained a terrorist attack on the World Trade Center in New York City and the Pentagon in Washington, D.C. In the wake of the tragedy, the Congress and the president assessed whether new laws should be written that might curtail civil liberties. By November 10, 2001, nearly 1,200 persons were arrested on suspicion of helping the conspirators, of committing related crimes, or of being material witnesses to terrorist activities. Soon stories of abuse of detainees began to emerge. U.S. immigration officials prevented detainees in Wisconsin, Illinois, and Indiana from visiting with lawyers. The INS reported that 26 jails across the country had misapplied INS procedures; the Service began speeding up processing on October 26^th.²⁹

Another measure of threats to civil liberties, as we have seen, is the nature of the legislation passed during the crisis. Congress quickly passed the legislation proposed by the administration to deal with the current crisis in the United States. It allows a single federal district court to authorize the “trapping” of phone numbers anywhere in the United States.³⁰ These “roving taps” allow interception of electronic evidence such as e-mail and a history of numbers called from or to tapped phones and e-mail. The legislation gives wider latitude to the special court that authorizes wiretaps on suspected agents of foreign powers.³¹ The legislation allows information concerning foreign agents in the United States to be shared among government agencies.³² The legislation allows the Immigration and Naturalization Service to detain aliens up to seven days.³³ It permits the Attorney General to detain “terrorist aliens” and expands the definition of terrorist activity. The district court of the District of Columbia has been given exclusive jurisdiction over such cases. The legislation ends the statute of limitation on the newly defined terrorist activities and increases the maximum sentence to life imprisonment.³⁴ Finally, the new law bans possession of biological agents that pose a threat to national security unless the possession would serve peaceful purposes.

After the President signed the legislation, Immigration and Naturalization Service Commissioner James Ziglar and Attorney General John Ashcroft outlined the new rules that had been put in place. The federal government’s ability to deny visas to and deport immigrants who “endorse” terrorism was stressed. The Attorney General designated 46 “terrorist organizations” around the world. Any linkage to any of these organization can now be used as a justification to deny a visa or to deport an immigrant or visitor. The Attorney General also established a task force to track foreign terrorists.

The new rules give the Federal Bureau of Investigation broad latitude to conduct surveillance and information gathering. While these methods are not prohibited by the Constitution, any evidence obtained in violation of the Constitution may not be used in court. For example, the Fifth Amendment provides a right to avoid self-incrimination. However, there is no prohibition per se of the F.B.I. obtaining a confession, for example, to apprehend other terrorists; only the fruits of that confession would be unusable in court. The evidence could be used in a non-criminal case, such as a deportation hearing. Also it should be noted that if a witness were granted “use immunity,” nothing confessed could be used against that witness; however, the witness could be compelled to answer questions pertaining to a crime and those linked to it. The due process clause of the Constitution only precludes coercion that shocks the conscience of the court. Thus, if the injection of truth serum could lead to the prevention of a terrorist act, it likely would be upheld, just as extracting blood from a drunk driver has been upheld. Torture, on the other hand, has tended to be of such a shocking nature, that it is prohibited.

Perhaps the most controversial interpretation of the new legislation came on November 9, 2001, when Attorney General Ashcroft announced that federal prison officials would be allowed to eavesdrop on conversations between inmates and their lawyers. According to Ashcroft, as long as officials had a “reasonable suspicion” that useful information was being passed on to an attorney, they could listen in. Senator Patrick Leahy (D-Vt.) sent a letter to the Attorney General demanding a rationale for the rule that appears to violate the Sixth Amendment right to “assistance of counsel” for one’s defense.

The next reduction of civil liberties came on November 13, 2001, when President Bush agreed to allow military tribunals to try alleged terrorists. The order from the president said that those that he designates as terrorists will be “placed under the control of the secretary of Defense”, who shall have “exclusive jurisdiction” in these matters. These agents of terror may not appeal to “any court of the United States,” nor “any court of any foreign nation or any international tribunal.” Aside from the infringement on foreign sovereignty implied by this order, it is the starkest restriction of rights during war time since the Civil War. (See above). The Bush Administration claimed it had a precedent for taking such action with the Quirin case, wherein Nazi saboteurs were apprehended in the Mayflower Hotel in Washington, D.C. in June of 1942 when two of their members defected. Ten prosecutors tried the saboteurs in the Justice Department building before a military tribunal. Six of the saboteurs were executed on August 8, 1942, and the defectors were sent to prison.³⁵ If and when terrorists are apprehended, it will be interesting to determine if their circumstances are analogous to those of the Nazi saboteurs, who had been delivered by a German U-Boat to U.S. shores during a declared war. The Milligan case, examined above, would certainly protect American citizens from military tribunals, but foreign nationals might present a different set of circumstances. Under current law, the president must demonstrate that military tribunals are essential because the current system does not allow for the timely prosecution of terrorists. However, the Administration could claim that an open hearing might compromise national security. Secondly, the U.S. Constitution applies to “persons” not just citizens who inhabit the country. Almost anyone in the country, as illegal aliens have learned, can file a writ of habeas corpus unless they inhabit an area that has been declared under marshal law or unless they are “military combatants.” Others, relying on Taney’s ruling in the Merryman case, claim that Congress must legislate the procedure before the president can implement a suspension. In light of these and other arguments, President Bush eventually restricted his tribunals policy to areas of actual conflict overseas.

To this point, we have seen that political speech is often threatened during times of crisis, particularly war. We have seen the Supreme Court is much more likely to uphold restrictions during times of crisis, but often rescinds its decisions once peace has been obtained. However, this has not been the case when it comes to campaign reform legislation. In the name of preventing the appearance and opportunity for corruption, the Supreme Court has allowed the Congress to restrict campaign contributions, reveal political associations, and will soon have to rule on whether certain interest groups can be restricted from advertising a month before a primary and two months before a general election. It is to this disputed area that we now turn our attention.

Campaign Communication

Discourse which attacks the policy of a government at war is a serious matter, as is specifically advocating ways by which such a government can be overthrown. Traditionally, however, Americans have not accorded the same importance political rhetoric. From colonial times to the present, campaign communication has been filled with innuendo, promises, half truths and the like. In the 1952 presidential campaign, the first political advertisement were televised; they were amateurish, cartoon like, and short on specifics. In 1964, the first "negative" political advertisement was put on the air in presidential campaign. It depicted a small girl picking petals from a daisy as the narrator called out a count down to nuclear war. Run only once because of protests, the advertisement was clearly an attack on the policies of Republican candidate Senator Barry Goldwater by the sitting President Lyndon Johnson. Negative or attack advertising has been with us ever since.

Attempts at Reform: Buckley v. Valeo

In the wake of Watergate, a passel of requirements were added to the Federal Corrupt Practices Act of 1925 and the Federal Election Campaign Act of 1971. Along with requiring full disclosure of contributions to a federal campaign,³⁶the new rules limited individual contributions to $1,000 per election, prohibited corporate contributions,³⁷ and established that employees could contribute to a campaign only by forming political action committees (PACs) which could make maximum contributions of $5,000 per candidate per election. No individual would be allowed to give more than $5,000 to a PAC or $25,000 overall to federal candidates during a single year. The new law also carefully monitored and limited what a political party could contribute to its candidates and what corporations or unions could "contribute in kind" -- equipment, services, travel, and the like. Political parties were forced to allocate their contributions based on population formulas, but they could provide money to and in states for the purpose of "party building activities." This provision opened the law to what is called "soft money:" contributions given to the party for grassroots and party building activities were allowed under amendments to the FECA passed in 1979. These activities are not subject to the limitations of the Federal Election Campaign Act or the regulations of the FEC, nor are certain activities of corporations and unions, including corporate communication to stockholders, labor communications to its members or their families, non-partisan voter registrations and get-out-the-vote activities, and creation of political action committees. Soft money may also take the form of issue advocacy by for-profit, non-profit, and labor organizations as long as they are not coordinated with a candidate.

Further, the law provided for public financing of presidential nominating conventions and for matching funds to help pay for presidential primary and general election campaigns. In return for accepting matching funds, presidential candidates are limited in how much they may spend overall. If they refused matching funds, they could spend their money in an unrestricted way.

Senator James L. Buckley, a Conservative Republican Senator from New York and Eugene J. McCarthy, a liberal Democrat and former Senator from Minnesota, brought suit. They argued that the rules infringed on freedom of expression because the more money a campaign has at its disposal, the more media time it can buy to communicate its message. They also argued that campaign contributions were tantamount to symbolic speech, the contributed money being the same as an endorsement. The Supreme Court, in a curious decision in 1976, ruled that the restrictions on contributions were constitutional but that the spending limitations were not. The former, said the Court, were appropriate ways of controlling undue influence in a campaign; the latter, however, restricted freedom of expression. Despite Chief Justice Warren Burger’s argument that "Contributions and expenditures are two sides of the same First Amendment coin” ( p. 241), the majority believed that contributors have alternative avenues of expression not available to candidates. Furthermore, despite an argument that the disclosure provision violated the rights of free association and privacy, the Court held that the government had a compelling interest in preventing a “corrupting” influence that overrode freedom of association. Finally, the Court held that the provisions regarding minor parties’ matching funds and ballot access did not violate the Due Process Clause of the Fifth Amendment.

The decision is long and complex, with Justices joining and dissenting on various parts of various opinions. An analysis of the decision reveals that the shifting contexts created a barrier to consensus, though the majority was able to cobble together a compromise. They acknowledged that “The First Amendment protects political association as well as political expression” unless a compelling government interest can be advanced by a narrowly constructed regulation (p. 15). For some, Watergate verified the government’s argument that it had a compelling interest. For others, the First Amendment context was more compelling.

The government had argued that illegal campaign expenditures were analogous to burning a draft card. These expenditures constituted conduct and therefore fell under the relatively lax O’Brien rule that allowed for restrictions (see above).³⁸ The Court in Buckley disagreed with the government’s position on this issue in the Buckley case; it did not “ . . .share the view that the present Act’s contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O’Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card” (p. 16). Moreover, the Court ruled:

Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O’Brien test because the governmental interest advanced in support of the Act involve “suppressing communication.” The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns (p. 17).

Thus, the majority equated money and speech, accepting the argument that money is symbolic speech. With this move, the majority assured that the law would have to meet strict scrutiny if it were to be upheld since it sought to restrict expressive conduct.

When the Court examined the FECA’s restrictions on campaign spending in light of strict scrutiny, it found the law wanting. The majority discounted “time, place and manner restrictions” as a rationale for the law. The Court established those criteria in a number of cases which argued that content neutral restrictions on time, place and manner of speech were permissible if the state had a compelling interest to advance.³⁹ In Buckley, the Court ruled:

The critical difference between this case and [time, place and manner rulings] is that the present Act’s contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties in addition to any reasonable time, place, and manner regulations otherwise imposed (p. 18).

The heart of the case for striking down the spending limitations came next:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. . . . The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech (p. 19).

However, with regard to campaign contributions, the majority shifted contexts to find that “the governmental interest in preventing . . . the appearance of corruption is inadequate to justify [the] ceiling on independent expenditures” (p. 45). They further ruled that contributions were not as analogous to speech as were campaign expenditures:

[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. (p. 20-21).

Given that the government has a compelling interest in preventing corruption or its appearance, restricting large contributions goes to the heart of the problem, while restricting expenditures does not. The majority claimed that these restrictions would force campaigns to seek wider support, thereby involving more people in campaigns. Finally, contributors may engage in direct participation in the political process rather than contributing to candidates who speak for them. The law does not prevent, but in fact encourages, voters to organize with “like-minded” persons to support a candidate, which reinforces the important element of freedom of association.⁴⁰ The Court concluded that “although the Act’s contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions” (p. 23).

The final major issue addresses the right to associate with whom one pleases. The First Amendment guarantees “the right of the people peaceably to assemble” in order to “petition the government.”⁴¹ Like other First Amendment rights, it can be limited only if the law advances a compelling government interest.⁴² It is difficult to see how the Court could rationalize curtailing a citizen’s desire to support his or her association through a confidential contribution. The Court did so by accepting appellees’ arguments that the government had a compelling interest to advance: “prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office” (p. 25, italics added). Restrictions and incentives are set in place to encourage broader participation (more candidates rather than one, the formation of political action committees, direct involvement rather than monetary support) and to reduce influence and associational strength (less money per candidate). Evidently, giving all of one’s money to one candidate is not a specific enough symbolic message to warrant protection, and such a contribution gives an appearance of corruption which justifies restricting freedom of assembly (p. 30).

The Court then affirmed the use of a Presidential Election Campaign Fund for primary campaigns, party nominating conventions, and general election campaigns rejecting the First and Fifth Amendment claims of the appellants on the ground that the law “furthers, not abridges, pertinent First Amendment values” (p. 93).

The Dissenters

Five justices dissented at various points but never coalesced into a majority on any one issue. Chief Justice Warren Burger’s dissent is the most extensive. While he agreed that “the need for disclosure outweighs individual constitutional claims” (p. 236), he objected to the disclosure of small contributions, the limitation on contributions, and the public financing of presidential elections. Burger believed that small anonymous contributions could not corrupt the system but if the donor were revealed, he or she could be punished or harassed. He strongly opposed limits on contributions because they effectively limit expenditures, which the majority claimed was unconstitutional. Burger argued the majority simply could not have it both ways; all political campaign “money translates into communication” or none of it does (p. 243).

Burger also opposed public financing of presidential elections on the grounds that it undercuts representative democracy. Like Justice Rehnquist, Burger believed the Act allows the government to support certain parties over others and, with its matching provisions, gives a preference to candidates who are talented at raising money. Furthermore, a “candidate with substantial personal resources is now given by the Court a clear advantage over his less affluent opponents, who are constrained by the law in fund-raising, because the Court holds that the ‘First Amendment cannot tolerate’ any restrictions on spending” (p. 253). These problems have been caused by the Court’s piecemeal approach to the act: “By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize that the whole of this Act is greater than the sum of its parts” (p. 235).

After Buckley

Issue Advocacy

In decisions that followed, the Court said that federal regulations could limit donations for "communications that in express terms advocate the election or defeat of clearly identified candidate[s] for federal office," but not for more general "issue advocacy."⁴³ In other words, independent advocates could certainly speak out on important issues and not face restriction; but if these same advocates urged voters to support or defeat a candidate, they could be restricted. In 1986, the Supreme Court ruled that federal regulations could limit donations for "communications that in express terms advocate the election or defeat of clearly identified candidate[s] for federal office," but not for more general "issue advocacy".⁴⁴ The Court affirmed that “individuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction.”⁴⁵ The FEC soon clarified its rules with regard to advertising covered by the Act: such advertising had to be close to the election date, advocate voting for or against candidate, and suggest only one meaning.

These rules were then tested in the courts and were upheld when the Supreme Court denied certiorari⁴⁶ in 1987 in a Ninth Circuit case, FEC v. Furgatch.⁴⁷ In so doing, the Court endorsed a three part test to determine whether a communication is issue advocacy:

First, even if it is not presented in the clearest, most explicit language, speech is "express" for the present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed "advocacy" if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally, it must be clear what action is advocated. Speech cannot be "express advocacy of election or defeat of a candidate" when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action.⁴⁸

Partisan Political Activity

In 1996 the Court expanded freedom of expression for political parties on a seven to two vote when it rejected a move by the Federal Election Commission to fine the Colorado Republican party for having funded radio ads that criticized the record of the Democratic candidate for U.S. Senate. The Republican party was free to advocate the defeat of the Democratic candidate as long as it did so independently of the Republican candidate's campaign. If coordination between the party and its candidate's campaign could be proved, then the Republican party would have violated the law. The same rule applies to independent PACs. "The independent expression of a political party's view is 'core' First Amendment activity," wrote Justice Stephen G. Breyer, a Clinton appointee.⁴⁹ However, in Colorado Republican Committee v. FEC, ⁵⁰ the Supreme Court ruled that First Amendment prohibited the application of any provision of the FECA (1971) to political party expenditures made independently.⁵¹ The ruling affirmed the standard practice of a major party collecting soft-money from unions, corporations, and private individuals, passing that money to state parties, and then state parties using the funds to attack opponents of their candidates. The ruling allows for the conflation of expenditures and contributions given the possibility for ear-marking contributions to the national party. While some justices sought to strike down the prohibition on coordination with the party’s own candidate, enough justices disagreed to leave this restriction in place. When this case returned to the Supreme Court in June of 2001, the Republican Party argued that this restriction on coordination was a violation of the free speech rights of the parties, but the majority did not buy the argument. Justice Souter wrote for a five to four majority in FEC v. Colorado Republican Federal Campaign Committee,⁵² re-affirmed the prohibition on coordination between the party’s and their own candidates.

Spending Limits

In 1998, the Court refused to take up a case in which campaign spending limits imposed by the city of Cincinnati had been struck down. Even though 26 states has joined the case as amici seeking to protect their spending limits, the Supreme Court upheld the U.S. Court of Appeals ruling striking such limits down. But this was not the end of the matter. In its most recent rulings, the Court has moved back to the corruption context reflecting the influence of the scandals of the 1996 campaign (see below).

By far the most significant ruling was Nixon v. Shrink Missouri Government PAC in January of 2000.⁵³ The PAC intentionally gave state auditor candidate Zev Fredman a contribution that was over the state-imposed limits. In the Eighth Circuit, the PAC and Fredman argued that the state law violated their First and Fourteenth Amendment rights. The Court of Appeals agreed, arguing that Buckley required courts to apply strict scrutiny to state laws. Therefore, Missouri was required to demonstrate that the law advanced a compelling interest and that the statutes were narrowly drawn.

The Supreme Court overruled, arguing that Buckley is the authority for comparable state limits on contributions and those limits need not be pegged to the precise dollar amounts approved in Buckley. Justice David Souter, writing for the majority, claimed that the possibility of the appearance of corruption was enough of a compelling interest for the state to restrict contributions in this case.

Current Problems

Buckley v. Valeo sent politicians scrambling for ways by which they could raise money in small amounts, but gather enough contributions to meet their campaign needs. The contribution limits imposed in 1975 were not indexed for inflation. Five thousand dollars is a lot less money today than it was in 1975, when the law was passed. The loopholes created by the Court had several consequences. First, those running for office could spend their own money in unlimited ways, a loop hole through which presidential candidates John Connolly, Ross Perot and Steve Forbes, among others, have driven.

Second, direct mail solicitation became a way to generate huge amounts of money from small donors. The Republican Party became the party of the small donor by using very sophisticated direct mail campaigns which build huge lists of supporters nationally but stay within the letter of the law. In the first 18 months of the 1986 election cycle, over a decade after the Buckley decision, the National Republican Senatorial Committee raised $59.6 million compared to $6.8 million raised by its Democratic counterpart.

Third, the "soft money" loophole meant that rich donors could give a great deal of money directly to political parties. Cynics noted that it would not be difficult to channel such money to the states where the donors' favorite candidates were running for office thereby circumventing the intent of the law. This strategy was given some legitimacy by the decision in favor of the Colorado Republican Party (see above) spending "soft" money to advocate the defeat of Democrats as long as the Republican Party operated independently of its own candidates.

From 1996 to 2000, campaign contributions by the 544 largest public and private companies in America jumped 75% to $129 million.⁵⁴ Soft money is the fastest growing component of this sum, constituting over $50 million from corporations.⁵⁵ From January 1, 1995 to November 25, 1996, the Republican national committees reported raising $141 million in soft money, an increase of 183% over the previous cycle. The Democrat national committees raised $122 million, an increase of 237%. In the first fifteen months of the 1997-98 cycle, the national Democratic and Republican parties had raised a total of $90 million.⁵⁶ Soft money may be protected under the First Amendment because it would be difficult to restrict money that was being used for issue advocacy. Perhaps that is why the FEC decided not to consider a proposal to ban soft money in 1998.⁵⁷

Finally, with regard to soft money, the 1996 presidential campaign led to an influx of foreign money into campaign coffers. While foreigners are prohibited from contributing to federal campaigns, green card holders are not.⁵⁸ Furthermore, foreign groups, particularly Asian groups, attempted to circumvent the law by passing money through American citizens or American subsidiaries. Both tactics are illegal if the money is spent directly on candidates; however, if the money is given to parties as soft money, it may not be covered under the statutes. John Huang, a representative of the Indonesian based Lippo Group, an official at the Democratic National Committee (DNC) and the Commerce Department, raised over $4 million for the Democratic Party primarily from Asian-Americans, some of whom were used as conduits for foreign funds.⁵⁹ Cheong Am America's $250,000 was returned when it was pointed out to the DNC that the money was from a subsidiary of a South Korean firm which had not yet generated revenues in the United States. Resident aliens Arief and Soroya Wiriadinata donated $452,000 in twenty-three separate contributions to the DNC of which $320,000 was donated after they returned to Indonesia. Since the couple did not file 1995 income tax returns, the DNC returned the money.

Political Action Committees

Political action committees (PACs) have also been criticized for a number of reasons. They represent business and labor interests upon which elected candidates may vote. PACs have been known to "bundle" their contributions with other PACs which have similar interests in order to increase the impact of the donation.

PACs are the vehicles through which employees can shift money to campaigns. They grew to over 4,000 in 1986 and have remained at about that level ever since. PAC contributors, including union and corporate members, number over 4 million, and total donations to House and Senate campaigns in 1996 reached over $200 million. Cantor reports that "Twenty-nine percent of House and Senate general election candidates' funds came from PACs in 1996, up from less than 20% in 1976."⁶⁰

With regard to ending political action committee contributions, one could argue that dollars given to political campaigns no longer represent corporations and unions; they represent individuals who participate in campaigns by giving to their favorite candidates through PACs to increase their influence. In 1996, the average contribution to a PAC was only $120 a year.⁶¹ Political action committees provide a way for citizens to participate in the political process and give some weight to that participation by joining together with others who have similar interests. Millions of people contribute to PACs. As long as contributions must be fully, promptly, and publicly disclosed, as they are now, it seems anti-democratic to limit them.

Campaign Costs

Obviously the more expensive campaigns are, the more fundraising that is necessary. Another problem is that campaigns are so expensive that they exclude many candidates. The average cost of winning a House seat in 2000 was $847,000, up from $87,000 in 1976; the cost of winning a Senate seat was $7.2 million, up from $609,000 in 1976; House and Senate candidates spent over one billion dollars in 2000, up from $115 million in 1976 (Cantor, 2002, p. 5). In 1996 over $400 million was spent on broadcast advertising by federal, state, and local candidates in primary and general campaigns, up from $10 million in 1960, or $53 million in adjusted 1996 dollars (Cantor, 1996, pp. 3-4).

The Congress attempted to solve some of these problems with campaign reform legislation signed into law (P.L. 107-155) by the president on March 27^th, 2002. Provisions of the law which prohibit special interest groups from running advertisements against federal candidates 60 days before a general election and 30 days before a primary were immediately challenged in court as were provisions ending soft money contributions to the national parties. Undoubtedly the case will go to the Supreme Court providing yet another opportunity for the Court to modify and/or clarify its ruling in Buckley.

Why might such a proposal face constitutional problems? First, we know that "compelled speech" and the "compulsion to print"⁶² have been held unconstitutional by the Supreme Court in the Miami Herald case. That precedent could easily be extended to broadcasters if the Supreme Court believed the various rationales for the Red Lion decision had been sufficiently eroded (see next Chapter).

Second, in CBS v Democratic National Committee, the Court held that the mere fact that broadcasters use the spectrum owned by the public does:

not resolve the sensitive issues inherent in deciding whether a particular licensee action is subject to First Amendment constraints. . . . Long before the impact and potential of the medium was realized, Congress opted for a system of private broadcasters licensed and regulated by the Government. The legislative history suggests that this choice was influenced . . . by a desire to maintain for licensees . . . a traditional journalistic role.⁶³

If broadcasters are tantamount to journalists, they may enjoy the same level of protection as their print brethren.

Buckley struck down the limits on campaign spending. That decision also allowed candidates to use their own fortunes to fund their campaigns at any level; it allowed corporate political action committees to bundle contributions for more impact; it allowed issue advertising directed at opposition candidates as long as no coordination with the favored candidate could be proven; it spawned hugely successful direct mail campaigns which collected millions of dollars from small givers. And of course, the law itself never addressed the issue of soft money from individuals, unions and corporations going into the parties’ war chests, which could then be re-directed into federal campaigns in the name of “party building” and “issue advocacy.”⁶⁴ Thus, in the name of equal treatment and by reworking congressional legislation, the Court has created a system that favors the independently wealthy, the major parties, and incumbents. If it wished to dispel the appearance of corruption, it certainly failed since large donors could simply redirect their giving directly to the national parties. In this way, Buckley has severely inhibited efforts at campaign reform; though if the Nixon ruling is any indication, the Court would again strike down attempts by Congress to limit expenditures by candidates.

Study Questions

1. In what ways has freedom of expression been curtailed during national emergencies?

2. Why did the Supreme Court rule differently in the Milligan and Merryman cases?

3. What do the rulings in Schenck, Abrams, and Gitlow have in common? How do they differ?

4. Compare and contrast the Supreme Court rulings in Dennis and Yates?

5. In the Buckley decision, how did the Supreme Court’s majority rationalize restrictions on campaign contributions while striking down the restrictions on campaign spending?

6. What are the rules governing issues advocacy by independent groups in political campaigns?

7. What campaign practices remain in place which may give the “appearance of corruption” in the current environment?

Simulations

1. Congresswoman Ida Horowitz ran for re-election in the 38th Congressional District in California. After she has won the election, the Federal Election Commission discovered that the wealthy land baron Randal Windsong had contributed $25,000 to Horowitz’'s campaign. The Federal Elections Commission fined on Horowitz’s campaign of $50,000 and another fine of $50,000 on Windsong. He appealed the decision to the federal courts on several grounds: 1) it is his money and he ought to be able to spend it as he sees fit, 2) limiting the amount he can give to a candidate limits his free speech and his ability to endorse a candidate. Windsong loses at the appeals level when the court cites the Buckely v. Valeo case and argues that money is not speech, though it might be a symbol for it. Windsong, now joined by Horowitz, appeals to the Supreme Court arguing that the Buckely case, such subsequent rulings as Nixon, should be overturned because it is in contradiction with itself with regard to contributions versus spending standards. Both argue that money is equivalent to symbolic speech in a political campaign, and therefore, protected speech under the Johnson v. Texas. The FEC replies that since Buckley the Supreme Court has upheld spending limits and the Federal Elections Campaign Act because eliminating the “appearance of corruption” is a compelling government interest that justifies restrictions. Do you find for Horowitz and Windsong or the FEC? Side 4A = Horowitz and Windsong; Side 4B = FEC. Supreme Court: Who do you find for?

2. During the Gulf War, Harry Hopkins distributed leaflets that encouraged young men to “resign from the army” and to “sabotage machinery by putting sand in gas tanks” if they stayed in the army. The leaflets outline ways by which young men and women can leave the army or sabotage tanks, trucks, and guns. The leaflets call the war a “capitalist trick” and argue that the defeat of the U.S. in the Gulf will mean the rise of a truly socialist government in this country, which he claims is what we need: “Your actions will be the first step in the war to overthrow the government of the United States as we know it.” Hopkins is arrested when he distributes his leaflets just five feet in front of an army recruitment center in Los Angeles. The government claims that Hopkins presents a clear and present danger to the United States and that they are acting on a law passed by Congress in 1968 which prohibits demonstrations against the war from coming within 50 yards of a recruitment center. He is also charged with violation of the Smith Act, which prosecutors find is still on the books. The Smith Act makes it illegal to call for the overthrow of the government of the United States. The government cites Schenck, Abrams, and Dennis, among other rulings to make its case under the Smith Act. It cites Galella v. Onassis and Heffron to defend the 1968 law prohibiting demonstrators near recruitment centers. Hopkins cites Yates and Gitlow to defend himself against the Smith Act and cites Lee v. International Society for Krishna Consciousness and appellate rulings that have struck down laws prohibiting demonstrators near polling places and abortion clinics to defend himself again the 1968 law. When he loses, he appeals his conviction to the Supreme Court. Side 10A = Hopkins; side 10B = U.S. Government. Supreme Court: Do you find for Hopkins or the U.S. government?

Notes