Cases by Issue - First Amendment

Golan v. Holder - Oral Argument

Fri, 07 Oct 2011 21:41:00 +0000

Case:

Golan v. Holder

Media File:

10-545_20111005-argument.mp3

Related Transcript:

10-545_20111005-argument.xml

Transcript:

ORAL ARGUMENT OF ANTHONY T. FALZONE ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument next in Case 10-545, Golan v. Holder.

Mr. Falzone.

Mr. Falzone: Thank you, Mr. Chief Justice, and may it please the Court:

Section 514 did something unprecedented in American copyright law.

It took millions of works out of the public domain, where they had remained for decades as the common property of all Americans.

That violated the Copyright Clause and the First Amendment.

Let me turn first to the Copyright Clause.

In Eldred, this Court held Congress gets to pick the date on which a copyright expires, and it can extend that date before we reach that date.

Justice Ruth Bader Ginsburg: You said that Congress can set a time limit.

In this case, we are dealing with, let's say, Aaron Copeland, who gets the benefit of copyright, and Congress says: No, we think Shostakovich should be treated just like Copeland.

Yes, we took care of our own when we weren't part of the world community, but now we are.

And so all that Congress is doing is giving Shostakovich works the same limited work as Aaron Copeland.

And why does that violate the limited-time prescription?

Mr. Falzone: The problem is Congress is now setting a second limit long after the first one has come and gone.

Justice Ruth Bader Ginsburg: But the person -- the person we are talking about, the work we are talking about, never got the first limit.

There was no, there was no time, there was no time when that work could have been protected.

So why isn't it consistent with the Copyright Clause to say, you are entitled to limited time protection?

We are not talking about a case where you've had the protection, enjoyed it and then it expired, and then Congress says: We'd like -- we like your work so much, we are going to give you another term.

What's affected here are people who were unprotected.

And Congress says we think that they should have a limited time.

Mr. Falzone: So let me just clarify one thing.

Many of the works that were restored here did get some time, 28 years, and were not renewed.

But to get back to your question about the works that got none--

Justice Ruth Bader Ginsburg: They didn't get the equivalent of what a U.S. author -- but let's take the large category, because it's the ones that you feature.

We are talking about Shostakovich, Stravinski, and I say: Well, what's wrong with giving them the same time that Aaron Copeland got?

Mr. Falzone: --Congress has been setting the limited time at zero since 1790.

In the 1790 Act, Congress set the limit at zero for a wide array of works, those that did not comply with formalities, those that were written by foreign authors--

Justice Ruth Bader Ginsburg: That's not a limited time.

That's saying you have no time.

Mr. Falzone: --Well, but saying you have no time is itself picking the limit because the language of the Copyright Clause forces Congress to pick a limit that constraints copyright by marking its end.

And when -- If a limit does not mark the end once reached, then there is no limit, there is no end.

Justice Ruth Bader Ginsburg: But it has to have a beginning, too.

And for these people who were unprotected, because we didn't recognize their copyright, there is no beginning.

Mr. Falzone: No, there does not need to be a beginning.

It is within Congress's discretion.

Remember, this is permissive.

Congress may grant exclusive rights, but it can also say your limit is going to be zero, we decide that you're not going to get any exclusive rights.

Every Congress since 1790, every time it went to add subject matter, every time it went to extend the duration of copyright, respected that choice to give no time.

And in fact, the time -- the decision to make foreign authors ineligible is a decision that Congress has never gone back on.

None of the exceptions the government points to remove anything from the public domain that was placed there based upon a lack of national eligibility.

200 years of history is crystal clear about--

Justice Ruth Bader Ginsburg: I can understand your argument that the public domain is untouchable.

I'm not sure I get that from the Constitution, that says to secure to authors for a limited time the exclusive right.

That -- that's talking about what you can secure to authors, so I don't see why using the words of the Constitution

"to secure to authors for a limited time. "

Congress can't say: We want every author to have a limited time.

Mr. Falzone: --Well--

Justice Ruth Bader Ginsburg: The foreign works that we didn't give, we're not treating them any better.

They don't get a different startup date, but they get the same end date as our own authors.

Mr. Falzone: --Right.

The -- the operative language is the limited times restriction, and the limit it requires Congress to pick is the date at which all protection ends for good, and Congress has picked zero since 1790, and respected that decision, and that is no accident.

Because the -- the -- if -- if you want to know what limited times means, if it means anything it means if, for instance if Congress is not required to respect an expiration date long after it's passed, or its decision to deny a work any protection in the first place--

Justice Ruth Bader Ginsburg: We're not talking about expiration dates.

So I'd like you to concentrate.

Mr. Falzone: --Sure.

Justice Ruth Bader Ginsburg: That's not -- that's not -- none of these -- none of these copyrights have been extended beyond their expiration date.

They just weren't protected.

Mr. Falzone: Well, taking works that got no protection -- if Congress is not required to respect its decision to deny a work any protection in the first place, we can never know whether we've reached the end or not.

And in fact that's the problem with the government's theory.

Its theory says all Congress has to do is attach a nominal expiration date to any given copyright.

Well, if that's true, there is -- if that's all you need, there is nothing stopping us from reaching back de Tocqueville 100 years.

Justice Ruth Bader Ginsburg: But that is -- that is not -- that is most distinctly not before this case, so please let's not talk about a copyright that has been protected, has expired, and Congress wants to revive it.

We are concentrating on what Congress did to bring us into compliance with the worldwide system and it's saying: We are giving a limited time to these authors.

Mr. Falzone: Well--

Justice Ruth Bader Ginsburg: They never had a limited time before.

Mr. Falzone: --Well, I -- I was talking -- de Tocqueville never got any time, because he was a foreign author.

Ben Johnson never got any time, but on the government's theory we could give him 100 years right now.

This statute did work differently.

It certainly restored copyrights into the existing period.

That's correct.

That is an accurate description of this statute.

But that is not a limit that's contained anywhere in the government's interpretation of limited times.

Justice Ruth Bader Ginsburg: Did anyone in the same -- the same -- published the same year as de Tocqueville, a U.S. author, that would have a copyright protection today?

Mr. Falzone: I'm sorry.

I didn't hear you.

Justice Ruth Bader Ginsburg: I gave the example of Aaron Copeland versus Shostakovich.

Let's go back to de Tocqueville.

Who has a copyright who published in what, 18 -- what was it -- 40s?

Right.

Mr. Falzone: The answer is nobody.

But here is the problem.

If Congress wanted to reach that work, here's all it has to do on the government's theory, and even under the mechanism of section 514.

All it needs to do today is extend existing terms 100 years, and then reach back and restore into that existing term.

So on the government's theory and even by the mechanism on which this statute operates, the government could reach back and protect de Tocqueville.

Chief Justice John G. Roberts: Under your -- under your theory, let's say you have a copyright that expires on October 5th, okay?

On October 4th, Congress could extend that for 25 years.

Mr. Falzone: Yes.

Chief Justice John G. Roberts: Right.

But on October 6th, they couldn't go back and extend it 1 day.

Mr. Falzone: That's exactly right, because the limit the Copyright Clause requires us to pick is an end date with permanent consequence.

End dates are about finality.

If that end date doesn't have permanent consequence, if it doesn't have finality, we can never know if we've reached the end or not.

The limit the Framers knew was the limit of the Statute of Anne.

Justice Anthony Kennedy: But it -- it seems to -- it seems to me that that was rejected in -- in our most recent and earlier case on copyright.

Mr. Falzone: In Eldred?

Justice Anthony Kennedy: Yes.

Mr. Falzone: No, No.

Eldred said Congress can move the limit back we reach it.

But Eldred most certainly did not say that Congress is free to ignore the limit once we hit it, because if you can do that then you never know if you've reached the limit or not.

The limit the Framers knew was the one in the--

Justice Sonia Sotomayor: Counsel, there was no limit here, meaning these foreign works were never given the opportunity to be copyrighted.

Isn't that a substantial difference from the hypothetical that you're trying to proffer?

You're -- the hypothetical -- and I think that's what Justice Ginsburg was responding to -- is you had a copyright, it expired, and now Congress wants to revive it.

Isn't that different from not having had the opportunity at all, and being given a term to exploit your work and protect it?

Mr. Falzone: --The answer is no, it's not different; and Congress treated those situations exactly the same in all 19 amendments over the span of 200 years.

Justice Sonia Sotomayor: The problem--

Mr. Falzone: It gave equal respect.

Justice Sonia Sotomayor: --I -- I know, but it didn't do it when it set up the copyright system.

Mr. Falzone: Oh, it did.

Justice Sonia Sotomayor: In 1790, counsel, there were three States that didn't give copyrights.

There were other States, and you make a big deal in your brief about common law protection, but common law protection, particularly in New York, which you relied on, only extended to unpublished works.

Once a work was published, it was no longer protected under the common law.

That was true of most States.

And some States gave copyright protection to residents of their own State but not to residents from other States.

So it took a whole body of public works and gave them copyright protection the day they decided to pass the copyright law.

So what are you doing telling us that there has never been a historical experience with Congress taking public works out of the public domain?

Mr. Falzone: Well, let me be clear about what happened in 1790.

The 1790 Act did not remove anything from the public domain.

The text is clear, because insofar as applied to works already printed, it presupposes existing copyrights explicitly in the text of the act.

Justice Sonia Sotomayor: Read those words to me?

Mr. Falzone: So -- I'm looking at section 1 of the 1790 Act, and at -- at the beginning it talks about:

"After the passing of this act, the author and authors of any map, chart, book or books already printed within these United States, being a citizen thereof or resident within, or his or her executors, administrators or assigns, who have or have not transferred to any other person the copyright of such map, chart, book or books-- "

Justice Antonin Scalia: Wait a minute.

Who have or have not transferred to any other person.

So you don't have to have a copyright, right?

Justice Sonia Sotomayor: You have to have a--

Mr. Falzone: --You do have to have a copyright.

So it says "author or authors" and "have" is the singular and have -- "have not" is the plural for that.

Justice Antonin Scalia: Read it again?

Who have--

Mr. Falzone: Sure.

Justice Antonin Scalia: --or have not transferred to any other person?

Mr. Falzone: Right.

The copyright of such map.

It presupposes the existence of a copyright.

Justice Antonin Scalia: Oh.

Oh, the copyright.

I got you.

Mr. Falzone: Yes.

"The copyright" is the key language.

So the text makes it clear they presupposed existing copyrights.

And let me speak to--

Justice Sonia Sotomayor: --Your reading of that passage is different than mine.

I think it's a -- it's saying whether you have or you haven't.

Mr. Falzone: --But let me speak to the point you raised about common law protection for published works.

You said New York provided no common law protection for published works.

With respect, that's not correct.

The Naxos v. Capitol Records case, the highest court of New York, says New York common law provided protection for published works right up to the point where the Federal act cut it off.

And if you look -- and if -- if the question is whether the first Congress intended to take anything out of the public domain in 1790, the answer is you simply cannot reach that conclusion, because everything contemporaneous with the first Congress, the history of the common law in Britain, decided by Millar v. Taylor and Donaldson v. Beckett, recognized common law rights in published works.

The Federalist Papers spoke about Millar, and everything contemporaneous--

Justice Sonia Sotomayor: If we disagree with your proposition, does your argument fail?

If the historical work does not point to what you claim?

Mr. Falzone: --You mean the 1790 Act or the 19 after it?

Justice Sonia Sotomayor: In 1790.

If Congress did what I believe it did, would your argument fail?

Mr. Falzone: No, I -- no.

Not necessarily, because of course that was the first Copyright Act and Congress established a baseline.

It had to start somewhere.

What we see 19--

Justice Sonia Sotomayor: --it started in the place you want Congress to have started now.

Mr. Falzone: --Well, no, but then--

Justice Sonia Sotomayor: It said, moving forward, there is a Federal copyright.

It didn't have to take things out of the public domain.

We are arguing about whether they did or didn't.

But assuming they did.

Mr. Falzone: --Oh, I will assume they did.

They had to start somewhere.

They wanted uniformity.

They created a statute that provided it.

When you look at every amendment, 19 times in 200 years after that, Congress respected the permanent consequence of the limits it chose, even when those limits were a work gets no time whatsoever, based on formality and noncompliance, based upon national eligibility, based upon expiration of 28 years.

It was consistent each time it added subject matter, extended terms, and--

Justice Anthony Kennedy: Can you tell me a little bit about the phrase and the argument about the public domain?

Is in your view that just a synonym for when the time has ended?

Or is there something more substantive to it that -- is it your position that the public somehow owns what's in the public domain?

I'm--

Mr. Falzone: --Well, so to be precise, our position is once Congress calls the limit, that is, once it says this work is unprotected, whether it's the expiration of 28 years or a decision to give it no protection, it's creating affirmative rights in every member of the public.

Yes, they own it, and this Court has recognized--

Justice Anthony Kennedy: --But -- but how does the phrase -- so the public domain is simply a conclusion to express that, the operation of that principle?

The public domain doesn't have any more substantive meaning other than to just express the conclusion that there is a limited time?

Mr. Falzone: --Well -- in -- in this case, when I refer to the public domain, it's the collection of things for which Congress had said protection is done, it's over, we've hit the limit, it's done.

So things that went--

Justice Anthony Kennedy: Once again, it's just a conclusion for the argument.

Mr. Falzone: --I -- I think that's the operative concept here.

That's right.

Justice Ruth Bader Ginsburg: I think you gave an analogy to the statute of limitations, and I thought you were quite right about that.

You can extend the statute of limitations before it's expired, but once it's expired it's over.

The problem with using that as an analogy is that there was a beginning.

Time ran out, and you're trying to deal with a situation here where you say, you know, the time was limited for the U.S. work, but it's unlimited; you -- you cannot treat the foreign work -- you cannot give it a limited time, the same limited time that you would give a U.S. work.

You're saying these people had no time and they may never have time.

Mr. Falzone: They had no time because Congress decided that their works were going to be ineligible, and a limit of zero is one Congress has been setting since 1790, and respected consistently.

If the Chief Justice gives me a limited time for oral argument, I might say no thanks, I have nothing to say.

And we all know I can't come back tomorrow.

Justice Ruth Bader Ginsburg: But it isn't quite so, because there are these examples of people who couldn't get copyright because of wartime after both World War I and World War II, and -- so those people were allowed to get the protection that they couldn't get because of the war.

Mr. Falzone: That's correct.

That's what those statutes did.

They were never challenged.

And make no mistake, our position is, insofar as they removed anything from the public domain, they are unconstitutional.

But even if the Court doesn't want to go that far, I think the wartime statutes and the other small handful of exceptions the government points to fit quite well into a very limited exception for eligible authors who show nothing more than the familiar concept of excusable neglect, which has operated -- again, in very narrow situations -- to relieve people of the consequences of deadlines.

Chief Justice John G. Roberts: What about new categories?

You know, architecture.

Congress decides we're going to extend copyright protection to architectural design, and they say -- and we are going to go back 5 years, so any new architectural design conceived or constructed, whatever, within the last 5 years gets protection, and it goes on for another 15.

Mr. Falzone: Right.

So -- so -- of course, to be clear, that's not what Congress actually did when it protected architectural works.

Chief Justice John G. Roberts: No, no, I know.

Mr. Falzone: It looked forward, right.

But that -- so in that case, the -- the Federal scheme, if it had not previously regulated architectural works, it had not -- there had been no decision as to what the limit was going to be, so you may pose a different question.

Here, we are talking about works that were affirm -- affirmatively within the Federal scheme--

Chief Justice John G. Roberts: No, no, I'm just trying -- trying -- I'm trying to test the limit of your public domain argument.

Mr. Falzone: --Sure.

Chief Justice John G. Roberts: Does it extend to new categories of copyrightable works?

Mr. Falzone: I think the answer is the retrospective portion of that statute flunks progress of science but -- but passes limited times.

Justice Antonin Scalia: Would you -- would you spend a little bit of time on your other argument, I take it to be a separate argument apart from the -- you know, time limit argument, the argument that the problem here is that this law does not promote the progress of science and useful arts, and therefore does not comply with the Copyright Clause?

Mr. Falzone: That's right.

Justice Antonin Scalia: Why doesn't it promote the progress of science and the useful arts?

Mr. Falzone: So -- the -- the progress of science corresponds roughly to the creation and spread of knowledge and learning.

A statute that does nothing, like this one, does nothing but take old works out of the public domain without any impact on prospective incentives, cannot stimulate the creation of anything.

And as for things that already exists, it cannot stimulate the spread of them.

All it can do is restrict the spread of things that could warrant--

Justice Sonia Sotomayor: You don't think that there are some foreign authors who didn't or wouldn't come into the U.S. market because they couldn't protect their works here, and kept their works in other markets that -- in which it was protected?

Mr. Falzone: --Well, I don't--

Justice Sonia Sotomayor: And it doesn't encourage them to sort of make investments?

Mr. Falzone: --No.

This statute does not and cannot do that, because--

Justice Sonia Sotomayor: Why not?

Foreign authors who decided not to exploit their works here wouldn't be induced to think about coming into this market because now they can protect their works?

Mr. Falzone: --Well, whether they came into this market or not has no effect on whether they can protect their works or not.

They were unprotected whether they came into this market or not.

They would be protected--

Justice Sonia Sotomayor: You're -- you're not answering my question.

You don't think that this law induces those foreign authors to come here and promote their work?

Mr. Falzone: --I don't -- I don't see how it could.

Chief Justice John G. Roberts: Well, one way it could, I suppose, is that it shows that Congress is interested in making sure that American authors overseas have reciprocal protection, an issue that could come out in a variety of contexts.

And if I'm sitting there writing a great novel, I will have the confidence that my government will ensure that I get protection when it becomes a bestseller in China; right.

Mr. Falzone: Yes.

Chief Justice John G. Roberts: Well, that's -- that's an incentive.

Mr. Falzone: Yes.

And you were assured of that incentive in 1988, when we joined the Berne Convention without removing anything from the public domain, because when you sit down to write that book today, that work will absolutely be protected in all of the Berne and WTO countries.

So the incentive effect was achieved and achieved in full--

Chief Justice John G. Roberts: No, I'm talking about -- but the same issue can come up again, you know, whether it's in the area of formalities, whatever.

There may be another problem where there is a dispute between other countries and our country.

And I will know that in the past, the United States has taken action looking out for -- for the interests of American authors.

Mr. Falzone: --That's--

Chief Justice John G. Roberts: That's an incentive.

Now, it may be, as I think it was described in the court of appeals decision, a "meager" incentive.

You may be more interested in other protections.

But it's -- we haven't really required much more than that.

Mr. Falzone: --Perhaps.

I mean, there's nothing in -- in -- in the record before Congress here to reflect the fact they made any such conclusion.

Justice Antonin Scalia: Let me put it -- I think it's the same point another way.

Let's assume I'm a multibillionaire and I receive an award as a great patron of the arts because I have furthered the arts by giving several million dollars to someone who has already composed an opera or who has already written a book.

Wouldn't -- wouldn't I be furthering, be viewed as furthering the arts?

Mr. Falzone: Potentially, but the problem here, if I can move a little bit to the First Amendment, is the mechanism Congress chose to use here.

They chose to create that reward by taking away core public speech rights from the American public, and transforming them into somebody's private property--

Justice Antonin Scalia: Well, that's what the copyright law permits -- the -- the -- excluding things from the public domain, so long as in the process of doing it, you're furthering the arts.

Mr. Falzone: --Well -- but let me focus on the First Amendment problem.

An ordinary copyright statute does not revoke the public's Federal right to copy and use works in the public domain.

That is exactly the thing Congress refused to do 19 times over 200 years.

And that's the huge departure from traditional contours of copyright protection that triggers First Amendment scrutiny here.

And when you go to ask the First Amendment question, you can't ignore the mechanism Congress chose to use here, which is to take away public speech rights, and turn them into somebody else's private property.

That was the explicit motivation of -- of the people who came before Congress and asked them to pass this statute.

That is the justification the government--

Justice Anthony Kennedy: But now you're saying that there is a substantive component to this public domain argument, that the public does own something.

And that's different from what I thought you answered earlier when you said it's just conclusory for a limited time.

Mr. Falzone: --In that case, I misspoke.

The public -- the public domain is owned collectively by the public, and in fact, decisions of this Court going back to the 19th century refer to it as public property.

And I think--

Justice Stephen G. Breyer: I'm curious.

To go back a second, I thought Justice Sotomayor's question was, imagine Smith in Germany.

He has written a book.

It's there, already exists, but it has no copyright protection in the United States.

So after this, would he be more willing to send it to the United States?

And I take it your answer is no.

The reason is because I can go and buy a copy and sell it in the United States even without this law.

Is that right or wrong?

Mr. Falzone: --I think -- I think that it could possibly incentivize him to bring it over to the United States, depending on how the statute worked.

Justice Stephen G. Breyer: Well, isn't that the question?

The question is, now that Smith has the same protection in the United States that Germany gave him, doesn't that give him an incentive to send his book to the U.S.?

In thinking about that one, I thought: Not much, because I can go buy it today without this law and bring it to the United States and sell as many as I want.

Nonetheless--

Mr. Falzone: I think that's right.

Justice Stephen G. Breyer: --That's not right?

Mr. Falzone: No, I think you're correct.

I think you're correct.

I think that's--

Justice Stephen G. Breyer: Well, don't just jump on my answer as being correct if it's not.

[Laughter]

Justice Sonia Sotomayor: Counsel, it might be his incentive to buy it or not, but the question is the author's incentive to sell it here.

Those are two different incentives.

Whether -- you know, he could go anywhere and buy a cheaper book if he chose to take the trip or get on the internet and find it.

He could do that now.

Copyrighted materials here go at a different price than they do elsewhere.

That's not the issue.

The issue is the author's incentive.

Mr. Falzone: --The -- the -- the problem here is these authors are long gone.

You can't incentivize them.

These works are so old they are long gone.

You can't incentivize anything that's happened so long ago.

If you could--

Justice Sonia Sotomayor: Well, if you can't incentivize them, they are not going to claim their rights.

Mr. Falzone: --I'm sorry?

Justice Sonia Sotomayor: They are not going to come and claim their rights.

Part of this law is that they have to declare that they are interested in protecting their copyright here.

Mr. Falzone: No.

Actually, that's optional.

It's optional for them to file a notice of intent to enforce.

It's optional for them to declare.

But the real problem is--

Justice Sonia Sotomayor: Optional for them; but if they do, that's when they can sue a prior user.

Mr. Falzone: --That's right.

It -- Well, it depends who they want to sue, but yes.

They certainly have broader rights once they file a notice of intent to enforce.

But that--

Justice Antonin Scalia: Of course, the assumption of this line of questioning, I suppose, is that the mere marketing in the United States of stuff that has already been created promotes the progress of the useful arts.

I'm not sure it promotes the progress of the useful arts.

It makes more money for the guy who wrote it, but doesn't incentivize anybody--

Mr. Falzone: --That's right.

Justice Antonin Scalia: --to create art.

Mr. Falzone: It's not going to incentivize anybody to create anything, and it only restricts the circulation of things that once circulated freely.

If I can reserve my time for rebuttal, I'd like to do that.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Falzone: Thank you.

Chief Justice John G. Roberts: General Verrilli.

ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE RESPONDENT

Mr. Verrilli Jr.: Mr. Chief Justice, and may it please the Court:

I'd like to begin by picking up on a point that my friend made in response to Justice Ginsburg suggesting that with respect to foreign works what Congress has done is set the copyright term at zero.

I don't really think that's a fair description of the situation.

It obscures what Section 514 actually does and what Congress is all about here.

Since 1891, Congress has concluded as a matter of copyright law that foreign works are entitled to the same protection as domestic works.

The problem with respect to the authors that Section 514 covers is not that Congress set the copyright limit at zero, it's that as a matter of foreign relations, we did not have treaties with these individual countries.

And what 514 does is remedy that be problem.

What 514 says is: With respect to a defined set of foreign authors, they get the remainder of the copyright term that they would otherwise have gotten, and nothing more, had they lived in countries where we had -- with which we had copyright relations at the time they published, or had they complied with the formalities that we used to enforce but no longer do to perfect and renew copyrights.

That's what it does.

It doesn't grant anybody a perpetual term.

It does not renew a copyright term that has run its full course and create a new one.

It rectifies that problem which doesn't, doesn't reflect anything about a congressional judgment setting the copyright term at zero.

It could--

Justice Samuel Alito: Could Congress grant copyright protection to works that had lost that protection due to the expiration of the period that was provided for under, under previous law?

Mr. Verrilli Jr.: --We think that the, there isn't an ironclad limit that can be derived from the text of the Copyright Clause or from history that would say that Congress is forbidden in any circumstance from doing that.

We do think that there are significant limits in the text of the Copyright Clause that would restrict any ability Congress might have to do that.

But one thing I think is important here is that Section 514 is not a statute in which Congress did that, and we would respectfully suggest that any assessment by this Court of whether Congress had that power should await a concrete context in which Congress exercises it, if it ever does.

Justice Sonia Sotomayor: What's the limit that you're referring to?

Mr. Verrilli Jr.: Excuse me, Justice Sotomayor?

Justice Sonia Sotomayor: You said there are limits.

Mr. Verrilli Jr.: Yes.

Justice Sonia Sotomayor: What--

Mr. Verrilli Jr.: Well, one limit I think is a quite important one is that the Copyright Clause says that you can only grant copyright in authors, to authors.

And as a work gets older and older when you're talking about Shakespeare and Ben Johnson, there really at that point isn't an author in which you could vest the copyright.

And creating any copyright for a long-expired work like that would really, I think, raise the problem that the framers were addressing by restricting copyright to authors which was to avoid the creation of patronage monopolies in which publishers who weren't the authors could claim the exclusive rights of copyright.

Justice Samuel Alito: But doesn't this -- doesn't Section 514 provide copyright protection for works that were created by people who are long since dead?

Mr. Verrilli Jr.: Yes, it does.

Justice Samuel Alito: So I don't understand the limit that you were just suggesting.

Mr. Verrilli Jr.: Well, because they--

Justice Samuel Alito: Do they have to be dead for some period of time before--

Mr. Verrilli Jr.: --No, but it--

Justice Samuel Alito: --Congress is unable to give them back their copyright?

Mr. Verrilli Jr.: --No.

What 514 does, Justice Alito, is provide copyright protection to works of foreign authors whose works still have copyright protection in their own country, whether they are dead or alive.

So long as the work has protection in the country, then 514 provides copyright protection.

And the reason it does so is to ensure our compliance with the Berne Convention.

And the why here is very important and I think provide the answer to Justice Scalia's question about how 514 contributes to the progress of arts and sciences.

What 514 does, 514 is, in essence, the price of admission to the international system.

We decided, the policymaking branches of our government, the executive and the Congress, decided that we needed to be, and was in the national interest, to be part of the international copyright system and to join the Berne Convention to accomplish that.

The reason we did so was because our intellectual property is subject to very serious levels of piracy in many foreign countries because of under enforcement.

By joining Berne, what we did was commit ourselves to the international standards.

And by enacting Section 514 to implement the Uruguay Round Agreements in 1994, what we did was say to the world that we are going to ensure compliance in this country.

Justice Antonin Scalia: General Verrilli, I do not find that an appealing argument.

It seems to me Congress either had the power to do this under the Copyright Clause or it didn't.

I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe.

I do not think a treaty can expand the powers of the Federal government.

I mean, this is either okay under the copyright clause or it isn't.

Mr. Verrilli Jr.: We completely--

Justice Antonin Scalia: It would be nice to know the reason for it, but you would still have to establish that it's within the power of the Federal government--

Mr. Verrilli Jr.: --We completely agreement with that, Justice Scalia.

There is no textual limit in the Copyright Clause that would preclude Congress from enacting this statute.

The Petitioners have also raised a First Amendment argument.

We don't think First Amendment scrutiny applies here.

To the extent it did, the why would matter there, and there is definitely a substantial interest on the part of Congress in, in ensuring compliance with Berne and getting protection for our works in Berne.

Now in Eldred, the Court did say, I think quite clearly, that there is no requirement under the Copyright Clause that a new financial benefit granted through an existing, that a new financial benefit cannot be granted to an existing work.

Justice Stephen G. Breyer: No, but in Eldred the main difference is that in Eldred, there was a law that might, at least in principle, have elicited a new book.

And in this case, by definition, there is no benefit given to anything at all that is not already created.

Mr. Verrilli Jr.: I disagree.

Justice Stephen G. Breyer: So by -- How does it give any benefit to anything because it's already created.

Mr. Verrilli Jr.: Because it creates additional incentives for authors today and going forward, because they know that there is a much greater likelihood that whatever intellectual property they create will be better protected in foreign countries as a result of our joining the Berne Convention.

Justice Stephen G. Breyer: How does this provision do that?

I think maybe there are other provisions, but I thought this provision is talking solely about books, for example, that are already created.

Mr. Verrilli Jr.: Well--

Justice Stephen G. Breyer: Is it not?

I may have been misreading, it but I certainly got that out of like 42 briefs and--

Mr. Verrilli Jr.: --But we can't -- If we can't get the protections of Berne, Berne is not a menu in which we get to choose options.

Justice Stephen G. Breyer: --Oh, oh.

Okay.

Well, you know, as you also know from the 42 briefs, that there is a lot of argument that you could comply in other ways that are less restrictive; and whether that's true or not, is that -- there what you're saying is -- if I parody it, it's not a fair reading I'm going to give -- but what you're saying is we are, here have a law which says that libraries, music lovers, book buyers will either pay more money for things already in existence or will simply be unable to get them if they are orphans, on the one hand, so that other countries will impose similar kinds of restrictions upon their music lovers, music goers, libraries and -- so that they pay more for our works that are already in restrict -- that are already produced, or simply can't use them because they can't find who owns them.

Now that's in parody form, for succinctness.

What I think the argument is on the other side--

Mr. Verrilli Jr.: Right, but--

Justice Stephen G. Breyer: --And they will say, no copyright law -- with your exception of when the country was founded -- no copyright law has served that kind of purpose.

That's served often by tariffs--

Mr. Verrilli Jr.: --But--

Justice Stephen G. Breyer: --but not by copyright law.

Mr. Verrilli Jr.: --But there is another way of looking at that, Justice Breyer, of course, which is that the, but for the fact that these individual authors lived in countries that didn't have copyright relations with the United States, they would have the protection of our copyright law and they would have the term of copyright--

Justice Stephen G. Breyer: Not necessarily.

There are three categories.

One is the category of the people who you couldn't, because of the country; that's Egypt, I think, and Russia.

Their second is the category of the people -- of sound recordings, and their third is category which is not the null set, of people who did not comply with certain registration requirements.

For example, I believe that the widow of Samuel -- Brittan failed to renew her copyright, and there are probably many that failed to renew the copyright after 28 years, and the reason that they didn't is because they didn't think there was much money in it, and those are the very works that the libraries want to get ahold of and put in their databases.

Mr. Verrilli Jr.: --And there is no textual limit in the Copyright Clause that says that Congress cannot provide the same limited term to those categories of works that it provides to other works.

There just is no textual limit.

Justice Stephen G. Breyer: That's true, but for one text.

They say that text has to do with progress.

And when they read it historically in light of Macaulay, in light of the Statute of Anne, in light of going back to Venice and the copyrights, in light of going back to letters between Madison and Jefferson -- that term has always meant produce at least one new thing.

And here there is not one new thing.

Mr. Verrilli Jr.: And -- yes.

Yes, there is.

First, with respect to Section 514, it's part and parcel of joining Berne, and Berne gives protection not only to the previously created works but to newly created works, and it creates additional economic incentives in foreign -- by assuring better protection in foreign countries for newly created works.

So it creates many, many more than one new work.

And I think it's also quite reasonable, Justice Breyer, to read the incentive structure here in a way parallel to the way the Court did in Eldred, which is to say that just as in Eldred the Court assumed that there was an implicit guarantee to an author making a creation that that author would get the benefit, not only of the existing term of copyright but any extension, I think here with respect to American authors, it's an implicit guarantee that they get the benefit not only of the foreign protection in existence at the time, but any expansion of foreign protection through adjoining treaties, and Article 8 and Section 514 implementing Article 18 of Berne is the price of admission to that treaty--

Chief Justice John G. Roberts: General, there is something at least at an intuitive level appealing about Mr. Falzone's First Amendment argument.

One day I can perform Shostakovich; Congress does something, the next day I can't.

Doesn't that present a serious First Amendment problem?

Mr. Verrilli Jr.: --I don't think so, Mr. Chief Justice, and I do think -- for a host of reasons.

One is I think that it's -- it's just not so simple, and an -- I think the question that I think Your Honor asked my friend was what about when Congress expands the scope of exclusive rights for existing works?

Well, Congress has done that many, many times, and musical composition is a really good example of that.

In 1831, Congress created exclusive right in the publishing and vending of musical compositions, but not in their public performance.

So from 1831 on, once I bought the sheet music, their -- public performance was borrow the Petitioner's way of thinking in the public domain.

You could do it any time you wanted without having to get a license to pay any money.

But--

Chief Justice John G. Roberts: Well, that's -- that's -- one answer is that Congress has done this before.

Mr. Verrilli Jr.: --But then in 1897, Congress granted an exclusive right in the public performance of musical compositions--

Chief Justice John G. Roberts: Right.

Mr. Verrilli Jr.: --and made it applicable to all existing copyrights.

Chief Justice John G. Roberts: Okay.

So do you have an argument other than they have done this before?

Mr. Verrilli Jr.: Well, that they have done it many times before and it's a process -- I think it reflects -- and -- and the point is no one has thought with respect to any of those significant adjustments of the boundaries that it was an occasion for First Amendment scrutiny.

And I think that's because of the wisdom of the Court's opinion in Eldred, that these are--

Chief Justice John G. Roberts: But it's pertinent under the First Amendment in other areas, right?

It's a different analysis if your claim is the government should open up a park as a public forum, than if it's been a public forum for 200 years and the government decides to close it down.

Maybe they can do it but it's a different question.

So why isn't this a different question, whether they can extend copyright protection that's already there?

Mr. Verrilli Jr.: --I think -- because I think there is, once the Court gets into the business of First Amendment analysis, there is no stopping point, because all of the adjustments of the boundaries could have the same kind of effect I think as the musical composition -- show?

Chief Justice John G. Roberts: What about Jimmy Hendrix, right?

He has a distinctive rendition of the national anthem, and all of a -- assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?

Mr. Verrilli Jr.: What copyright does, by definition, is provide exclusive rights in expression; and so if the First Amendment is triggered whenever copyright provides exclusive rights in expression that it didn't used to provide, then heightened scrutiny will apply any time Congress exercises its copyright power, and what the Court said in Eldred--

Chief Justice John G. Roberts: So he is just out of luck?

And that's just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you.

So those people are just out of luck?

Mr. Verrilli Jr.: --Well, of course, under Section 514 they are not out of luck because it has significant protections and accommodations for derivative works.

The question of whether there should be heightened First Amendment scrutiny, we think Eldred answers, that -- that first the Copyright Clause already contains very significant accommodations of First Amendment interests.

The idea/expression dichotomy, fair use; and -- and that is going to provide -- maybe -- maybe Jimmy Hendrix could claim fair use in that situation.

And those are at the core of the traditional contours of copyright.

So if Congress were to try to extinguish fair use, I'd say yes, we'd have a First Amendment issue there.

If Congress were to try to provide exclusive right in the ideas that are expressed, as opposed to the expression itself, yes, we would have a First Amendment issue there.

If Congress were to, say, use the copyright power to engage in viewpoint discrimination--

Justice Anthony Kennedy: Well, it seems to me what you're saying, and I already gave this answer because originally, I thought I was going to put in my notes, the First Amendment does not apply to the copyright area -- and that just can't be.

What you're saying is, is that this law will pass intermediate scrutiny.

It's an important governmental interest and it's substantially related to that.

Mr. Verrilli Jr.: --We don't think it would have any problem passing intermediate scrutiny, but we don't think intermediate scrutiny ought to apply.

Justice Anthony Kennedy: But -- but -- can you -- can you cite me to some -- some authority which says the First Amendment doesn't apply to a copyright?

Mr. Verrilli Jr.: No.

We don't say it doesn't apply, but Eldred.

Justice Anthony Kennedy: The First Amendment test doesn't apply.

There has -- there has to be a -- a test.

Now maybe you say that it isn't immediate scrutiny; it's something else.

But -- but certainly the First Amendment is implicated.

Mr. Verrilli Jr.: Yes.

And what Eldred said, as I read it, Justice Kennedy, is that unless Congress alters their traditional contours of copyright then ration basis scrutiny rather than any heightened form of First Amendment scrutiny applies.

Chief Justice John G. Roberts: Even under -- even under rationale basis scrutiny, it seems to me that you run into Justice Breyer's concern that the government interest is vanishingly small when it comes to promoting progress under the Copyright Clause, so that the interest weighed on the other side of the -- the restriction of free speech rights, it's hard to say that that's necessarily going to tip the balance in every case.

Mr. Verrilli Jr.: I think it is going to tip the balance, Mr. Chief Justice, because the -- the reason Congress enacted section 514 at the urging of executive branch officials who were charged with trying to ensure that we could integrate ourselves into the international system of copyright protection was that if we didn't have this provision, then we were not going to be taken seriously.

Our works were not going to be protected in these foreign countries, and that it would defeat the purpose of joining Berne in the first place.

Justice Stephen G. Breyer: It couldn't have been that -- it must be somewhat overstated, mustn't it?

Because the only concern is not about protecting new works in the foreign countries -- the concern as I understand it was that we've had things in copyright for many years, and we want retroactive protection there.

The countries that didn't give it, like Japan, were not kicked out of the Berne Convention.

Rather, we pursued them in the WTO for many years, and I guess somebody might pursue us and then you get into an argument about whether there are other ways.

Now, is that strong enough to overcome what these briefs are full of?

I'll give you an example.

Save The Music is charged with looking for Jewish music in the periods '30s, '40s, and '50s.

Other organizations might find a treasure trove of literature that was -- that was copyrighted in Czechoslovakia or in Warsaw, and they want to put it on the web, and they want people to listen to it.

But they have no more idea of how to track down the person on that, and they aren't protected by any notice requirements because they aren't reliance parties.

We're told by Barbara Springer, former registrar, that there are millions of such instances where people would like to go back and would like to put music literature, film, et cetera, in a form that people can use it today and there is no way to do it without their becoming scofflaws, or without their having millions of dollars to hire infinite numbers of trackers and lawyers.

Now, that's the argument that's made on the other side, as the interest in communication that's important.

What do you say?

Mr. Verrilli Jr.: So -- two points.

First, with respect to the interest in what foreign countries will do, I think it's incorrect to assume that this will be tit-for-tat, that if we don't enforce Article 18, the only thing other countries won't do is enforce Article 18 with respect to our works, as opposed to believing that we're not an -- an effective partner and not enforcing their copyright laws for the whole purpose of our works.

Second, Justice Breyer, that problem that you identified just exists as a feature of copyright law.

With respect to those works, it's going to create that issue.

The problem here is just the result of a fortuity that those works might have been published in a country that at the time they were published didn't have copyright relations with the United States.

And what section 514 does is address that fortuity by putting those authors in the same position they would have been in had their country had copyright relations with the United States.

So I don't think that's a principled objection on a constitutional basis--

Justice Stephen G. Breyer: Right here, we have the argument.

I agree with you that it is a general problem.

It may be diminished in the United States but it still exists.

And I guess the argument here is well, don't make it millions of times worse.

Mr. Verrilli Jr.: --Well, it doesn't make it millions of times worse.

It applies to a small number of -- but a significant number of countries--

Justice Stephen G. Breyer: Barbara Springer said a million, numbers it in the millions.

Do you want to say that's--

Mr. Verrilli Jr.: --No, we don't have any reason to doubt the -- the aggregate number.

Justice Ruth Bader Ginsburg: That's presupposing that they are all going to give notice.

Mr. Verrilli Jr.: Well, with respect to reliance parties, that's certainly true.

They would have to give notice.

It is the case, Justice Ginsburg, that if you're not a reliance party, then there would be an infringement even without notice, so I do think there is something on that point.

But again, I just think that's a result of the fortuity of the countries not having copyright relations with the United States.

It's not about the -- it's not anything integral as a matter of constitutional principle -- the statute--

Justice Sonia Sotomayor: --Marbury -- the Davis law was passed.

Had to go and pick out all the books it had that were subject to copyright and throw them out, or do what with them?

Mr. Verrilli Jr.: --I -- I don't think--

Justice Sonia Sotomayor: Stop them from circulation?

I'm not sure -- how would they protect themselves from infringement?

Mr. Verrilli Jr.: --Yes.

I don't think that they had -- I don't think -- I don't think there is an active infringement by having a library book on the shelf, and of course, there are protections for libraries built into the Copyright Act in all events.

And I do -- if I could in my remaining time, I want to go back to the history that we started with, because I do think it is important that there is no -- as a matter of text, I think it's clear -- there is no unyielding requirement that you cannot restore copyright to works in the public domain.

I think the history really does bear that out.

I think Justice Sotomayor had the history exactly right, that in 1790, you had three states with no copyright statutes.

Of the 10 states with copyright statutes, you had seven that did not provide copyright to maps and charts, which the Federal statute did.

And I think this is the key point: Of the states that did enact copyright statutes to -- in the 1780s in advance of the 1790 Federal Act -- at least four, and depending on how you counted -- as many as eight provided copyright protection only to works printed after the date of the State statute.

They did that at the urging of the Continental Congress in 1783.

So I don't think there is any doubt that when Congress enacted the Copyright Act of 1790, it made a conscious choice to take a different approach, to grant copyright protection to existing works, including many, many, many works that were freely available for exploitation in those states.

Justice Samuel Alito: Doesn't that show at most that retroactive protection can be granted when there is an enormous interest in doing so, namely, the establishment of the uniform copyright system at the beginning of the country, because if Congress had not done that and had said the alternative would be to say things can be copyrighted going forward, then you would have different copyright laws in all of the States?

Mr. Verrilli Jr.: I think -- I don't think so, Justice Alito.

I think they could have followed the model nationally of prospective copyright only, and extinguishing the prior copyright, but they didn't make that choice.

They made a different choice.

Now, my friend suggests that the 1790 Act was just a transition, but of course, the same thing is really true in an important sense of section 514.

It's part of a tradition of a transition of the United States into the international system, which has required an adjustment of our rules in order to bring us into conformity with the international system.

And beyond the example of course of the 1790 -- and by the way, with respect to that language in the 1790 copyright who have or have not copyright, that's just a rerun of an argument that the Court rejected in Wheaton v. Peters.

In Wheaton, the Court said that -- that language in the 1790 Act was referring to pre-publication common law copyright, not post-publication common law copyright.

Beyond that, it seems to me pretty clear that what that language is referring to -- of course, Congress presupposes the existence of copyrights, or at least State statutes that created some copyrights -- but what Congress did was act far more broadly.

And -- so I do think -- and then when one looks at the examples of patents -- I think the -- the Oliver Evans example, and that case, is an important example, early in our history.

Congress creates a new patent term to an expired patent.

President Jefferson signs it.

Secretary of State Madison issues it.

Chief Justice Marshall upholds it as a circuit justice, and the Court upholds it against a charge that it's impermissibly burdening people who act in reliance on the expiration of the prior patent.

There wasn't a word in this Court's decision in that case about any potential constitutional infirmity with doing that.

And one would think if this was such a significant and viable principle of constitutional law, that someone would have brought it up in those cases.

In fact, the striking thing about reading the Evans decision is that the Court clearly looks at this all as a matter of legislative policy judgment.

It says, you know yes, you're right, it might have been an argument, a good argument in favor of creating some reliance interest here, but that's a judgment Congress should have made if anybody was going to make it.

It didn't -- and there is no reading of the -- there is no required reading of that statute that has to protect the reliance party.

So I don't -- I just think when you look at the patent protection, when you look at the 1790 Act, when you consider the fact that when Congress expands exclusive rights, as it did for example with respect to musical compositions but did in the 1976 Act with respect to lots of exclusive rights, it does so with existing copyrights.

And all of that points up to the wisdom of what this court said in Eldred, that within very wide margins, these are matters where legislative choice, these are policy calls that require the balancing of a complex set of interests, the drawing of a complex set of lines made even more complex by virtue of the fact that we are now trying to make a transition into full participation in an international system, which is of vital importance to protecting one of our most valuable economic exports, intellectual property.

Thank you.

Chief Justice John G. Roberts: Thank you, General.

Mr. Falzone, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF ANTHONY T. FALZONE ON BEHALF OF THE PETITIONERS

Mr. Falzone: Thank you.

I have -- I have four points to make.

First one refusing to provide any protection for a work is setting the term at zero.

The point of the limited times restriction is it -- excuse me -- it forces Congress to tell us when the end has come, and if Congress is forever free to change its mind, then we can never know if the end has come.

Point number two, this statute does not and cannot promote progress, that is, the creation and spread of knowledge and learning.

When we joined Berne in 1988 we got all of its prospective benefits, or as the government put it, secured the highest available level of multilateral copyright protection for U.S. artists, authors and their creators.

This statute is not about that.

It's simply about rewarding people who made things long ago.

It's--

Justice Ruth Bader Ginsburg: At the time we joined Berne, there was an appreciation that we deferred the article 18 issue.

There wasn't any -- anyone who said that we satisfied it.

Mr. Falzone: --No.

There was an express finding -- explicit finding written into the statute, that -- and Congress found explicitly that we could comply with all Berne obligations without removing anything from the public domain.

Now, third point--

Justice Ruth Bader Ginsburg: Well there were many people who read article 18 in a different way and Congress was later persuaded that that was right.

Mr. Falzone: --Congress never revisited that finding.

So no; they found what they found in 1988, and they never revisited it.

Justice Ruth Bader Ginsburg: They -- they found that compliance with article 18 was appropriate for us to become a full member of the international copyright community.

Mr. Falzone: Congress did not make that finding, and I don't think you can even glean that from the testimony that was presented to Congress.

The problem here is -- the -- the -- the right to use works in the public domain has defined the freedom of speech that the public has known since 1790.

The 1790 Act made these freedoms clear by placing works unambiguously and clearly in the public domain, including all foreign works.

So even since before we had a First Amendment, that has defined the freedom of speech that the public knew.

And that right has also made sure that the copyright sequence provides ever-increasing protection for public speech rights.

It gives partial protection for some public speech interests during any initial period of protection, but that blossoms into complete protection for all public speech interests, once we reach the limit Congress picks, once they place the work in the public domain.

The burden on speech that this statute imposes is remarkable.

Let's start with the performance right, which is central to my clients.

There can't be any doubt, as I think Chief Justice Roberts got at, that the performance has a huge amount of original expression bound up in it.

It's the reason it's different to see King Lear at the Royal Shakespeare Company; it's the reason it's different when John Coltrane plays a jazz standard.

Hume amount of expression.

But even if you put performances aside, this Court has recognized in case after case that there is a critical speech interest in publishing the work of another author, in showing a film created by another, or for that matter performing the work of another, so that the burden here is it took speech rights of 250 million Americans and turned them into the private property of foreign authors, all on the bare possibility that might put more money in the pocket of some U.S. authors.

Justice Ruth Bader Ginsburg: All this rides on accepting your argument that zero is a limited time.

Mr. Falzone: No.

Not on the First Amendment side.

Not at all.

No.

That is -- the First Amendment argument is completely independent of that.

Even if you find Congress could do this on the Copyright Clause, we still have that First Amendment problem, and the -- there is no way the government can pass intermediate scrutiny here.

This was not required by Berne.

The government does not even contend Section 514 was required by Berne, nor could it, because that would violate Congress's explicit findings they made in 1988.

Justice Ruth Bader Ginsburg: Would you say it was would required by TRIPS?

Mr. Falzone: No.

Because TRIPS just implements Berne.

So that the problem here is this statute was not passed--

Justice Ruth Bader Ginsburg: We do not solve them if we don't come ply with Berne 18, and we are subject to being sanctioned by some World Trade Organization?

Mr. Falzone: --There was very vague testimony about the unsupported possibility that could happen, and that's why the government falls back on this interest of avoiding a dispute.

Here is the problem.

If the government can get around First Amendment limits by signing a treaty, and then the flexibility to take away public speech rights is defined by some complaint proffered by some treaty partner, then the First Amendment is defined only by the perceptions, the complaints and frankly the imagination of foreign countries.

That can't be the way it works.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Featured:

Snyder v. Phelps - Oral Argument

Sun, 10 Oct 2010 19:25:34 +0000

Case:

Snyder v. Phelps

Media File:

09-751_20101006-argument.mp3

Related Transcript:

09-751_20101006-argument.xml

Clips:

My First Clip: This is my first clip.

Counsel, I'm trying to tease out the importance of the...

What about the taking...

All right. Well, Justice Kagan...

But your argument depends on the proposition that this is speech...

We are still worried about the statements on television

Mr. Summers, Hustler seems to me

Transcript:

ORAL ARGUMENT OF SEAN E. SUMMERS ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first today in Case 09-751, Snyder v. Phelps.

Mr. Summers.

Mr. Summers: Mr. Chief Justice, and may it please the Court:

We are talking about a funeral.

If context is ever going to matter, it has to matter in the context of a funeral.

Mr. Snyder simply wanted to bury his son in a private, dignified manner.

When the Respondent's behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the State of Maryland.

Justice Antonin Scalia: Are we just talking about a funeral?

That's one of the problems I have with the case.

There was also this video that your client watched, right, later, after the funeral.

Mr. Summers: There was a flyer that was sent out prior to the funeral.

We have the funeral and we have what they described as the epic which was put on the Internet afterwards, which--

Justice Antonin Scalia: Right.

Well, what does that have to do with the funeral?

Mr. Summers: --As the district court explained, and the circuit court followed their logic, and I think the facts at trial confirmed this, that the epic was essentially a recap of the funeral protest itself.

Justice Antonin Scalia: That's fine, but it -- it does not intrude upon the funeral.

I mean, no.

You either have two separate causes of action -- one is the intrusion upon the funeral and the other is the harm caused by viewing this posting on the Internet -- but I don't see how they both relate to intrusion upon the funeral.

Mr. Summers: Well, the--

Justice Antonin Scalia: And they were just submitted to the jury as one big lump, right?

Mr. Summers: --Well, we had the flyer that was submitted, that was sent out before the funeral.

We have the facts of the funeral.

And yes, the epic did -- of course, we focused on the personal, targeted comments in the epic when we presented our evidence.

But yes, it was--

Justice Antonin Scalia: Suppose there hadn't been a funeral protest, just the epic.

Would that have supported the cause of action you assert here?

Mr. Summers: --I think that's a closer call.

But when we have the personal--

Justice Antonin Scalia: Yes or no?

Mr. Summers: --I would say yes, because we have the personal, targeted epithets directed at the Snyder family.

Justice Antonin Scalia: Even though it's -- he doesn't have to watch them?

They are just posted on the Internet.

Mr. Summers: That's correct, Justice Scalia.

Justice Antonin Scalia: It's his choice to watch them, but if he chooses to watch them he has a cause of action because it causes him distress.

Mr. Summers: Well, the -- he has a cause of action.

That doesn't mean he's going to win.

You still have the pleading standards, the summary judgment standards, and the motion to dismiss standards.

Justice Ruth Bader Ginsburg: Well, why does he have a claim?

As I understand it, after this case arose Maryland passed a statute putting time, place, and manner restrictions.

I read that statute and it seems to me that there was nothing unlawful, nothing out of compliance with that statute, that was done here.

It was at considerable distance.

There was no importuning anyone going to the funeral.

It stopped before the funeral, the service, began.

Am I right that under the current statute this conduct was not unlawful?

Mr. Summers: Justice Ginsburg, the statute wasn't in place at the time.

But there's a complicated answer to the question, because they were positioned about 30 feet from the main vehicle entrance to the church, and they rerouted the funeral procession so they were 200 to 300 feet away from--

Justice Ruth Bader Ginsburg: Didn't they stand where the police told them to?

Mr. Summers: --Well, they -- they told the police where they wanted to stand and the police said okay.

So the police didn't say, please stand here.

They said -- in fact, they sent out a flyer--

Justice Ruth Bader Ginsburg: And it was there with the knowledge of the police and with the permission of the police.

Mr. Summers: --It's true they did not violate any criminal statutes.

Justice Samuel Alito: Is there anything to suggest that the Maryland legislature, in enacting that statute, intended to occupy the field of regulations of events that occur at funerals?

Mr. Summers: I believe the Maryland legislature made it clear that they didn't want people to protest funerals in general.

When you--

Justice Ruth Bader Ginsburg: But they didn't prohibit it.

Mr. Summers: --They didn't prohibit it under certain circumstances and in a certain--

Justice Ruth Bader Ginsburg: Well, is this the case which the facts here meet.

Mr. Summers: --For statutory enforcement.

But what we are dealing with here is tort law.

Justice Antonin Scalia: That statute applies to any protest at funerals: Protesting the Vietnam War, protesting whatever.

Your case involves, at least if we accept your version of it, a protest of the dead soldier who -- who is going to hell and whose parents have raised him to go to hell.

So simply to say you can have a protest within a certain distance is not to say you can have a protest within a certain distance that defames the corpse.

That's a different issue, isn't it?

Mr. Summers: That's our position, yes, Justice Scalia.

And--

Justice Ruth Bader Ginsburg: If you knew just what was going on, do you suppose -- because this had been done before.

In fact, wasn't this the very same day they picketed at Annapolis and at the State Capitol.

Mr. Summers: --They picketed, yes, those three locations that day.

Justice Ruth Bader Ginsburg: So they knew what the signs were going to be.

Could they have gotten an injunction, do you suppose, against this protest?

Mr. Summers: I don't think they could have beforehand because although you said we knew what the signs were going to be, generally from their pattern I think we could guess what the signs may have been, but you don't really know what the signs are going to be until they show up.

For example, in this case, they had a sign that said "priests rape boys", they had a sign that said

"God hates you, you are going to hell. "

Justice Ruth Bader Ginsburg: So you could go into court and say that the signs were this, that or the other things at the State Capitol, the same signs at Annapolis; they're going to use the same signs at this protest.

Mr. Summers: As -- Justice Ginsburg, from our perspective, the signs that said

"God hates you, you are going to hell. "

referred directly to Matthew Snyder and we would hope and believe that the district court could enjoin those types of specific targeted epithets.

If, for example, this was done at a public park in Montana, logically I think you could conclude that it wasn't directed at the family.

But when you show up at a 20-year-old marine's funeral and say "you are going to hell"--

Justice Ruth Bader Ginsburg: Did they have the "going to hell" sign at the State Capitol and Annapolis?

Mr. Summers: --They had -- the majority of the signs were the same, yes.

Justice Ruth Bader Ginsburg: Those particular ones that you mention, did they have those at the other two?

Mr. Summers: Yes.

I believe the only ones that they changed is they have a sign for each different branch of the service.

Matt was a marine, so--

Justice Ruth Bader Ginsburg: So it sounds like to you it's the whole society, the whole rotten society in their view.

Mr. Summers: --If we are forced to accept their view, yes, Justice Ginsburg, that's what they testified to.

Mr. Snyder's view, the view of the Fourth Circuit, was that these Mr. Snyder certainly interpreted that as referring to his son, because after all Matthew Snyder was the only deceased marine/soldier at the funeral.

Justice Ruth Bader Ginsburg: Where did -- you said the Fourth Circuit found that those signs targeted the family rather than the whole U.S. society?

Mr. Summers: The v. Falwell.

Justice Samuel Alito: Do you think that the epic is relevant as an explanation of some of the these arguably ambiguous signs that were displayed at the funeral?

For example, "You are going to hell", "God hates you"; who is "you"?

If you read the epic, perhaps that sheds light on who "you" is.

Mr. Summers: It can shed light, but if you put this in the context of a funeral-goer, Justice Alito, what you have is -- it was a typical funeral, family members driving in and--

Justice Samuel Alito: Well, yes, but the signs say "you" and the argument is made "you" doesn't mean Matthew Snyder; it means a larger group.

And then you have the epic, which is directed directly at Matthew Snyder.

Doesn't that show -- shed light on what "you" meant on those signs?

Mr. Summers: --Correct, and that's where I was going to go with that, Justice Alito.

The epic specifically referenced Matthew Snyder by name, specifically referenced Matthew's parents by name.

So in our judgment, and the defendants testified that the epic sort of explained, at least in their explanation, explained the funeral protest itself.

Justice Stephen G. Breyer: I'm not certain that this is about the funeral.

I mean, understand there was a funeral in it, but the First Amendment question seems to me a different, possibly a broader and different question.

Did your client see the signs?

I gather from the record he didn't see what the signs were; he just saw tops of signs.

So he didn't read anything on the signs, is that right?

Mr. Summers: He didn't read the content.

Justice Stephen G. Breyer: So he hadn't seen them.

So how does -- how did your client find out that the signs, the tops of which he saw at the funeral when the demonstrators were standing, with the approval of the police, 300 feet away, how did he find out what they said?

Mr. Summers: Your Honor, 2 days in advance they sent out a flyer announcing they were going to protest the funeral.

They had Matthew Snyder's picture there.

They claimed they were going to protest at St. John's Catholic dog kennel.

Justice Stephen G. Breyer: Did they say in -- my question is, how did your client find out these very objectionable things on the signs?

How did he find out what they said?

Mr. Summers: He found out about the specifics of the signs--

Justice Stephen G. Breyer: Yes, that's what I'm interested in.

Mr. Summers: --by going to the family wake immediately following and seeing it on the television.

Justice Stephen G. Breyer: Okay.

So now we have two questions.

One is under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious, because at the funeral you say that -- and I accept that from your point of view -- that is very obnoxious.

And the second is to what extent can they put that on the Internet, where the victim is likely to see it, either on television or by looking it up on the Internet?

Now, those are the two questions that I am very bothered about.

I don't know what the rules ought to be there.

That is, do you think that a person can put anything on the Internet?

Do you think they can put anything on television even if it attacks, say, the most private things of a private individual?

Does Maryland's -- does Maryland's law actually prohibit that?

Do we know it does, and what should the rules be there?

Have I said enough to get you talking?

[laughter.]

Mr. Summers: Yes, Your Honor.

Right now the rule we are stuck with is Hustler v. Falwell for intentional infliction of emotional distress, and the--

Justice Ruth Bader Ginsburg: Your claim is that Hustler was a -- Falwell was a public figure and the Snyder family is not.

So I think what I got from your brief is you don't fall under that case because you are not dealing with a public figure.

Mr. Summers: --That's correct, Justice Ginsburg.

Chief Justice John G. Roberts: Okay.

Were you finished answering Justice Breyer's question?

Justice Stephen G. Breyer: The more you say about this the happier I will be, because I'm quite interested.

Mr. Summers: The private targeted nature of the speech in our judgment is what makes it unprotected.

So for example, the epithets directed at the family would be unprotected.

If, for example, a person repeatedly put on the web site that Mr. Smith has AIDS, whether it's true or not, essentially at some point in time it might rise to the level of an intentional infliction of emotional distress.

There would have to be other facts combined there.

Chief Justice John G. Roberts: So you have no objection if the sign said "Get out of Iraq", an antiwar protest, in other words not directed at this particular individual?

Mr. Summers: Correct.

I don't think--

Chief Justice John G. Roberts: So no objection there?

Mr. Summers: --I don't think there'd be any constitutional impediment to bringing -- or the Constitution would not -- would bar that claim from going forward.

Justice Sonia Sotomayor: Excuse me--

Justice Antonin Scalia: So the intrusion upon the privacy of the funeral is out of the case then, right, because that sign would intrude upon the privacy of thea funeral just as much?

That's not really what you are complaining about.

You are complaining about the personal attacks, aren't you?

Mr. Summers: Yes, Justice Scalia, and I think under a certain scenario, you could have, regardless of the signs, you could have a scenario where the funeral was disrupted and it was disrupted in this case.

Justice Ruth Bader Ginsburg: It was or it wasn't.

Mr. Summers: It was, Justice Ginsburg.

Justice Ruth Bader Ginsburg: I thought that when the service itself began the protesters stopped.

Mr. Summers: The police testified that, I think it was, about 8 minutes after the funeral started, that the protesters left the area.

Justice Sonia Sotomayor: --Were they encouraged--

Justice Antonin Scalia: I thought that they had to come in a different entrance?

Is that the extent of the disruption?

Mr. Summers: Well, according to I believe all the witnesses, yes, they had to come in--

Justice Antonin Scalia: In order to avoid the protest.

Mr. Summers: --That, and they certainly took away, according to the priest that was coordinating the mass, they certainly took away the peaceful experience that all private figures--

Justice Antonin Scalia: But you wouldn't have objected to that if there weren't these nasty signs, you just said, right?

Mr. Summers: --No.

I hope I said, Justice Scalia, that under the right context, jut the signs alone, if that's all we are saying, there's a sign out there that says "God hates America", I don't think that we could have a claim there.

But if they in fact disrupted the funeral, I do think in some set of facts there could be a claim.

Justice Antonin Scalia: All right.

Justice Sonia Sotomayor: --Counsel, I'm trying to tease out the importance of the -- whether the person's a private -- or public figure -- a private person or a public figure.

Does it make a difference if I am directing public comments to a public or private figure?

Mr. Summers: Well, in the context of defamation we had the Rosenbloom followed by the Gertz decision.

Justice Sonia Sotomayor: No, I'm talking about in terms of infliction of emotional distress.

If I am talking to you as a Marine, if you were a Marine, and I was talking about the Iran war and saying that you are perpetuating the horrors that America's doing and said other things that were offensive, would you have a cause of action because you are being called a perpetrator of the American experience?

Mr. Summers: I'd think there'd be -- have to be a lot more facts involved, harassing type of facts.

The--

Justice Sonia Sotomayor: But you are saying yes.

So public speech, speech on a public matter, if directed to a private person, should be treated differently under the law?

I think that was part of what Justice Breyer was asking.

Is that what your position is?

Mr. Summers: --Public speech, even directed to a private figure, should be treated differently than as directed towards a public official.

Justice Sonia Sotomayor: All right.

And under what theory of the First Amendment would we do that?

What case would stand for, our case, stand for the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Mr. Summers: Gertz v. Welch treated the public versus private figure status different, albeit--

Justice Ruth Bader Ginsburg: That was defamation, wasn't it?

Justice Sonia Sotomayor: That was defamation.

That's false -- truth or falsity.

Mr. Summers: --Correct.

Correct, but the problem is, the only other case we have that deals with intentional infliction of emotional distress from this Court is Hustler v. Falwell, and Hustler v. Falwell clearly dealt with a public figure.

The States have interpreted Hustler v. Falwell as not applying to a private figure.

Justice Sonia Sotomayor: But have they done it in the context of differentiating between public and private speech?

Mr. Summers: Yes, there is an Illinois case that we cited in the brief where it was specifically said it was a matter of public concern, and they said the plaintiff was not a public figure; therefore the -- just, you have to meet the elements of intentional infliction of emotional distress.

Justice Sonia Sotomayor: I was not talking about State cases.

I was talking about a Supreme Court case that suggested that we would treat -- we would treat the First Amendment and the right to -- to speak on public matters differently, depending on the person to whom it was directed?

Mr. Summers: I think Gertz v. Welch says that.

Dun & Bradstreet says you have to at least look at the context of the situation.

Justice Sonia Sotomayor: So it goes -- it goes to the context.

Now, going to the context of this speech, do we look at the words on a sign alone or do we look at the entire context of what all of the other signs said at the demonstration, to determine whether or not the speech here was public or private speech?

Mr. Summers: I think you have to look at the particular signs, because if you don't, anyone could come up with a public concern, because they could direct any type of epithets at a person.

In the middle of their paragraph they could say: I'm for taxes or I'm against taxes, and therefore the entire statement would be--

Justice Sonia Sotomayor: Well, in that case--

Justice Antonin Scalia: Mr. Summers, I'm a little concerned at your apparent acceptance of -- of the proposition that if one comes up to a Marine and says, you are contributing to a -- a terribly unfair war, that that alone would -- would form the basis for the -- the tort of intentional infliction of an emotional distress.

What -- what are the requirements for that?

I thought that it had to be outrageous conduct.

Doesn't it have to be outrageous conduct?

Mr. Summers: --It does, Justice Scalia, and I wasn't suggesting--

Justice Antonin Scalia: Well, I mean -- I mean, why accept that as -- as parallel to what -- to what you are claiming here?

Mr. Summers: --And I hope I didn't.

What I meant to say, if I didn't, was there would have to be a lot more facts involved to rise to the level of an intentional infliction of emotional distress case if you just told the Marine, for example, you're not in favor of the war.

Justice Stephen G. Breyer: What about the -- taking -- if you have an instance where the defendant has said on television or on the Internet something absolutely outrageous, you showed that.

You show that it was intended to and did inflict serious emotional suffering.

You show that any reasonable person would have known that likelihood, and then the defendant says: Yes, I did that, but in a cause, in a cause.

And now -- in a cause that we are trying to demonstrate how awful the war is.

At that point I think the First Amendment might not leave this alone.

But if it's not going to leave this alone, there's where we need a rule, or we need an approach or we need something to tell us how the First Amendment in that instance will begin to -- enter and force a balancing.

Is it that you want to say no, no punitive damages in such a case?

Or that you would have to insist upon a particularly clear or a reasonable connection between the private part of this and the public effort?

Have you thought about that at all?

Because that's where I am thinking and having trouble.

Mr. Summers: The -- I think the standard should be Hustler v. Falwell generally does not apply--

Justice Stephen G. Breyer: Hustler -- Hustler v. Falwell is defamation.

Mr. Summers: --I thought Hustler v. Falwell was intentional infliction of emotional--

Justice Stephen G. Breyer: Intentional infliction, okay, good.

Thank you.

Go ahead.

Justice Elena Kagan: Mr. Summers--

Justice Stephen G. Breyer: Well, answer then, please.

Mr. Summers: --I think the rule should be Hustler v. Falwell generally does not apply to a private figure unless the defendant can show some compelling connection there, and if you -- if you--

Justice Stephen G. Breyer: Compelling.

Mr. Summers: --Or at least reasonable, rational connection.

In this case they don't even claim there is a connection.

They just used this moment to hijack someone else's private event when they are grieving over a 20-year-old child's funeral.

Justice Elena Kagan: --Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this.

It says:

"Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views or perhaps on the basis of their dislike of a particular expression. "

How does that sentence -- how is that sentence less implicated, in a case about a private figure than in a case about a public figure?

Mr. Summers: Well at least in Hustler -- Justice Kagan, at least in Hustler v. Falwell we had a traditional area of public discourse.

We had a parody.

I believe the opinion went to great length to explain that.

Here what we are talking about is a private funeral.

I don't -- I would hope that the First Amendment wasn't enacted to allow people to disrupt and harass people at someone else's private funeral.

Justice Ruth Bader Ginsburg: So--

Justice Elena Kagan: But that goes back to the question that was asked previously about, suppose you had a general statute that just said, there will be no disruptions of any kind at private funerals.

You know, pick your distance, 500 feet, 1,000 feet, but something that didn't refer to content, that didn't refer to ideas, that just made it absolutely clear that people could not disrupt private funerals.

What harm would that statute not address in your case?

Mr. Summers: Well, the States have -- in the statutory case, they have the interest of penalizing the offending party.

In tort law, the State's interest is to provide a remedy for its citizens.

Under the Fourth Circuit's interpretation of these facts, Mr. Snyder has absolutely no remedy, none.

He is a private figure, a grieving father, and he is left without any remedy whatsoever.

Justice Ruth Bader Ginsburg: --We have other instances where conduct is lawful, meets all the terms of the statute that's meant to govern protests at funerals, and yet there is an award of damages permitted.

Mr. Summers: I believe that the Hustler v. Falwell was a -- had several tort claims, but there was no criminal statute violated.

I understand that it went the other way because of the public figure status, but that would be an example.

Another example--

Justice Ruth Bader Ginsburg: Well, that was a -- I'm not asking you for an example where -- a Federal case where the conduct was permitted by the statute, by the policemen there, and yet there was -- was a damage award.

Mr. Summers: --Justice Ginsburg, I am not aware of any case, but I think the -- if for example someone sued someone for defamation, there probably wouldn't be a statute that was violated so I don't -- I would presume--

Justice Ruth Bader Ginsburg: I'm talking about this intentional infliction of emotional distress claim that you're bringing.

Mr. Summers: --Other than Hustler v. Falwell, I do not have any Federal cases to cite to you.

The State cases we cited in our brief--

Justice Samuel Alito: Is this the situation in which all conduct that complies with the Maryland funeral protest statute is lawful?

If the Maryland legislature said this is the -- these are the exclusive regulations that apply here, so that if someone came up to Mr. Phelps at the funeral and spat in his face, that would not be -- that wouldn't be illegal?

Mr. Summers: --Justice Alito, I don't know whether that would be criminally--

Justice Samuel Alito: Because it's not specifically prohibited by the statute.

Justice Ruth Bader Ginsburg: Well, it certainly wouldn't be because of the distance.

I mean, you would have to be a lot closer than the Maryland statute allows to spit in someone's face.

Chief Justice John G. Roberts: Perhaps you would like to answer Justice Alito's question.

Mr. Summers: --I believe that you could commit a tort and still be in compliance with the criminal code, Justice Alito.

Justice Antonin Scalia: Mr. Summers, can I ask you: Suppose I don't think you have a cause of action for invasion of privacy when these people were at this distance from the funeral.

But that was one of the causes of action submitted to the jury.

If I disagree with you on that cause of action, I suppose I would have to say there has to be a retrial now.

Mr. Summers: Of course this Court could do that, Justice Scalia.

Justice Antonin Scalia: So you have to support both causes of action here, the intentional infliction of emotional distress and the invasion of privacy, right?

Mr. Summers: Yes, Justice Scalia.

But according to the Fourth Circuit, we agree that the Respondents waived that issue by not appealing that issue.

Justice Antonin Scalia: Waived what issue?

Mr. Summers: The invasion -- or elements of the invasion of privacy.

They didn't contest that we met the elements of the tort.

They -- they contested the constitutional issue, but not whether or not we met the elements of the tort.

Justice Antonin Scalia: Oh, all right.

Okay.

Mr. Summers: I'd like to reserve the remainder.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Phelps.

ORAL ARGUMENT OF MARGIE J. PHELPS ON BEHALF OF THE RESPONDENTS

Ms Phelps: Mr. Chief Justice, and may it please the Court:

When members of the Westboro Baptist Church entered an ongoing, extensive, public discussion and wide array of expressive activities taking place in direct connection with the deaths and funerals of soldiers killed in Iraq and Afghanistan, they did so with great circumspection and they did so with an awareness of the boundaries that have been set by the precedents of this Court.

Justice Elena Kagan: Ms. Phelps, suppose -- suppose your group or another group or -- picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or -- or other offensive and outrageous things, and just follows this person around, day-to-day.

Does that person not have a claim for intentional infliction of emotional distress?

Ms Phelps: Any non-speech activity like stalking, following, importuning, being confrontational, could indeed give rise to a cause of action.

Justice Elena Kagan: Demonstrations outside the person's home, outside the person's workplace, outside the person's church -- demonstrations, not disruptions, but saying these kinds of things: You are a war criminal, you -- what -- would -- whatever these signs say or worse?

Ms Phelps: My answer, Justice Kagan, is: No, I don't believe that that person should have a cause of action or would under your cases have a cause of action.

You couldn't give that cause of action without direct reference to the viewpoint, which is exactly what happened in this case.

Justice Antonin Scalia: My goodness.

We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.

Ms Phelps: We agree that fighting words are less protected under the First Amendment.

Justice Antonin Scalia: Unprotected.

Ms Phelps: I will go with unprotected, Justice Scalia.

And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social--

Justice Antonin Scalia: Is that so?

Do we know that?

Ms Phelps: --I beg your pardon?

Justice Antonin Scalia: Do we know that?

Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight?

Certainly not that.

Is it a requirement that there be a potential for a fight?

I doubt it.

Where -- where do you get the notion that it has -- that there has to be an imminent fight?

Ms Phelps: I get the notion from the series of cases starting within 7 years after your Chaplinsky case with the Gooding case and on down through the Brandenburg case and on down--

Justice Antonin Scalia: Which say what?

Ms Phelps: --That say that--

Justice Antonin Scalia: The person was too remote?

The fight was not -- was not imminent?

Ms Phelps: --The -- the definition, the working definition of "fighting words", is that they have to be words which by their nature are likely to incite an immediate breach of the peace and not occur in the context of some social, artistic, educational, or political kind of speech.

And if I may hasten to add, Justice Scalia, these Respondents were not charged with fighting words.

The jury was not instructed to limit themselves to fighting words.

No element of the tort under which liability attached included fighting words.

The words that were at issue in this case were people from a church delivering a religious viewpoint, commenting not only on the broader public issues that the discussion was underway in this nation about dying soldiers, about the morals of the nation--

Justice Ruth Bader Ginsburg: Ms. Phelps, there is no question that these signs and the signs like that we saw during the Vietnam War.

But you had the demonstration at the capitol, and you had the demonstration at Annapolis.

This is a case about exploiting a private family's grief and the question is: Why should the First Amendment tolerate exploiting this Marine's family when you have so many other forums for getting -- getting across your message, the very same day you did?

Ms Phelps: --Right.

So several pieces to that, Justice Ginsburg.

When I hear the language "exploiting the bereavement", I look for: What is the principle of law that comes from this Court?

And the principle of law, as I understand it, is without regard to viewpoint, there are some limits on what public places you can go to, to deliver words as part of a public debate.

If you stay within those bounds -- and under these torts even, this notion of exploiting, it has no definition in a principle of law that would guide people as to when they could or could not.

And if I may--

Justice Samuel Alito: Is it your -- is it your argument that the First Amendment never allows a claim for the intentional infliction of emotional distress based on speech unless the speech is such that it can be proven to be false or true?

Ms Phelps: --In--

Justice Samuel Alito: Is that your argument?

Ms Phelps: --With a -- yes, Justice Alito, and with a little bit more from your cases, if I may: And not under an inherently subjective standard, and where you're only claiming that the impact of the speech was adverse emotional impact.

Justice Samuel Alito: All right.

Well, Justice Kagan gave you one example.

Let me give you another example along the same lines.

Let's say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED.

And she goes to visit her son's -- her grandson's grave, and she's waiting to take a bus back to her home.

And while she's at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do?

Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it.

And on and on.

Now, is that protected by the First Amendment?

There is no false statement involved and it's purely speech.

Ms Phelps: Right.

And -- and it may give rise to some fighting words claim, depending on the proximity and the context.

And I would have to know what--

Justice Samuel Alito: Well, it's an elderly person.

She's really probably not in -- in a position to punch this person in the nose.

Justice Antonin Scalia: And she's a Quaker, too.

[Laughter]

Ms Phelps: --Yes.

Let us assume that the grandmother had not done what Mr. Snyder did in this case.

Mr. Snyder from the moment he learned of his son's death went to the public airways multiple times in the days immediately before and immediately after--

Justice Antonin Scalia: Do you think that everybody--

Chief Justice John G. Roberts: What is your answer to Justice Alito's question?

Do you think the First Amendment would bar that cause of action or not?

Ms Phelps: --There would have to be a very narrow circumstance where it didn't, Mr. Chief Justice.

That's my answer.

Chief Justice John G. Roberts: So you think there are situations where a tort of intentional infliction of emotional distress is allowed, even for a matter of public debate?

Ms Phelps: Not public debate, Mr. Chief Justice.

That is not the way I understood the hypothetical he posed me.

Chief Justice John G. Roberts: Well, I understood the hypothetical, that the person disagreed with the war in Iraq and the sending of American troops there.

Ms Phelps: Right, and knew that this elderly woman was the grandmother of a soldier.

And I would ask the question in the hypothetical, how they knew, which is why I was making reference to what Mr. Snyder did.

Chief Justice John G. Roberts: The person selects the grandmother because he thinks that will give maximum publicity to his views.

Now, is -- does the First Amendment bar that cause of action or not?

Ms Phelps: If the grandmother entered the public discussion, the First Amendment bars it.

Chief Justice John G. Roberts: Well, no -- Justice -- Justice Alito posed, the grandmother was returning from the grave of her grandson.

She didn't enter the public discussion at all.

So I'm anxious to determine whether in those circumstances you think the First Amendment allows that cause of action or not.

Ms Phelps: I am reluctant to say that it does not, Mr. Chief Justice.

However--

Justice Ruth Bader Ginsburg: But you gave the answer before about -- you said stalking.

Ms Phelps: --Right.

Justice Ruth Bader Ginsburg: Isn't this comparable to stalking?

Ms Phelps: And that's what I was trying to liken it to, and that's what it sounds more like to me.

Chief Justice John G. Roberts: Do you think it satisfies the normal tort or law against stalking for someone to come up to an individual and engage in discussion?

I thought a lot more was required.

Ms Phelps: Well, Mr. Chief Justice, I would not file that claim for that person, for that elderly grandmother.

I am not prepared, without knowing more, to say absolutely there could be no cause of action.

What I am prepared to say is there was absolutely much more than that in this case.

Justice Samuel Alito: Well, if there -- if that -- there is a possibility there is a claim there, then what distinguishes that from this case?

Now, I thought you were beginning to say that my hypothetical is different because Mr. Snyder made his son into a public figure; and the question I wanted to ask in that connection is whether every bereaved family member who provides information to a local newspaper for an obituary thereby makes the deceased person a public figure?

Ms Phelps: Not the deceased person, Justice Alito.

We don't allege that the young man dead was a public figure.

We do--

Justice Samuel Alito: But if the grandmother called up the local paper and said, let me tell you something about my grandson--

Ms Phelps: --Yes.

Justice Samuel Alito: --who was just killed in Iraq.

You know, he liked football and camping.

Ms Phelps: Right.

Justice Samuel Alito: That makes him -- that makes her a public figure?

Ms Phelps: It's getting closer.

And Justice Alito, if she went on then to say, and how many more parents like me and my ex-wife are going to have to suffer this way and when will this senseless war end, and I've gotten Congressman Murtha on the phone and talked about this situation, and I'm against the war, and then proceeded to repeat that question in the public airwaves repeatedly, then a little church where the servants of God are found say, we have an answer to your question that you put in the public airwaves and our answer is you have got to stop sinning if you want this trauma to stop happening--

Chief Justice John G. Roberts: Your response -- your response to Justice Alito is dwelling on the facts of this particular case.

Ms Phelps: --Yes, sir.

Chief Justice John G. Roberts: I'm interested in knowing what your position is on the broader question.

Can you imagine a circumstance where this same type of discussion is directed at an individual and yet would give rise to the tort of emotional distress?

Ms Phelps: Yes, I can imagine, Mr. Chief Justice.

Chief Justice John G. Roberts: I'm sorry, can or cannot?

Ms Phelps: I can.

Chief Justice John G. Roberts: You can.

Ms Phelps: I can imagine that there could be a circumstance, a hypothetical, where there was not this level of involvement, and it was out of the blue and it was up close, if I may use the term, confrontational.

Chief Justice John G. Roberts: Okay.

So if you recognize that there can be a tort of emotional distress in circumstances like that, isn't that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?

Ms Phelps: I don't agree with that, Mr. Chief Justice, because you have now taken an inherently subjective standard with the absence of any of these non-speech misbehaviors.

And now you are back to only -- the only barrier between a person and their First Amendment right to robust public debate, including this Court has said, outrageous statements--

Chief Justice John G. Roberts: Does it make -- I'm sorry.

Ms Phelps: --with just that subjectively inherent standard, and that subjective statement of emotional impact.

This Court has said repeatedly--

Chief Justice John G. Roberts: Does it make a--

Ms Phelps: --we won't let that go.

Chief Justice John G. Roberts: --Does it make a difference, which seems to me to be the case here, that Mr. Snyder was selected not because of who he was, but because it was a way to get maximum publicity for your client's particular message?

Ms Phelps: That is not accurate, Mr. Chief Justice, with due respect.

Chief Justice John G. Roberts: Well, assuming it is accurate, does that make a difference?

Ms Phelps: The motive of the speaker to get maximum exposure, which every public speaker pines for, looks for, strives for, and is entitled to -- does not change the legal principle that's at play.

Chief Justice John G. Roberts: Well, it might affect whether or not the selection inflicts emotional distress for a reason unconnected with the individual who is the subject of the emotional distress.

Ms Phelps: Well, if--

Chief Justice John G. Roberts: In other words, if the person is selected because, as I indicated, it gives maximum publicity, rather than because of a particular connection to the matter of public debate, I wonder if that makes a difference.

Ms Phelps: --I think it makes a difference when you are looking at what role the plaintiff had in that public discussion and how tied the words that they seek to punish are to his role in that public discussion.

I think that's how you get to the point--

Justice Elena Kagan: Well, Ms. Phelps, let's say that we disagree with you as to whether Mr. Snyder had at all injected himself into this controversy.

Or let's take a case where it's clear that the father of the fallen soldier had not injected himself, had not called any newspapers, had not said anything to anybody, but a group knew that this funeral was taking place, and was there with the same signs, with the same -- are you -- are you saying that that makes the difference?

That there, there would be a claim?

Ms Phelps: --I'm saying it does make a difference, and no -- but no, there would not be a claim there in my opinion because--

Justice Elena Kagan: So it's not a difference that matters.

Ms Phelps: --It is a difference that matters in some measure, I believe, Justice Kagan, in this light.

I believe that the umbrella of protection under the First Amendment that this Court has established firmly is speech on public issues.

Sometimes you get under that umbrella because it's a public official or it's a public figure, but the umbrella that you give the protection for is speech on public issues.

Now, when a plaintiff comes to your Court and says, I want $11 million from a little church because they came forth with some preaching I didn't like, I think it does make a difference for the Court to look closely at what role did that man have in that public discussion.

Justice Samuel Alito: But your argument depends on the proposition that this is speech on a matter of public concern, is that correct?

Ms Phelps: Absolutely, Justice Alito.

Justice Samuel Alito: So let me -- let me give you this example.

Suppose someone believes that African Americans are inferior, they are inherently inferior, and they are really a bad influence on this country.

And so a person comes up to an African-American and starts berating that person with racial hatred.

Now is that in -- this is just any old person on -- any old African-American on the street.

That's a matter of public concern?

Ms Phelps: I think the issue of race is a matter of public concern.

I think approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.

Justice Anthony Kennedy: But that's simply--

Justice Antonin Scalia: --Excuse me--

Justice Anthony Kennedy: --That simply points out that all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young.

Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments; and in your view because this gives you maximum publicity, the more innocent, the more removed the person is, the greater the impact -- the Justice Alito hypothetical in -- in -- in the grandmother case.

So I -- I think -- I think your -- your public concern issue may -- may not be a limiting factor in cases where there is an outrageous conduct and where there should be a tort.

Ms Phelps: Well, but again, this Court has given substantial, longstanding protection to speech on public issues, and how could it be gainsaid that the dying soldiers is not on the lips of everyone in this country?

And it is a matter of great public interest and why they are dying, and how God is dealing with this nation.

Were you to consult the Joint Appendix and see that at the very same funeral, right outside the front door of the church, were people with flags and signs articulating the "God bless America" viewpoint, and so this little church--

Justice Anthony Kennedy: But your position is you can take this and you can follow any citizen around at any point?

That -- that was the thrust of the questions from Justice Kagan.

Ms Phelps: --Not follow--

Justice Anthony Kennedy: And -- and Justice Alito, and it seems to me that there -- you should help us in finding some line there.

Ms Phelps: --Yes, I will help you, Justice Kennedy and I am pleased to do that.

Because we don't do follow-around in this church.

We were 1,000 feet away, 7 picketers, 1,000 feet away, out of sight, out of sound, not just standing where the police said to stand--

Justice Anthony Kennedy: But in the -- but the hypotheticals point out that there can be an intentional infliction of emotional distress action for certain harassing conduct.

Ms Phelps: --For harassing conduct, not for speech.

Not for public speech, Justice Kennedy.

Justice Anthony Kennedy: But torts and crimes are committed with words all the time.

Ms Phelps: I agree with that.

And there has never been any allegation in this case that the words of the Westboro Baptist Church were in any category of low-value or less protected speech.

Justice Antonin Scalia: --Let's talk about subjectively.

You're concerned about -- surely fighting words is -- you know, whether something is a fighting word, that is a very subjective call, isn't it?

Ms Phelps: I believe that your cases give some good light on that, Justice Scalia.

Justice Antonin Scalia: You don't think it's subjective?

Ms Phelps: There may be in some people's mind an element of subjectivity.

My 20 years--

Justice Antonin Scalia: You think that's solid, absolutely, what's a fighting word, whereas what is an outrageous statement is very much different from what's a fighting word?

I don't see the difference.

Besides which, isn't it the case that in order to recover for the tort of intentional infliction of emotional injury, you have to substantiate the injury with some physical manifestation, which the plaintiff here had?

And my goodness, for fighting words, you don't even need that.

You can just say, these words angered me to the degree that I would have been inclined to fight.

At least for this tort, you have to have physical manifestations.

Why isn't that a very objective standard?

Ms Phelps: --Well, because the Court said it was inherently subjective in the Falwell case.

And I think that the language that Justice Kagan brought forth, and there's a few more paragraphs that follow, identify why it's inherently subjective.

And the way this case was tried identifies why it was inherently subjective, where although two signs and then three were identified as actionable by a strange reading of those words, all of the preachments of Westboro Baptist Church, including all of the signs at that picket, all of the other signs at other pickets, and all their doctrines, went to a jury with that inherent--

Justice Antonin Scalia: So your point depends -- depends upon the proposition that what is outrageous is more subjective than what is fighting words?

Ms Phelps: --Well, Justice Scalia, I must hasten to say this: I am not a fan of the fighting words doctrine.

I do think it has problems.

I just don't think it applies in this case.

Justice Ruth Bader Ginsburg: The Court has made that a very narrow category, hasn't it?

I mean, we have not allowed the fighting words -- you say that to me and I'm immediately going to punch you in the nose, because it is an instinctive reaction.

I think the Court has rejected spreading fighting words beyond that.

Ms Phelps: And especially not to where there's just emotional injury.

That's where I particularly think, although Chaplinsky would have suggested in some broad language you would go that way, you have not gone that way in any of the cases.

And again, I have to reiterate, you have required immediacy and intent.

Whether a fight ensues or not, I do understand that hasn't been pinned down as a requirement.

But in intent, it's your purpose, is to mix it up with somebody, not to go out and say: Nation, hear this little church.

If you want them to stop dying, stop sinning.

That's the only purpose of this little church.

1,000 feet away could not possibly be fighting words.

Justice Stephen G. Breyer: We are still so worried about the statements on television and on the internet and the knowledge there.

And I'm not -- I'm still starting -- and I am trying to get the same answer from you I was trying to get from your colleague.

Brandeis said the right to be let alone was the most important, and so he must have been thinking there could be a tort there for interference with privacy, and the First Amendment doesn't stop State tort laws in appropriate circumstances.

Ms Phelps: Right.

Justice Stephen G. Breyer: And emotional injury, deliberately inflicted, could be one.

Now, and I think it is one, but I see that in some instances that could be abused to prevent somebody from getting out a public message, and therefore, I'm looking for a line.

Now, let me suggest a couple and see what you think, and maybe you can think of some others.

You could have a judge make the decision, since the First Amendment is involved, not the jury, and the judge could say whether in this instance it was reasonable for the defendant to think that it was important to interfere with the emotional life of that individual.

You could say if that was so, there will still be no -- there would be no punitive damages.

There could be ordinary damages.

You could remove all protection from the defendant in an instance where the defendant nonetheless knew, actually knew, that they were going to cause an individual who's private severe injury, emotional injury, irrespective of their public message.

So what I'm doing is suggesting a number of thoughts of ways of trying to do what I'm trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.

Now, maybe this is impossible, this task.

But I would like your thoughts on it.

Ms Phelps: Thank you, Justice Breyer.

And I'm taking that we are speaking now of the intrusion claim, and I believe that I could offer you a compare and contrast, two extremes that may help us here.

On the one hand, you have a body of law that comes under the heading of captive audience.

And you can go into that body of law and read all those cases in one sitting, so to speak, from which you would conclude that it is very narrow, it is very limited, and there must be some actual physical sound, sight, intrusion, if you are talking about invasion of privacy.

At the other extreme, for a compare and contrast, is what they seek in this case, what the trial judge gave them in this case, which is: In an unspecified period of time that each individual will call their mourning period, no one, at any time, any place, any manner, may say any word that that mourner says caused me emotional distress.

That would chill too much speech.

Justice Samuel Alito: Why aren't the members of the family -- why aren't the members of the family of the deceased a captive audience at the funeral?

Ms Phelps: If we were right outside the door like the other expressers were in these exhibits, they might have been.

Your body of law about captive audience, when you -- Hill v. Colorado, Madison, Schenck.

That line of cases recently, taking the picketing -- where they, by the way, specifically said at footnote 25 this isn't about content.

You've got to be up -- again, I will uses the colloquial term -- up in your grill.

The term I think the Court used was confrontational.

Now, you can't be a captive audience with -- to someone that you couldn't see when the test is--

Justice Samuel Alito: I thought the targeted picketing of a person's house is not protected by the First Amendment.

Ms Phelps: --Focused picketing, per Frisby, directly in front of can be regulated.

And even in Frisby, the Court--

Justice Samuel Alito: What's the difference between that and picketing around the site of the funeral?

Ms Phelps: --Proximity, Justice Alito.

Because the captive audience doctrine, as fleshed out in those abortion picketing cases, what you were looking at was: Is it practical for the person to avoid it without having to run a gauntlet?

That's why you said images observable, the only objection you can have there is content.

Get up and close the blinds.

Justice Samuel Alito: So it doesn't have to do with whether this is a -- what you characterize as a public funeral as opposed to a private funeral?

That is not the distinction you are relying upon any longer?

Ms Phelps: Not primarily.

I am primarily relying upon proximity.

I do think that you could have a public event where there was not an element of vulnerability in the people going in.

You might even let them up in their grill.

I don't know for sure, but we don't have to worry about that.

Justice Sonia Sotomayor: Counsel, I am following your argument that the bulk of your speech in the epic, and even the bulk of your signs, involve public speech.

What you have not explained to me is how your speech directed at the Snyders constituted public speech, or speech about a public matter.

Because you are talking about them raising Matthew for the devil, teaching him to, I think, defy the creator, to divorce and commit adultery.

At what point and how do we take personal attacks and permit those, as opposed to -- I fully accept you're entitled in some circumstances to speak about any political issue you want.

But what's the line between doing that and then personalizing it and creating hardship to an individual?

Ms Phelps: Right.

I believe, Justice Sotomayor, that the line is where it was in this case: Where the father used the occasion of the son's death to put a question out in the public airwaves repeatedly.

Justice Sonia Sotomayor: So if we disagree that that made him a public figure, if we view him as a private figure, is that enough to defeat your argument?

Ms Phelps: No, Justice Sotomayor.

Justice Sonia Sotomayor: Assume that the Matthews are private figures and you did this.

So explain to me how you are protected by the First Amendment.

Ms Phelps: If without regard to what label is put on a person who steps into the public discussion.

Justice Sonia Sotomayor: You want to change my assumption.

Ms Phelps: Okay.

Justice Sonia Sotomayor: We assume that he is a private figure.

You have now made a public statement and directed personal comments at an individual who is a private figure.

Is that actionable?

Ms Phelps: Well, I don't know, Justice Sotomayor.

I don't know that I can give you a definitive answer as you have framed it.

What I can tell you is that I think the Court would have great difficulty making a rule of law that whether you call yourself private, public, limited, whatever, you -- not the person you're mad at over their words -- but you step into the public discussion and make some public statements, and then somebody wants to answer you.

Chief Justice John G. Roberts: Well, so that what if -- did Mr. Snyder, the father, become a public figure simply because his son was killed in Iraq?

Ms Phelps: No, Mr. Chief Justice.

I don't--

Chief Justice John G. Roberts: Okay.

Ms Phelps: --I don't allege that here.

Chief Justice John G. Roberts: So if he didn't take out -- if he didn't take out the usual obituary notice, then this case should come out the other way?

Ms Phelps: It's not the obituary notice, Mr. Chief Justice, he went far beyond that.

Chief Justice John G. Roberts: All right.

Well, let's just say he does nothing.

He does nothing other than bury his son.

Ms Phelps: Right.

Chief Justice John G. Roberts: He is then not a public figure?

Ms Phelps: If he does nothing we don't picket him.

And I don't know--

Chief Justice John G. Roberts: Well, that's because if he does nothing and it's not publicized, you don't get the maximum publicity that your clients are looking for.

My question is, if he simply buries his son, is he a public figure open to this protest, or -- or not?

Ms Phelps: --I don't know in the context of a war, if I can give a definitive answer to that.

It was not an issue of seeking maximum publicity; it was an issue of using an existing public platform to bring a viewpoint that was not being articulated.

For two years this church--

Justice Samuel Alito: What if a parent is called after the -- puts in the obituary information and called by the local newspaper and asked for a comment, and he says or she says, I'm proud of my son because he died in the service of our country.

Does that -- is he stepping into a public debate by doing that?

Ms Phelps: --How -- by however you call it Justice Alito, a church or anybody has the right to answer that public comment; that is our position.

Chief Justice John G. Roberts: Thank you, Ms. Phelps.

Ms Phelps: Thank you.

Chief Justice John G. Roberts: Mr. Summers, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF SEAN E. SUMMERS ON BEHALF OF THE PETITIONER

Mr. Summers: Thank you, Mr. Chief Justice.

Justice Elena Kagan: Mr. Summers, could I ask you to go back to an answer that you gave to one of my colleagues when you were last up there?

You said that a -- a more standard antiwar demonstration, "get out of Iraq", "war is immoral", at this funeral, same distance, same sized signs -- that a more standard antiwar demonstration would be protected by the First Amendment from an intentional infliction of emotional distress suit.

And I'm wondering why that is.

If you think that what is -- what causes the lack of protection here is the kind of glomming to a private funeral, the exploitation of a private person's grief, the -- the appearance for no other reason than to gain publicity at a private event -- if that's the problem, why doesn't it also apply to a standard, you know, "get out of Iraq", "war is wrong", kind of demonstration?

Mr. Summers: Justice Kagan, I say that is a -- one, it's a much closer call, and two, I would look to the facts of the case to see if the funeral itself was disrupted.

But that isn't the facts of our case.

The facts of our case was one, that it was disrupted and two, that it's personal, targeted assaults on Mr. Snyder.

Justice Elena Kagan: Well, suppose it is not disrupted and suppose -- and I know you that this is, that contest these facts -- that yours wasn't disrupted, that they stopped when you started, that they were a sufficient number of feet away from the funeral and so forth.

So we are just talking the fact that there are people who have -- who are appropriating and taking advantage of a private funeral in order to express their views, and they are in compliance with all of the content-neutral rules.

Mr. Summers: I would say that's a much closer call and not the--

Justice Elena Kagan: But why is it a closer call?

Mr. Summers: --It's a closer call because it's not a personal, targeted nature of the attack on the Snyder family that we have in this case.

Justice Elena Kagan: So does that mean that now we have to start reading each sign, and saying "war is wrong" falls on one side of the line but "you are a war criminal" falls on another side of the line?

Is that what we would have to do?

Mr. Summers: I think that, generally speaking, yes, Justice Kagan.

The court -- the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not.

There was a comment earlier that all the signs were presented.

Well, all the signs were presented by the Respondents, not by Mr. Snyder.

So we--

Justice Antonin Scalia: I guess that that kind of a call is always necessary under -- under the tort that you're -- that you're relying upon.

The conduct has to be outrageous, right?

Mr. Summers: --Correct.

Justice Antonin Scalia: That always requires that kind of a call, unless the tort is unconstitutional, as applied to all -- all harm inflicted by words.

Mr. Summers: Correct, Justice Scalia, the element of intentional infliction of emotional distress requires outrageousness.

Justice Elena Kagan: Well, that's true, but I was assuming a situation in which a jury found that the war was wrong, that a jury did find that outrageous; and the question was were we going to reverse the jury verdict because we -- the First Amendment prohibited it?

Mr. Summers: Again, I believe that's a closer call and I would say yes, if it's a general statement, does not disrupt the funeral, does not target the family, I would say that it's one, a much closer call, and yes, it's more likely that the Constitution is going to prevent that claim from going forward.

The -- I'd say--

Chief Justice John G. Roberts: Thank you, Mr. Summers.

The case is submitted.

Featured:

Doe #1 v. Reed - Oral Argument

Sun, 19 Dec 2010 15:34:06 +0000

Case:

Doe #1 v. Reed

Media File:

09-559_20100428-argument.mp3

Related Transcript:

09-559_20100428-argument.xml

Transcript:

ORAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument this morning in Case 09-559, John Doe v. Reed, Washington Secretary of State.

Mr. Bopp.

Mr. Bopp: Thank you, Mr. Chief Justice, and may it please the Court: No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.

Justice Antonin Scalia: What -- what about requiring disclosure of campaign contributions?

Mr. Bopp: Well, the--

Justice Antonin Scalia: Do you think that is unconstitutional?

Mr. Bopp: --This Court has upheld the disclosure in Buckley v. Valeo in 1976.

Justice Antonin Scalia: Right.

Now, why doesn't that fall within your principle that no person should be exposed to criticism for--

Mr. Bopp: Well, it could--

Justice Antonin Scalia: --his political beliefs?

Mr. Bopp: --It could potentially, and -- but this Court subjected those requirements to the appropriate constitutional First Amendment analysis, found that there was sufficiently important governmental interest, some of which are not present when we're talking about a referendum or initiative, and then also created an exception from even a generally valid statute where there is a reasonable probability of harassment of that particular individual or -- or group.

So the First Amendment analysis regarding the privacy of association, the privacy of identity and beliefs, the potential of -- of intimidation are all elements of the analysis that was employed by the Court in Buckley--

Justice Sonia Sotomayor: I'm -- I'm trying to separate out the harassment aspects of this case from the working proposition that there's some sort of freedom of association, of privacy.

Your theory, putting harassment aside, would invalidate all of the State laws that require disclosure of voter registration lists, correct?

All of those States like New York that permit public review of voter registration lists and party affiliations, et cetera -- that's illegal?

Mr. Bopp: --No.

Justice Sonia Sotomayor: That's unconstitutional?

Mr. Bopp: No.

We believe they would not.

They would certainly be subject to First Amendment analysis.

But in -- in those -- in the instance of voter registration, there are other governmental interests that are not present in petition signings for referendums.

Justice Sonia Sotomayor: Explain to me the difference.

And -- well, one other aspect of State legislative -- I can only work from New York because I know it intimately, but it is a State that also permits or requires that petitions for candidate listing on the ballot be public as well.

New York relies in part, as this State does, on the public reviewing those petitions.

Would that be invalid as well, for a candidate's running?

Mr. Bopp: Well, we believe it would be subject to First Amendment analysis.

But, again, there are different governmental interests when you have candidates involved--

Justice Sonia Sotomayor: So explain to me what the difference is in those three situations.

Mr. Bopp: --Well, one is you have candidates involved--

Justice Sonia Sotomayor: With -- with the State's interest.

Mr. Bopp: --One is you have candidates involved.

And this Court recognized in Buckley that there were disclosure interests that related specifically, and actually only, to candidates.

For instance, people who contribute to a candidate, that information, to the voter, can signal the interests that the candidate, once he or she takes office, will be responsive to.

When we have an initiative, we know what the law is that is being voted upon.

It's not a matter of -- of electing a representative.

Justice Sonia Sotomayor: You don't think that -- putting aside this kind of referendum, just a hypothetical referendum having to do with a certain tax scheme -- you don't think the voters would be interested in knowing what kinds of people in what occupations are interested in that particular tax benefit or not?

Mr. Bopp: Well, a few -- few might be, but we think this is marginal information.

First, they are adopting a law.

And so we know what the law is.

And -- and while it might be marginal information for a few people, once the measure qualifies for the ballot, this is only -- the petition signature and distribution is only for a very limited governmental interest.

Chief Justice John G. Roberts: Counsel--

Mr. Bopp: And that -- and that--

Chief Justice John G. Roberts: --I'm sorry, go ahead and finish your answer.

Mr. Bopp: --And that limited governmental interest is to preserve State money, to not conduct an election on the matter unless there is sufficient public support.

So--

Chief Justice John G. Roberts: Now, counsel, the responses you have given to a couple of the questions has been that the First Amendment analysis would apply.

But given you have a facial challenge, is that enough?

Don't you have to indicate that the First Amendment analysis would prevail in either all of the other cases, most of the other cases, a significant portion?

This is a facial challenge.

And if the challenge is going to fail in some of those other cases, I think your facial challenge fails as well.

Mr. Bopp: --Well, we're only challenging the application of the Public Records Act to petitions and referendum petitions.

We're not challenging it as it would be applied to petitions to put people on the ballot.

Chief Justice John G. Roberts: So we have to decide, in assessing your claim that, no matter what the referendum issue was, that there's a significant intrusion on First Amendment rights?

Mr. Bopp: Yes.

Chief Justice John G. Roberts: So that if, for example, the referendum involves a bond issue as to which people may have particular views, but they're not going to get terribly excited about it, we'd still have to say that that's protected under the First Amendment?

Mr. Bopp: Well, actually, under -- with modern technology, it only takes a few dedicated supporters, and a computer, who are willing to map -- to put this information on the Internet, MapQuest it, as they did with respect to the contributors of Proposition 8, which resulted in -- and then encourage people to harass and intimidate them, which resulted in hundreds of examples of harassment--

Chief Justice John G. Roberts: Well, my point is, though, you're not likely to get that with respect to, you know, a debt issue, raising the debt ceiling from 0.8 percent to 0.9 percent.

You're not going to get a crowd outside your house because you signed that petition.

Mr. Bopp: --Well, it may not manifest itself in -- in any particular initiative.

We agree with that, but we think the potential is there, and there is usually a group of supporters of any measure that, you know, are passionate about that particular issue--

Justice Ruth Bader Ginsburg: But -- but don't you have -- I thought we were dealing with count 1 of the complaint.

Mr. Bopp: --Yes.

Justice Ruth Bader Ginsburg: Count 2 would be the counterpart to the exception that's made from the disclosure requirement with regard to contributions with certain organizations whose members might be harassed.

Mr. Bopp: Well, with this--

Justice Ruth Bader Ginsburg: That's -- that's not -- that would still be open if you lose the first part of this case.

So going back to the question you were asked, how does this differ -- that Justice Scalia asked -- how does this differ from the contributor who says, well, I might be harassed?

The contributor would have an opportunity to show that.

Mr. Bopp: --Buckley dealt with that exact question.

And first -- the first step of the analysis is whether or not the law is -- is valid under the First Amendment.

And then there is an exception to even a valid constitutional -- a constitutionally valid law.

Justice Ruth Bader Ginsburg: So, that's why I'm asking you why, on the first part, should it be any different, as long as you have the door open to show that if you were going to suffer reprisals, harassment, that an exception would have to be made?

Mr. Bopp: Well, we don't think that the exception is a substitute for considering the initial validity of the law, which--

Justice Ruth Bader Ginsburg: May I -- may I ask you one -- something that was not in your brief, but was in the Secretary's brief.

Is this list available to Project Marriage?

And specifically on page 34 of Secretary Reed's brief, the statement is made that the sponsoring organizations sometimes sell or trade these lists.

They use them for fundraising purposes.

So that would be the end of a person's privacy, at least on one side.

Is that true, that the initiative sponsor uses these lists?

Mr. Bopp: --Yes.

Justice Ruth Bader Ginsburg: Yes?

Mr. Bopp: Yes, this is an act of private association.

The petition signers are associating with the referendum committee for purposes of placing this measure on the ballot--

Justice Ruth Bader Ginsburg: They don't say: Now, I agree you can use my name for fundraising purposes.

But that's -- it's implicit, you say, in their signing the petition that the--

Mr. Bopp: --Well, what--

Justice Ruth Bader Ginsburg: --signature collector can sell the names, use them for its own fundraising purposes?

Mr. Bopp: --What is implicit is they are associating with this group for a purpose, and that is support for, in this case, Referendum 71.

And so they use those names for valid purposes.

But--

Justice Antonin Scalia: Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating--

Mr. Bopp: --Yes, Buckley II.

Justice Antonin Scalia: --or of adopting legislation?

What is that?

Mr. Bopp: Buckley II.

You struck down the requirement that the person who is soliciting signatures self-identify.

Justice Antonin Scalia: That is--

Mr. Bopp: That is a process--

Justice Antonin Scalia: --Soliciting signatures is not taking part in the process of legislating.

Mr. Bopp: --Well--

Justice Antonin Scalia: The person who requests a referendum is taking -- when there's a certain number of signatures required to achieve it, is taking part in that.

And in light of the fact that for the first century of our existence, even voting was public -- you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for -- the fact is that running a democracy takes a certain amount of civic courage.

And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or to take part in the legislative process.

Mr. Bopp: --Well, the--

Justice Antonin Scalia: You are asking us to enter into a whole new field where we've never gone before.

Mr. Bopp: --Well, with all due respect, you have already opined in Buckley II that the person on the other side of the clipboard is protected by the First Amendment.

Justice Ruth Bader Ginsburg: I don't think that's -- that's true of Buckley II.

What was -- what this Court said could not be done is that the solicitor could not be made to wear a badge that says "I am a paid solicitor", but that the solicitor's name had to be identified for the State.

Certainly, the solicitor -- there was an affidavit, and there was the filings with whatever was the State agency.

So what was -- what this Court said could not be done was this kind of in-your-face big button that says "I am a paid solicitor", but the solicitor's name and address certainly had to be disclosed.

Mr. Bopp: That is true.

You've correctly described Buckley II.

But as we can see in the facts of this case, the public disclosure of the petition names in this case -- there was a planned harassment and intimidation of these voters by--

Justice Anthony Kennedy: Well, let me -- let me ask you, could the opponents of a particular ballot measure organize a boycott for -- and picket businesses whose managers had supported that boycott?

Mr. Bopp: --Yes.

Justice Anthony Kennedy: Had supported that initiative?

Mr. Bopp: Yes.

Under the--

Justice Anthony Kennedy: Well, if that's so, then under Claiborne Hardware, which I -- I notice you didn't cite in your brief, but if -- if that's so, then it seems to me that the State's -- or that -- that the signers' interest in keeping their names private is somewhat diminished.

Mr. Bopp: --Yes.

Justice Anthony Kennedy: It's a First Amendment activity.

Mr. Bopp: But what we're -- but what is involved here that is not involved there is the requirement by the government that you publicly disclose your identity and beliefs on a matter that then--

Justice Ruth Bader Ginsburg: But -- just--

MR. BOPP -- subjects you to the boycott.

Let me stop you there, because I think your -- your own brief, I think you said twice that you cannot tell anything about the signer's belief from the mere signature.

You said it could be support for -- for the proposition or it could be just support for letting the people decide.

Mr. Bopp: --That is--

Justice Ruth Bader Ginsburg: Or it could even be, you say, that this solicitor is pesky, and in order to placate the solicitor, to get rid of the solicitor, we'll just sign.

So you -- you have said that -- that the signing itself is ambiguous.

You don't know what the reason is.

It doesn't necessarily mean that the person is a supporter of the proposition.

Mr. Bopp: --But, with all due respect, we did not say the third.

We did say the first and the second.

And -- but either of those are political statements.

The highlighted box at the top, you know, states -- states that by signing R-71, we can reverse that decision, meaning the passage of a law, and protect marriage between a man and a woman.

Justice Ruth Bader Ginsburg: May I call your attention to page 20 of your reply brief?

Because I don't think that your response was correct.

You say: Do petition signers support the repeal, simply indicate they would like public election to be held, or simply sign to avoid any further discussion with the petition circulator?

Mr. Bopp: I acknowledge that we said that, Justice Ginsburg.

And, of course, the second statement is -- and which I think is the dominant statement and certainly sufficient -- and that is that we want a measure to be placed on the ballot in order for the people to vote.

That is one of the central--

Justice Samuel Alito: Well, Mr. Bopp, if a voter -- if the legislature passes a statute and someone is -- is satisfied with that statute, how likely is it that that person is going to sign a petition to have a referendum to see whether the statute should be blocked?

Mr. Bopp: --I think it's very unlikely.

But it -- we acknowledge it's possible, but we think it's very unlikely.

Justice Samuel Alito: It's possible--

Justice Anthony Kennedy: But--

Justice Samuel Alito: --but if you were in the real world, if you were to poll the people who sign a referendum petition with respect to a statute that was passed by the State legislature, what percentage do you think would be opposed to that legislation?

Mr. Bopp: Very few.

Justice Anthony Kennedy: --And so Justice Alito's question points out that this would be a very slim basis upon which to rest a holding in your favor.

And just to go back to the line of questions of the first, the State of California has very complicated referendum and initiative matters.

Don't you think it's relevant for the public to know that, say, a public employees union had paid solicitors to put those signatures on the ballot, or that the Chamber of Commerce or the National Association of Manufacturers had paid solicitors to put this on the ballot?

Isn't that part of assessing the -- the reasons why this initiative was proposed?

And isn't that vital to the voters -- to the voter in making an informed decision?

Mr. Bopp: Well, actually, after your Buckley II decision, the Ninth Circuit struck down the requirement of disclosing the paid circulators.

And, of course, in California, petitions are not public.

Justice Ruth Bader Ginsburg: They did that.

It wasn't due to Buckley II, because as you just acknowledged, under Buckley II, the solicitor is disclosed.

Mr. Bopp: Well, the Ninth Circuit thought it was Buckley--

Justice Anthony Kennedy: Correct me, but the point is, isn't -- isn't there an interest in knowing this information?

Not -- not that it's paid.

Mr. Bopp: --There is no evidence--

Justice Anthony Kennedy: We'll leave that out.

But -- but to know that -- that -- the persons that supported the amendment.

Mr. Bopp: --There's no evidence in the record that that is pertinent information, and, at most, we think it is marginal information.

Justice Sonia Sotomayor: Counsel, if we create this right of -- this constitutional right of association in the manner that you are describing it, why is it limited to the voting area?

Would we be inviting review if a group of citizens get together and send a letter to an agency that says please pass X regulation, or rescind Y regulation?

Would the agency be prohibited from making that letter public?

Mr. Bopp: Well, potentially.

And -- and this Court -- I -- because it would be required to be subject to a First Amendment analysis.

It's this Court that created, in the NAACP case--

Justice Sonia Sotomayor: So you're -- you're suggesting--

Mr. Bopp: --the right of private association.

Justice Sonia Sotomayor: --that when a petitioner or a person engages in political discourse with the government, that they -- when they choose to do it, because the government is not compelling them to write to it; it's not compelling them to sign the referendum.

It's just--

Mr. Bopp: And they're not compelling Ms. McIntyre to distribute her brochure, either.

But this Court held that--

Justice Sonia Sotomayor: --But it's -- but Ms. McIntyre wasn't asking the government to engage its process in her favor.

She was asking for political reform, but she wasn't asking to engage the government process on her behalf.

Mr. Bopp: --Well, the government, you know, has a lot of options.

For instance, they don't have to conduct elections for the election of judge.

But if they opt to do that and provide that procedure, well, then, the First Amendment applies to the political speech--

Justice Samuel Alito: Well, to follow up on Justice Sotomayor's question, do you think an agency could say, if you want to comment on proposed -- on a proposed rule, you have to disclose to us your name and your address and your telephone number and your political affiliation, and all sorts of -- your marital status and your income level and all sorts of other demographic information?

Mr. Bopp: --And your employer, as in this case here.

Justice Samuel Alito: Could they do that?

Mr. Bopp: No -- no, because there is no sufficient governmental interest that would justify it.

Justice Antonin Scalia: Not even just your name, so they can check that this thing isn't phony and that all the names on it aren't -- aren't made up by one person?

Mr. Bopp: They, of course, can -- can check that.

Justice Antonin Scalia: Of course, they can.

So they can get your name, right?

Mr. Bopp: Yes, they can get your name--

Justice Antonin Scalia: Okay.

Mr. Bopp: --and we're not objecting to filing of a petition.

Justice Antonin Scalia: But you're objecting to the public being able to check whether the agency is indeed finding out whether this is a genuine petition or not, correct?

Mr. Bopp: No.

No, I'm not objecting to that.

Justice Antonin Scalia: Really?

Mr. Bopp: They have procedures to check and verify these signatures that do not involve public disclosure.

Justice Antonin Scalia: Didn't you have some options, too?

Have you started a referendum to repeal the -- the California law that requires disclosure?

Mr. Bopp: California law does not require disclosure of the petitions, and that has been upheld by the courts of California.

And you can verify these signatures.

Justice Antonin Scalia: I don't understand.

I thought that's what you're challenging.

The--

Mr. Bopp: Well, but you asked about California--

Justice Antonin Scalia: --I'm sorry.

I'm sorry.

Mr. Bopp: --if I heard your question.

Justice Antonin Scalia: Washington.

I got the wrong State.

Mr. Bopp: Okay.

It--

Justice Stephen G. Breyer: Can you go back--

Justice Antonin Scalia: The people of Washington -- the people Washington evidently think that this is not too much of an imposition upon people's courage, to -- to stand up and sign something and be willing to stand behind it.

Mr. Bopp: --In a sense--

Justice Antonin Scalia: Now, if you don't like that, I can see doing it another way.

But -- but the people of Washington have chosen to do it this -- this way.

Mr. Bopp: --Actually, for--

Justice Antonin Scalia: And you're saying that the First Amendment absolutely forbids that.

Mr. Bopp: --Actually, for a century, they chose not to do this.

It wasn't until 2006--

Justice Antonin Scalia: That's fine.

Proving my point.

Mr. Bopp: --They did not publicly disclose the petitions for a century.

Justice Antonin Scalia: It might have been a good idea.

Mr. Bopp: Well--

Chief Justice John G. Roberts: I suppose the -- a majority of the voters in Washington decided that, and one of the purposes of the First Amendment is to protect minorities.

Mr. Bopp: --Well, only in the most general sense.

They adopted a Public Records Act.

They didn't adopt a law that specifically required the disclosure of these petitions.

But in a general sense, they did.

Justice Ruth Bader Ginsburg: Mr. Bopp, this is not a peculiar thing to the State of Washington; that's correct, isn't it?

Aren't there about 20-odd States that require disclosure of the names of signers to initiatives, referenda?

Mr. Bopp: That is true.

Some -- some in their initiative and referendum statute, because they actually provide some public input on verification where Washington does not; others under their Public Records Act.

Some do not, such as California.

Justice Ruth Bader Ginsburg: So -- but what you're saying with respect to Washington would go for most of those other States that have -- that have public disclosure of initiative and referendum petitions.

Mr. Bopp: Well, one -- one thing we say is different between Washington and these other States is that Washington provides no way for the public, even if they get access to the petitions, to participate in the verification process.

The only thing the public can do is have -- observe -- a limited number of observers.

These observers are prohibited from--

Justice Ruth Bader Ginsburg: I thought that there were instances where the State official missed something and a member of the public who had access to the list of signers said: Wait a minute; I know so-and-so was my neighbor who died 5 years ago.

Mr. Bopp: --That's not allowed in the State of Washington.

The instructions from the Secretary of State is while you can have observers to observe the process, the people--

Justice Ruth Bader Ginsburg: But you mean if -- that was over.

It passed the screen of the Secretary of State.

It's disclosed to the public.

If someone then said you've got a lot of dead souls on these lists, the State would do nothing about it?

Mr. Bopp: --There is absolutely no procedure under Washington statute to do anything with that information.

Justice Ruth Bader Ginsburg: Well, we'll ask -- we'll ask the--

Mr. Bopp: Nothing.

Justice Ruth Bader Ginsburg: --We'll ask the Attorney General of Washington.

Mr. Bopp: Yes.

Justice Sonia Sotomayor: Weren't two of the Petitioners here -- weren't two of the Petitioners here seeking the list so that they could go over the certification process the State had done to ensure that they had certified all the right people, et cetera?

Mr. Bopp: Well, one of -- one of the intervenors sought an exception from the -- from the injunction, which we did not object to, that -- that they would have access to the list.

But under confidentiality and protective order--

Justice Sonia Sotomayor: I'm not going to the privacy questions.

You responded to Justice Ginsburg by saying that there was no way to challenge the State's process of validation, and that -- I don't think that's correct.

Mr. Bopp: --With all respect, I didn't say that.

Justice Sonia Sotomayor: Oh.

Mr. Bopp: What I -- what I said is there's no role for the public in verifying signatures.

You can ask for judicial review--

Justice Sonia Sotomayor: That's assuming the answer, meaning if they don't have the right to access, they can't.

But, legally, they can challenge it if they find on the petitions that things were erroneously counted by the State.

They can go into court and prove that.

Mr. Bopp: --The only thing that they could do is request that the court does its own count.

In other words, there's judicial review available.

But the public has no role in the verification, but they can trigger judicial review.

And then the court conducts its own count.

In other words, this is not an adversary process in which people come in and present evidence of -- of people's -- of invalid signatures.

Justice Ruth Bader Ginsburg: Why would you involve the court?

If the State's -- the executive representative of the State says: Oh, we missed that.

Now we're going to have to deal with it.

We don't need any court to order us to do it.

Mr. Bopp: Well, the observers can observe the process, and if they feel--

Justice Ruth Bader Ginsburg: No, this is after the observers.

This is--

Mr. Bopp: --Well, but--

Justice Ruth Bader Ginsburg: --We're talking about a member of the public noticing that there are people on the list who shouldn't be there.

Mr. Bopp: --Well, the -- the observer -- under the Washington procedure, observers can observe the process, and if they feel, or if anyone feels, that there has been an inadequate job in -- in verification, then they can ask for judicial review.

And then the court conducts the--

Justice Ruth Bader Ginsburg: Why would they ask for judicial review instead of going first to the State's Attorney General and saying, look, you -- your people missed it?

Mr. Bopp: --Well, there's no procedure for that.

Justice Ruth Bader Ginsburg: Why involve the court?

Mr. Bopp: That's not -- there's no procedure for that.

You know, if they wanted to involve the public -- and that's the difference, I said, between this procedure and other procedures.

They're claiming the need for public disclosure so the public can be involved in verification.

Well, there's no procedure--

Justice John Paul Stevens: Isn't there another--

Mr. Bopp: --to be involved in verification.

Justice John Paul Stevens: --Isn't there another possible public interest?

Would it be a legitimate public interest to say I'd like to know who signed the petition because I would like to try to persuade them that their views should be modified?

Is there a public interest in encouraging debate on the underlying issue?

Mr. Bopp: Well, it's possible, but we think this information is marginal.

In other words, the -- it's much more important--

Justice John Paul Stevens: Well, it does identify people who have a -- a particular point of view on a public issue.

And if you had the other point of view, don't you have an interest in finding out who you'd like to convince to change their minds?

Mr. Bopp: --Well, we -- we think it's a -- a very marginal interest.

The Ninth Circuit recently ruled that if you give a small contribution to an initiative, there's not -- I mean, nobody cares.

So why should it be publicly disclosed when it's so marginal?

Justice Antonin Scalia: What about just -- just -- what about just wanting to know their names so you can criticize them?

[Laughter]

Mr. Bopp: Well--

Justice Antonin Scalia: Is -- is that such a bad thing in a democracy?

Mr. Bopp: --Well, what is bad is not the criticism; it's the public -- it's the government requiring you to disclose your identity and beliefs.

Justice Antonin Scalia: But part of the reason is so you can be out there and be responsible for the positions you've taken.

Mr. Bopp: Well, then why don't they require both sides?

Justice Antonin Scalia: So that people -- people can criticize you for the position you have taken.

Mr. Bopp: Then why don't they require both sides if that was the purpose?

Justice Antonin Scalia: What do you mean, "both sides"?

The other side hasn't signed anything.

When they sign something--

[Laughter]

Mr. Bopp: Well, but the other side--

Justice Antonin Scalia: When they sign something, they'll be out there for public criticism as well.

Mr. Bopp: --Okay.

But this is a one-way street.

Justice Antonin Scalia: Oh, this is such a touchy-feely, oh, so sensitive about -- about any--

[Laughter]

You know, you can't run a democracy this way, with everybody being afraid of having his political positions known.

Mr. Bopp: I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats--

Justice Ruth Bader Ginsburg: Well, then that's--

Justice Antonin Scalia: Well, that's bad.

The threats should be moved against vigorously--

Mr. Bopp: --And -- and--

Justice Antonin Scalia: --but just because there can be criminal activity doesn't mean that you -- you have to eliminate a procedure that is otherwise perfectly reasonable.

Mr. Bopp: --But all we're asking for is a First Amendment analysis of the compelled disclosure of the identity of these people and whether or not these interests are sufficient.

Could I reserve the balance of my time?

Chief Justice John G. Roberts: Thank you, Mr. Bopp.

General McKenna.

ORAL ARGUMENT OF GENERAL ROBERT M. McKENNA ON BEHALF OF THE RESPONDENTS

Mr. McKenna: Mr. Chief Justice, and may it please the Court: I'd like to begin with the question of how the public can bring to the attention of the government that errors and fraud have been discovered.

First of all, it's important to understand that the petitions do not become public records after the verification process but, in fact, are made available as public records before the verification process even begins.

This is because the Secretary of State's first step after receiving submitted petitions is to take them to his archiving section and to have them digitized.

As soon as they're digitized, they're available on disks for anyone who requests them.

Then the verification process begins.

During the verification process, it is possible--

Justice Sonia Sotomayor: How much time are we talking about in those processes?

Mr. McKenna: --The verification process, Justice Sotomayor?

Justice Sonia Sotomayor: Yes.

Mr. McKenna: The verification process will depend on how many signatures have been submitted--

Justice Sonia Sotomayor: No, no, no.

I'm trying to get the relationship between the disks being made available and the verification process.

So is there a time for the public to look through the disks before the people who are sent into the room are sent into the room?

Justice Ruth Bader Ginsburg: That's what you've just said--

Mr. McKenna: --Yes, they're--

Justice Ruth Bader Ginsburg: --that they're -- that they are immediately available on the disk, and so while the checking is going on by the Secretary, the public has the list.

Is that what you've just said?

Mr. McKenna: --Yes, that's correct.

For example, in the case of Referendum 71, the proponents of the referendum submitted the petition sheets on Saturday, July 25, 2009, and on Tuesday, July 28, a records request was already submitted.

And so they can obtain records--

Chief Justice John G. Roberts: Would these records--

Justice Anthony Kennedy: Was that pursuant to the Public Records Act that we're talking about--

Mr. McKenna: --Yes.

Justice Anthony Kennedy: --or was that part of the initiative and referendum structure before the Public Records Act was passed?

Mr. McKenna: Justice Kennedy, this is part of the Public Records Act.

This is as a result of the Public Records Act that these petition sheets are made available.

Chief Justice John G. Roberts: --Counsel--

Justice Anthony Kennedy: So -- all right.

So this -- the public record -- pardon me.

The -- in California, we call it an initiative and referendum process -- existed and was in place before the Public Records Act added this additional feature of disclosure?

Mr. McKenna: Yes, that's correct.

Justice Anthony Kennedy: So there was a judgment at one time by the State of Washington that it didn't -- that it didn't need the public records disclosure?

Mr. McKenna: Well, when the initiative and referendum processes were created by public vote on a constitutional amendment of 1912, there was no Public Records Act at all.

And the Public Records Act, an Act of general applicability, was adopted by the voters in 1973 as part of an initiative which also enacted comprehensive campaign finance reform.

Chief Justice John G. Roberts: --Counsel, if the State had a law that you could disclose voters and for whom they voted, would that implicate First Amendment interests?

Mr. McKenna: Yes, Mr. Chief Justice, we would -- we do believe that First Amendment interests would be implicated by revealing how people voted, and we don't see a legitimate State interest in knowing how people voted, only in who voted--

Justice Antonin Scalia: So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot?

Do you really think that?

Mr. McKenna: --No.

No, Justice Scalia.

I--

Justice Antonin Scalia: That it was unconstitutional--

Mr. McKenna: --No, Justice Scalia.

Justice Antonin Scalia: --for a whole century not to have a secret ballot?

Mr. McKenna: No, Justice Scalia, I didn't say that I thought that the secret ballot was constitutionally required.

I was asked by the Chief Justice whether some First Amendment interests would be implicated.

They probably would be.

Chief Justice John G. Roberts: What would the First Amendment interests be?

Mr. McKenna: Well, the First Amendment interest in how you vote?

Chief Justice John G. Roberts: Yes.

Mr. McKenna: You know, it might be implicated by a potential chill from voting, if you know your vote is going to be revealed.

Chief Justice John G. Roberts: Do you think having your name revealed on a petition of this sort might have a chilling effect on whether you sign it?

Mr. McKenna: Mr. Chief Justice, some chill may result, just as some chill may result from having your campaign contributions disclosed or the fact that you have registered to vote and provided your name, address, your voting history is being disclosed.

So some chill might be -- might result, but we do not think that it is significant enough.

Chief Justice John G. Roberts: You don't think revealing that you're a voter has the same chilling effect as revealing how you voted, do you?

Mr. McKenna: No, I do not.

I think how you voted would have a much greater chilling effect than the fact that you are registered to vote.

And -- and, of course, this Court has not ruled on whether the secret ballot is, you know, a constitutional right.

If -- if it is, then is town hall voting in New England unconstitutional?

Is the caucus system in Iowa for presidential candidates unconstitutional?

The Court in this case does not have--

Justice Samuel Alito: --in the last questions--

Chief Justice John G. Roberts: Well, I thought you told me that the First Amendment interests were implicated with respect to the secret ballot, that you couldn't require people to reveal how they voted.

Mr. McKenna: --We don't -- we don't know if this Court would rule that the vote could never be revealed.

We know that in some places, votes are done in public.

We know that before the late 1800s, there was no secret ballot.

We just -- we don't know what the constitutional ruling would be.

But we -- we do know that in this case, it's not necessary for the Court to reach that -- that determination, because in this case--

Justice Samuel Alito: --Well, I'd like to know how far you -- you are -- you want to go.

You say in your brief that the availability of the referendum signature petitions allows Washington voters to engage in discussion of referred measures with persons whose acts secured the election and suspension of State law.

So would -- would it be consistent with the First Amendment to require anybody who signs a petition to put down not just the person's name and address, but also telephone number, so that they could be engaged in a conversation about what they had done?

Mr. McKenna: --It -- it would depend on the strength of the State interest in having the telephone number.

The State does not have an interest in the telephone number on the petition form, because the State has -- only needs to know from the petition form the name and the address in order to verify--

Justice Samuel Alito: I thought that you were saying that one of the interests that's served by this is to allow people who -- to allow Washington citizens to discuss this matter with those who signed the petition.

So putting down the telephone number would assist them in doing that.

Mr. McKenna: --It -- yes, it probably would make it easier for people to contact.

Justice Samuel Alito: So you would--

Mr. McKenna: But the policy--

Justice Samuel Alito: --You would endorse that?

Mr. McKenna: --That would be a policy determination for the legislature to make, Justice Alito.

Justice Samuel Alito: No, I'm not asking the policy question.

I'm asking whether the First Amendment would permit that.

Mr. McKenna: I believe it could permit that, yes, Justice Alito.

Justice Samuel Alito: Now, one of your Co-Respondents says that supplying this information provides insight whether support comes predominantly from members of particular political or religious organizations.

Would it be consistent with the First Amendment to require anybody who signs a petition to list the person's religion?

Mr. McKenna: No, I do not believe it would, Justice Alito.

Justice Stephen G. Breyer: Suppose that in 1957 in Little Rock, a group of Little Rock citizens had wanted to put on the ballot a petition to require the school board to reopen Central High School, which had been closed because there was a sentiment in the community that they didn't want integration.

And it was pointed out that if they signed this petition, there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.

Now, is there no First Amendment right in protecting those people?

And if there is, how does it differ from your case?

Mr. McKenna: Justice Breyer, that is count 2.

That is count 2 of the Petitioners' complaint.

This Court ruled as recently as Citizens United that such situations should be evaluated on a case-by-case basis to evaluate the reasonable probability of threats, harassments, and reprisals.

But that--

Justice Antonin Scalia: So you -- you would have no objection to as an-applied challenge to disclosing the names of individuals to a particular cause, where it is demonstrated that the opponents of that cause are violent and will do violence to the people who signed the petition?

Mr. McKenna: --Yes, Justice Scalia.

That would be the Socialist Workers Party case.

This -- this Court has ruled that, on a case-by-case basis, it is possible that some information otherwise disclosed--

Justice Anthony Kennedy: What about a business boycott?

Justice Antonin Scalia: So this is just a general challenge to ever, ever disclosing the names of petition signers?

Mr. McKenna: --Of any type of petition including nominating petitions--

Justice Antonin Scalia: Right.

Mr. McKenna: --initiative petitions, and the rest.

Justice Anthony Kennedy: What about a business boycott?

Suppose that were a -- a likely outcome of disclosing the name?

Mr. McKenna: Well, of course, boycotts have been upheld under the First Amendment in Claiborne Hardware, and so if someone wanted to boycott a business because it turned out that the manager of the business had been a supporter of a particular ballot measure, that would be allowable, of course, to that person choosing to boycott.

Chief Justice John G. Roberts: Counsel, your answer to Justice Breyer was that they can bring an as-applied challenge.

Now, that as-applied challenge would be small comfort unless the names were protected pending the resolution of that challenge, correct?

Mr. McKenna: Yes.

Chief Justice John G. Roberts: So you think a stay should be granted in this case to allow the Petitioners to pursue an as-applied challenge.

Mr. McKenna: Yes, of course -- yes, they could apply for another preliminary injunction if this Court upholds the court of appeals.

They were able to obtain that preliminary injunction in this case, which is why these petition forms have not been released to date, except under a protective order by the court to the opponents.

Justice Ruth Bader Ginsburg: And that would--

Chief Justice John G. Roberts: Do you think that the disclosure of the names, pending the resolution of their as-applied challenge, would subject them to incidents of violence and intimidation?

Mr. McKenna: We -- there is no evidence of that in the record.

There's no evidence--

Justice Ruth Bader Ginsburg: --Does -- is it--

Chief Justice John G. Roberts: There's no evidence -- there's no evidence of episodes of violence or intimidation?

Mr. McKenna: --Involving the Referendum 71 signers?

No.

The evidence in the record is about people who were out circulating petitions, people who were out, you know, campaigning for the petitions, the campaign manager for the measure.

But none of the evidence in the record speaks to petition signers, and none of the evidence in the record speaks to petition signers for other, similar measures which were cited by the Petitioners.

Justice Ruth Bader Ginsburg: --Is that because nobody got to count 2?

And the district court -- this whole case in the lower courts was on count 1 alone; wasn't that so?

Mr. McKenna: Yes, that is -- yes, that is correct.

Justice Ruth Bader Ginsburg: And count 2 is the one that deals with the harassment.

Mr. McKenna: That is true, Justice Ginsburg.

Of course, in several other States, Arkansas, Florida, and Massachusetts, which had similar measures regarding gay civil rights or same-sex marriage on the ballot -- in those three States, the petition forms were obtained under public records, were put on the Internet, and no evidence has been provided that's in the record that anyone who signed any of those petitions in those three States was subjected to harassment--

Justice Samuel Alito: Well, let's say somebody is thinking of circulating a petition on a sensitive subject and fears that people may be dissuaded from signing because they fear retaliation.

At what point could they bring this as-applied challenge?

Do they have to -- could they do it before they even begin to circulate the petition, arguing that if -- if these names -- if people are not assured ahead of time that their name and address is not going to be revealed to the public on the Internet, they're not going to sign this?

Mr. McKenna: --Justice Alito, it would be possible procedurally for them to bring the motion for an injunction even before collecting the signatures--

Justice Samuel Alito: And how would they--

Mr. McKenna: --if they had sufficient evidence.

Justice Samuel Alito: --How would they prove that there's -- that there's a -- a threat, a sufficient threat of harassment in that particular case, before the petition is even signed?

Mr. McKenna: I believe that the sponsors of the measure would bring to the court evidence, if they have any, of -- because of the controversial nature of that particular measure, that is based on what's happened to some of the people who were planning to put the measure on the ballot.

Justice Antonin Scalia: But -- but you -- you've rejected that here.

You've said there's no evidence here that any of the petition -- petition signers were subjected to any harassment.

Mr. McKenna: Right.

Justice Antonin Scalia: Of course there isn't, because the names haven't gotten out yet.

How could you possibly demonstrate before the names get out that petition signers are going to be subjected to harassment?

Mr. McKenna: One could look to--

Justice Antonin Scalia: Or otherwise, don't insist upon evidence that these very petition signers will be harassed.

Mr. McKenna: --I imagine, Justice Scalia, that the individuals moving for that preliminary injunction would do what the Petitioners have done in this case.

They would cite to an example from another State involving a comparable measure.

Justice Antonin Scalia: And you think that would be an acceptable type of evidence?

Mr. McKenna: They could bring it into the court.

I'm not saying the court would accept it, because I don't know--

Justice Antonin Scalia: Well, if you don't think it's acceptable, then -- then -- then you're not making an argument.

Mr. McKenna: --Justice Scalia, I didn't say it couldn't be acceptable.

I'm saying this is a hypothetical, so I don't know what the evidence would look like in the hypothetical example.

Justice Samuel Alito: Well, the -- the hypothetical is that before this petition is circulated, the supporters came into court, and they said: Look what has happened in California with -- with Proposition 8.

Don't disclose -- enter an order prohibiting the public disclosure of the names and addresses here.

Would that be sufficient?

Mr. McKenna: Justice Alito, I think that the evidence would have to be very strong.

It would have to rise above criticism.

I think it would have to rise to the level of threatened violence.

It would have to rise to the level of the Socialist Workers Party case, for example, or the NAACP case.

I think the standard would be very high.

But it would be up to the trial judge to decide whether or not the evidence was sufficient to issue the preliminary injunction.

Justice Ruth Bader Ginsburg: Is it -- the State has had this procedure now for some time, and there have been controversial ballot initiatives.

Is there any history in the State of Washington that signers have been subject to harassment?

Mr. McKenna: There has not, Justice Ginsburg, and that's even though a half a dozen initiatives on a variety of topics have been released.

Another half dozen are pending.

Chief Justice John G. Roberts: What -- what's the most sensitive similar petition for a referendum?

Mr. McKenna: There has been no measure on domestic partner benefits or same-sex marriage in Washington State--

Chief Justice John G. Roberts: No, but what's the--

Mr. McKenna: --but there are other--

Chief Justice John G. Roberts: --What's -- what's the other one that's going to get people -- that's the most controversial public issue?

Mr. McKenna: --Justice--

Justice Sonia Sotomayor: Proposition 8?

Mr. McKenna: --Well--

Chief Justice John G. Roberts: No, I'm talking about in Washington, counsel.

Mr. McKenna: --In Washington State.

Mr. Chief Justice, we have had measures on assisted suicide, for example, which was very controversial, and -- and there's no evidence involving that set of petitions.

Chief Justice John G. Roberts: Was the referendum in favor or opposed to assisted suicide?

Mr. McKenna: It was -- well, the referendum challenges the assisted suicide law.

So if you vote for the referendum, you vote to uphold the legislature's adoption of that law, which -- which allowed assisted suicide.

So there have been controversial measures.

Justice Anthony Kennedy: This case will likely be controlled by our First Amendment precedents, because that's the most fully developed.

Did you look at the Petition Clause at all?

In the early days of the republic, the petitions were the way in which you communicated with your legislator.

Mr. McKenna: Yes.

Justice Anthony Kennedy: And I tried to look it up.

I have a recollection, but I'm not sure, that those petitions were sometimes put in the Congressional Record.

But did you look at the history of the Petition Clause?

Mr. McKenna: Justice Kennedy, we have considered the history of the Petition Clause, and we see a basic difference between the kinds of petitions under the Petition Clause and the petitions at issue here because, essentially, petitioning the government under the Petition Clause is asking the government to do something.

You're petitioning them: Please do something.

The petitions for a referendum or an initiative are telling the government to do something.

The petition form says that I, the signer, am directing the Secretary of State to conduct an election.

And by submitting these petitions in a referendum, I am suspending the law which the legislature has already approved until the election has taken place.

Tell versus ask.

I think that's a pretty big -- a significant difference.

Justice Anthony Kennedy: But, of course, that can cut the other way, too, because then it's more like a vote.

And there -- there is strong interest in keeping the -- the vote private.

Mr. McKenna: And, Justice Kennedy, I'd like to speak to that question, because several Justices asked: Well, what can we tell from what, you know, someone who signed?

Do we know how they're going to vote.

I -- I agree that many people signing a petition are going to vote in favor of -- in the case of an initiative, in favor of the law the initiative would put on the ballot.

But also we know from the social science research, which is cited, for example, in the Direct Democracy Scholars green brief, that many people sign simply because they believe it's important for the -- for the public to have an opportunity to vote.

And, of course, as the Petitioners have acknowledged and we also point out, some people vote just to get around the circulator and get into the store.

Chief Justice John G. Roberts: What percentage -- what percentage of the people who signed this petition to put this law on the referendum do you think signed it because they think these sort of things should be generally put to a public vote as opposed to because they opposed the law?

Mr. McKenna: The percentage of people who believe simply that there should be a vote held has not been quantified by the research, except that several scholars indicate that it is significant.

So, whether it's 20 percent or 40 percent, I -- I really can't say within a certain--

Chief Justice John G. Roberts: You think as much as 20 percent of the people who signed this petition are actually in favor of the law that it's aimed to repeal?

Mr. McKenna: --It is possible.

But it's also possible some of those 20 percent don't have an opinion on the law, Mr. Chief Justice.

They simply think that there should be a vote held, and they'll make their mind up later on.

There are plenty of people who aren't aware when certain laws are -- are adopted that are subjected to a referendum, and they may not have decided at all.

In fact, one of the reasons they may sign the petition is to say: Well, I'm not sure how I'm going to vote, but, you know, I think a public vote would be a good idea.

So, I'm going to let it go forward to be on the ballot, and I'll decide.

Justice Samuel Alito: Can I ask you this question?

It seems to me your -- the strongest State interest here is detecting fraud.

And you mentioned that the records are digitized.

And maybe you can correct my impression of this, but it seems to me that if the records are digitized, there are very simple ways of detecting fraud that would not require the disclosure of the list to the public.

If somebody wants to see whether his or her name has been fraudulently put on the list, wouldn't it be very simple to set up a Web site where the person could put in a little bit of identifying information and see whether that person's name is on the list?

And if the -- the purpose is to see whether a particular person lives at a particular address, couldn't you just cross-reference by means of a computer program the information on the referendum with the -- with the voting lists?

So if you've got John Jones who lives at 10 Main Street, you see whether there really is a registered voter John Jones who lives at 10 Main Street?

Why does this all have to be put out on the Internet?

Mr. McKenna: Justice Alito, the -- just to be clear, you are right.

They do use computer -- computers because when -- in the verification process, the Secretary of State's staff, with the observers looking over their shoulder, will look at the petition and look up that voter in an -- in an electronic voter registration database.

This is exactly why the information is so useful to the public as well.

They have access to electronic online voter registration history as well, and they can also check.

In -- in Massachusetts, under their public records law in 2006, petition forms obtained by public records requests were put online, and over 2,000 people, as has been documented in the Lambda amicus brief, discovered that they -- their names are on petitions that they claimed did not sign, and discovered that they had been, in some cases, misled.

Justice Samuel Alito: Well, what's the answer to my question?

Couldn't you -- couldn't this be done very simply?

If I want to see whether somebody has fraudulently signed my name, very quickly go to a Web site, wouldn't be expensive to set up, put in your voter ID number, and see whether -- and your name, and see whether you're on the -- on the--

Mr. McKenna: Yes.

Justice Samuel Alito: --whether you -- somebody signed your name to the petition?

Mr. McKenna: Yes, Justice Alito, that -- that could be done.

In our State and the other States that's done when somebody requests the public records and chooses them to put online.

The State doesn't -- does not put the petition forms online itself, although, you know, other information is put online by the State.

Justice Anthony Kennedy: Do -- do we take this case on the assumption -- do you make the contention before us that the Secretary of State and those who assist it are not capable of determining whether the petition signatures are valid?

Mr. McKenna: No, we are not taking that position, Justice Kennedy.

Of course--

Justice Anthony Kennedy: I mean without public disclosure?

Mr. McKenna: --What we know, Justice Kennedy, is that in dozens of States around the -- around the country, as recently as 2009 in Maryland, 2006 in Massachusetts, and so on, it was the -- it was the public who requested ballot petitions by public records request who found significant fraud and error.

This isn't just about fraud -- fraud is very important -- it's also about finding plain old mistakes which the State, Secretary of State, or auditor has missed.

That -- that does happen with regularity in this country, and we cite cases in our brief where error is not fraud, but errors in Washington State have been discovered by people who look at these public records.

And--

Justice Antonin Scalia: Sometimes the public may not trust the Secretary of State.

Mr. McKenna: --Yes, sir.

Justice Scalia, we agree.

Justice Antonin Scalia: It -- it may be an issue in which his administration has taken a particularly firm stand, and the public may not trust the job that the Secretary of State does.

Mr. McKenna: That goes to the heart to the Public Records Act, Justice Scalia: Trust but verify.

The people did not leave to the State the idea that, well, we'll let you know what you need to know.

The people want a--

Justice Antonin Scalia: Trust but verify -- I like that.

[Laughter]

Justice Ruth Bader Ginsburg: You did say something about this category of speech.

You said, well, this is in the category that -- it's like O'Brien.

It has speech elements and non-speech elements.

And I was trying to figure out which -- what is it in the signature that speaks and what is it in the signature that doesn't speak?

Mr. McKenna: --The speech element could be construed in the fact that someone has chosen to sign a petition which we know means they want something to be put on the ballot.

So, they favor having it on the ballot.

That -- that much we know.

But we also looked to Burdick, of course, because in this -- in -- in the Burdick decision this Court held that write-in voting could be prohibited by the State of Hawaii.

That was upheld by the court of appeals and this Court.

And this Court found that writing in a candidate's name was not even expressive conduct.

So we look to the Burdick level of intermediate scrutiny, to the O'Brien level of intermediate scrutiny for the test.

Justice Ginsburg, the other point I wanted to bring up is something about Buckley II, which--

Justice Samuel Alito: Well, what is the -- to finish your answer to Justice Ginsburg's question, what is the non-speech component of signing a petition?

Mr. McKenna: --The non-speech component is suspension of law in the case of a referendum or the legislative effect.

We believe this is a legislative act fundamentally.

In--

Justice Samuel Alito: And what's the State's interest in regulating the non-speech component?

When you -- when you talk about the vote cast by an elected representative, of course, there's a strong interest in knowing how an elected representative voted, because the representative is answerable to the voters.

But somebody who signs a petition isn't answerable to anybody -- any other citizen.

So what's your interest?

Mr. McKenna: --The interest, Justice Alito, is knowing, first of all, that there were a sufficient number of signatures submitted to qualify the measure for the ballot.

Justice Samuel Alito: It's the fraud interest?

Mr. McKenna: That's the fraud interest.

And, secondly, there is a valid informational interest in knowing who is it exactly who's calling for this election and suspending the--

Justice Samuel Alito: Well, but how far does that go?

When I asked whether you could -- you want to know the religion of the people who signed, no, you can't do that.

How much more demographic information could be -- could be -- does the -- does the State of Washington have an interest in making publicly available about the people who support this election?

Let's say it's -- it's a referendum about immigration.

Does the State of Washington have an interest in providing information to somebody who says I want to know how many people with Hispanic names signed this, or how many people with Asian names signed this?

Is that -- that what you want to facilitate?

Mr. McKenna: --No, Justice Alito, we don't need to know that.

We need to know whether there were a sufficient number of registered voters who signed -- we need to know whether they signed more than once.

We need to know they are registered in Washington State.

Informational interest I think that you could -- the information you could collect to satisfy informational interest might include other information that's in the voter registration records.

You might want to know--

Chief Justice John G. Roberts: I thought one of the reasons you wanted to do this was so people would have information that would allow them to participate in the civic process, and there are people who -- might think it makes a difference whether a referendum was requested by -- primarily by members of a particular ethnic group or not.

So isn't -- doesn't -- I thought your brief would say the State has an interest in that type of disclosure.

Mr. McKenna: --I don't see what the valid State interest would be of knowing the ethnicity of the person.

I mean, of course, anyone could look at the petition ballot forms and, I suppose, divine something about the ethnicity based on the last name, but the State's interest doesn't go -- go to that.

That we -- we don't believe we need to know that.

We believe we need to know what is requested -- required on the -- on the petition form.

Justice Samuel Alito: Then I don't understand what information is being -- what information you think you're providing to the public.

Outside of the fraud area, if I see that John Jones from Seattle signed this petition, that tells me absolutely nothing.

Mr. McKenna: Well, Justice Alito, it might -- if you know John Jones, that would tell you something.

Number two, we know from the -- we know from the, you know, Direct Democracy Scholars green brief that intermediaries and especially the press and sometimes social science researchers and others will -- will look at the names, and they'll be able to tell, for example, that a large number of employees at one company signed a measure; maybe it's a measure that would cut a tax break for a particular industry.

Or perhaps members of a union, in large numbers, have signed.

They have been--

Chief Justice John G. Roberts: How can they--

Mr. McKenna: --able to provide that information.

Chief Justice John G. Roberts: --How can they find that out with just the name and address, that a large number of people from a company signed it?

Mr. McKenna: Well--

Chief Justice John G. Roberts: You don't have to put on who you work for, do you?

Mr. McKenna: --No, you do not.

I'm saying intermediaries might discover this, for example, by taking a close look at who's paying for the signature gathering.

If it's paid signature gathering, they might be aware of prominent sponsors.

In fact, the -- the importance of knowing who the sponsors is, is demonstrated--

Chief Justice John G. Roberts: I'm sorry.

I'm still on the companies.

How -- how does knowing who the sponsors are tell you how many people from a particular company signed the petition?

Mr. McKenna: --Well, a voter who -- who works at that same company or does business with that same company might know that, gosh, I know these employees, and they've -- they have all signed this petition.

The press might be able to do the research to find that out.

Intermediaries do play an important role.

The last point, if I may, I wanted to make about -- about Buckley II is that the Petitioners have stressed that Buckley II struck down the requirement to wear the name badge.

But in that same decision this Court upheld the requirement by Colorado that affidavits signed by the petition circulators, including the petition circulator's name and address, can be disclosed as public records.

And the Court ruled that -- found that and compared it favorably to the badge requirement because the disclosures of public record occurred after the heat of the moment, after the moment of interactive discussion.

It happened later on.

And we believe, of all the Court's rulings, that -- that approval of the disclosure requirement of the -- of the affidavit, in contrast to the badges, is the most similar to requiring after the fact or allowing after the fact for petitions to be disclosed under the Public Records Act.

Justice Samuel Alito: You know, if somebody called your office and said I'd like the -- the home address of all the attorneys who work in the Attorney General's Office because we want to -- we want to go to their homes and have uncomfortable conversations with them--

[Laughter]

--which is what has been alleged here, would you release that information?

Mr. McKenna: We would not, Justice Alito.

We would not release it because they can come to the office and have uncomfortable conversations with them--

[Laughter]

--which I can personally attest happens with some regularity.

[Laughter]

Justice Antonin Scalia: Isn't that information, at least the names of those people -- isn't it probably public information anyway?

Mr. McKenna: Yes, it is, Justice Scalia.

Justice Antonin Scalia: Can it be obtained under the Freedom of Information Act in this case?

Mr. McKenna: Yes, it can.

Their names, their office locations, their office phone numbers, their office e-mails is all a matter of public record in our State.

Thank you very much.

Chief Justice John G. Roberts: Thank you, General McKenna.

Mr. Bopp, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF THE PETITIONERS

Mr. Bopp: Thank you.

First a clarification of what we sought in the preliminary injunction.

We were -- we sought to base our preliminary injunction on both count 1 and count 2.

Of course, the district court and the Ninth Circuit did not reach -- in either case -- reach count 2.

Secondly, with respect to whether or not there's any conduct here, I don't think signing a written statement is conduct.

And, of course, by signing the statement, the person is adopting the statement on the petition, one of which involves their preference on the referendum, and the second is the -- the request that the matter goes on the ballot.

And, of course, it has no legal effect unless 122,000 make the same political statement.

Third, evidence of harassment comes in, as in Citizens United, because the weight of the interest that is required depends upon the burden of the First Amendment -- to the First Amendment speech involved; and this Court specifically referred in Citizens United to the lack of evidence of harassment of the donors that might occur if they were disclosed through the reports which Citizens United upheld.

Here we do have evidence of harassment, and we believe that that requires a greater burden in the First Amendment analysis--

Justice Ruth Bader Ginsburg: But that's out of the case up till now.

That's count 2.

You put it in your pleading, but it wasn't reached by the court.

Mr. Bopp: --Actually not.

Many is the case--

Justice Ruth Bader Ginsburg: So everybody agrees that that's still in the case.

Mr. Bopp: --Yes, but it is relevant to count 1.

Bates, for instance, looked to the evidence of harassment in protecting the membership list of the--

NAACP from disclosure.

Justice Ruth Bader Ginsburg: The court did not rule on whether there was a risk of harassment here.

Mr. Bopp: Well, that--

Justice Ruth Bader Ginsburg: It dealt only with count 1.

Mr. Bopp: --That is -- that is true, Your Honor.

There are -- there were several First Amendment claims made -- made under count 1, and this decision was -- was based on other claims.

I see my time is up.

Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Bopp.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until monday next at [= 10 a.m.].

Featured:

Citizens United v. Federal Election Commission - Reargument

jgoldman — Wed, 09 Jun 2010 17:34:58 +0000

Case:

Citizens United v. Federal Election Commission

Media File:

08-205_20090909-reargument.mp3

Related Transcript:

08-205_20090909-reargument.xml

Transcript:

ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE APPELLANT

Chief Justice Roberts: We'll hear reargument this morning in Case 08-205, Citizens United v. The Federal Election Commission.

Mr. Olson.

Mr. Olson: Mr. Chief Justice and may it please the Court: Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment's guarantee of free speech.

Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation.

The government claims it may do so based upon the Austin decision that corporate speech is by its nature corrosive and distorting because it might not reflected actual public support for the views expressed by the corporation.

The government admits that that radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs.

This Court needs no reminding that the government when it is acting to prohibit, particularly when it is acting to criminalize, speech that is at the very core of the First Amendment has a heavy burden to prove that there is a compelling governmental interest that -- that justifies that prohibition and that the regulation adopted, in this case a criminal statute, is the most narrowly tailored necessary to accomplish that compelling governmental interest.

Justice Ginsburg: Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual?

A corporation, after all, is not endowed by its creator with inalienable rights.

So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?

Mr. Olson: What the Court has said in the First Amendment context, New York Times v. Sullivan, Rose Jean v. Associated Press, and over and over again, is that corporations are persons entitled to protection under the First Amendment.

Justice Ginsburg: Would that include--

Mr. Olson: Now, Justice--

Justice Ginsburg: --Would that include today's mega-corporations, where many of the investors may be foreign individuals or entities?

Mr. Olson: --The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.

Justice Ginsburg: Own many shares?

Mr. Olson: Pardon?

Justice Ginsburg: Nowadays there are foreign interests, even foreign governments, that own not one share but a goodly number of shares.

Mr. Olson: I submit that the Court's decisions in connection with the First Amendment and corporations have in the past made no such distinction.

However--

Justice Ginsburg: Could they in your view, in the view that you are putting forth, that there is no distinction between an individual and a corporation for First Amendment purposes, then any mega-corporation, even -- even if most of the investors are from abroad, Congress could not limit their spending?

Mr. Olson: --I'm not -- I'm not saying that, Justice Ginsburg.

I'm saying that the First Amendment applies.

Then the next step is to determine whether Congress and the government has established a compelling governmental interest and a narrowly tailored remedy to that interest.

If the Congress -- and there is no record of that in this case of which I am aware.

Certainly the government has not advanced it in its briefs: That there is some compelling governmental interest because of foreign investment in corporations.

If there was, then the Court would look at, determine how serious is that interest, how destructive has it been to the process and whether the -- maybe the limitation would have something to do with the ownership of shares of a corporation or some--

Justice Scalia: Do you think Congress could prevent foreign individuals from funding speech in United States elections?

Mr. Olson: --The -- the--

Justice Scalia: Private individuals, foreigners who -- who want to--

Mr. Olson: --That's, of course, a different question.

I haven't studied it, Justice Scalia.

Justice Scalia: --Well, it's not different.

I asked it because I thought it was related to the question you were answering.

Mr. Olson: The fundamental point here is -- and let me start with this, and I think we should -- we should start with this, and the government hardly mentions this.

Justice Stevens: Before you do, Mr. Olson--

Mr. Olson: The language of the First Amendment, "Congress shall make"--

Justice Stevens: --Mr. Olson -- Mr. Olson, would you answer Justice Ginsburg's question yes or no?

Can the -- leaving aside foreign investors, can the -- can -- does the First Amendment permit any distinction between corporate speakers and individual speakers?

Mr. Olson: --I am not -- I'm not aware of a case that just--

Justice Stevens: I am not asking you that.

I meant in your view does it permit that distinction?

Mr. Olson: --My view is based upon the decisions of this Court and my view would be that unless there is a compelling governmental interest and a narrowly--

Justice Stevens: But if there is a compelling government -- can there be any case in which there is a different treatment of corporations and individuals in your judgment?

Mr. Olson: --I would not rule that out, Justice Stevens.

I mean, there may be.

I can't imagine all of the infinite varieties of potential problems that might exist, but -- but we would eventually come back to the narrow tailoring problem anyway.

What the government has done here is prohibit speech.

I don't know how many unions there are in this country, but there are something like 6 million corporations that filed tax returns in 2006.

Justice Alito: Well, Mr. Olson, do you think that media corporations that are owned or principally owned by foreign shareholders have less First Amendment rights than other media corporations in the United States?

Mr. Olson: I don't think so, Justice Alito, and certainly there is no record to suggest that there is any kind of problem based upon that.

And I come back to the language of the First Amendment: "Congress shall make no law".

Now, what this Court has repeatedly said is that there may be laws inhibiting speech if there is a compelling governmental interest and a narrowly tailored remedy.

But there is no justification for this.

I was going to say that 97 percent of the 6 million corporations that filed tax returns in 2006 had assets less than $5 million -- assets, not net worth.

So we are talking about a prohibition that covers every corporation in the United States, including nonprofit corporations, limited liability corporations, Subchapter S corporations and every union in the United States.

Justice Ginsburg: But what are the -- you have used the word Mr. Olson.

One answer to that is that no entity is being prohibited, that it is a question of not whether corporations can contribute but how.

They can use PACs and that way we assure that the people who contribute are really supportive of the issue, of the candidate.

But so the -- the corporation can give, but it has to use a PAC.

Mr. Olson: I respectfully disagree.

The corporation may not expend money.

It might find people, stockholders or officers, who wanted to contribute to a separate fund, who could then speak.

That in one -- to use the words of one Justice, that is ventriloquist-speak.

I would say that it is more like surrogate speech.

If you can find some other people that will say what you want to say and get them to contribute money through a process that this just--

Justice Ginsburg: Who is the "you"?

I mean do you -- you -- those are the directors, the CEO, not the shareholders?

We don't know what they think.

Mr. Olson: --Well, this statute is not limited to cases where the shareholders agree or don't agree with what the corporation says.

As the Court said in the Bellotti case, the prohibition would exist whether or not the shareholders agree.

But let me go back to your question.

Justice Scalia: It -- it covers totally -- totally owned corporations, too, doesn't it?

Mr. Olson: Yes.

Justice Scalia: I mean, if I owned all the stock in a corporation, the corporation still can't--

Mr. Olson: Yes.

And it includes membership corporations such as Citizens United that--

Justice Breyer: And the individual contribution also covers people who would like to give $2500 instead of $2400, which is the limit.

And maybe there are 100 million or 200 million people in the United States who, if they gave 2500 rather than 2400, nobody could say that that was really an effort to buy the Senator or the Congressman.

So is that unconstitutional, too?

Mr. Olson: --No -- well, what this Court has said is that in connection with contribution limitations there is a potential compelling governmental interest.

Justice Breyer: Yes.

Mr. Olson: This is what Buckley says.

Justice Breyer: Yes.

Mr. Olson: Then that -- in that -- but expenditures, which is what we are talking about today, do not concern the -- the question, the actual threat of quid pro quo corruption or the appearance of quid pro quo corruption.

And you know, Justice Breyer, what the Court said in that case is because it's not inhibiting someone from actually speaking, it's -- it's giving money to someone--

Justice Breyer: So here the obvious argument is: Look, they said the compelling interest is that people think that representatives are being bought, okay?

That's to put it in a caricature, but you understand what I'm driving at, okay?

That's what they said in Buckley v. Valeo.

So Congress now says precisely that interest leads us to want to limit the expenditures that corporations can make on electioneering communication in the last 30 days of a primary, over-the-air television, but not on radio, not on books, not on pamphlets, not on anything else.

All right?

So in what respect is there not conceptually at least a compelling interest and narrow tailoring?

Mr. Olson: --Well, in the first place, I accept what the Court said in Buckley, that expenditures do not raise that concern at all.

Congress has not made that finding.

You are talking -- and you mentioned just -- just a matter of radio and television, but in Buckley v. Valeo the Court specifically said that that is the most important means of communicating concerning elections--

Justice Breyer: It's important--

Mr. Olson: --And the Court used the word "indispensable".

So what -- and -- and what the Court said in Buckley v. Valeo is it compared a limitation on expenditures, independent uncoordinated expenditures, with the prohibition that the Court addressed when it had a statute before it that said newspapers couldn't endorse candidates on the day of election, and the Tornillo case, where it required a right of reply to be given.

And the Court said those restrictions, which were unconstitutional, were considerably less, and that the restriction in Buckley v. Valeo on expenditures--

Justice Kennedy: I -- I agree -- I agree that Buckley made the distinction between contributions and expenditures, and it seems to me that the government's argument necessarily wants to water down that distinction.

But in response or just in furtherance of Justice Breyer's point, you have two cases, one in which an officeholder goes to a corporation and says: Will you please give me money?

They say: We can't do that.

The other is in which a corporation takes out an ad for the -- for the candidate, which relieves that candidate of the responsibility of -- of substantial television coverage.

Isn't that about the same?

Mr. Olson: --Well, in the first place, if there is any coordination--

Justice Kennedy: And I -- and I think Buckley says no.

Mr. Olson: --Buckley says--

Justice Kennedy: But, as a practical matter, is that always true?

Mr. Olson: --Well, it may not always be true.

In the infinite potential applications of something like that, Justice Kennedy, anything might possibly be true.

And Justice Breyer said, well, what if Congress thought or what if Congress thought the people might think that that was kind of somehow suspect?

That is not a basis for prohibiting speech by a whole class of individual--

Justice Breyer: --Well, of course, it did -- was a basis for prohibiting speech by, in the sense of giving contributions above $2,400, by 300 million people in the United States.

But the point, which I think is the one that Justice Kennedy was picking up, is are we arguing here between you and my questions, is the argument in this case about the existence of a compelling interest?

Because Congress seemed to think that there was certainly that; it's this concern about the perception that people are, say, buying candidates.

Are we arguing about narrow tailoring?

Congress thought it was narrow tailoring.

Or are we arguing about whether we should second-guess Congress on whether there is enough of a compelling interest and the tailoring is narrow enough?

Mr. Olson: --You must always second-guess Congress when the First Amendment is in play.

And that we are arguing -- we are not -- we are discussing--

Justice Breyer: Yes.

Mr. Olson: --both the compelling ----

[Laughter]

--both the compelling governmental interest and the narrow tailoring, and what -- what -- there is not a sufficient record.

The reason -- the government has shifted position here.

They were, first of all, talking about the so-called distortion rationale in Austin, the distortion rationale which they seem to have abandoned in the -- in the supplemental briefs filed in connection with this argument, and they resorted to the corruption, appearance of corruption.

There isn't a sufficient record of this.

There isn't--

Justice Ginsburg: But what about the district court's finding?

Wasn't there a finding before the three-judge court that Federal officials know of and feel indebted to corporations or unions who finance ads urging their election or the defeat of their opponent?

There was a finding of fact to that effect, was there not?

Mr. Olson: --The find -- yes.

I -- there is something to that effect in the district court opinion, but it doesn't cover all corporations.

It didn't focus in specifically on expenditures.

Justice Ginsburg: So if -- so if they just covered large corporations, so you take out the mom and pop single shareholder--

Mr. Olson: Well, that is 97 percent of the corporation.

Justice Ginsburg: --Not 97 percent of the contributions.

I mean, the contributions that count are the ones from the corporations that can amass these huge sums in their treasuries.

Mr. Olson: I think that goes back to Justice Kennedy's question, and my response, which distinguishes between contributions and expenditures.

The point that Justice Kennedy was making in his question is that under -- under some circumstances an expenditure might coincide or resonate with what the candidate wishes to do, but the Court looked at that very carefully in Buckley v. Valeo and said that might not be the case.

It might, in fact, be these expenditures might be counterproductive when they are independent, they are not coordinated with the candidate, they are more directly expression by the party spending the money, they are not like a contribution, so they are more of an infringement on the right to speak.

Chief Justice Roberts: Counsel--

Mr. Olson: And they are less of a threat of corruption because there is less -- there is no quid pro quo there, and if there is it would be punishable as a crime.

Chief Justice Roberts: --Counsel, in your discussion of Austin, you rely on its inconsistency with Bellotti.

Bellotti, of course, involved a referendum and Austin expenditures in an individual election.

Why isn't that a significant distinction?

Mr. Olson: Well, it is -- it is -- what the Bellotti Court said is that we are not deciding that question.

And -- and Austin did address, you are correct, expenditures, but it based it on a rationale--

Justice Stevens: It more than said we are not deciding.

It said they are entirely different situations.

You read that long footnote which has been cited six or eight times by our later cases.

Mr. Olson: --Yes.

And I also read the footnote 14 in the Bellotti case that cited case after case after case that said corporations had rights, protected rights under the First Amendment.

I am not disagreeing with what you just said, Justice Stevens.

The Court said it was -- it was dicta, because the Court did not deal with--

Justice Stevens: But it has been repeated -- that footnote has been repeatedly cited in subsequent cases, most of which were unanimous.

Mr. Olson: --Well, because it was -- and I agree the Bellotti Court was not discussing that.

But The Bellotti Court--

Justice Stevens: It did discuss it precisely in that footnote and it said it's a different case.

Mr. Olson: --I understand and I don't disagree with what you have just said, Justice Stevens.

Justice Scalia: --It didn't say it would come out differently.

It just said, we're not deciding that case, right?

Mr. Olson: That -- that is -- that's the point I'm trying to make.

Justice Scalia: I don't mind citing that.

Bellotti didn't decide that.

Mr. Olson: What Bellotti also said is -- and I think this is also in many decisions of this Court -- the inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.

Chief Justice Roberts: Now that we've cleared up that Bellotti didn't decide the question, what is the distinction that -- why don't you think that distinction makes sense?

In other words, a corporate -- you don't have a potential for corruption if a corporation is simply speaking on a referendum that may directly affect its interest.

If you are dealing with a candidate, what the Court has said in the past is that you do have that problem of corruption.

Mr. Olson: Well--

Chief Justice Roberts: In other words, why isn't that distinction a way to reconcile Bellotti and Austin?

Mr. Olson: --There is a distinction, but I think the distinction goes back to, A, expenditures versus contributions, number one; and then secondly, it goes back to what this Court said in conjunction with the impossibility of finding a distinction between issue ads and candidate ads.

The line dissolves on practical application.

The interest--

Chief Justice Roberts: Where did we say that?

Mr. Olson: --You said that repeatedly, including most recently in the Wisconsin Right to Life case.

And it first appeared in Buckley itself.

The distinction is very hard to draw between the interest that the speaker is addressing and whether it's a candidate or an issue, because issues are wrapped up in candidates.

The corporation interest and the interests that its fiduciary officers are representing when it speaks on behalf of the corporation--

Justice Stevens: I don't think you are correct to say the Court said there was no distinction.

It said the distinction requires the use of magic words.

And that's what they said in Wisconsin Right to Life, too.

Both of them said there is a distinction.

Mr. Olson: --Well, but the words--

Justice Stevens: It's difficult to draw in some cases, but nobody said there is no distinction that I am aware of.

Mr. Olson: --Well, what the Court -- to use -- to use the words of the Court, which occurred repeatedly, is that the distinction dissolves impractical application.

That, Justice Stevens, I think addresses the very commonsense point that when you are addressing an issue, whether you are addressing a referendum matter, whether it is a proposed legislation or a candidate that is going to raise taxes on the corporation, those distinctions dissolve.

It's all First Amendment freedom.

Justice Scalia: I -- I -- I thought that Buckley had narrowed the statute precisely to magic words and still found it unconstitutional as applied to corporations that made independent expenditures.

Mr. Olson: Yes.

Justice Scalia: Isn't that what happened in Buckley?

Mr. Olson: The $1,000 limit in Buckley was, first of all, limited to the magic words "candidacy expression"; then secondly, the Court -- and the -- and the words of the statute were "any person", which included corporations found, the statute as narrowed unconstitutional and said--

Justice Scalia: And some of the plaintiffs were corporations.

Mr. Olson: --Some of the plaintiffs were corporations.

Justice Stevens: Yes, but that point wasn't even discussed in the opinion, was it?

Mr. Olson: It was not discussed in the opinion.

Justice Stevens: No.

Mr. Olson: But what was discussed in the opinion was the breadth of the definition of "person", which did include corporation.

Corporations were parties in the case.

And in that part of the Buckley case, the Court repeatedly cites cases involving corporations, including NAACP v. Alabama and New York Times v. Sullivan, all cases involving corporations.

So while it wasn't specifically discussed, it was a part of the decision of the Court that a $1,000 limitation was worse, more restrictive than the -- than the restriction of editorials appearing on election day or requiring a newspaper to give a right of reply.

The Court in Buckley in fact says, this is -- with respect to that expenditure limitation, the words of the Court were this is the most drastic of the limitations imposed by the Federal Election Campaign Act.

It goes to the core of First Amendment freedom.

Justice Breyer: If that is so -- this is a point that is concerning me.

I don't know the answer precisely.

But suppose you are right.

Suppose we overrule these two cases.

Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn't, because political parties can only spend hard money on this kind of expenditure?

And therefore, the group that is charged with the responsibility of building a platform that will appeal to a majority of Americans is limited, but the groups that have particular interests, like corporations or trade unions, can spend as much as they want?

Am I right about the consequence?

If I am right, what do we do about it?

Mr. Olson: I think you are wrong about the consequence.

There are 27 States that have no limitations on either contributions or expenditures and that -- the Earth is not--

Justice Breyer: No, I'm not -- I'm not -- I am saying am I right in thinking that if you win, the political party can't spend this money, it's limited to hard money contributions, but corporations and trade unions can spend unlimited funds?

Mr. Olson: --Well, if -- if the Court decides in favor of the arguments that we are making here, I think what you are suggesting is that because there are other limitations that someone has not challenged in this case, that that would be somehow unfair and unbalanced.

Justice Breyer: No, I'm not suggesting that.

I am suggesting we will make a hash of this statute, and if we are going to make a hash of this statute, what do we do about it?

And that's why I want you to take a position on another important part of that statute, and that is the part that says political parties themselves cannot make these expenditures that we are talking about except out of hard money.

Mr. Olson: What -- I want to address that in this way, and I said when we were here before the most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates.

We have wrapped up that freedom, smothered that freedom, with the most complicated set of regulations and bureaucratic controls.

Last year the Federal Election Commission that was supposed to be able to give advisory opinions didn't even have a quorum for 6 months of the year 2008 when people would have needed some help from the Federal Election Commission.

What I am saying, in answer to your question, Justice Breyer, there are, I suspect, all kinds of problems with Federal election laws where they apply to parties and where they apply to what candidates might do and so forth; but that has never been a justification.

We will uphold a prohibition on all kinds of people speaking because if we allowed them to speak someone else might complain that they don't get to speak as much as they would like.

Justice Kennedy: Well, with reference to any incongruities that might flow from our adopting your position, are you aware of any case in this Court which says that we must refrain from addressing an unconstitutional aspect of the statute because the statute is flawed in some other respects as well?

Mr. Olson: No, I'm not, and that's -- I think that was what I was attempting to say in response to what Justice Breyer was asking me.

Justice Sotomayor: Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case?

I know that we asked for further briefing on this particular issue of overturning two of our Court's precedents.

But are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?

Mr. Olson: No, Justice Sotomayor.

What -- what -- there are all kinds of lines that the Court could draw which would provide a victory to my client.

There are so many reasons why the Federal Government did not have the right to criminalize this 90-minute documentary that had to do with elections, but what the Court addressed specifically in the Washington Right to Life case is that the lines if they are to be drawn must not be lines that are ambiguous, that invite litigation, that hold the threat of prosecution over an individual; and in practical application that is what the--

Justice Sotomayor: Mr. Olson, my difficulty is that you make very impassioned arguments about why this is a bad system that the courts have developed in its jurisprudence, but we don't have any record developed below.

You make a lot of arguments about how far and the nature of corporations, single corporations, single stockholder corporations, et cetera.

But there is no record that I am reviewing that actually goes into the very question that you're arguing exists, which is a patchwork of regulatory and jurisprudential guidelines that are so unclear.

Mr. Olson: --I would like to answer that.

There are several answers to it and I would like to reserve the balance of my time for rebuttal.

It is the government has the burden to prove the record that justifies telling someone that wants to make a 90-minute documentary about a candidate for president that they will go to jail if they broadcast it.

The government has the obligation and the government had a long legislative record and plenty of opportunity to produce that record and it's their obligation to do so.

Justice Stevens: Mr. Olson--

Justice Sotomayor: But the facial challenge--

Justice Stevens: --may I ask one question you can answer on rebuttal?

No one has commented on the National Rifle Association's amicus brief.

None of the -- none of the litigants have.

That's in response to Justice Sotomayor's thought that there are narrow ways of resolving the problem before us.

On rebuttal, will you tell us what your view on their solution to this problem is?

Mr. Olson: I will, Justice Stevens.

Chief Justice Roberts: Why don't you tell us now.

We will give you time for rebuttal.

[Laughter]

Justice Scalia: Don't keep us in suspense.

[Laughter]

Mr. Olson: Every line, including the lines that would be drawn in several of the amicus briefs, and they are not the same, could put the entity who wishes to speak before you again a year from now.

Because the movie might be shorter, it might be video on demand, it might be a broadcast, it might have a different tone with respect to a candidate.

Every one of those lines puts the speaker at peril that he will go to jail or be prosecuted or there will be litigation, all of which chills speech and inhibits individual--

Justice Stevens: No, but to answer my question, the line suggested by the NRA is the line identified by Congress in the Snowe-Jeffords amendment dealing with individual financing of speech which would separate all of these problems.

What is your comment on that possible solution to the problem?

Mr. Olson: --I would like to take advantage of Justice Stevens' offer and respond to that during the rebuttal, Mr. Chief Justice.

[Laughter]

Chief Justice Roberts: Thank you, Mr. Olson.

Mr. Abrams.

ORAL ARGUMENT OF FLOYD ABRAMS ON BEHALF OF SENATOR MITCH McCONNELL, AS AMICUS CURIAE, IN SUPPORT OF THE APPELLANT

Mr. Abrams: Mr. Chief Justice, and may it please the Court: The first case cited to you by Mr. Olson happened to be New York Times v. Sullivan, and I would like to begin by urging two propositions on you from that case.

In that case the Court was confronted with a situation where the Times made three arguments to the Court.

They said -- for us to win, they said, you either have to revise, basically federalize, libel law to a considerable degree, which they did; or, they said, we only sold 390 copies in Alabama, so you could rule in our favor by saying there was no jurisdiction; or, they said, we didn't even mention Sheriff Sullivan's name, so you could rule in our favor on the ground that they haven't proved a libel case.

The Court did the first.

It did the first, which is the broader rather than the narrowest way to address the question, and I suspect they did it -- don't know, but I suspect they did it -- because they had come to the conclusion that the degree of First Amendment danger by the sort of lawsuits which were occurring in Alabama and elsewhere was something that had to be faced up to by the Court now, or--

Justice Ginsburg: Mr. Abrams, Times v. Sullivan was not -- did not involve overruling precedents of this Court that had been followed by this Court and others.

So, I think the situation is quite different.

Mr. Abrams: --That's true, Your Honor.

It did involve overruling 150 years of American jurisprudence.

I mean, there was no law at that point that said that actual malice--

Justice Ginsburg: There was no -- there was no decision of this Court, I mean--

Mr. Abrams: --That's true, Your Honor.

Justice Ginsburg: --We do tend to adhere to our precedents--

Mr. Abrams: Yes.

Justice Ginsburg: --especially a case like Austin which was repeating the business about amassing large funds in corporate treasuries.

It was not a new idea in Austin, and it was repeated after -- after Austin.

But there was -- so Times v. Sullivan I think is quite distinct.

The question that was posed here is, is it a proper way to resolve this case, to overrule one precedent in full and another in part?

Mr. Abrams: And what I'm urging on you, Your Honor, is that by a parity of reasoning, although not precisely the same situation, that there are cases in which there is a -- an ongoing threat to freedom of expression which may lead -- if you were to agree to that, which may lead the Court to say, rather than taking a narrower route to the same result, that it is worth our moving away in this case from looking for the narrowest way out, and determining it now, rather than the next as-applied challenge.

Justice Scalia: There are -- there are two separate questions that -- that have been raised in opposition to your position.

One is -- one is that we should not resolve a broad constitutional issue where there are narrower grounds, and that's the question you are responding to.

An entirely separate question is the issue of stare decisis, and you acknowledge that stare decisis was not involved in New York Times v. Sullivan, but the first question obviously was.

Mr. Abrams: And stare decisis of course is a question much -- much briefed by the parties, and it is one which involves of course a consideration not only of the merits of the decision, but certain other factors, the length of time the decision has been in effect and the like.

The time in this case for the McConnell case, of course, is only 6 years.

The time for the Austin case is 19 years, which is less than one ruling of this Court's just last term.

Justice Ginsburg: But what the Court said in Austin it also said in the NRWC case, which was I think 8 years before Austin.

So Austin was not a new invention.

Mr. Abrams: Well, Austin was the first time that corporate speech was barred -- corporate independent expenditures were barred by a ruling of this Court.

That had not happened prior to Austin, and the Solicitor General's brief acknowledges that.

Now--

Justice Ginsburg: But there have been limits on corporate spending in aid of a political campaign since the turn of the 20th century.

Mr. Abrams: --There had been limits on corporate contributions since the turn of the century.

Corporate independent expenditures came much later and I think that is something that I think is worth--

Justice Stevens: Much later than 1947.

Mr. Abrams: --Yes, Your Honor.

In 1947, President Truman vetoed that bill, saying that it was a dangerous intrusion into free speech.

That has always been an area of enormous controversy, not just in the public sphere but in the judicial sphere.

The early cases about Taft-Hartley were ones in which what the Court did was to basically say in one case after another that the statute did not govern the particular facts of the case so as to avoid--

Justice Stevens: But those were union cases, weren't they, rather than corporate cases?

Mr. Abrams: --Yes, they were three union cases.

And the case after that essentially was Buckley.

And Buckley held unconstitutional the limits posed there to independent expenditures.

All I'm saying is that this is not a situation as if we have an unbroken amount of years throughout American history in which it has been accepted that independent expenditures could be barred.

It has always been a matter of high level of controversy, with courts at first and understandably shying away from facing up to the issue directly and then the first ruling on point.

Justice Stevens: But have you read Justice Rehnquist's dissent in the Bellotti case?

Mr. Abrams: I'm sorry, Your Honor.

Justice Stevens: Have you read Justice Rehnquist's dissent in the Bellotti case?

Mr. Abrams: Yes, I have.

Justice Stevens: Which is somewhat inconsistent with what you said.

Mr. Abrams: Yes, it is.

Chief Justice Roberts: And also inconsistent with his later view, correct?

Mr. Abrams: Yes.

Yes, Justice?

Justice Sotomayor: Going back to the question of stare decisis, the one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment.

And so my question to you is, once we say they can't, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process?

Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.

But we can go back to the very basics that way, but wouldn't we be doing some more harm than good by a broad ruling in a case that doesn't involve more business corporations and actually doesn't even involve the traditional nonprofit organization?

It involves an advocacy corporation that has a very particular interest.

Mr. Abrams: Your Honor, I don't think you'd be doing more harm than good in vindicating the First Amendment rights here, which transcend that of Citizens United.

I think that, reading my friend's brief here on the right, they come -- some of them at least come pretty close to saying that there must be a way for Citizens United to win this case other than a broad way.

In my view the principles at stake here are the same.

Citizens United happens to be sort of the paradigmatic example of the sort of group speaking no less about who to vote for or not who to vote for or what to think about a potential ongoing candidate for President of the United States.

But in lots of other situations day by day there is a blotch to public discourse caused as a result of this Congressional legislation.

And so we think it is not a matter of cutting off what legislatures can do.

They can still pass legislation doing all sorts of things.

They can do public funding.

They can do many other things that don't violate the First Amendment.

If we are right in saying that independent expenditures, that category of money leading to speech that we are talking about today, if we are right that that is the sort of speech which is at the core of the First Amendment, then you would be doing only good, only good, by ruling that way today across the board.

Thank you, Your Honor.

Chief Justice Roberts: Thank you, Mr. Abrams.

General Kagan.

ORAL ARGUMENT OF ELENA KAGAN ON BEHALF OF THE APPELLEE

General Kagan: Mr. Chief Justice and may it please the Court: I have three very quick points to make about the government position.

The first is that this issue has a long history.

For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two--

Justice Scalia: Wait, wait, wait, wait.

We never questioned it, but we never approved it, either.

And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

General Kagan: --I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case -- first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley -- and then of course in Austin specifically approved those limits.

Justice Scalia: I don't understand what you are saying.

I mean, we are not a self -- self-starting institution here.

We only disapprove of something when somebody asks us to.

And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn't disapprove it.

General Kagan: Well, you are not a self-starting institution.

But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

Justice Kennedy: But that judgment was validated by Buckley's contribution-expenditure line.

And you're correct if you look at contributions, but this is an expenditure case.

And I think that it doesn't clarify the situation to say that for 100 years -- to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction.

We've never allowed that.

General Kagan: Well, I think Justice Stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947, so it has been 60 years rather than 100 years.

But in fact, even before that the contribution limits were thought to include independent expenditures, and as soon as Congress saw independent expenditures going on Congress closed what it perceived to be a loophole.

So in fact for 100 years corporations have made neither contributions nor expenditures, save for a brief period of time in the middle 1940's, which Congress very swiftly reacted to by passing the Taft-Hartley Act.

Now, the reason that Congress has enacted these special rules -- and this is the second point that I wanted to make--

Justice Stevens: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. Olson, namely, why isn't the Snowe-Jeffords Amendment, which was picked on by Congress itself, an -- and which is argued by the NRA, an appropriate answer to this case?

General Kagan: --That was my third point, Justice Stevens.

Justice Stevens: Oh, I'm sorry.

[Laughter]

General Kagan: So we will just skip over the second.

My third point is that this is an anomalous case in part because this is an atypical plaintiff.

And the reason this is an atypical plaintiff is because this plaintiff is an ideological nonprofit and--

Chief Justice Roberts: So you are giving up -- you are giving up the distinction from MCFL that you defended in your opening brief?

There you said this doesn't qualify as a different kind of corporation because it takes corporate funds, and now you are changing that position?

General Kagan: --No, I -- I don't think we are changing it.

MCFL is the law, and the FEA -- FEC has always tried to implement MCFL faithfully.

And that's what the FEC has tried to do.

But if you--

Chief Justice Roberts: So I guess -- do you think MCFL applies in this case even though the corporation takes corporate funds from for-profit corporations?

General Kagan: --I don't think MCFL as written applies in this case, but I think that the Court could, as lower courts have done, adjust MCFL potentially to make it apply in this case, although I think that would require a remand.

What lower courts have done -- MCFL was set up, it was written in a very strict kind of way so that the organization had to have a policy of accepting no corporate funds whatsoever.

Some of the lower courts, including the D.C. Circuit, which, of course, sees a lot of these cases, have suggested that MCFL is too strict, that it doesn't--

Chief Justice Roberts: Do you -- do you think it's too strict?

General Kagan: --I -- I -- the FEC has no objection to MCFL being adjusted in order to -- to give it some flexibility.

What the--

Chief Justice Roberts: So you want to give up this case, change your position, and basically say you lose solely because of the questioning that we have directed on reargument?

General Kagan: --Solely because?

I am sorry?

Chief Justice Roberts: Because of the question we have posed on reargument.

General Kagan: No, I don't think that that is fair.

We think -- we continue to think that the -- the judgment below should be affirmed.

If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.

Chief Justice Roberts: What case of ours -- what case of ours suggests that there is a hierarchy of bases on which we should rule against a party when both of them involve constitutional questions?

Extending -- modifying MCFL would be, I assume, by virtue of the First Amendment.

Overruling Austin would be by virtue of the First Amendment.

So what case says we should prefer one as opposed to the other?

General Kagan: I think the question really is the Court's standard practice of deciding as-applied challenges before facial challenges.

And this case certainly raises a number of tricky as-applied questions.

One is the question of how the -- the statute applies to nonprofit organizations such as this one.

Another is a question of how it applies to VOD transmissions.

Yet another is the question of how it applies to a 90-minute infomercial as opposed to smaller advertisements.

Justice Kennedy: But if you -- if you insist on the as-applied challenge, isn't that inconsistent with the whole line of cases that began in Thornhill v. Alabama and Coates v. Cincinnati?

What about the Thornhill doctrine?

It is not cited in the briefs, but that doctrine is that even a litigant without standing to object to a particular form of conduct can raise that if the statute covers it in order that the statute does not have an ongoing chill against speech.

And there is no place where an ongoing chill is more dangerous than in the elections context.

General Kagan: Well, I think even--

Justice Kennedy: So you are asking us to have an ongoing chill where we have as-applied challenges which are based on, as I indicated before, speaker, content, time, and this is the kind of chilling effect that the Thornhill doctrine stands directly against.

General Kagan: --You know, I think even in the First Amendment context, Justice Kennedy, the Court will not strike down a statute on its face unless it finds very substantial overbreadth, many applications of the statute that are unconstitutional, as opposed to just a few or just some.

What I am suggesting here is that the Court was right in McConnell and then confirmed in WRTL to find that BCRA, which is of course the only statute directly involved in this case, did not have that substantial overdraft.

Justice Kennedy: Let me ask you this.

Suppose that we were to rule that nonprofit corporations could not be covered by the statute.

Would that -- would the statute then have substantial overbreadth?

General Kagan: Well, I would urge you not to do that in that kind of sweeping way, because the reason for the nonprofit corporations being covered is to make sure that the nonprofit corporations don't function as conduits for the for-profit corporations.

Justice Kennedy: But suppose we were to say that.

Would the statute then not be substantially overbroad?

General Kagan: Well, I don't think that the statute is substantially overbroad right now.

So if you took out certain applications, I can't think--

Justice Kennedy: But I am asking you to assume that we draw the nonprofit/profit distinction.

Then the statute, it seems to me, clearly has to fall because, number one, we couldn't sever it based on the language.

General Kagan: --I see what you are saying.

Well, you could do a couple of things.

You could do what Justice Stevens suggested.

Justice Stevens suggested -- I suggested to Chief Justice Roberts--

Justice Stevens: I don't think you -- I don't think you really caught what I suggested because you treated it as an enlargement of the MCFL example.

General Kagan: --I was going to go back.

Justice Stevens: But that is not what the National Rifle Association argues or what Snowe-Jeffords covers.

It covers ads that are financed exclusively by individuals even though they are sponsored by a corporation.

General Kagan: Yes, that's exactly right.

What you are suggesting, Justice Stevens, is essentially stripping the Wellstone amendment from the--

Justice Stevens: Correct and treating the Snowe-Jeffords amendment as being the correct test.

And nobody has explained why that wouldn't be a proper solution, not nearly as drastic as -- as being argued here.

General Kagan: --Yes, and there are some, you know -- there are -- there are some reasons that that might -- that might be appropriate.

The Wellstone amendment was a funny kind of thing.

It was passed very narrowly, but beyond that it was passed with a -- a really substantial support of many people who voted against the legislation in the end, presumably as a poison pill.

Justice Breyer: Well, if we -- if we go -- if we go that route, what we are doing is creating an accounting industry, aren't we?

Corporations give huge amounts of money to the C-4 organization, and then somebody, perhaps the FEC, has to decide whether in fact that is a way of subverting the prohibition against the direct payment for the communication, right?

Okay, so Congress said, we don't want that.

Congress said, that's going to be a nightmare, and we decide Wellstone, for whatever reasons.

Now don't we have to focus on whether Congress can say that or whether it can't?

Justice Stevens: But--

Justice Breyer: And I don't know why it cannot say it.

Justice Stevens: --Congress also said if you strike down the Wellstone amendment, we want the Snowe -- Jeffords amendment.

Justice Breyer: That's true.

Justice Stevens: And why shouldn't we follow that direction?

General Kagan: If you strike down the Wellstone amendment, what is left is the Snowe-Jeffords amendment--

Justice Stevens: Right.

General Kagan: --which allows nonprofit organizations of the kind here to fund these ads out of separate bank accounts, not PACs just separate bank accounts--

Justice Stevens: Correct.

General Kagan: --which include only individual expenditures.

Justice Stevens: Then why is that not the -- the wisest narrow solution of the problem before us?

General Kagan: Well, it is -- it is certainly a narrower and I think better solution than a facial invalidation of the whole statute.

Chief Justice Roberts: Counsel, what do you -- what do you understand to be the compelling interest that the Court articulated in Austin?

General Kagan: I think that what the Court articulated in Austin -- and, of course, in the government briefs we have suggested that Austin did not articulate what we believe to be the strongest compelling interest, which is the anticorruption interest.

But what the Court articulated in Austin was essentially a concern about corporations using the corporate form to appropriate other people's money for expressive purposes.

Chief Justice Roberts: Right.

So but you -- you have more or less -- "abandoned" is too strong a word, but as you say you have relied on a different interest, the quid pro quo corruption.

And you -- you articulate on page 11 of your brief -- you recognize that this Court has not accepted that interest as a compelling interest.

So isn't it the case that as you view Austin it is kind of up for play in the sense that you would ground it on an interest that the Court has never recognized?

General Kagan: Well, a couple of points.

The first thing is, as you say, we have not abandoned Austin.

We have simply said that in addition--

Chief Justice Roberts: Where--

General Kagan: --to other people's money interest that--

Chief Justice Roberts: --Where in your -- where in your supplemental briefing do you say that this aggregation of wealth interest supports Austin?

General Kagan: --I would not really call it an aggregation of wealth interest.

I would say that it's -- it's a concern about corporate use of other people's money to--

Chief Justice Roberts: Putting it outside, putting the quid pro quo interest aside, where in your supplemental briefing do you support the interest that was articulated by the Court in Austin?

General Kagan: --Where we talk about shareholder protection and where we talk about the distortion of the electoral process that occurs when corporations use their shareholders' money who may or may not agree--

Chief Justice Roberts: I understand that to be a different interest.

That is the shareholder protection interest as opposed to the fact that corporations have such wealth and they -- they distort the marketplace.

General Kagan: --Well, I -- I think that they are connected because both come--

Chief Justice Roberts: So -- so am I right then in saying that in the supplemental briefing you do not rely at all on the market distortion rationale on which Austin relied; not the shareholder rationale, not the quid pro quo rationale, the market distortion issue.

These corporations have a lot of money.

General Kagan: --We do not rely at all on Austin to the extent that anybody takes Austin to be suggesting anything about the equalization of a speech market.

So I know that that's the way that many people understand the distortion rationale of Austin, and if that's the way the Court understands i, we do not rely at all on that.

Justice Ginsburg: So--

Chief Justice Roberts: So if we have to preserve -- if we are going to preserve Austin we have to accept your invitation that the quid pro quo interest supports the holding there or the shareholder protection interest.

General Kagan: I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a -- is something related to the shareholder interest that is in truth my view of Austin, which is a view that when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.

Justice Scalia: Let's -- let's talk about overbreadth.

You've -- let's assume that that is a valid interest.

What percentage of the total number of corporations in the country are not single shareholder corporations?

The local hairdresser, the local auto repair shop, the local new car dealer -- I don't know any small business in this country that isn't incorporated, and the vast majority of them are sole-shareholder-owned.

Now this statute makes it unlawful for all of them to do the things that you are worried about, you know, distorting other -- the interests of other shareholders.

That is vast overbreadth.

General Kagan: You know, I think that the single shareholders can present these corruption problems.

Many, many closed corporations, single shareholder corporations--

Justice Scalia: I'm not talking about the corruption interest.

You -- you have your quid pro quo argument, that's another one.

We get to that when we get there.

But as far as the interest you are now addressing, which is those shareholders who don't agree with this political position are being somehow cheated, that doesn't apply probably to the vast majority of corporations in this country.

General Kagan: --You are quite right, Justice Scalia, when -- we say when it comes to single shareholders, the kind of "other people's money" interests, the shareholder protection interests do not apply.

There--

Justice Scalia: So that can't be the justification--

General Kagan: --There--

Justice Scalia: --because if it were, the statute would be vastly overbroad.

General Kagan: --There the strongest justification is the anticorruption interest.

Justice Alito: Well, with respect to that what is your answer to the argument that more than half the States, including California and Oregon, Virginia, Washington State, Delaware, Maryland, a great many others, permit independent corporate expenditures for just these purposes?

Now have they all been overwhelmed by corruption?

A lot of money is spent on elections in California; has -- is there a record that the corporations have corrupted the political process there?

General Kagan: I think the experience of some half the States cannot be more important than the 100-year old judgment of Congress that these expenditures would corrupt the Federal system, and I think that--

Justice Scalia: Congress has a self-interest.

I mean, we -- we are suspicious of congressional action in the First Amendment area precisely because we -- at least I am -- I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don't think so.

General Kagan: --I think, Justice Scalia, it's wrong.

In fact, corporate and union money go overwhelmingly to incumbents.

This may be the single most self-denying thing that Congress has ever done.

If you look -- if you look at the last election cycle and look at corporate PAC money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that.

And for an obvious reason, because when corporations play in the political process, they want winners, they want people who will produce outcomes for them, and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents, and so that's what they do.

As I said, in double digits times more than they invest in challengers.

So I think that that -- that that rationale, which is undoubtedly true in many contexts, simply is not the case with respect to this case.

Justice Kennedy: But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and shareholders what the policy ought to be, some other corporation can't object to that during the election cycle.

The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject.

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.

General Kagan: Well--

Justice Kennedy: When other corporations, via -- because of the very fact you just point out, have already been used and are being used by the government to express its views; and you say another corporation can't object to that.

General Kagan: --Well, to the extent, Justice Kennedy, that you are talking about what goes on in the halls of Congress, of course corporations can lobby members of Congress in the same way that they could before this legislation.

What this legislation is designed to do, because of its anticorruption interest, is to make sure that that lobbying is just persuasion and it's not coercion.

But in addition to that, of course corporations have many opportunities to speak outside the halls of Congress.

Justice Stevens: One of the amicus briefs objects to -- responds to Justice Kennedy's problem by saying that the problem is we have got to contribute to both parties, and a lot of them do, don't they?

General Kagan: A lot of them do, which is a suggestion about how corporations engage the political process and how corporations are different from individuals in this respect.

You know, an individual can be the wealthiest person in the world but few of us -- maybe some -- but few of us are only our economic interests.

We have beliefs, we have convictions; we have likes and dislikes.

Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.

Chief Justice Roberts: Well, that's not -- I'm sorry, but that seems rather odd.

A large corporation just like an individual has many diverse interests.

A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that.

They may be concerned that the shareholders would rather they spend their money doing something else.

The idea that corporations are different than individuals in that respect, I just don't think holds up.

General Kagan: Well, all I was suggesting, Mr. Chief Justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value.

That's their single purpose, their goal.

Chief Justice Roberts: So if a candidate -- take a tobacco company, and a candidate is running on the platform that they ought to make tobacco illegal, presumably that company would maximize its shareholders' interests by opposing the election of that individual.

General Kagan: But everything is geared through the corporation's self-interest in order to maximize profits, in order to maximize revenue, in order to maximize value.

Individuals are more complicated than that.

So that when corporations engage the political process, they do it with that set of you know, blinders -- I don't mean it to be pejorative, because that's what we want corporations to do, is to--

Chief Justice Roberts: Well, I suppose some do, but let's say if you have ten individuals and they each contribute $1,000 to a corporation, and they say,

"we want this corporation to convey a particular message. "

why can't they do that, when if they did that as partnership, it would be all right?

General Kagan: --Well, it sounds to me as though the corporation that you were describing is a corporation of the kind we have in this case, where one can assume that the members all sign on to the corporation's ideological mission, where the corporation in fact has an ideological mission.

Justice Scalia: General Kagan, most -- most corporations are indistinguishable from the individual who owns them, the local hairdresser, the new auto dealer -- dealer who has just lost his dealership and -- and who wants to oppose whatever Congressman he thinks was responsible for this happening or whatever Congressman won't try to patch it up by -- by getting the auto company to undo it.

There is no distinction between the individual interest and the corporate interest.

And that is true for the vast majority of corporations.

General Kagan: Well--

Justice Scalia: Yet this law freezes all of them out.

General Kagan: --To the extent that we are only talking about single shareholder corporations, I guess I would ask why it's any burden on that single shareholder to make the expenditures to participate in the political person in the way that person wants to outside the corporate forum?

So single shareholders aren't suffering any burden here; they can do everything that they could within the corporate form, outside the corporate form.

They probably don't get the tax breaks that they would get inside the corporate form, but I'm not sure anything else is very different.

Justice Scalia: Oh, he wants to put up a sign--

Justice Stevens: Ultra Vires would take care of about 90 percent of the small corporations that Justice Scalia is talking about.

They can't just -- they can't even give money to charities sometimes because of Ultra Vires.

Giving political contributions is not typical for corporate activity.

Justice Breyer: Is -- I -- I remember spending quite a few days one summer reading through 1,000 pages of opinion in the D.C. Circuit.

And I came away with the distinct impression that Congress has built an enormous record of support for this bill in the evidence.

And my recollection is, but it is now a couple of years old, that there was a lot of information in that which suggested that many millions of voters think, at the least, that large corporate and union expenditures or contributions in favor of a candidate lead the benefited political figure to decide quite specifically in favor of the -- of the contributing or expending organization, the corporation or the union.

General Kagan: Yes, that's--

Justice Breyer: Now, it was on the basis of that, I think, that this Court upheld the law in BCRA.

But we have heard from the other side there isn't much of a record on this.

So, if you could save me some time here, perhaps you could point me, if I am right, to those thousand pages of opinion and tens of thousands of underlying bits of evidence where there might be support for that proposition?

General Kagan: --Yes, that's exactly right, Justice Breyer, that in addition to the 100-year old judgment that Congress believes this is necessary, that very recently members of Congress and others created a gigantic record showing that there was corruption and that there was the appearance of corruption.

And in that record, many times senators, former senators talk about the way in which fundraising is at the front of their mind in everything that they do the way in which they grant access, the way in which they grant influence, and the way in which outcomes likely change as a result of that fundraising.

Justice Breyer: BCRA has changed all that.

Chief Justice Roberts: Counsel, could I ask, it seems -- to your shareholder protection rationale, isn't it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it?

General Kagan: I don't think so, Mr. Chief Justice.

I mean, I, for one, can't keep stack of what my -- where I hold--

Chief Justice Roberts: You have a busy job.

You can't expect everybody to do that.

[Laughter]

General Kagan: --It's not that -- it's not that I have a busy job.

Chief Justice Roberts: But it is extraordinary -- I mean, the -- the idea and as I understand the rationale, we -- we the government, big brother, has to protect shareholders from themselves.

They might give money, they might buy shares in a corporation and they don't know that the corporation is taking out radio ads.

The government has to keep an eye on their interests.

General Kagan: I appreciate that.

It's not that I have a busy job, it's that I, like most Americans, own shares through mutual funds.

If you don't know where your mutual funds are investing, so you don't know where you are--

Chief Justice Roberts: So it is -- I mean, I understand.

So it is a paternalistic interest, we the government have to protect you naive shareholders.

General Kagan: --In a world in which most people own stock through mutual funds, in a world where people own stock through retirement plans in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of the--

Justice Ginsburg: --In that respect, it's unlike the union, because the -- the worker who does not want to affiliate with a union cannot have funds from his own pocket devoted to political causes.

But there is no comparable check for corporations.

General Kagan: --That's exactly right, Justice Ginsburg.

In the union context, of course, it's a constitutional right that the unions give back essentially the funds that any union member or employee in the workplace does not want used for electoral purposes.

Justice Ginsburg: Does that mean that unions should be taken out, because there isn't the same -- the shareholder protection interest doesn't -- there is no parallel for the union?

General Kagan: You are right about that.

But I -- the government believes that with respect to unions, the anticorruption interest is as strong, and that unions should be kept in.

I think what your point suggests, that the -- that the union member point suggests why Congress might have thought that there was a compelling interest to protect corporate shareholders in the same way that, let's say, dissenting union members are protected by the Constitution.

There is no State action, of course, so there is no constitutional right in the corporate context.

But Congress made a judgment that it was an important value that shareholders have this choice, have the ability both to invest in our country's assets and also to be able to choose our country's leaders.

Chief Justice Roberts: It's not investing in our country's--

Justice Kennedy: In the course of this argument, have you covered point two?

[Laughter]

General Kagan: I very much appreciate--

Justice Kennedy: And I would like to know what it is, so that I -- my notes are complete.

General Kagan: --I very appreciate that, Justice Kennedy.

I think I did cover point two, which was an explanation of some of the questions that the Chief Justice asked me about what interests the government was suggesting motivated these laws and are compelling enough such that this Court certainly should not invalidate these laws.

Chief Justice Roberts: --I take it we have never accepted your shareholder protection interest.

This is a new argument.

General Kagan: I think that that's fair.

Certainly Bellotti does not accept it.

I would think -- you know, National Right to Work is an interesting opinion, because National Right to Work accepts for a unanimous court both the shareholder protection argument and the anticorruption argument with respect to the section 441b in particular.

Now, in later cases the Court has suggested that National Right to Work was only focused on contributions.

If you read National Right to Work, that distinction really does not -- it's not evident on the face of the opinion, and I think Chief Justice Rehnquist at later -- in a later dissent suggested that he had never understood it that way.

But -- so National Right to Work is a confusion on this point.

It--

Chief Justice Roberts: Well, I guess other than that, and I think there may be some ambiguity there, but I wouldn't say NRWC is a holding on shareholder protection.

So to the extent that you abandoned the original rationale in Austin, and articulated different rationales, you have two, the quid pro quo corruption interest and the shareholder protection interest--

General Kagan: --Which we think is not in Austin.

Chief Justice Roberts: --Austin, I thought, was based on the aggregation of immense wealth by corporations.

General Kagan: Again, Austin is not the most lucid opinion.

But the way we understand Austin, what Austin was suggesting was that the corporate form gave corporations significant assets, other people's money that when the corporations spent those assets--

Chief Justice Roberts: Can you -- can you give me the citation to the page in Austin where we accepted the shareholder protection rationale?

General Kagan: --I think it comes when the -- when the Court is distinguishing MCFL.

And the message of that distinction of MCFL is the shareholder protection interest?

But--

Chief Justice Roberts: Do the words "shareholder" -- I don't know, do the words "shareholder protection" appear in the Austin opinion?

General Kagan: --I honestly don't know, Mr. Chief Justice.

And -- and I don't want to--

Chief Justice Roberts: If they don't -- let's assume they don't, then I get back to my question, which is, you are asking us to defend the Austin or support or continue the Austin opinion on the basis of two rationales that we have never accepted, shareholder protection and quid pro quo corruption?

General Kagan: --I would say on the quid pro quo corruption, of course you have accepted that rationale--

Chief Justice Roberts: In the context of contributions, not expenditures.

General Kagan: --That's correct.

And I think what has changed since -- since that time is the BCRA record that Justice Breyer suggested, which was very strong on the notion that there was no difference when it came to corporate contributions and expenditures, that there actually was no difference between the two.

That they--

Chief Justice Roberts: Is that a yes?

Is that a yes?

In other words, you are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted, in expenditure context.

General Kagan: --In this -- in this particular context, fair enough.

But, you know, I think--

Justice Kennedy: And to undercut Buckley in so doing?

General Kagan: --Well, I don't think so, because I do think Buckley was about individuals rather than corporations, and Buckley was in 1976, not in 2009, after the very extensive record that was created in BCRA.

I see my time is up.

I don't--

Justice Ginsburg: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies?

Last time the answer was, yes, Congress could, but it didn't.

Is that -- is that still the government's answer?

General Kagan: --The government's answer has changed, Justice Ginsburg.

[Laughter]

It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media.

And we took what the Court -- what the Court's -- the Court's own reaction to some of those other hypotheticals very seriously.

We went back, we considered the matter carefully, and the government's view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context.

And I should say that the FEC has never applied 441b in that context.

So for 60 years a book has never been at issue.

Justice Scalia: --What happened to the overbreadth doctrine?

I mean, I thought our doctrine in the Fourth Amendment is if you write it too broadly, we are not going to pare it back to the point where it's constitutional.

If it's overbroad, it's invalid.

What has happened to that.

General Kagan: I don't think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book.

To say that it doesn't apply to books is to take off, you know, essentially nothing.

Chief Justice Roberts: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

General Kagan: I think a -- a pamphlet would be different.

A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print.

It does--

Justice Alito: Well, what if the particular -- what if the particular movie involved here had not been distributed by Video on Demand?

Suppose that people could view it for free on Netflix over the internet?

Suppose that free DVDs were passed out.

Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.

In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited.

General Kagan: --Well, none of those things, again, are covered.

Justice Alito: No, but could they?

Which of them could and which could not?

I understand you to say books could not.

General Kagan: Yes, I think what you -- what we're saying is that there has never been an enforcement action for books.

Nobody has ever suggested -- nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that.

Justice Scalia: So you're -- you are a lawyer advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this.

This statute covers it, but don't worry, the FEC has never done it.

Is that going to comfort your client?

I don't think so.

Justice Ginsburg: But this -- this statute doesn't cover.

It doesn't cover books.

General Kagan: No, no, that's exactly right.

The only statute that is involved in this case does not cover books.

So 441b which--

Chief Justice Roberts: Does cover books.

General Kagan: --which does cover books, except that I have just said that there would be a good as-applied challenge and that there has been no administrative practice of ever applying it to the books.

And also only applies to express advocacy, right?

203 has -- is -- is -- has a broader category of the functional equivalent of express advocacy, but 441b is only express advocacy, which is a part of the reason why it has never applied to a book.

One cannot imagine very many books that would meet the definition of express advocacy as this Court has expressed that.

Chief Justice Roberts: Oh, I'm sorry, we suggested some in the last argument.

You have a history of union organizing and union involvement in politics, and the last sentence says in light of all this, vote for Jones.

General Kagan: I think that that wouldn't be covered, Mr. Chief Justice.

The FEC is very careful and says this in all its regulations to view matters as a whole.

And as a whole that book would not count as express advocacy.

Chief Justice Roberts: Thank you, General.

Mr. Waxman.

ORAL ARGUMENT OF SETH WAXMAN ON BEHALF OF SENATORS JOHN McCAIN, ET AL., AS AMICI CURIAE, IN SUPPORT OF THE APPELLEE

Mr. Waxman: Mr. Chief Justice, and may it please the Court: The requirement that corporations fund electoral advocacy the same way individuals do, that is with money voluntarily committed by people associated with the corporation, is grounded in interests that are so compelling that 52 years ago, before Buckley was decided, before FECA was enacted, before Buckley-style quid pro quo corruption was ever addressed, this Court explained that, quote:

"What is involved here is the integrity of our electoral process and not less the responsibility of the individual citizen for the successful functioning of that process. "

If the Court now wishes to reconsider the existence and extent of the interests that underlie that sentiment expressed for the Court by Justice Frankfurter in the context of a prosecution of union officials for running television ads supporting political candidates, it should do so in a case in which those interests are forthrightly challenged with a proper and full record below.

Chief Justice Roberts: One of the amicus briefs, I'm not -- maybe it's professor Hayward, if I am getting that right -- suggested the history of this 1947 provision was such that it really wasn't enforced because people were concerned about the First Amendment interests and that the courts to the extent cases were brought did everything they could to avoid enforcing the limitations.

Mr. Waxman: Well, I don't recall who the professor was either, Mr. Chief Justice, but I do recall pretty well the history that was recounted -- I would say the history that was recounted by this Court in the Auto Workers case, in CIO, in the Pipefitters case, which is quite inconsistent with that.

We've never had this case -- until this Court's supplemental order, we never had a case that challenged directly, quote, "Austin" and Austin-style corruption, which is a term I think that is quite misleading.

When the sober-minded Elihu Root was moved to stand up in 1894 and urged the people of the United States, and urged the Congress of the United States, to enact legislation that would address, quote,

"a constantly growing evil which has done more to shake the confidence of plain people of small means of this country in our political institutions than any practice which has ever obtained since the founding of our government. "

he was not engaging in a high level discussion about political philosophy.

Justice Kennedy: But he was talking about contributions in that context.

That's quite clear.

Mr. Waxman: He -- with all due respect, Justice Kennedy, I don't think that there was any distinction whatsoever in that time between the distinction that this Court came to understand as a result of FECA, and its adjudication of FECA and that -- really the prehistory of Taft-Hartley, between contributions expenditures.

For this reason, Justice Kennedy, was that what Root said was the idea -- and I am quoting now from his speech which is also partly reprinted in this Court's opinion in McConnell -- the idea is to prevent the great companies, the great aggregations of wealth from using corporate funds directly or indirectly to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests as against those of the public.

Justice Scalia: Great aggregations of wealth.

The brief by the Chamber of Commerce, the amicus brief by the Chamber of Commerce points out that 96 percent of its members employ less than 100 people.

These are not aggregations of great wealth.

You are not talking about the railroad barons and the rapacious trusts of the Elihu Root era; you are talking mainly about small business corporations.

Mr. Waxman: Justice Scalia, I take your point and I think you have made this point forceful lily many times before.

A unanimous court in National Right to Work Committee concluded that Congress was entitled to make the judgment that it would treat in order to address this root evil, a problem of such concern that it goes to the very foundation of the democratic republican exercise, that is, the notion of integrity in representative government.

Now this -- this case, of course, is not a case--

Justice Scalia: I don't understand that answer.

I mean, if that's what you were concerned about, what Elihu Root was concerned about, you could have said all corporations that have a net worth of more than, you know, so much or whatever.

That is not what Congress did.

It said all corporations.

Mr. Waxman: --Right.

And Justice Scalia, if a small corporation or even any corporation of any sort wants to bring an as-applied challenge to 441b or a State law analogue and say, you know, I am not the problem that Theodore Roosevelt and Elihu Root was addressed at; there isn't a compelling interest because I only have three employees and $8,000 in my bank account, that's fine.

But what is extraordinary, truly extraordinary, given the sentiments that underlay the Tillman Act and the Taft-Hartley Act is that we would be having a discussion today about the constitutionality of a law that has been on the books forever when no party, no corporation, has ever raised the challenge.

I well recall--

Justice Kennedy: You say it's been on -- it's been on the books forever.

But, No. 1, the phenomenon of -- of television ads where we get information about scientific discovery and -- and environment and transportation issues from corporations who after all have patents because they know something, that -- that is different.

And the -- the history you applied apply to contributions, not to those kinds of expenditures.

Mr. Waxman: --Justice Kennedy, first of all, I -- I think it is actually true that patents are owned by individuals and not corporations.

But be that as it may, there is no doubt -- I am not here saying that this Court should reconsider Bellotti on first principles any more than I am saying that it shouldn't consider Austin on first principles.

Corporations can and do speak about a wide range of public policy issues, and since the controlling opinion was issued in Wisconsin Right to Life, the -- the kind of campaign-related speech that corporations can't engage in, in the pre-election period is limited to the functional equivalent of expressed advocacy and nothing else.

Justice Alito: Mr. Waxman, all of this talk about 100 years and 50 years is perplexing.

It sounds like the sort of sound bites that you hear on TV.

The -- the fact of the matter is that the only cases that are being -- that may possibly be reconsidered are McConnell and Austin.

And they don't go back 50 years, and they don't go back 100 years.

Mr. Waxman: My point here is, Justice Alito -- and I don't mean to be -- to be demeaning this Court with sound bites.

The point is that what -- Austin was, to be sure, the very first case in which this Court had to decide -- actually had to decide whether or not the prohibition on corporate treasury funded campaign speech could properly be limited and was supporting by a compelling interest.

All I am suggesting -- and I hope that if you take nothing else from my advocacy today it will be this -- is that we have here a case in which the Court has asked a question that essentially goes to the bona fides, that is, the factual predicates of the interests that have been viewed as compelling in Austin, in MCFL, in McConnell itself, whether you call it the corrosive effect of corporate wealth, whether you call it, quote, "shareholder protection"--

Justice Alito: And my point is that there is nothing unusual whatsoever about a case in which a party before the Court says, my constitutional rights were violated, and there is no prior decision of this Court holding that what was done is constitutional.

And in that situation is it an answer to that argument that this has never been challenged before?

The Court has never held that it was unconstitutional?

It has been accepted up until this point by the general public that this is -- that this is constitutional?

No, that is not regarded as an answer to that question.

Mr. Waxman: --Mr. Olson is -- was quite right -- either Mr. Olson or Mr. Abrams, I find it so difficult to tell the two apart.

One of them was saying, well, it's, you know -- yes, I think in response to Justice Sotomayor's question, you know, about there is no factual record here.

There is absolutely nothing in this case.

And the response was, well, it's the government's burden.

The government has to prove that any restriction that it imposes passes strict scrutiny.

Fair enough, but the question has to be raised.

The issue has to be raised.

If the -- if Austin, Justice Alito, or the compelling interests that Austin and McConnell relied on were forthrightly challenged in a case, the government would have the option--

Chief Justice Roberts: Well, Mr. Waxman, the government did have that opportunity, and the government compiled a record.

And when the Citizens United abandoned that position -- you are quite right, they changed their course -- the government and the district court complained that it had to go to all this work to develop this record, and yet we hear nothing about what the record showed.

Mr. Waxman: --Well, that's because the ultimate -- I assume I have your permission to answer.

Chief Justice Roberts: Go ahead.

Mr. Waxman: The -- the only challenges that were litigated in the district court -- and they largely were related to disclosure -- were very direct as-applied challenges that had -- that did nothing whatsoever to implicate the foundation of McConnell or Austin.

And all I'm saying is, if you want to reexamine the predicates, the existence and magnitude of interests that Congress has, going back a -- whether it's 60 years or 100 years, and courts, whether it has been the actual rationale of the decision or a predicate of the rationale of the decision, you ought to do it in a case where the -- where the issue is squarely presented so that the government can do what it did in McConnell and in another context in Michigan v. Grutter when it suggested that Aderand had undermined this Court's controlling opinion in Bakke.

Thank you.

Chief Justice Roberts: Thank you, Mr. Waxman.

Mr. Olson five minutes.

REBUTTAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE APPELLANT

Mr. Olson: Thank you, Mr. Chief Justice.

The words that I would leave with this Court are the Solicitor General's.

The government's position has changed.

The government's position has changed as to what media might be covered by congressional power to censor and -- and ban speech by corporations.

Now we learn, contrary to what we heard in March, that books couldn't be prohibited but pamphlets could be prohibited.

We also learn--

Justice Ginsburg: But that's not -- the -- the statute that we are involved in, in this case does not cover those.

Mr. Olson: --Unless they are engaged in, quote, "expressed advocacy".

And the other way in which the government has changed its position, if I listened carefully, is what type of corporation might be covered.

The government now says that it wouldn't -- the -- the FEC is now willing to recede from its regulations which explicitly covered this corporation, and I don't know as I stand here today what kind of corporations the government would choose to prosecute.

Remember, the Federal Election Commission, which didn't even have a quorum and couldn't function at all for six months during the important election year of 2008--

Justice Stevens: If the FEC chooses to prosecute only those who do not -- who do not rely exclusively on individual contributions.

Mr. Olson: --Well, that's your question from before.

Justice Stevens: Yes.

I want to see he gets it.

Mr. Olson: And that -- (a), it wouldn't -- this corporation accepted a small amount, $2,000 out of -- out of the funding of this, so that wouldn't solve the problem for my corporation, my client's corporation.

Justice Stevens: But it would solve it for the advertising, and there are two things.

There is the long Hillary document and the advertisements.

It would cover those.

Mr. Olson: If -- but the--

Justice Stevens: And they are the only -- only ones that clearly violate the statute.

Mr. Olson: --My point is that the overbreadth in this statute -- that solves the problem by saying that corporations still can't speak, and if you don't have anything to do with them, you -- you -- they wear a scarlet letter that says C.> ["] If you accept one dollar of funding, then you had better make darn sure that when a check comes in for $100 from the XYZ hardware store in the neighborhood, that it wasn't a corporation that you used to -- to make a documentary about a candidate.

The other way in which the government's position has changed is we do not know--

Justice Stevens: Does that mean you disagree with the NRA's submission?

Mr. Olson: --I -- I submit that it does not solve the problem.

It would lead exactly--

Justice Stevens: If it solved the problem as it would for the advertising, would it be an appropriate solution?

Mr. Olson: --It -- I can't say that it -- if it solved the problem, because it doesn't solve the problem of prohibiting all corporate speech.

And I think -- and I am submitting, Justice Stevens, that that is unconstitutional.

I think what you are suggesting is that some limitation that -- what -- what you were suggesting is not a whole lot different than PAC.

It would lead, I think Justice Breyer was saying, to an accounting nightmare.

It would be--

Justice Stevens: But it is a nightmare that Congress endorsed in the Snowe-Jeffords Amendment.

Mr. Olson: --Well, but the -- but the Wellstone Amendment sort of in a sense repealed it.

Justice Stevens: We have held the Wellstone Amendment literally cannot be applied.

Mr. Olson: Well--

Justice Stevens: We unanimously held that.

Mr. Olson: --I think what -- what the -- my response is that that does not solve the problem of inhibiting--

Justice Stevens: You do not endorse the NRA's position?

Mr. Olson: --No, we don't Justice Stevens, and -- and, as I said, it would not exempt my clients.

The other -- the third way in which the government has changed its position is its rationale for this prohibition in the first place.

Is it corruption?

Is it shareholder protection?

Is it equalization?

There was some dispute.

I heard the Solicitor General say that the equalization rationale was something the government disavowed.

It wasn't what Austin said, the government -- the government said.

And I--

Justice Ginsburg: Justice Marshall said that he was not trying to equalize all voices in the political process.

He has a sentence that says, well, that's not what the rationale of this case is.

Mr. Olson: --I don't -- I don't -- with all due respect Justice Ginsburg, the words that jump out at me are the words from page 665 that say the desire to counterbalance those advantages unique to the corporate forum is the state's compelling interest in this case.

That sounds to me like -- like equalization.

I don't know.

I am -- I am representing an individual who wants to speak about something that's the most important thing that goes on in our democracy.

I'm told it's a felony.

I am not -- and I -- I don't know what the rational basis is.

It's overbroad.

Now I hear about this shareholder -- protecting shareholders.

There is not a word in the congressional record with respect to the -- which was before the Court in the McConnell case about protecting shareholders.

As the Bellotti case pointed out, that would be overbroad anyway because this statute applies to every--

Justice Breyer: Actually I read that sentence that you just read as meaning the corporation is an artificial person in respect to which the State creates many abilities and capacities, and the State is free also to create some disabilities and capacities.

Not a statement about balancing rich and poor.

Mr. Olson: --Well, it -- it -- it strikes me that it is, because it follows the words that say corporations are given unique advantages to aggregate wealth and that we must take away that advantage by equalizing the process.

I think that's the plain meaning but my point I guess is -- if I may finish this sentence.

Chief Justice Roberts: Briefly.

Mr. Olson: My point is that the government here has an overbroad statute that covers every corporation irrespective of what its stockholders think, irrespective of whether it's big, and whether it's general -- a big railroad baron or anything like that, and it doesn't know, as it stands here today two years after this movie was offered for -- to the public for its view, what media might be covered, what type of corporation might be covered and what compelling justification or narrow standard would be applied to this form of speech.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Monday, the 5th of October at 10 a.m..

Featured:

Yes

Citizens United v. Federal Election Commission - Oral Argument

Wed, 09 Jun 2010 02:45:45 +0000

Case:

Citizens United v. Federal Election Commission

Media File:

08-205_20090324-argument.mp3

Related Transcript:

08-205_20090324-argument.xml

Transcript:

ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We will hear argument today in Case 08-205, Citizens United v. The Federal Election Commission.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, and may it please the Court: Participation in the political process is the First Amendment's most fundamental guarantee.

Yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state.

In the case that you consider today, it is a felony for a small, nonprofit corporation to offer interested viewers a 90-minute political documentary about a candidate for the nation's highest office that General Electric, National Public Radio, or George Soros may freely broadcast.

Its film may be shown in theaters, sold on DVDs, transmitted for downloading on the Internet, and its message may be distributed in the form of a book.

But its producers face 5 years in prison if they offer it in the home through the vehicle of Video On Demand.

Because the limitation on speech, political speech, is at the core of the First Amendment, the government has a heavy burden to establish each application of a restriction on that form of speech is a narrowly tailored response to a compelling governmental interest.

The government cannot prove and has not attempted to prove that a 90-minute documentary made available to people who choose affirmatively to receive it, to opt in, by an ideologically oriented small corporation poses any threat of quid pro quo corruption or its appearance.

Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee.

Justice Souter: Mr. Olson, if the film were distributed by General Motors, would your argument be the same?

Mr. Olson: Well, it wouldn't -- definitely would not be the same because there are several aspects of the argument that we present.

However, in one respect, it would.

A 90-minute documentary was not the sort of thing that the -- the BCRA -- that the Congress was intended to prohibit.

In fact, as the -- as the Reporters Committee for -- for Freedom of Speech points out, the documentary is objectively indistinguishable from other news media commentary--

Justice Souter: But the -- the point, then, of similarity is you would, whether it was offered by General Motors or offered by -- by this Petitioner, in effect call for some qualification of the -- the general rule allowing limitations on corporate political activity of -- of the speech variety?

Mr. Olson: --Yes, we would, although it is a very important factor.

Justice Souter: So how would we draw the line?

Mr. Olson: Well, one of the reasons that -- one of the bases upon which you would draw the line is to look at the documentary -- the voluminous documentary record that the government cites and this Court cited in the McConnell case as a justification for the restrictions themselves.

As--

Justice Souter: Well, would every -- in effect, every limitation on corporate speech or on corporate expenditure and the nature of speech be subject, then, to in effect this all-factor balancing test?

Mr. Olson: --Well, I think what I'm trying to say is that what the -- what the Congress was concerned with -- and Judge Kollar-Kotelly in the district court opinion that you considered in McConnell discusses this on page 646 of her opinion -- that this sort of communication was not something that Congress intended to prohibit.

You would look at, if Congress intended to prohibit 90 minutes--

Justice Souter: So -- so your -- your argument then is there's something distinct about the speech, which could be considered regardless of the corporate form?

Mr. Olson: --Well, that's part of our argument, yes.

It's not--

Justice Souter: If that is the case, what is -- what is the answer to this?

That -- that still is going to involve a -- a fairly complicated set of analyses, probably in a lot of cases.

Why is that necessary or worthwhile to preserve First Amendment values when you could have done this with a PAC?

Mr. Olson: --Well, as this Court said in the Wisconsin Right to Life case just a couple years ago, that the PAC vehicle is burdensome and difficult--

Justice Souter: That's right.

You've got reporting.

You've got limitations on -- on corporate contributions and so on, but in this case, for example, most of your contributions, as I understand from the record, were individual.

They weren't corporate.

There was one perhaps.

There was some corporate contribution--

Mr. Olson: --Yes, on page 252 of the appendix and 251, it points out -- you're absolutely correct -- that 1 percent of the contributions--

Justice Souter: --Okay.

Mr. Olson: --were from corporations.

Justice Ginsburg: Was that -- was that established?

I thought that the record was hardly made of the contributors to this film.

I think there was something like $200,000 accounted for, and the film cost -- to get the Channel '08, whatever it was, to put it on cost over a million dollars?

Mr. Olson: The government sent an interrogatory, Justice Ginsburg, asking for the major contributions with respect to this project, and the ones that they sought -- the government sought what they thought was important; the answer to that interrogatory is at page 251a and 252a -- that the government was seeking information with respect to contributions at a $1,000 or more; 198,000 came from individuals.

And, by the way, the three largest contributors that are listed on page 252 of the Joint Appendix are given credit in the film itself.

So there's no effort to -- to conceal those individuals.

So that it is possible -- it's possible that corporations throughout America were giving small amounts of money to this.

That record doesn't establish one way or the other.

What it does establish is what the government felt was necessary for its case that the major contributors were individuals and not corporations.

Justice Breyer: You have answered Justice Souter.

I took your answer to be the following: That if the corporation had paid -- paid for a program and the program was 90 minutes which said vote for Smith, vote for Smith over and over -- that's the program -- that you concede that the government could ban this under the Act.

Mr. Olson: Well, it's -- it is difficult--

Justice Breyer: I don't think they would.

We agree.

It's an imaginary hypothetical.

But, in fact, if they did have 90 minutes of vote for Smith or vote against Jones, you concede for purposes of this argument that the government can ban it.

Is that bright or not?

Mr. Olson: --If -- not by this organization.

We think that if it's a small, nonprofit organization, which is very much like the Massachusetts--

Justice Breyer: Okay, okay.

So one of your arguments is this is a special corporation.

You can't.

Now suppose it's General Motors.

Can they?

Mr. Olson: --Well, General Motors may be smaller than the client that we are representing.

[Laughter]

Justice Breyer: I'd just like to get -- I want to get an answer to the question.

Mr. Olson: Yes, I think--

Justice Breyer: Yes.

Okay.

Mr. Olson: --that to the extent that it--

Justice Breyer: Okay.

Now then, my question that I'm driving towards is: Since General Motors can in your view be forbidden to have our film of 90 minutes vote for Smith, vote for Smith, vote for Smith, or vote against Jones, vote against Jones, vote against Jones, how is this film, which I saw -- it is not a musical comedy.

What ----

[Laughter]

What -- how does this film vary from my example, and why does the variance make a difference?

Mr. Olson: --The difference is: It's exactly what the Court was describing in Wisconsin Right to Life.

It is a 90 -- it is -- it informs and educates, which is what the Court said, or the Chief Justice's opinion, the controlling opinion said, was the mark of an issue communication.

And as this Court said--

Justice Ginsburg: Mr. Olson, I thought you conceded in the -- at least as I read your reply brief, that you were no longer saying this is about an issue unrelated to any election.

I thought you said that this was a 90-minute movie

"concerning the qualifications, character, and fitness of a candidate for the Nation's highest office. "

And that's just what Wisconsin Right to Life was not.

It was not about the character, qualifications, and fitness of either of the Senators.

Mr. Olson: --What the -- what the Court said in Wisconsin Right to Life was that the distinction between an issue -- issue advocacy and campaign advocacy dissolves upon practical application.

This is exactly what the Court was talking about there.

And--

Justice Ginsburg: But didn't the Court there say this is not about character, qualifications, and fitness?

Mr. Olson: --Yes, it did, Justice Ginsburg, but what my point is: That there isn't just two boxes in the world of communications about public issues, one box for so-called issues and one box for campaign advocacy.

That's what I think the Court meant when it said, not just in Wisconsin Right to Life but in earlier cases, that the distinction dissolves upon application.

Justice Souter: But no matter how many boxes we have, doesn't this one fall into campaign advocacy?

I mean, I've got the government's brief open at -- open at pages 18 to 19 with the quotations: She will lie about anything.

She's deceitful.

She's ruthless, cunning, dishonest, do anything for power, will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief.

I mean, this sounds to me like campaign advocacy.

Mr. Olson: It -- what -- what the court was talking about and as Justice Kollar-Kotelly talked about is broadcast advertising, these 10-minute -- 10-second, 30-second, 60-second bursts of communication that are -- that are the influence in elections.

Justice Breyer: I want to get the answer to what I was asking.

Justice Souter: But it -- it seems to me, the answer to Justice Breyer's question: This is a don't vote for Jones.

Mr. Olson: This is a long discussion of the record, qualifications, history, and conduct of someone who is in the political arena, a person who already holds public office, who now holds a different public office, who, yes, at that point, Justice Souter, was running for office.

But the fact is that what could the individual making a -- as I said, the Reporters Committee for the Right to Life said this is indistinguishable from something that is on the public media every day, a long discussion.

It might be -- what you're suggesting is that unless it's somehow evenhanded, unless it somehow says -- which would be viewpoint discrimination or prevention of viewpoints, which is the safe harbor that the government has written into its so-called safe harbor, if you don't have a point of view, you can go ahead and express it.

Justice Breyer: No, that isn't -- that isn't the suggestion.

The suggestion I was going to, or trying to get to, is we know you can't just say vote against Smith, vote against Smith, vote against Smith.

Now, I wanted to know the difference between that and a film that picks out bad things that people did -- no good ones, just bad ones the candidate did.

And then we have another film that picks out just good things candidates do.

And so candidates run films that show the good things they do, and then someone else shows the bad things they do.

Now, why is that not the same as vote against Smith?

Though I grant you, it's more intelligent.

It's more informative.

It's even better electioneering.

So we're after electioneering.

Why doesn't that fall within the forbidden category?

Mr. Olson: The government has the burden to prove -- there's a compelling governmental interest narrowly tailored, Justice Breyer, because all kinds of things of the type that you're talking about are permissible if your name is General Motors -- I, mean if your name is General Electric rather than General Motors, if your name is Disney, if your name is George Soros, if your name is National Public Radio.

What you're suggesting is that a long discussion of facts, record, history, interviews, documentation, and that sort of thing, if it's all negative, it can be prohibited by -- and it's a felony.

You can go to jail for 5 years for sharing that information with the American public, or if it's all favorable, you can go to jail.

But if you did half and half, you couldn't.

Justice Breyer: I -- I guess it's the same as if you were to say, you know, I think Smith is a great guy.

That's all.

I'm sharing information.

And what I don't see is if you agree that we could ban the commercial that says, I see Smith is a great guy, why is it any different to supplement that with the five best things that Smith ever did?

Mr. Olson: Because -- because of the First Amendment.

Congress shall make no law abridging the freedom of speech.

When -- when the government -- when this Court has permitted that to happen, it has only done it in the most narrow circumstances for a compelling governmental interest.

Justice Kennedy: But I -- I guess what -- what Justice Breyer is asking is -- I have the same question.

If we concede -- and at the end of the day you might not concede this, but if we take this as a beginning point, that a short, 30-second, 1-minute campaign ad can be regulated, you want me to write an opinion and say, well, if it's 90 minutes, then that's different.

I -- it seems to me that you can make the argument with 90 -- the 90 minutes is much more powerful in support or in opposition to a candidate.

That's I -- that's the thrust of the questioning.

Mr. Olson: I understand that, Justice Kennedy, and it is difficult.

But let me say that the record that you were considering in McConnell -- and I specifically invite, as I did before, page -- the Court's attention to 646 of this -- of the district court's opinion, which specifically said the government and Congress was concerned about these short, punchy ads that you have no choice about seeing, and not concerned about a thorough recitation of facts or things that you would have to make an affirmative decision to opt into.

And the reason why it's difficult is that we are talking about an infinite variety of ability of people to speak about things that matter more to them than anything else, who will be--

Chief Justice Roberts: Counsel, I think you have kind of shifted your focus here from the difference between a 10-second ad and a 90-minute presentation and how that presentation is received, whether it's over the normal airwaves or on this Video On Demand.

What -- what is the distinction between the 10-second commercial and, say, the 90-minute infomercial?

Mr. Olson: --The thing -- I think it's -- it's pointed out specifically in your opinion, controlling opinion, for Wisconsin Right to Life.

That which informs and educates and may seek to persuade is something that is -- is on the line of being permissible.

The government hasn't established -- never did try to establish -- I did shift -- I didn't shift but all of these are factors.

It's who's doing the speaking--

Justice Scalia: You can educate in 30 seconds.

I mean in -- in a 30-second ad you present just one of these criticisms of the candidate instead of lumping all of them together for 90 minutes.

Mr. Olson: --The point, I think--

Justice Scalia: Doesn't that educate?

Mr. Olson: --The point, I think, Justice Scalia, is, yes, you can educate in 10 seconds, you can educate in 30 seconds.

But what -- what the Court was trying to do -- what Congress was trying to do is get at the things that were most potentially corruptive.

Justice Scalia: Wait, are you making a -- a statutory argument now or a constitutional argument?

What Congress was trying to do has nothing to do, it seems to me, with the constitutional point you're arguing.

Mr. Olson: The government makes the point that it established a voluminous record of evidence.

Both Congress had before it and this Court had before it a voluminous volume of evidence because it had the burden of proving that something was really bad with these -- these types of advertisements.

And what the -- what the Court did is say, well, okay -- in McConnell -- yes, there is a substantial burden that the government met that these types of communications -- not the Internet, not books, not other types of things -- are really bad enough that the government could pick those out, and it has narrowly tailored its solution to that problem by prohibiting those things.

And the government talks about this today in its brief, the things that Congress felt were the most acute problems.

Now--

Justice Scalia: So you're making a statutory argument now?

Mr. Olson: --I'm making a--

Justice Scalia: You're saying that this -- this isn't covered by it.

Mr. Olson: --Yes, I am making a statutory argument in the sense that you will construe the statute in the way that doesn't violate the Constitution.

The Constitution, as -- as the Court said in Wisconsin Right to Life, gives -- ties to the speaker, errs on the side of permitting the speech, not prohibiting the speech.

And so all of those things may be statutory arguments, Justice Scalia, but they are also constitutional arguments.

And in response to every one of these questions, the government has the burden of proving this sort of speech, which the Reporters say is indistinguishable -- they're the kind of information that news media puts out all the time, not--

Chief Justice Roberts: So -- so this argument doesn't depend upon whether this is properly characterized as express -- the functional equivalent of express advocacy?

Your contention is that even if it is, that because it wasn't in the factual record in McConnell or before Congress, it is a type of functional -- it is a type of express advocacy that's not covered by the Act?

Mr. Olson: --I don't think, Chief Justice Roberts, that it is remotely the functional equivalent of express advocacy, because what the Court and Congress was thinking about with respect to express advocacy was short, punchy things that you have no--

Chief Justice Roberts: Well, that's -- that's why I'm trying to figure out, the distinction in your argument.

I mean, if we think that this is the functional equivalent of express advocacy, are you contending that it is nonetheless not covered in light of the record before the Court in McConnell and before Congress?

Mr. Olson: --I -- I think I would agree with that, but I would also say that the -- the idea of the functional equivalent of express advocacy is a very magic word problem that this Court has struggled with in McConnell and in -- in each of the cases.

I would -- I said at the beginning that this is an incomprehensible prohibition, and I -- and my -- I think that's demonstrated by the fact that since 2003 this Court has issued something close to 500 pages of opinions interpreting and trying to apply the First Amendment to Federal election law.

And I counted 22 separate opinions from the Justices of this Court attempting to -- in just the last 6 years, attempting to figure out what this statute means, how it can be interpreted.

In fact--

Chief Justice Roberts: Well, that's because it's mandatory appellate jurisdiction.

I mean, it's -- you don't have a choice.

[Laughter]

Mr. Olson: --There would be fewer -- there would be fewer opinions.

I guess my point is that--

Justice Stevens: And maybe those cases presented more difficult issues than this one.

Mr. Olson: --I think this presents a much easier issue, Justice Stevens, because this is the type of -- if there is anything that the First Amendment is intended to protect in the context of elections that are occurring -- which, by the way, occur 4 years running, but the last election, presidential election, occurred throughout the entire 2008 -- if the American people need to have that kind of information.

And the statute is both overly broad because if it was a hotel ad, if it was a hotel saying Senator Clinton stayed here or Senator McCain stayed here, it would be prohibited because it was a hotel saying so, even though it really had nothing to do with the election.

If it is -- but it's -- if it's a corporation that put together an analysis of the earmark positions of each of the senatorial candidates -- most all of the candidates were running from the Senate, they all had this -- these issues where they may have voted or not against earmarks, that would be--

Justice Ginsburg: But, Mr. Olson, this is -- I think you were right in conceding at the beginning, this is not like the speech involved in Wisconsin Right to Life.

This is targeted to a specific candidate for a specific office to be shown on a channel that says Election '08, that tells the -- the viewer over and over again what -- just for example, it concludes with these are things worth remembering before you go in potentially to vote for Hillary Clinton.

Now, if that isn't an appeal to voters, I can't imagine what is.

Mr. Olson: --Yes, Justice Ginsburg, I understand your point.

There is much in there that if you saw it, you would form an opinion with respect to how you might want to vote.

You might -- it might form a different -- you might form all kinds of different opinions.

But it was -- it was an analysis of the background record and history and qualifications of someone running for president.

Of course I concede that.

But what is the -- what is the maker of a movie to take out in order to prevent that from happening?

I understand from some of the questions that if it was more evenhanded -- if it said, well, this candidate did this, but this candidate did this or this candidate was born in the Panama Canal Zone and this candidate was born in Hawaii, and that affects whether or not they are natural-born citizens or not, and it was more evenhanded, would that then not be a felony?

Justice Souter: As you -- as you've said yourself, as you pointed out, there -- there is a point at which there is no nonporous border between issue discussion and candidate discussion.

But I think the -- the problem that -- that Justice Ginsburg is having, that I'm having, and others is that it does not seem to me that with the quotations we're dealing with here -- as Justice Breyer said, it's not a musical comedy.

I think we -- we have no choice, really, but to say this is not issue advocacy; this is express advocacy saying don't vote for this person.

And if that is a fair characterization, the difference between 90 minutes and 1 minute, either for statutory purposes or constitutional purposes, is a distinction that I just cannot follow.

Mr. Olson: Well, it is a distinction that Congress was concerned about, and it's a distinction that's all over the record--

Justice Souter: You say that -- why -- what -- what is your basis for saying that Congress is -- is less concerned with 90 minutes of don't vote for Clinton than it was with 60 seconds of don't vote?

Mr. Olson: --Because -- because the record in Congress and the record in this Court is that those types of advertisements were more effective because they came into your home--

Justice Souter: They are the characteristic advertisement.

There is no question about that.

That is the paradigm case.

I agree with you.

But I don't see how you -- you then leap-frog from saying -- from saying that is the paradigm case to saying that this never covers anything but the paradigm case when the only distinction is time.

Mr. Olson: --The -- the -- I think the -- what -- what Congress was concerned about is the most severe and the most acute problem, as Justice Kollar-Kotelly said, which everyone acknowledges was the problem Congress sought to address with BCRA.

It's not just that, however.

The point that you just made about a nonporous border, it is the government's responsibility to the extent that you can't figure out how evenhanded you must be or what you must take out of your communication in order not to go to jail for airing it, it is the functional equivalent -- if everything is the functional equivalent -- if it mentions a candidate during an election, which is what the government says, it's the functional equivalent of a prior restraint, because you don't dare--

Justice Scalia: Mr. Olson, I -- I think we've been led astray by -- by the constant reference to what Congress intended.

As I understood your point, it was not -- it was not that, well, one is covered by the statute and the other isn't, but it is that one is covered by the Constitution and the other isn't.

And it may well be that -- that the kind of speech that is reflected in a serious 90-minute documentary is entitled to greater constitutional protection.

And it may well be that the kind of speech that is not only offered but invited by the listener is entitled to -- is entitled to heightened First Amendment scrutiny, which is -- which is what this is since you have pay per view and--

Mr. Olson: --I agree with that completely, Justice Scalia.

Mr. Chief Justice, if I may reserve the remainder of my time.

Chief Justice Roberts: Thank you, counsel.

Mr. Stewart.

ORAL ARGUMENT OF MALCOLM L. STEWART ON BEHALF OF THE RESPONDENT

Mr. Stewart: Mr. Chief Justice, and may it please the Court: The lead opinion in Wisconsin Right to Life didn't just use the term 2667 of volume 127 of the Supreme Court Reporter, the plurality or the lead opinion stated:

"In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. "

So the functional equivalence test doesn't depend on the length of the advertisement or the medium in which the advertisement--

Chief Justice Roberts: Well, the length of the advertisements wasn't remotely at issue in either Washington Right to Life or McConnell or before Congress when they passed this law.

Mr. Stewart: --Well, certainly Congress considered a variety of evidence bearing on campaign practices that had been undertaken in the past.

They were primarily -- most of the examples on which they focused were 30-second and 60-second advertisements.

It's certainly been a recurring phenomenon in the past that candidates would air, for instance, 30-minute infomercials.

Chief Justice Roberts: Any discussion in either McConnell -- any citation either in McConnell or the Congressional Record to those types of documentaries?

Mr. Stewart: I'm not sure about the citation; I'm not aware of any citation in McConnell or the Congressional Record, but it was certainly a known phenomenon.

And I think the real key to--

Chief Justice Roberts: Well, I mean, how do we know it was a known phenomenon in terms of the evolution of the statute and the decision of this Court upholding it if there's no reference to it?

Mr. Stewart: --Well, the real -- I think the real key to ascertaining Congress's intent is to look to the definition of electioneering communication that Congress enacted into the statute, and that definition requires that the communication be a broadcast, cable, or satellite communication in order to qualify as an electioneering communication, and that it be aired within a certain proximity to a Federal election, and that in the case of an--

Chief Justice Roberts: So -- so if Wal-Mart airs an advertisement that says we have candidate action figures for sale, come buy them, that counts as an electioneering communication?

Mr. Stewart: --If it's aired in the right place at the right time, that would be covered.

Now, under this Court's decision in Wisconsin Right to Life, it would be unconstitutional as applied to those advertisements, because those advertisements certainly would be susceptible of a reasonable construction--

Justice Alito: Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?

What's your answer to Mr. Olson's point that there isn't any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book?

Would the Constitution permit the restriction of all of those as well?

Mr. Stewart: --I think the -- the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life.

Those could have been applied to additional media as well.

And it's worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this Court's decisions to express advocacy--

Justice Alito: That's pretty incredible.

You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

Mr. Stewart: --I'm not saying it could be banned.

I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.

Justice Alito: Well, most publishers are corporations.

And a -- a publisher that is a corporation could be prohibited from selling a book?

Mr. Stewart: Well, of course, the statute contains its own media exemption or media--

Justice Alito: I'm not asking what the statute says.

The government's position is that the First Amendment allows the banning of a book if it's published by a corporation?

Mr. Stewart: --Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right.

That question is obviously not presented here.

The -- the other two things--

Justice Kennedy: Well, suppose it were an advocacy organization that had a book.

Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/90-day period -- the 60/30-day period?

Mr. Stewart: --If the book contained the functional equivalent of express advocacy.

That is, if it was subject to no reasonable interpretation--

Justice Kennedy: And I suppose it could even -- is it the Kindle where you can read a book?

I take it that's from a satellite.

So the existing statute would probably prohibit that under your view?

Mr. Stewart: --Well, the statute applies to cable, satellite, and broadcast communications.

And the Court in McConnell has addressed the--

Justice Kennedy: Just to make it clear, it's the government's position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it's under -- it can be prohibited under the Constitution and perhaps under this statute?

Mr. Stewart: --It -- it can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use -- to raise funds to publish the book using its PAC.

Chief Justice Roberts: If it has one name, one use of the candidate's name, it would be covered, correct?

Mr. Stewart: That's correct.

Chief Justice Roberts: If it's a 500-page book, and at the end it says, and so vote for X, the government could ban that?

Mr. Stewart: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provisions.

Chief Justice Roberts: No, I'm talking about under the Constitution, what we've been discussing, if it's a book.

Mr. Stewart: If it's a book and it is produced -- again, to leave -- to leave to one side the question of--

Chief Justice Roberts: Right, right.

Forget the--

Mr. Stewart: --the possible media exemption, if you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this--

Chief Justice Roberts: --No, take my hypothetical.

It doesn't say at the outset.

If funds -- here is -- whatever it is, this is a discussion of the American political system, and at the end it says vote for X.

Mr. Stewart: --Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.

Chief Justice Roberts: And if they didn't, you could ban it?

Mr. Stewart: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.

Justice Breyer: I wonder if that's -- I mean, I take it the answer to the question, can the government ban labor unions from saying we love this person, the corporations, we love them, the environmentalists saying we love them, is of course the government can't ban that.

The only question is, who's paying for it.

And they can make a determination of how much money the payors can pay, but you can't ban it.

Mr. Stewart: That's correct, and they--

Justice Breyer: All right.

If that's correct, then I take it the interesting question here would be -- I don't know if it arises in this case.

Suppose there were a kind of campaign literature or -- or advocacy that either a corporation had to pay for it, it couldn't pay for it through the PAC because for some reason -- I don't know -- the PAC -- and there's no other way of getting it to the public.

That would raise a constitutional question, wouldn't it?

Mr. Stewart: --It would raise a constitutional--

Justice Breyer: Is that present in this case?

Mr. Stewart: --It's not present in the case.

I don't think it would raise a difficult constitutional question because presumably if the reason the corporation couldn't do it through the PAC -- the only reason I could think of is that it couldn't find PAC-eligible donors who were willing to contribute for this speech.

And if that's the case, the corporation would -- could still be forbidden to use its general treasury.

Justice Breyer: I don't know about that.

But I guess I would be worried if in fact there was some material that couldn't get through to the public.

I would be very worried.

But I don't think I have to worry about that in this case, do I?

Mr. Stewart: That's correct, both because the question isn't presented here and because Congress--

Chief Justice Roberts: No, but if we accept your constitutional argument, we're establishing a precedent that you yourself say would extend to banning the book, assuming a particular person pays for it.

Mr. Stewart: --I think the Court has already held in -- both in Austin and in McConnell, that Congress can or that Congress or State legislatures can prohibit the use of corporate treasury funds for express advocacy.

Chief Justice Roberts: To write a book, to pay for somebody to write a book?

Mr. Stewart: Well, in MCFL, for instance, the communication was not a book, but it was a newsletter, it was written material; and the Court held this was express advocacy for which the use of corporate treasury funds would ordinarily be banned.

It held that because of the distinctive characteristics of the particular corporation at issue in that case, MCFL was entitled to a constitutional exemption.

But I think the clear thrust of MCFL is that the publication and dissemination of a newsletter containing express advocacy could ordinarily be banned with respect to the use of corporate treasury funds.

Chief Justice Roberts: Not just a newsletter.

Suppose a sign held up in Lafayette Park saying vote for so and so.

Under your theory of the Constitution, the prohibition of that would be constitutional?

Mr. Stewart: Again, I do want to make clear that if by "prohibition" you mean ban on the use of corporate treasury funds, then, yes, I think it's absolutely clear under Austin, under McConnell that the use of corporate treasury funds could be banned if General Motors, for instance, wanted to produce--

Justice Scalia: And -- and you -- you get around the fact that this would extend to any publishing corporation by saying that there is a media exemption because the Constitution guarantees not only freedom of speech but also of the press?

Mr. Stewart: --Well, there has always been--

Justice Scalia: But does "the press" mean the media in that constitutional provision?

You think in 1791 there were -- there were people running around with fedoras that had press -- little press tickets in it, "Press"?

Is that what "press" means in the Constitution?

Doesn't it cover the Xerox machine?

Doesn't it cover the -- the right of any individual to -- to write, to publish?

Mr. Stewart: --Well, I think the difficult constitutional question of whether the general restrictions on use of corporate treasury funds for electioneering can constitutionally be applied to media corporations has never had to be addressed because the statutes that this Court has reviewed have--

Justice Scalia: Well, I don't see any reason why it wouldn't.

I'm saying there's no basis in the text of the Constitution for exempting press in the sense of, what, the Fifth Estate?

Mr. Stewart: --In -- in any event, the only question this Court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional, and the Court has already addressed that question in McConnell.

The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations.

And Congress said no, Congress -- I mean, this Court said no, Congress can protect the interests of the media and of the public in receiving information by drawing that line.

With respect to your--

Justice Souter: To point out how far your argument would go, what if a labor union paid an author to write a book advocating the election of A or the defeat of B?

And after the manuscript was prepared, they then went to a commercial publisher, and they go to Random House.

Random House says, yes, we will publish that.

Can the -- can the distribution of that be in effect subject to the electioneering ban because of the initial labor union investment?

Mr. Stewart: --Well, exactly what the remedy would be, whether there would be a basis for suppressing the distribution of the book, I'm not sure.

I think it's clear under--

Justice Souter: Well, does it -- does it come within electioneering because of the initial subvention to the author?

Mr. Stewart: --It wouldn't be an electioneering communication under BCRA because BCRA wouldn't apply to the print media.

Now, it would potentially be covered by the--

Justice Souter: We're -- we're talking about how far the constitutional ban could go, and we're talking about books.

Mr. Stewart: --Well, I -- we would certainly take the position that if the labor union used its treasury funds to pay an author to produce a book that would constitute express advocacy, that that--

Justice Souter: And the book was then taken over as a commercial venture by Random House?

Mr. Stewart: --The labor union's conduct would be prohibited.

The question of whether the book that had already been--

Justice Souter: No, but prohibition only comes when we get to the electioneering stage.

Mr. Stewart: --That's correct.

Justice Souter: Okay.

Mr. Stewart: The question whether the--

Justice Souter: So for the -- for the labor union simply to -- to hire -- is there -- is there an outright violation when the labor union -- I guess this is a statutory question: Is there an outright violation when the labor union comes up with the original subvention?

Mr. Stewart: --I guess I would have to study the Federal Election Campaign Act provisions more closely to see whether they--

Justice Souter: Let's assume for the sake of argument that they would not be.

The subvention is made, the manuscript is prepared, Random House then publishes it, and there is a distribution within the -- what is it -- the 60-day period.

Is the -- is the original subvention (a) enough to bring it within the prohibition on the electioneering communication, and (b) is that constitutional?

Mr. Stewart: --Well, again, it wouldn't qualify as an electioneering communication under BCRA because that statutory definition only applies--

Justice Souter: You're -- you're right.

I stand corrected.

If the statute covered that as well, if the statute covered the book as well.

Mr. Stewart: --I think the use of labor union funds, as part of the overall enterprise of writing and then publishing the book, would be covered.

Justice Souter: That would be enough to bring it in, and--

Mr. Stewart: And I -- I don't--

Justice Souter: --the Constitution?

Mr. Stewart: --And I think it would be constitutional to forbid the labor union to do that.

Whether it would--

Chief Justice Roberts: Again, just to follow up, even if there's one clause in one sentence in the 600-page book that says, in light of the history of the labor movement, you should be careful about candidates like John Doe who aren't committed to it?

Mr. Stewart: --Well, whether in the context of a 600-page book that would be sufficient to make the book either an electioneering communication or express advocacy--

Chief Justice Roberts: Well, it does by its terms, doesn't it?

Published within 60 days.

It mentions a candidate for office.

What other qualification is there?

Mr. Stewart: --Well, I think the Court has already crossed that bridge in Wisconsin Right to Life by saying the statute could constitutionally be applied only if it were the functional equivalent of express advocacy, and -- so that would be the -- and we accept that constitutional holding.

That would be the relevant constitutional question.

I wanted to return for a second, Justice Alito, to a question you asked about the purported interchangeability of the Internet and television.

And it's certainly true that -- that a growing number of people are coming to experience those media as essentially interchangeable, but there are still a lot of people either who don't have computers at all or who use their televisions and their computers for fundamentally different purposes.

And I think it's evident that Citizens United perceived the two media to be distinct because it was willing to pay $1.2 million to a cable service in order to have the film made available on -- by Video On Demand, when Citizens United could have posted the film on its own Web site, posted the film on YouTube, and could have avoided both the need to make the payment and the potential applicability of the electioneering communications provisions.

Justice Alito: If they had done either of the things you just mentioned, putting it on its Web site or putting it on YouTube, your position would be that the Constitution would permit the prohibition of that during the period prior to the primary or the election?

Mr. Stewart: Our position is not that the Constitution would permit it.

Our position is that BCRA wouldn't prohibit it because those are not covered media.

Now--

Justice Alito: Would the Constitution -- if -- if BCRA -- if Congress in the next act covered that in light of advances in the Internet, would the Constitution permit that?

Mr. Stewart: --Yes, I mean, the Court in McConnell upheld on the electioneering communications on their face, and this Court -- a majority of this Court in Wisconsin Right to Life said those provisions are constitutional as applied--

Justice Scalia: I -- I'm a little disoriented here, Mr. Stewart.

We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press?

That's what we're interpreting here?

Mr. Stewart: --That's correct.

Justice Scalia: Okay.

Mr. Stewart: But, again, this -- the Court obviously has grappled in the past with the question of how to apply that provision to use of corporate treasury funds either for express electoral advocacy or its functional equivalent--

Justice Kennedy: In -- in this case, Mr. Stewart, I take it -- correct me if I'm wrong -- that you think the distinction the Petitioner draws between the 90-minute film and the -- and the short 30-second or 1-minute ad is a baseless distinction?

Mr. Stewart: --It is of no constitutional significance.

Congress certainly could have drafted the electioneering communication definition--

Justice Kennedy: So if -- if we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall under your view--

Mr. Stewart: --Well, I think--

Justice Kennedy: --because there's no distinction between the two?

Mr. Stewart: --Well, I think the Court has twice upheld the statute as applied to communications that are the functional equivalent of express advocacy.

So--

Justice Kennedy: But I'm -- I'm saying that if we -- if we think that this is -- that this film is protected, and you say there's no difference between the film and the ad, then the whole statute must be declared void.

Mr. Stewart: --It would depend on the ground under which you reached the conclusion that the film was protected.

If you disagreed with our submission and said there is a constitutional difference between 90-minute films and 60-second advertisements, then obviously you could draw that constitutional line.

If you concluded that they're all the same but they're all protected, then obviously we would lose both cases.

But, again, you would have to--

Justice Kennedy: But you want us to say they're both the same?

You want -- you argue that they're both the same.

Mr. Stewart: --That -- that's correct.

Now, it may be the case -- it may be rarer to find a 90-minute film that is so unrelenting in its praise or criticism of a particular candidate that it will be subject to no reasonable interpretation other than to vote for or against that person, but when you have that, as I think we do here, there's no constitutional distinction between the 90-minute film and the 60-second advertisement.

And we would stress with respect to the film that what makes this, in our view, an easy case is not simply that the film repeatedly criticizes Hillary Clinton's character and integrity.

The clincher is that the film repeatedly links Senator Clinton's purported character flaws to her qualifications for president.

Justice Kennedy: But just from the standpoint of art and literature, that's very odd.

Suppose you have a film which is quite moving with scenery and music and magnificent acting, and a subtle message.

That may be far more effective in advocating, and everyone knows that.

Mr. Stewart: And that--

Justice Kennedy: Everyone knows that.

Mr. Stewart: --That's essentially the argument that a majority of this Court rejected in Wisconsin Right to Life; that is, that that was part of the basis on which Congress enacted BCRA, part of the reason that it wanted to establish a purely objective test based on naming an identified candidate and airing in proximity to the election.

Congress recognized that in many situations the most effective advocacy is the subtler advocacy.

And the -- the lead opinion in Wisconsin Right to Life said -- I think recognized that it will foreseeably be the case that corporations will craft advertisements that are, in fact, intended to influence Federal elections but that are sufficiently subtle and opaque that they won't constitute the functional equivalent of express advocacy.

And -- and the lead opinion simply said that's the price that we have to pay in order to ensure that an unduly broad range of corporate speech is not restricted.

And we accept that holding, but in this case what we have, people may feel -- is not subtle.

People may feel that because it's not subtle, it's less likely to be effective.

But the Court's decisions have never drawn a constitutional line between advocacy that is likely to be effective and advocacy that is not.

Clearly, if this were express advocacy -- I think clearly, if the -- the narrator had said in the first 30 seconds of the film: A Hillary Clinton presidency would pose a danger to the country, it's important for all citizens to vote against Hillary Clinton, what follows are extended analyses of episodes in her past that reflect Hillary Clinton's unsuitability for that office.

And if then in the last 89 minutes of the film the filmmaker had made no overt reference to the upcoming election but had simply given a negative portrayal of Hillary Clinton, the person, that would be express advocacy that would be proscribable even without regard to BCRA.

So that if--

Chief Justice Roberts: Even though that type of case was never presented to the Court in McConnell and was never presented to Congress when it considered BCRA?

Mr. Stewart: --Well, it's not clear whether it was presented to Congress or not.

It is certainly true that it was not the focus of congressional attention.

But we know from the definition of "electioneering communication" what attributes Congress wanted to make relevant to the coverage determination.

That is, it chose to restrict this to broadcast, cable, and satellite communications and to leave out the print media.

It chose to restrict it to advertisements or other communications that were aired within a specific proximity to the election.

If it had been unconcerned with communications over a certain length, it could certainly have made that part of the statutory definition, but it chose not to do that.

Justice Ginsburg: This film has been compared to 911> ["], which had the pervasive message that President Bush was unsuited to be President.

And so if that film had been financed out of the corporate -- a corporation's general treasury funds and put on an election channel, that would similarly be banned by the statute.

Mr. Stewart: I am afraid I am not familiar enough with that film to know whether it would have constituted -- to -- to make an informed judgment about whether that would have constituted the functional equivalent of express advocacy under Wisconsin Right to Life.

And, of course, the 2004.

But I think--

Justice Scalia: Mr. Stewart, do you think that there's a possibility that the First Amendment interest is greater when what the government is trying to stifle is not just a speaker who wants to say something but also a hearer who wants to hear what the speaker has to say?

I mean, what's somewhat different about this case is that, unlike over-the-air television, you have a situation where you only get this -- this message would only air -- if somebody elects to hear it.

So you really have two interested people, the speaker and the listener who wants to -- who wants to get this.

Isn't that a somewhat heightened First Amendment interest than just over-the-air broadcasting of advertising which probably most listeners don't want to hear?

[Laughter]

Mr. Stewart: --Well, I think -- I think the -- first of all, I think if we had tried to make the argument in McConnell that the BCRA provisions, or -- or in any other case, that the BCRA provisions are constitutional as applied to 30 or 60-second advertisements because they are defensible means of protecting listeners who, by hypothesis, don't want to hear the message in the form of a captive audience, I don't think we would have gotten very far.

I think it's certainly true that people have a wide variation of attitudes towards campaign advertisements.

Some of them find them irritating, and, of course, they can hit the mute button or -- or leave the room, or in the case of people who use TiVo or VCRs can simply fast-forward through them.

But the whole premise of the congressional regulation and the whole premise of the corporation's willingness to spend these massive amounts of money was that enough people will be interested in the advertisements that they will ultimately have an electoral effect.

And -- and so if you compare the -- the film to the advertisement, the advertisements, in one sense, you could say are a less effective mechanism because a lot of the people who reach them are unwilling listeners or uninterested.

But, on the other hand, they're more effective because they reach more people.

The -- the flip side is that with the film you reach a smaller audience.

It's certainly a more limited group of people who will sign up to receive the movie, but they are more interested in the message.

I don't think you can operate on the hypothesis that there is no--

Justice Scalia: You're talking about effectiveness.

That wasn't my point.

My point was the -- the seriousness of the First Amendment interest that's being impinged where -- where you have both somebody who wants to speak and someone who affirmatively wants to hear what he has to say, and the government says, no, the two of you can't do this.

Mr. Stewart: --Well, I think it was--

Justice Scalia: Don't you think that's somewhat worse than the government just saying to somebody who wants to speak, no, you can't speak?

Mr. Stewart: --I think it would be impossible to divide media up in that way based on the relative likelihood that the recipient of the message will want to hear it.

With respect to the -- the newsletters in MCFL, for instance, on the one -- in many instances, they were made available in public places.

They were also mailed to a variety of people.

You could say--

Justice Scalia: I am not saying will -- will want.

I mean you have a situation here where you don't get it unless you take the initiative to subscribe.

I'm not -- I'm not trying to figure out person by person who wants to hear it and who doesn't.

Here you have a medium in which somebody listens only if that person wants to listen.

So the -- the person speaking wants to speak, and the person hearing wants to hear.

It seems to me that's a stronger -- a stronger First Amendment interest.

Mr. Stewart: --Well, the potential viewers in this case had other alternatives if they wanted to see the film.

The film was available--

Justice Ginsburg: Was -- was this issue aired before the three-judge court, the distinction between, say, putting something on network TV and putting something on View On Demand that the listener has to opt into?

Mr. Stewart: --No.

Indeed, the -- the appellant in its complaint simply alleged affirmatively that his communication, if aired on DVD -- I mean if aired on VOD would fall within the statutory definition of "electioneering communication".

Chief Justice Roberts: Counsel, before you run out here, can I -- we haven't talked about the disclosure requirements yet.

You understand the test to be that disclosure is not required if the names of those disclosed -- if those people would be reasonably subject to reprisals?

Mr. Stewart: That's correct.

This Court has recognized a constitutional exemption for two disclosure requirements in cases where disclosure would have a reasonable likelihood of leading to reprisal.

Chief Justice Roberts: How -- how do we apply that test?

Is it inconceivable to you here that people contributing to such a clearly anti-Clinton advertisement are not going to be subject to reprisals?

Mr. Stewart: It seems unlikely that reprisals would occur because Citizens United -- this is obviously a new film, but it is of a piece with communications that Citizens United has engaged in.

Chief Justice Roberts: That doesn't work, because maybe they are going to change the nature of the documentaries that they fund, or somebody who gave a contribution 5 years ago may decide, boy, I don't like what they're doing.

I'm not going to give anymore.

It--

Mr. Stewart: I guess the point I was going to--

Chief Justice Roberts: --The fact that they've disclosed in the past by compulsion of law doesn't seem to answer the question of whether they are going to be subject to reprisals.

Mr. Stewart: --Well, the point was that they have disclosed in the past and have provided no evidence of reprisals.

But I think the Court's decisions are clear that the burden is on the organization to show a reasonable likelihood, at least to -- to set the -- the ball in motion.

And the three-judge district court here said essentially what this Court said in McConnell with regard to a variety of plaintiffs who included Citizens United.

That is, the Court said in McConnell and the three-judge district court here that the plaintiffs had made vague allegations of the general possibility of reprisals but had offered no concrete evidence that their own members--

Chief Justice Roberts: But that seems to me you're saying they've got to wait until the -- the horse is out of the barn.

You can only prove that you are reasonably subject to reprisals once you've been the victim of reprisals.

Mr. Stewart: --Well, I think the alternatives would be to say that disclosure requirements are categorically unconstitutional, which would be an extreme departure from this Court's prior precedents or--

Chief Justice Roberts: That's saying -- that's saying that the test in McConnell is unworkable, if you say the alternative is to say they are categorically--

Mr. Stewart: --No.

I mean I think the -- if the -- we think the test in McConnell is workable; that is, leave it up to the organization to establish particularized proof of a reasonable likelihood of reprisal.

If you were going to--

Chief Justice Roberts: --If the Boy Scouts run an ad and they have -- they're subject to disclosure, are the donors who support that ad reasonably subject to reprisals?

Mr. Stewart: --I mean, it would depend to some extent on the characteristics of the ad.

Probably not, but I think if the alternative -- the two alternatives to the approach that the Court has taken previously would be first to say these requirements are unconstitutional across the board, or the Court could say as applied to organizations that engage in especially intemperate or extreme speech of the sort that might seem more likely to subject its proponents to reprisal, the disclosure requirements are categorically unconstitutional there.

I think that would be itself an anomalous and counterproductive content-based distinction if the mere fact of the extremity of your speech insolated you from a constitutional -- from a requirement that would otherwise be constitutional.

Chief Justice Roberts: Before you sit down, any other?

Thank you, counsel.

Mr. Olson, you have four minutes remaining.

REBUTTAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER

Mr. Olson: Thank you, Mr. Chief Justice.

It is unquestionably the case that the government takes the position that any form of -- of expressive advocacy can be prohibited if it's done by a corporation.

They say that on page 25 and 26 of their brief, whether it be books, yard signs, newspapers or -- or something printed -- in printed form, and it's only because Congress decided to address the most acute problem that they haven't -- Congress didn't go ahead and decide to do that, which we submit would raise very, very serious constitutional questions, the same type of constitutional questions that we are talking about here.

And that's--

Justice Breyer: Well, I agree with you about that, but I thought what saves this -- many people thought it doesn't save it, it's -- the whole thing's unconstitutional, the whole Act.

That isn't what I thought.

So what saves this is of course you can't prohibit all those things.

What you do is put limitations on the payment for them, see that there are other ways of paying for it, say, through PACs, and then limit very carefully the media that are affected and the times for which they are affected.

Now, that's the statute before us, and it's I think you have to address.

Mr. Olson: --Precisely, and five Justices in Wisconsin Right to Life made the point that the PAC mechanism is burdensome and expensive.

There are briefs in this case that demonstrate how much it is.

And the -- and it's easier if you have lots of money, if you are a big corporation, and you can afford a PAC or you already have one.

So it's a burden on the least capable of communicating.

The--

Justice Stevens: Mr. Olson, can I ask this -- this question?

Wisconsin Right to Life -- Judge Randolph thought the Chief Justice's opinion in that case was controlling in this case.

Do you think the Chief Justice's opinion in that case correctly stated the law?

Mr. Olson: --Of course.

[Laughter]

By definition.

Justice Scalia: Good answer.

[Laughter]

Justice Stevens: I want to be sure because you're -- sometimes I don't think you're quite saying that.

But you do agree that that opinion is correct?

Mr. Olson: What I am saying is I -- we accept the Court's decision in Wisconsin Right to Life.

To the extent that the Court did not get to this type of documentary where the issue distinction, the false dichotomy between issues and candidates--

Justice Stevens: But you accept the test that was stated in his opinion?

Mr. Olson: --The -- the -- that no reasonable -- not reasonably susceptible to any other interpretation?

Of course we do, Justice Stevens, but we submit, a 90-minute discussion of various different issues are subject to all kinds of interpretation, and when you get a long exposition of issues that are important to the public and someone says -- the government says, well, it's going to be -- we can prohibit it, and by the way, the government says, well, when we mean "prohibit" we mean just you can't use your union -- or corporate treasury funds -- what they mean by "prohibit" is that they will put you in jail if you do it.

They will put you in jail for 5 years.

That means prohibited.

Now, what -- what we're getting at here, when -- when you're trying to make a 90-minute movie that discusses things that are important to the public during an election of the highest officer of the United States, many people will interpret that as critical; many people will interpret it as supportive; there are things all over the lot.

So it's subject to lots of different interpretations.

The other thing is I heard Justice -- I mean Mr. Stewart say that if there's one minute at the beginning, it doesn't happen -- it doesn't matter what the other 89 minutes are; we can prohibit it.

Well, where is the person making a movie who wants to address the American public about something that's important to the American public -- there isn't any question about that -- where does he edit his movie?

What cuts?

What does he leave on the drawing -- on the cutting-room floor so that he won't have to go to jail?

He won't dare take the chance.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Featured:

Beard v. Banks - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Beard v. Banks

Media File:

04-1739_20060327-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Louis J. Rovelli

Chief Justice Roberts: We'll hear argument next in Beard v. Banks.

Mr. Rovelli.

Mr. Rovelli: Mr. Chief Justice, and may it please the Court--

The policy challenged in this case applies to a small class of dangerous, disruptive inmates, all confined at level 2 of the Long Term Segregation Unit, which is the most restrictive custody in the Pennsylvania prison system.

These central facts inform every aspect of the Turner analysis which governs the outcome of this case.

The denial of periodicals and photographs, with the opportunity to earn them back by improved behavior, is logically connected both to rehabilitation and security.

Level 2 inmates have a... have failed every attempt at rehabilitation.

Yet, nearly all of them will be released from prison.

The goal at level 2 is to turn these inmates around, to improve their behavior enough that they can be advanced safely to programs with more opportunities for self improvement.

Until that happens--

Justice Stevens: Mr. Rovelli, I... I forget.

How big a class of... of prisoners are we talking about?

Mr. Rovelli: --Less than 40.

Justice Stevens: Less than 40?

And does the record tell us how long they have been in level 2?

Mr. Rovelli: Well, the duration of... of confinement at level 2 varies widely from one inmate to another because it is affected by their improvement.

Justice Stevens: But is there any average or any... is there... does the record tell us how... how long most of them have been there?

Mr. Rovelli: The record does not tell us how long most of them have been there.

At the time of the case in the trial court, which was 2002, 25 percent of them had been promoted to level 1 or had been released from the Long Term Segregation Unit altogether.

Justice Stevens: Does that mean that 75 percent had not?

Mr. Rovelli: At that time, yes.

Justice Stevens: And how long... do we know what the average period of incarceration in level 2 is?

Is it a matter of weeks, or is it a matter of years?

Mr. Rovelli: Well, realistically it's in between.

Again, the... the unit had only been in operation for 2 years at time that the record was made.

So there's very little--

Justice Stevens: I'm trying to understand whether typically they're there for a long period of time on the one hand, or are they there sort of on probation and are periodically reviewed and moved into another system?

Mr. Rovelli: --They're... they're moved when their behavior improves.

The average over a long period of time has been in the range of a year or so.

Justice Stevens: I see.

Justice Kennedy: Were there any prisoners, since the inception to your program, that have been in there for the whole 2 years?

Mr. Rovelli: Through today?

I'm sorry.

Oh, from the time of its inception?

Justice Kennedy: Yes.

Mr. Rovelli: Until the 2-year point.

Yes, there were.

I don't know exactly how many there were, but there definitely were.

Justice Kennedy: Are... do... is... is Pennsylvania alone or nearly alone in imposing this rule, or is this typical of the restraints imposed in... in this maximum restrictive confinement?

Mr. Rovelli: There's a wide variation of privilege grants and withdrawals even at the highest levels of security.

The ACLU's amicus brief points to three other States that... that have the same program as Pennsylvania, and frankly, I'm not even sure as to those, that it's identical.

But the Court has recognized that... that these sorts of variations, particularly when we're talking about high security prisoners, are precisely what Turner contemplates.

Justice Kennedy: Is this one of the most severe restrictions in the Nation with respect to reading material and photographs?

Mr. Rovelli: I'm sure that it is.

Justice Ginsburg: What is the reason that... that the State or the regulations allow paperbacks from the library and not current events?

I'm just... that... the rationality of... of that line escapes me.

Mr. Rovelli: Well, there's... there is certainly a security component to it.

Paperback books, small, compact, much more difficult to use as weapons, and the experience of the prison staff that operate this high security unit is that newspapers and magazines are... have been a... a frequent source of mischief.

Justice Scalia: Can we explain that?

How does one use a newspaper as a weapon?

I mean, you know, maybe disciplining a dog or something.

[Laughter]

Mr. Rovelli: Actually inmates, particularly the worst of the worst, are quite clever at using newspapers.

A newspaper rolled tightly with toothpaste used as an adhesive can be compacted into very nearly the equivalent of a nightstick.

Justice Ginsburg: But you--

Chief Justice Roberts: But a paperback version of War and Peace is less dangerous?

It seems a--

Mr. Rovelli: The experience of prison officials is that, yes, it is, and... and actually it's very common in prison systems to distinguish, for example, between hardback books and paperbacks.

Yes, it's... these are difficult lines to draw, and that's where the professional expertise of the people who deal with the problems every day comes into play.

Justice Ginsburg: --But if the concern is the safety concern, then you would have an equal concern with the Jewish Daily Forward, which is a newspaper format, or... and I don't know what the Watchtower comes out in these days.

Mr. Rovelli: Yes.

Well, Justice Ginsburg, the... the experience of prison administrators is that prisoners are less likely to use religious and legal materials for mischief, and as to paperbacks as well, they do supply an alternative means of receiving information from outside the prison.

But again, if I... if I allude frequently to the experience of prison administrators, it's... it's because that's what these... this policy is guided by.

Newspapers and magazines have a high value to inmates.

Chief Justice Roberts: --Well, that's why I thought your answer would have focused on that rather than the security concerns, is that you take away what it is they want the most because that's most likely to result in them conforming their behavior so they can get it back.

Mr. Rovelli: Yes, and that is... is the primary purpose of the policy overall, and--

Justice Breyer: So why... let's see.

They go to the prison library what?

Once every couple of weeks or what?

Once a week?

Mr. Rovelli: --Actually--

Justice Breyer: One... one visit per month.

And... and how often do they go to the prison library?

Mr. Rovelli: --Inmates at level 2 are not permitted to go to the prison library.

Justice Breyer: It's ordered.

Mr. Rovelli: They can order books from the library.

They are allowed to visit the... the mini law library that's proximate to the unit.

Justice Breyer: Yes, what it says... that's what... it says, to review legal materials, one at a time may be let out of his cell and is escorted to a mini law library in hand.

All right.

Why couldn't you have a... if he wants to see the newspaper in that mini law library, why couldn't there be a copy there, only the parts that are consistent with the censorship policy, just like a news of the day.

Mr. Rovelli: Having--

Justice Breyer: Is there a security reason or is--

Mr. Rovelli: --There's definitely a security reason.

Justice Breyer: --Is there a security reason when he's there in leg irons looking at the books, the law books, in the mini law library?

Mr. Rovelli: Allowing the... the inmate to request to go to the mini law library for an additional purpose or for a separate purpose to read periodicals puts increased demand on going there, and moving these inmates is a... a very demanding operation.

It requires two officers and physical restraints and going through layers of security.

So it puts increased demands on prison resources.

Justice Ginsburg: What does the... what does the inmate have to show in order to go to the law library?

That is, suppose the inmate's position is I want to go there and I want to read Law Week and Legal Times and other... I want to see what's new, what's breaking in the law so that maybe I'll have something I can put in a petition, and that's why I want to go every... every chance I get to the law library.

Could such an inmate go to the library?

Mr. Rovelli: Yes.

The inmate may go to the law library subject to the limitation of one inmate at a time, subject to the sign up list.

The inmate may get--

Justice Ginsburg: Well, that would mean that the inmate could go and look at the legal newspapers, but not... not the Christian Science Monitor.

Mr. Rovelli: --The Christian Science Monitor is not available to him in the... in the mini law library, and... and actually, if he wanted to subscribe, he could receive a... a legal periodical in his cell.

Justice Ginsburg: So he could get Law Week, Legal Times, and--

Mr. Rovelli: Subject--

Justice Ginsburg: --the National Law Journal.

All of those he could get.

Mr. Rovelli: --Subject to the content restriction of religious and legal materials that would fit in one property box, he may.

Justice Souter: Now, on... on your theory of... of behavior modification, would it, nonetheless, be... be open to the State to say, no, you may not receive any more legal materials and you may not go to the library to look at them?

Because that's something you very much want to do.

And in order to do that, you've got to shape up and... and get moved down to a lesser level of security.

Would that... I'm not saying that the State is... is about to do that, but on your theory, could the State do that?

Mr. Rovelli: Yes.

Yes, Justice Souter, the State could, as long as the overall Turner analysis is observed.

And, in particular, I think that would implicate the availability... the availability of alternative means of exercising the asserted right to receive information from outside the prison.

Justice Souter: Well, what would... I mean, you know, one of the arguments made on the other side is that if you accept the behavior modification theory as an adequate justification, the Turner categories essentially become incoherent.

What, for example, would be the alternative means in this case if the State said, we realize that the people in... in... at level 2 want to see legal materials very, very much because that is a source of hope for them, and we want them to have that source of hope only if they shape up and... and get down to a reduced level of security, so we're going to stop it, period?

What would be the alternatives within the... the Turner analysis?

Mr. Rovelli: The inmate would still have unlimited access to counsel visits and can still visit the mini law library and do his own legal research, even if he's not allowed to subscribe to or... or keep legal materials, legal periodicals in his own cell.

Justice Souter: What if the... what if the inmate said, look, the... the lawyers who come to see us are... are great guys, but they're... they're overworked.

They don't have time to be thinking about novel legal theories, which we would dream up perhaps if we could get to Legal Times and these periodicals?

So it's... it's not an alternative.

Mr. Rovelli: Ultimately any prisoner is... is free to challenge the adequacy of his ability to access the courts in a... in an as applied challenge to his own conditions.

Justice Souter: So you're... you're saying there... there's a separate value here, and that is the value of access to courts.

And... and that limits what can be done for purposes of behavior modification.

Mr. Rovelli: Definitely.

Justice Souter: All right.

What about the marriage example?

The... the Court has said, yes, you couldn't... the... the State can't prevent the inmate from... from getting married.

I don't see where the separate source of... of value is that would... that... that would affect that analysis.

No right of access to court.

The associational rights can be abridged and so on.

Why, on your analysis, wouldn't... wouldn't the proper disposition of the earlier case have been to say, yes, the State can preclude marriage too because that's something they very much want and... and the State can preclude that unless they shape up and... and get down to a... a lesser level of security?

Mr. Rovelli: Well, the marriage ban, Justice Souter, of course, is subject to Turner analysis as well, and I think that where Turner might bring up short a ban on marriage for these high security inmates is in the... the logical connection to the rehabilitative purpose in that there being so few inmates and marriage is going to be such an infrequent occasion, it's hard to see the marriage ban as influencing level 2 inmates generally to improve their behavior.

Justice Souter: So you're saying there just is not a logical connection there within--

Mr. Rovelli: Yes.

Justice Souter: --the meaning of the... of the case?

Mr. Rovelli: That... yes.

Justice Souter: But there would be a logical connection for those who want to get married.

Mr. Rovelli: That... that implicates--

Justice Souter: You're... you're saying it might not makes sense as a systemic policy--

Mr. Rovelli: --Yes.

Justice Souter: --because it isn't a big enough problem.

But for... we're not talking about a whole system here.

We're talking about 40 people or less, and if some of those 40 people want to get married, why doesn't it make perfect sense to say no marriage?

Mr. Rovelli: Well, you could say that about all... probably a range of things if you went so far as to query each inmate as to what it is that they value most or what it is they're most interested in doing--

Justice Souter: You can, and on... on your analysis, why isn't that sufficient?

Mr. Rovelli: --It would be an interesting program and I would defend it that you could query inmates on what is most valuable and then deprive them of it subject to--

Justice Souter: Okay, but how do we get around the marriage case then?

Mr. Rovelli: --Well, I... I don't think we need to get around the marriage case in the sense that, particularly as to high security inmates, prison officials have very wide discretion to fashion policies that serve the goals.

And... and to do it--

Justice Souter: So as to these, the... the marriage could be banned, in effect, you're saying.

Mr. Rovelli: --It could be banned, but I do think that it would be subject to a... a pointed challenge on the logical connection, but in theory, it's... it is one of the instruments... a privilege that could be withdrawn for behavior modification purposes.

This case is... is exceedingly similar to Overton where the Court directly observed that withdrawing visitation privileges is a proper and even necessary technique to... to improve the behavior especially of high security prisoners who have few privileges left... left to lose, which is precisely the same situation that we're presented with in this case.

Turner too... I'm sorry.

Overton as well is instructive on the subject of adequate alternatives.

Justice Ginsburg: But I thought there, there was a genuine security concern, which I think you pretty much said doesn't exist here when you consider what they can have in... in the cell.

Mr. Rovelli: I think that... that in both Overton and this case, there were both behavior modification and security concerns.

And I'm not even sure that their weight... they're weighted as between the two altogether different between the two cases.

Actually all of the discussion in Overton was in the context of behavior modification, which is related both to security and to rehabilitation.

But the... the tenor of the discussion was actually, I would say, more directed to rehabilitation.

The Court recognized in Overton, as adequate alternative means of exercising the right, letters and phone calls.

The inmates in this case have the opportunity of unlimited correspondence, family, chaplain, and counsel visits, and as... as we've talked about, books from the prison library.

Quickly addressing the last two Turner factors, accommodating the asserted right would altogether defeat the goals of the policy.

It would have, as I alluded to when I did speak of security, a significant impact on guards and prison resources, and there are no ready alternatives.

If I could reserve the balance of my time.

Argument of Jonathan L. Marcus

Chief Justice Roberts: Thank you, Mr. Rovelli.

Mr. Marcus.

Mr. Marcus: Thank you.

Mr. Chief Justice, and may it please the Court--

Pennsylvania's policy of prohibiting its most dangerous and recalcitrant prisoners from possessing newspapers, magazines, and photos as an incentive to improve their behavior does not violate their First Amendment rights.

Chief Justice Roberts: Where do you draw the line?

I take it somewhere... you couldn't deprive them of food, if that would get them to... to conform.

Justice Souter was asking about marriage.

I mean, how do we tell when... when you can deprive someone of something they... to modify their behavior and when it goes too far?

Mr. Marcus: Yes, Mr. Chief Justice.

This... I mean, this Court has already said that with respect to Eighth Amendment rights, the Turner analysis does not apply.

So with respect to basic... basic necessities, health care, food, and water, the... the Turner analysis doesn't apply, and so you could not sort of create an incentive program to take away Eighth Amendment rights.

And under... with respect to the rights that can be... that can be limited in order to serve legitimate penological interests, we think that... that the Turner approach would give a lot of deference to and a lot of flexibility to States to... to use incentive programs--

Justice Souter: But don't we... don't we have the same problem if we're... if we're dealing with First Amendment interests that we do when we're dealing with Eighth Amendment interests?

In other words, if... if we don't say, well, they get outside of Turner analysis because they require... by virtue of being enumerated rights, they require an analysis specific to them, is the abridgement of the right carried so far that it is unreasonable?

If we don't say that, then I don't see, as your friends on the other side have argued, I don't see where the logical stopping point is if we accept the... the behavior modification theory.

Mr. Marcus: --Well, I... I think... I mean, I think there is... I don't think it's a boundless theory.

I think you have to keep in mind that this program in Pennsylvania was... it's implemented as a last resort.

I mean, the prisoners that this regulation applies to are a narrow class of 40 prisoners who have been the most violent and most disruptive--

Justice Souter: Oh, oh, I... I realize that.

I mean, they're... they're making an in extremis kind of argument.

I understand that.

But if... if we accept an in extremis kind of argument on the theory of behavior modification, then I don't see why that argument does not, for example, cover the marriage case, and maybe... maybe it should.

I don't know why that argument would not allow for a total deprivation of all communication outside of, let's say, access to counsel.

And... and so it seems to me that whether we admit it or not, what's going on here, whether we call it Turner analysis or not, is we're making some kind of a judgment as to whether they're carrying the deprivation for behavior modification purposes in these extreme cases too far.

Mr. Marcus: --But--

Justice Souter: And if that's what... I'll... I'll be quiet in a second.

[Laughter]

If that's... if that's what we're doing, aren't we just as much outside the Turner analysis when we're talking about the First Amendment or associational rights under the First Amendment as we are when we're talking about the Eighth Amendment?

And shouldn't we say so?

Mr. Marcus: --I... I don't think so, Justice Souter.

I think there's still room under the Turner analysis to apply the exaggerated response test, and that's one of the things the Turner analysis does when you go through the four factors, as... as the Government did and the State has done in its brief, that there could be a situation where you would find that there's been an exaggerated response and that their withdrawal of the First Amendment right is actually an exaggerated response.

For example, maybe if... if there was just one minor disciplinary violation for, let's say, using obscene language, and then every... all First Amendment rights to communication were... were pulled out at that point for the remainder of the time--

Justice Souter: So... so but at some point, there's sort of a reasonableness limit then you're saying.

Mr. Marcus: --There is a reasonableness limit, and we've... we've--

Justice Scalia: Do... do you concede that just because a right is enumerated, it means it cannot be entirely taken away in prison?

Mr. Marcus: --No.

This Court--

Justice Scalia: I mean, like, you know, try the right to bear arms.

[Laughter]

Mr. Marcus: --That's right.

No.

I mean... no.

This Court has drawn... has drawn that distinction.

The distinction this Court has drawn is that... that most rights can be limited or even totally prohibited within prison, consistent with... with legitimate penological objectives, deterrence and rehabilitation.

The exceptions this Court has identified are for the Eighth Amendment and also for access... you know, access to the courts, that you could... that... because that also implicates the integrity of the criminal justice system.

Justice Ginsburg: Apart from those two, access to the courts and cruel and unusual punishment, then anything goes for this set of incorrigible prisoners?

They can take away... the First Amendment, in other words, is out the window.

They have no First Amendment rights that the State needs to respect.

Is that--

Mr. Marcus: Well, I think it would be... Justice Ginsburg, I think it would be a rare case where an incentive program like this could be struck down as a... you know, as a facial matter, as... as this challenge is.

I think it would be a rare case.

But I think you do... you do still go through all the... all four factors, and you would look at the fourth factor and see that, in fact, Pennsylvania does give prisoners the opportunity to regain those privileges if they behave well.

As the State pointed out, at the time the record was made in this case--

Justice Ginsburg: --But... but for this... for this group, while they're in that situation, essentially there's no First Amendment rights.

I think that's what your... your argument.

They can regain them, but that's the purpose of the behavioral modification program.

But the... the only thing that these prisoners get is the Eighth Amendment.

Mr. Marcus: --Well, we do think that... that the State can go... can go quite far with respect to restricting First Amendment rights, but this Court still... I mean, under prong two, this Court does look to alternative means to exercise the right.

And here, 99.9 percent of the prisoners in Pennsylvania, do get to possess newspapers, magazines, and photos.

The LTSU prisoners who graduate get to, and on top of that, while they're in the LTSU, the prisoners get to possess two books.

They--

Justice Stevens: Mr. Marcus, I was kind of interested in your calling this an incentive program.

Is there any... there are no intermediate stages.

It's an all or nothing incentive, isn't it?

Mr. Marcus: --Oh, not at all.

There are many... there are many intermediate stages.

There are restricted housing units and then there are SMU's and... and special management units, and... and--

Justice Stevens: No, I mean, with respect to the prisoners in this population.

Mr. Marcus: --There are incentive programs within each of those restricted units, and... and the prisoners that end up at the LTSU... the vast majority of them have already been through the SMU program and haven't made it and have failed that program.

So they've tried numerous other incentives before getting to this point.

Justice Stevens: Well, I didn't understand that the... the prisoners in this particular part of the prison had any intermediate incentive.

They either get out after a year or 2 or they don't.

Isn't that right?

I mean, they either get to a different classification.

Mr. Marcus: Right, and that depends on their behavior.

Justice Stevens: There's no scoring.

You've got 25 points now, so you're pretty close to your goal or anything like... it's not--

Mr. Marcus: Well--

Justice Stevens: --not like most incentive programs I've heard about.

Mr. Marcus: --Justice Stevens, they get a review after 90 days and then every 30 days thereafter.

There's nothing in the record to suggest those reviews are an empty gesture.

Justice Stevens: And... and does the review correlate it in any way with these particular deprivations?

I mean, what is the review... how does the review correlate with their inability to get reading materials?

Mr. Marcus: Well, the... the review correlates with their behavior, and to the extent they show a positive adjustment in their behavior, their... they graduate from level 2 to level 1 where they do have access to newspapers and magazines and then they can graduate all the way out.

And my understanding is a number of prisoners have done that within 1 year.

And with respect to someone who never gets out, that person might have an as applied challenge if that person could show that his behavior--

Justice Stevens: Is there any evidence at all that the amount of reading that they do has any correlation to their opportunity for getting better assignments?

Mr. Marcus: --While they're in the LTSU?

Justice Stevens: Yes.

That there's any correlation whatsoever between how much these people... these prisoners read and when they get into the next level of the prison.

Mr. Marcus: No, I don't think any such study is done.

But again, the court of appeals was wrong to require the State to offer evidence.

I mean, this Court has emphasized in Turner that the connection between the regulation and the goals need merely be logical.

Justice Stevens: So the legal issues would be precisely the same if the State denied totally any reading material to the prisoners.

We have the same issue.

Mr. Marcus: Well, it would be a more difficult case to defend under the second--

Justice Stevens: Why would it be more difficult?

Mr. Marcus: --under the second prong of Turner because under the second prong of Turner, you look to alternative means.

We might still come in here and defend that program, but here they do provide alternative means to read and to see loved ones through visitation and through correspondence and to have two... they have two books in their cell so they can continue reading.

So there... that... that does factor into the balance, and we think it... it's very clear that Pennsylvania's program is reasonable, and it would just be a more difficult case if they totally prohibited--

Justice Stevens: I understood your argument to, in effect, contend that the behavior modification rationale will justify the program no matter what the balancing process is.

Mr. Marcus: --No, that's... that's not our position.

We think there is a balancing under Turner, and you do... you do look at all four factors of the test.

And we think that Pennsylvania's just clearly satisfies that test.

And if you applied this across the board to the general population, it wouldn't.

It wouldn't pass the test.

But... but these are the... these are the worst of the worst and they've gone through many other... Pennsylvania has gone through countless other measures to try to improve these inmates' behavior, and so I think it's wrong to conclude, as the court of appeals did, that this was an exaggerated response.

Thank you.

Argument of Jere Krakoff

Chief Justice Roberts: Thank you, Mr. Marcus.

Mr. Krakoff: Mr. Chief Justice--

Chief Justice Roberts: Mr. Krakoff.

Mr. Krakoff: --may it please the Court--

I'd like an opportunity to respond to several of the points that were made by my colleague.

First, I find it interesting that and also of some relevance in this case that the decision to deny access to secular newspapers and magazines that this policy of withdrawing access to these materials is not a policy of the Federal Bureau of Prisons with respect to its most maximum security inmates, those who are housed in the control units.

I also think it's important to note that while there's a 90-day minimum period that these inmates have to remain in the Long Term Segregation Unit on level 2 status where this... when this policy applies, the policy also says that as long as an inmate is serving a disciplinary sentence within the prison, that he's not eligible for promotion to level 1.

And the testimony from the department's designated witness, Deputy... Superintendent Dickson, acknowledged that most of the inmates in the unit are, indeed, serving disciplinary time.

Justice Kennedy: Well... well, it seems to me that that's an as applied challenge.

If... if a particular inmate... the terms of... the conditions of confinement are particularly harsh and he... he or she has an unrealistic opportunity to get to a less restrictive confinement, then... then he can bring a suit.

Mr. Krakoff: I was... I was simply trying to point out... the... the Court had asked how long are inmates generally in the Long Term Segregation Unit, and... and the point that I made is that it's not unusual for inmates to remain on level 2 for periods in excess of 1 year.

Chief Justice Roberts: Mr. Krakoff, what... I take it you wouldn't have any objection to terminating of television rights, for example.

If prisoners have the right to watch television, they misbehave, the penalty is no television.

Is that all right?

Mr. Krakoff: That is correct.

Our position is that the choice of what vehicle the institution wants to permit through which inmates can gain access to what is occurring outside of the prison walls in political and other public matters, that's the institution's choice.

And the reason these inmates sued for access to newspapers and magazines is because the representative plaintiff, Mr. Banks, was allowed to receive his Christian Science Monitor magazine because it was religious in nature, but was denied the opportunity to receive his Christian Science Monitor newspaper under... under this policy.

There's another very important--

Chief Justice Roberts: What other alternatives would you have the prison administrators rely on?

You have an incorrigible prisoner who's misbehaving.

He won't behave.

They go through every... he gets up to level... level 2.

What... what should they have done instead?

Mr. Krakoff: --Okay.

Bottom line under my reading of Turner and Safley is that there has to be first that logical connection under the first prong.

That's not a... an imperative--

Chief Justice Roberts: I'm sorry.

What should they have done instead?

Let's say he gets out of the prison 1 hour every other day.

Should they have taken that hour out?

I mean, not out of the prison.

Out of his cell.

Should they have taken that hour away, or what... what other options do they have?

Mr. Krakoff: --Well, what their... their argument is essentially that this policy was basically a decision by default, not a decision that was reasoned by prison administrators.

They... they essentially said virtually everything has been taken away from these prisoners.

Chief Justice Roberts: Right, and I want you to tell me--

Mr. Krakoff: And we have nothing left to take away.

Chief Justice Roberts: --I would like you to tell me what else they should have done.

Why is that wrong?

Mr. Krakoff: It's wrong because there is no logical connection to taking something away under the facts of this case when taking away an entire litany of... or a very broad spectrum of things which... in the special management units, where these inmates came from, they had had magazines taken away on their first phase in the special management units.

They had been offered the incentive of earning access to magazines, of earning access to weekly visits with family members, of earning access to telephone calls, in fact, of earning access for release from their cells the 23 hours a day to engage in... in small group activities with other inmates.

And most spectacular was they had the opportunity, while in the special management unit, to earn a 3 to 6-month probationary period in a general population cell block.

Chief Justice Roberts: And none of that worked.

Right?

Mr. Krakoff: Absolutely.

And my point is if... if that didn't work, including magazines, which is the equivalent of... essentially of... of newspapers, they had no logical or--

Chief Justice Roberts: So your answer to my question is there's nothing else they could have done, but they shouldn't have done this because this wasn't going to work either.

Mr. Krakoff: --My answer is that you can't deprive an inmate of his constitutional right of free speech--

Justice Souter: No, but consistent--

Mr. Krakoff: --unless there's reason to do so.

Justice Souter: --Consistently with your answer, it seems to me, you have to say they should give the TV back, they should give the magazines back because none of those worked either.

And those are First Amendment deprivations to some degree.

Mr. Krakoff: What they've done here is they've removed all of the vehicles to--

Justice Souter: No.

But I mean, what's... what's your answer to my question?

It seems to me that your point to the Chief Justice was the courts have to review the efficacy of these moves.

Mr. Krakoff: --That's right.

Justice Souter: And if... if there is no efficacy and there is an infringement of what, at least for people on the outside, would be a protected right, then they have no justification for taking those rights away.

And if that's going to be the analysis, then on... on the argument you just gave, they've got to give the TV rights back, they've got to give the magazine rights back, and so on.

Isn't that correct?

Mr. Krakoff: May I answer it this way?

I know I'm supposed to say yes or no and then--

[Laughter]

--to give an explanation.

Justice Souter: I sure would like that, but--

[Laughter]

Mr. Krakoff: I'll say no.

My instinct is no, and I would also say the--

Justice Souter: But then why?

Why?

Mr. Krakoff: --I've been reading Turner v. Safley and then more recently Overton because this is basic in my practice to represent prisoners.

And my reading of Overton is that you can't have a policy.

The prison officials cannot have a policy unless there is reason to believe that the policy is going to advance a legitimate penological interest.

Justice Souter: Right.

And in... in your argument, in your answer to the Chief Justice, you were pointing out a situation in which taking away the TV didn't work, taking away the magazines didn't work.

Mr. Krakoff: I think--

Justice Souter: Why then do they not, on your theory, have to give TV and magazines back?

Mr. Krakoff: --I... I think that an institution can always make judgments about how extensive they want to allow inmates to--

Justice Souter: All right.

Then where does your efficacy criterion go?

You're saying they may make judgments, and apparently they may... may make judgments and maintain them even if those judgments do not, in fact, advance their interests.

Here, you're saying they... it's not going to advance their interests, so they can't do it.

In these cases, you're saying they don't advance their interests, but they can as a matter of judgment.

And I don't know how to draw that line.

Mr. Krakoff: --No.

I'm... I'm not saying they can't as a matter of judgment.

I... I'm suggesting that they can select among options... we're specifically speaking about access to information outside the prison walls.

And what I'm suggesting is that they can't eliminate every suitable way by which inmates can gain.

And I think the word is of sufficient utility... was the... was the language that was used in Overton.

And I'm saying the bottom line is they can't eliminate all means by which inmates can access information.

Justice Kennedy: But... but... the whole rationale of your case... if I were you writing your brief, I would have this problem.

This really matters to the inmates, but that's exactly the State's point.

That's the reason it's taken away.

It really means something.

And I... I just... I just don't know what to do with that conundrum.

Mr. Krakoff: I've had other--

Justice Kennedy: And... and it seems to me it's the heart of your case and that it surfaces here in the answers you've attempted to give.

Mr. Krakoff: --Obviously, this... this did matter enough to the prisoners to commence a lawsuit.

I don't think that the standard by which a court... this Court or any other Federal court should determine whether or not there's a logical connection or a reasonable connection is whether or not inmates choose to file suit.

That's establishing a litmus test--

Justice Kennedy: Well, but the whole basis of the suit is that it matters to the prisoner, and that's exactly why it's been taken away because there's nothing else left that we can do with these prisoners.

Mr. Krakoff: --But I see a distinction.

There are lots of things that matters to prisoners and lots of things that matter to us in the free world that aren't going to change our behavior.

There... there are some things that are important to us--

Justice Scalia: What about changing other people's behavior?

Your... your assertion that it does no good is based upon the fact that it has not altered the behavior of these people who are in the unit.

But what about other people who don't want to get thrown in the unit?

I mean, don't you have to look at the deterrent effect?

And... and is it easy for you to say that the... that... that the in terrorem effect of being deprived of... of literature, television, or whatever has not induced other people to shape up?

Mr. Krakoff: --They made the argument that this is part of an overarching deterrent program.

Justice Scalia: Well, I think it is.

Mr. Krakoff: Well, but if you look... Justice Scalia, if... if one looks at the record carefully, you see that this policy which, by the way, applies to 40 inmates in one particular institution in a... in a prison system that has 23 adult institutions for men, that this policy is essentially a classified policy.

The policy itself says this is not to be a matter of public dissemination and is only to be given to personnel on an as needed basis.

The inmates who receive the inmate manual in the Long Term Segregation Unit have to sign for it.

They receive a number, and every manual has to be returned.

Apart from the prison grapevine, which all of us know there is a prison grapevine, I submit that it's... it's not great enough to tell inmates throughout the system that, in fact, if you get into the Long Term Segregation Unit, this very small unit, that you may lose newspapers and magazines.

I don't think it is known, and I think in order to deter, a policy has to be publicized, as it was in Overton.

Michigan made it very clear to the prisoners, that if they got involved into drug violations, that their visits for 2 years would be suspended.

And if I may--

Justice Ginsburg: So let's say if... if the flaw is it doesn't deter other people because they don't know about it, then if they... if they broadcast it all over so everyone knows about it, then it's okay?

Mr. Krakoff: --Well, I say that in order to make a deterrence argument, at least an argument that makes sense to me, that in order to deter somebody from doing something, they have to know about that policy and they have to know what the consequences are.

If there were a secret policy in the State of Indiana that they, you know, will execute persons committing first degree murder, any argument that that's going to... that the death penalty is going to act as a deterrent I think--

Justice Breyer: But is there other... are there other bases?

Because so far your argument is they're so bad that you might as well give them whatever they want because it won't matter.

[Laughter]

Now, I'm parodying it, but you understand why I don't think it's your strongest for the reasons said.

But are there others which might be a little... you had other arguments--

Mr. Krakoff: --Yes, and... and I... I do want to say... and I don't know how to say it more... more clearly... I understand it, but I'm obviously not framing this in a way that is getting my point across.

I'm not suggesting that because people... these are the most incorrigible, recalcitrant inmates in the entire 38,000 inmate prison system, that that means that they can get anything that they want.

I'm suggesting that when you take away a very significant right... and that is the ability to learn what is happening beyond the prison walls... there has to be a reasonable basis for doing so.

Now, if I've been reading Turner and O'Lone and Overton incorrectly, then I'm doing a disservice to my clients.

Justice Breyer: --No, no.

It has nothing to do with the law.

I understand your argument.

Your argument that you have made is, at the very least, you can't say that this deterrent effect is that big a deal.

I mean, now, there were other reasons justifying it.

They said, for example, if one--

Mr. Krakoff: Security.

Justice Breyer: --Yes, and they made a big case in this.

It's on 188 in the appendix.

Mr. Krakoff: Exactly.

Justice Breyer: And they made a major point.

They said that with the newspapers, they set fires, they throw feces.

They use them as a spear, and then when asked, why couldn't you do the same with library books, or couldn't you do the same with paperbacks, they said, yes, it's possible, but it's less likely because of the size of the document.

And we don't have to forbid everything.

We just forbid the things that we think are particularly likely.

Now, what about that?

Mr. Krakoff: Well, my... my... I suppose my most straightforward answer would be that the Jewish Forward can burn as quickly as the New York Times, that the Christian Science Monitor--

Chief Justice Roberts: Well, then now you're giving... now you're making their situation worse because they tried to make your client's situation better.

I mean, yes, they could... maybe they could prohibit religious journals as well, but they... for various reasons, they decided not to do that.

Maybe they could have eliminated legal materials as well, but again, they decided not to do it.

They take a more circumscribed approach.

So I'm not sure it's a very effective response to say, well, they let religious materials in and that can be used as well.

Mr. Krakoff: --I think it's a realistic... with all due respect, I think it's a realistic response.

I'm not faulting them.

I applaud them for doing what was a reasonable thing.

Justice Ginsburg: I thought you were using that to say that the security concern doesn't hold up because of the papers that they're allowed to have in their cells can be used similarly for fires, similarly to do other bad things.

Mr. Krakoff: Right.

Justice Ginsburg: So I thought that's why you were using that, just to say that the... the security concern is dubious because the materials that they are allowed to have in their cells can... could achieve exactly the same end.

Mr. Krakoff: Well, there are other things, Justice Ginsburg, that are routinely permitted in... in the cells and, in fact, that probably have to be in the cells that can be used.

They're given... they're giving... given writing paper, and the testimony of Deputy Dickson was that they... they fling feces with writing paper and they fling feces quite a ways--

Justice Scalia: Do you know what kind of a fire you can make with the Sunday New York Times?

[Laughter]

Are you going to... are you going to compare that to writing paper and... and to... to the Jewish Advocate or whatever it is?

I mean--

Mr. Krakoff: --Well--

Justice Scalia: --it seems to me a perfectly reasonable line.

Mr. Krakoff: --The... but it's not only... it's not only writing paper.

It's... and they have to have blankets.

The blankets are flammable.

Their clothing is flammable.

The bed sheets are flammable.

Chief Justice Roberts: So if visitors... if there's a security issue with visitors to the prisoner, you're saying you can't prohibit visitors because if you allow the lawyers to come in, because they're visitors too?

Mr. Krakoff: No, I think that would be a specious argument.

Chief Justice Roberts: Well, but it wouldn't undermine the security rationale just because you have some exceptions where there are other countervailing interests that might outweigh the security concern.

Mr. Krakoff: But if, in fact, their suggestion is that... if their suggestion is that the inmates are less likely to burn a Bible, for example, and assuming they're... they're Christians rather than somebody else who has the Bible, they're less likely to burn a... the Bible or some book of scriptures, that makes sense.

But when you suggest that they're less likely to burn a legal newspaper or a religious newspaper, that doesn't make sense.

And I'm suggesting this isn't a question of equities that if they're nice enough to permit these prisoners to read religious based or legal based newspapers and magazines, that forecloses the inmates from saying... does that make a lot of sense?

I don't... I don't think so.

Justice Stevens: May I ask you--

Justice Breyer: All right.

What is it that I should read then in respect to what's actually bothering me?

In Turner v. Safley--

Mr. Krakoff: Right.

Justice Breyer: --the Court says we resolve, when a prison regulation impinges on an inmate's constitutional rights, which is does here, the regulation is valid if it is reasonably related to legitimate penological interests.

That standard is necessary if prison administrators and not the courts are to make the difficult judgments concerning institutional operations.

And that's where I think it's difficult to balance this case.

If we were to decide for you, are we going too far in interfering on what the prison administrators should be doing, or have they gone too far?

Now, if I'm supposed to look at this record and try and make up my mind, which I think is about that question, what do you want me to look at?

Mr. Krakoff: I want you to read the entire brief--

Justice Breyer: Well, I'll read the briefs.

I have no problem with the briefs--

Mr. Krakoff: --No.

I... I suggest that our... my brief might be more coherent than I today.

[Laughter]

And I think we make out a strong case... that we make out a strong case for why the policy in question is not reasonably related to a legitimate penological interest.

I would suggest, looking at another aspect, Justice Breyer, that there was some comment about the adequacies of the... the alternatives, the other avenues, and that's an important consideration under the second prong of... of Turner.

And I think it's... it's strange to suggest that the prison chaplain who visits level 2 inmates for religious purposes and that attorneys, assuming that an inmate has an attorney, generally are going to come discuss either a section 1983 action or a criminal case, and that relatives once a month for an hour are going to discuss current events, and that they're going to act as kind of a quasi wire service by--

Justice Stevens: --May I ask you this question?

Mr. Krakoff: --Yes.

Justice Stevens: You said that the prison grapevine really doesn't tell the prisoners about this particular lack of access to public materials.

Does the prison grapevine let them know that they're going to be in the cell for 23 hours a day and only be out 1 hour a day?

Mr. Krakoff: They're actually, Your Honor--

Justice Stevens: If that is generally known, it would seem to me that that itself would be sufficient incentive to try and avoid this program, whether or not you're going to be able to read the Christian Science Monitor or the New York Times.

It seems to me that the... the... what we're fighting about is trivial compared to the very obvious deterrent value of 23 hours in the same cell 7 days a week, 30 days a month, 365 days a year.

I don't think I'd care about this other stuff.

Mr. Krakoff: --I agree with that point, obviously.

But every inmate in disciplinary confinement stays in what is referred to as... as the restricted housing unit, and they all know--

Justice Scalia: Of course, I could say the same thing about going to jail, I mean, at all.

Mr. Krakoff: --Well--

Justice Scalia: You know, I could say whether I'm there 23 hours or all or not--

Mr. Krakoff: --Yes.

Justice Scalia: --it's enough of an incentive that I... that I don't want to go to jail.

There's... there's incentives and there's incentives.

Mr. Krakoff: Yes, but I suggest that... that living in a cage and exercising in a case in... in seclusion, that's... that's a prison within a prison.

And those things deter normal people, people who--

Chief Justice Roberts: And once you're in that situation already, as these prisoners are, and they're still not conforming their behavior to the prison rules, you have a limited number of options for trying to get them to do that, and your response to my first line of questioning was that there's nothing else you can think of that they could do.

Mr. Krakoff: --At some point, the options expire.

They have taken so much away from these prisoners.

Is that going to then justify?

Say, well, we've taken everything else and this is what we have left.

Is that the kind of situation where deference is supposed to be high because they're making... I don't see that as a real choice.

They're doing what they have available.

Chief Justice Roberts: So your response is they should just grin and bear it.

They--

Mr. Krakoff: My... my response is that they have taken so much away from these inmates who are the most incorrigible, recalcitrant inmates in the system.

And they say in their... in their policy that these inmates are either unwilling or incapable of charging their... changing their behavior.

I submit that some of these men probably are, and I think it's also interesting that they--

Justice Souter: I... may I interrupt you--

Mr. Krakoff: --Yes.

Justice Souter: --with this question?

Aren't you really saying that when the deprivations get beyond some point, some serious point, the issue is not properly analyzed under Turner and Safley, can they do one thing more?

The issue really becomes one of cruel and unusual punishment.

Is the totality that they have taken away so great that it is cruel to maintain these people under these circumstances?

Is that the argument you're really making?

Mr. Krakoff: It isn't.

That's... that's an option if one reaches the point where it truly is cruel and unusual.

We didn't file an Eighth Amendment challenge here based upon the facts that I knew.

Justice Souter: Oh, I know that wasn't... that wasn't the claim that you made, but isn't that the argument that you're making?

Mr. Krakoff: No.

And... and I think that... I know in Overton there was a dissent by Justices Thomas and Scalia that essentially said that that's what you have.

You... you have an Eighth Amendment argument if a policy rises to that level, but if a policy doesn't constitute cruel and unusual punishment, then you're out of luck.

And that kind of swallows up the First Amendment in my view and the other... and other amendments as well.

Now, what I'm suggesting is not that they've reached the point of cruel and unusual punishment.

I'm suggesting that there comes a time when you take away so many things from these prisoners, that you basically... yes, you may have to give up and you may have to keep them in segregation.

And they do keep men in segregation... other forms... for 10, 15... I represented a man who had been in segregation for 30 years.

So it's not as though that's unusual.

They do give up on people in... in the Pennsylvania prison system all of the time.

That would not be unusual.

I suggest that if we reach the point where the law says that if you run out of options, you can do anything that you want as long as it doesn't rise to cruel and unusual punishment, that we may as well forget about--

Justice Kennedy: But... but the State's position is that it wants to avoid that ultimate deterrent.

It... it wants to take away privileges for a while to see if he can conform.

You're depriving the State of the... of the option to avoid the most extreme circumstances of forgetting about him altogether forever.

Mr. Krakoff: --Well, I... I--

Justice Kennedy: And it seems to me that... that your... your argument is... is at cross ends with its own purpose.

Mr. Krakoff: --Well, it... unless there are other questions, I think I've reached--

Justice Stevens: Just let me just ask one... one thing I am curious about.

The argument... it seems to me that there's kind of a flow of these.

Some of them get out of this system and some stay a long time.

What does the record tell us about how often, if they conform to the regular rules without any violation for 40 days or a year, do they... do they get out of this... this situation?

Mr. Krakoff: --The... the rules themselves say kind of in a preamble that... that confinement is for a minimum of 90 days, but that often it's... it's longer than that--

Justice Stevens: I'm not posing what the rules say.

Does the record tell us whether... you know, whether the system is just something we're talking about or whether it really has an effect on people's moving from this classification to another classification.

Mr. Krakoff: --Well, there were... there were 10 inmates in the first 2 and half years of the operation, according to Deputy Dickson, who had moved out of... out of the unit.

The record is silent as to whether any of these inmates ordered subscriptions for newspapers or magazines.

So we don't know whether that even arguably was a factor.

I think that the... that the State has acknowledged that there might be many reasons why inmates might leave the Long Term Segregation Unit that could be unrelated to the... the, quote, incentive of newspapers and magazines.

So we don't know whether any of them have left because they've simply gotten tired of being in segregation for 2 and a half additional years, after flunking out of the special management units, or whether there were other... other factors.

Two... what... what is concerning is that two inmates left straight from the unit to the streets because their sentences expired.

And so they were essentially people who... you know, they... they could read about the... an ancient war in the Bible, but they couldn't read about Iraq.

So they were going to have... I don't know if that's a healthy situation.

That's not from a constitutional perspective,--

Justice Ginsburg: What... this--

Mr. Krakoff: --but from a practical perspective.

Justice Ginsburg: --What other than the periodical, newspaper access differentiates this custody from the next higher--

Mr. Krakoff: Special management unit?

Justice Ginsburg: --Yes.

Mr. Krakoff: Well, all... the various incentives... there's no possibility of earning access to radios or televisions in the Long Term Segregation Unit.

The most there can be would be twice a... twice a month visits if they're promoted to level 1, as opposed to four time a month visits if they succeed in the special management unit.

There's no opportunity for out of cell group activities while in the Long Term Segregation Unit.

They lose that as an... that's not an incentive.

That is an incentive in the special management unit.

There's no probationary period where they can be released to a general population cell block which, as the Court knows, a general population cell block is... offers many opportunities that segregated cell blocks don't.

And that's not available.

Chief Justice Roberts: --Thank you, counsel.

Mr. Krakoff: Thank you.

Rebuttal of Louis J. Rovelli

Chief Justice Roberts: Mr. Rovelli, you have 2 minutes remaining.

Mr. Rovelli: Very briefly, if... if I might turn myself to just the very first point that Mr. Krakoff made about inmates being compelled to stay in the Long Term Segregation Unit until they complete their disciplinary custody.

I would draw your attention to pages 40 and 41 of the joint appendix, which show that... that the unit manager has the authority to set aside disciplinary custody, and an inmate who graduates the Long Term Segregation Unit gets all of their disciplinary custody set aside completely.

So in a sense, the... the disciplinary custody aspect is another incentive.

Justice Scalia: Mr. Rovelli, do the other prisoners know about this?

I'd like you to respond to the... to the assertion that nobody knows about this anyway, so it doesn't deter anybody.

Mr. Rovelli: The principal means by which other prisoners would know about it is the very effective prison grapevine, although it does appear in the... in a chart that's appended to the handbook for the special management unit, and 75 percent of the inmates who wind up at level 2 come from the special management unit.

The other thing I would point out about the effectiveness of this program, as opposed to the give up on them proposition, is that even at... even in 2002, when the program was only 2 years old, 25 percent of the inmates who had been sent there had graduated.

The statistics on that are at pages 7 and 8 of our reply brief.

Finally, if... if the Court were to affirm the court of appeals, then this case has to be sent back to trial and the burden is put on the prison system to demonstrate empirically that this regulation can achieve its goals.

In a sense, I've just demonstrated that it has achieved its goals, but much more importantly, the effect of that would be to totally undermine, if not void, Turner and Overton.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Randall v. Sorrell - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Randall v. Sorrell

Media File:

04-1528_20060228-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James Bopp, Jr.

Chief Justice Roberts: We'll hear argument first this morning in 04-1528, Randall v. Sorrell, and the consolidated cases.

Mr. Bopp.

Mr. Bopp: Thank you.

Mr. Chief Justice, and may it please the Court--

As this Court made clear recently in Republican Party of Minnesota v. White, since political candidates are the ones who take office, it is imperative that they be allowed freely to express themselves on matters of current public importance.

As a result, this Court has never allowed the government to prohibit candidates from communicating relevant information to voters during an election.

Vermont, however, has adopted low expenditure and contribution limits for the opposite purpose, reducing overall candidate campaign spending, and these limits would have that effect.

This is fundamentally incompatible with any reasonable interpretation of the First Amendment and is not justified by any truly compelling governmental interest.

As a result, they are unconstitutional.

Now, Vermont's expenditure limits are an unprecedented, direct restraint on candidate speech.

Once these low expenditure limits are exhausted, a candidate may not drive to the village green to address a rally, may not return the phone call from a reporter at the local newspaper, and may not call a neighbor to urge her to get out to vote.

This Court has never allowed the government to prohibit candidates from communicating this sort of relevant information during a campaign.

Further, this Court has long held that more speech is better than less speech.

As long as contribution limits are available to address any realistic concerns about corruption, the public will benefit from candidates' being allowed to spend all that they can lawfully raise in their campaign.

Now, the record is clear in this case that the expenditure limits will deprive candidates of substantial resources.

The district court erroneously looked at average spending over the last three elections and found that in all but one category, that is, Senate candidates running in single member districts, that the average spending for all candidates in those campaigns were below the limits set by the expenditure limits in Vermont.

However, in Buckley, the last case for... where this Court considered candidate expenditure limits, the Court looked at the number of races affected, not the average spending in all races.

And in Buckley, the Court looked at the expenditures in U.S. Senate races and found that in previous election, that 26 percent were over the mandatory expenditure limits considered in Buckley, and in the House, 3 percent of the races had spending greater than the... these limits.

Justice Ginsburg: Mr. Bopp, would you clarify a procedural point?

As I understand it, on the expenditure issue, there is no final decision that has gone back to the district court for further proceedings.

Mr. Bopp: Well, there were... that is correct, that there is a remand.

Justice Ginsburg: And it may... the district court might... may well find that nothing passes constitutional muster in the end.

Mr. Bopp: Well, they could potentially, yes.

However, the... the Second Circuit did... did make decisions of law.

They found that these two interests that the State is alleging, that is, in preventing corruption and in conserving incumbent time, were together a compelling governmental interest, and we... we allege that they are not and that on this record, this Court can determine that they are not... they are not together a compelling governmental interest.

Justice Ginsburg: Are you arguing now then that there may be no limits on expenditures?

Mr. Bopp: Well, the... this Court has now considered, including this case, a dozen times in which the government has sought to limit expenditures, either of candidates or PAC's or political parties, and despite the work of the most brilliant lawyers in the United States, they have not come up with any compelling governmental interest that this Court has accepted.

And we believe that this record demonstrates that these claimed interests either are not compelling or are not proven.

Now--

Justice Souter: Do you... when... when you make that point, that on this record the... the claimed interests are not compelling or not proven, would you have us leave the door open for a greater degree of proof?

For example, take the... the problem of candidate time.

The lower the donation limits are, the... the more donations there have got to be, and... and there's... there's plenty of comment, particularly in some of the amicus briefs, on the amount of time that political candidates generally spend scrounging around for money.

If we decided the case your way, would the door be left open for a more impressive and compelling record on this issue?

Mr. Bopp: --Well, we... we are asserting that that is not a compelling interest in and of itself, and this Court should reject it.

I... I just don't see--

Justice Souter: But you also say, on this record.

Mr. Bopp: --Yes.

And in addition... well, the... the point about it not being a compelling interest I think is an analytical point that doesn't have to be... that doesn't rest on this... strictly on this record.

Justice Souter: So I... I take it your point then on the combined corruption/competition for money problem is that there isn't any record that would support it.

Mr. Bopp: If it were a compelling interest, there's no record here that is a problem in Vermont.

Justice Souter: Right, but you're saying this combination cannot be a compelling interest as a matter of law, consistent with the First Amendment.

Is that correct?

Mr. Bopp: Yes, it is.

I don't see how it is a compelling governmental interest to limit challengers to only fund raise to the extent that an incumbent finds comfortable or convenient.

Justice Souter: Yes.

Justice Kennedy: Well, just--

Justice Scalia: Or at least where... where the limitation... you make a big point of this in your brief as... as I... as I recall.

At least where the reason the candidate would have to spend so much time is the very small contribution limit established by the same statute.

It's... it's rather like the... the murderer asking for mercy because he's an orphan, having killed his parents.

Mr. Bopp: It is a self justifying statute by imposing the lowest contribution limits in... in the Nation, adjusted for inflation for 1974 dollars, when the $1,000 limit was approved.

This is a contribution limit of $50 for an--

Justice Kennedy: --Well, to get back to Justice Souter's questions, could you answer it this way?

Let's assume that some members of the Court simply accepted the proposition that money buys access.

And... and I don't think maybe we can take judicial of that, but I... I think that's a common sense conclusion that we can reach.

And you tend to fight this in your brief to say that this doesn't happen.

I tend to doubt that.

I tend to think money does buy access.

What... if... if we or I were to conclude that, what would follow?

Mr. Bopp: --Well, I think it's not a matter of just access.

It has to be a matter of privileged access that this Court found in the--

Justice Kennedy: All right.

Let's say it's privileged access.

Mr. Bopp: --Well, if it... if it's privileged--

Justice Kennedy: I mean, isn't the answer that the... that this is up to the voters.

The voters can see what's going on and throw the legislator out if they choose.

Mr. Bopp: --Indeed, and in fact, the... there are other less restrictive ways of... of dealing with this.

For... for instance, Vermont prohibits contributions from lobbyists during the session.

Other legislatures have imposed a prohibition on incumbents from raising any money during the time the legislative session... the legislature is in session.

So there are ways of dealing with the question of access that are not the blunderbuss approach here.

Justice Kennedy: It... it is true that all the polls say that there's public disaffection and cynicism.

Does that translate into action to defeat incumbents who take particularly large sums of money?

Is there... is there statistical evidence to show that?

Mr. Bopp: I'm not aware of that.

But certainly the press and opponents often, you know, point to examples where they believe that their challenger is under too much of an influence of a particular entity, and the voters, you know, in certain circumstances take that into account in their voting.

And furthermore, it is true that there is a general cynicism about politicians and government that has existed since the first colonists came to our country and continues today.

In fact, our governmental system is established on the proposition that we need to limit the... the government, and we need to have checks and balances because we don't want free rein by politicians because we are concerned about their exercise of power.

But if this is enough--

Justice Stevens: May ask you this question, Mr. Bopp?

This... in... following up on Justice Ginsburg's inquiry, is it your view that there is no set of facts, no matter how scandalous and so forth and so on, Watergate and all the rest of it, could ever justify an expenditure limit?

Mr. Bopp: --That is not our position.

Justice Stevens: Well, if that's the case, then why... why would it be inappropriate to have further hearings in this case to see whether they're... they could be justified?

Mr. Bopp: Because there have been legal findings by the Second Circuit that we believe are erroneous.

The... the first, as I mentioned previously, is that... that we do not believe that the... preserving incumbents' time through expenditure limits can ever be a compelling governmental interest, to limit what challengers can spend... raise and spend in their own election.

I mean, this interest... the expenditure limits don't apply just to incumbents who... if there is a concern about--

Justice Stevens: No, I understand.

I'm just curious to know what sort of... what sort of evidence could ever support an... an expenditure limit in your view, if... if any.

Mr. Bopp: --I have a... a very difficult time justifying expenditure limits.

I know there's a debate on this Court on whether or not there are per se situations under the First Amendment.

If there was ever a candidate for a per se First Amendment ban on a law, surely it would be this type of case.

In other words, we are talking about speech that is at the core of the First Amendment, and secondly, we are talking about candidate speech.

Candidates are the ones that go into office.

They are the ones that are going to be exercising governmental power.

These low expenditure and contribution limits would have the effect of making candidates a bit player in their own election so that the voters--

Chief Justice Roberts: Counsel, with respect to the contribution limits, what... what makes this case different from the... the Shrink PAC case from a few years ago?

Mr. Bopp: --Well, several things.

First is there was actually a paucity of evidence in the Shrink PAC case.

There was only an allegation of one PAC that wanted to give one contribution to one candidate, and this Court said that, you know, you didn't need a lot of evidence to combat such a weak... weak claim.

So secondly is the novelty and plausibility of a... adjusted for per election in 1974 dollars of a $50 contribution limit, that that would actually give rise to realistic concern about actual and perceived corruption.

So, again, in Shrink PAC--

Chief Justice Roberts: So you think it... you think it's the dollar amounts that are involved?

Mr. Bopp: --Well, one of the decisions that the Court has to make under your jurisprudence is that... that contribution limits can only eliminate large contributions that give rise to this realistic perception or actuality of corruption.

So it is... whether it's large or not and giving rise to that concern because of the size, that is an integral part of the Shrink analysis.

Justice Souter: It... it was pointed out in... in one of the briefs... and I... I didn't go back and check it myself, but I'd like your comment.

It was pointed out in one of the briefs that the limits in Vermont were substantially close to or even... even higher than the... than the limits in the Missouri scheme, out of which the Shrink litigation grew.

Do you know whether that is correct?

Mr. Bopp: Well, it depends on how you... you compute it.

The--

Justice Souter: It always... it always does, yes.

[Laughter]

Mr. Bopp: --The... well, certainly what the... what the evidence was in Shrink was it was a $1,075 limit, again adjusted for inflation, was about $375 adjusted for inflation compared to the Buckley limits, and because of the paucity of evidence and the fact that it wasn't really novel to say that a $1,000 limit could give rise to corruption because--

Justice Ginsburg: But there were lower limits, Mr. Bopp, and I think that's what Justice Souter was asking about.

Justice Souter: Yes.

Justice Ginsburg: There were the thousand dollars, but I think it went down as low as $250 in--

Justice Souter: Yes, take the whole schedule in Missouri.

Mr. Bopp: --Yes.

Well, the... the contribution limits that this Court considered was the $1,075--

Justice Ginsburg: --There... there was a court that subsequently considered the rest and upheld the contribution--

Mr. Bopp: --Yes, there was.

The Eighth Circuit did so and the... the lowest limit there was $275 per election, which would be $500 for... for the... the entire election cycle.

And the... and... but really that... that was on a... a record that this Court found to be, frankly, inadequate to... to raise any serious questions about the... whether the amounts concerned gave rise to a realistic threat of corruption.

And the record here demonstrates that... that the... that the only time really there is a actuality or perception of corruption in Vermont is when they... is when we're talking about amounts in excess of $1,000.

That was the prior limit.

Justice Scalia: And we... we didn't send it back so that more of a record could be made, did we?

Mr. Bopp: No.

No.

And, you know, we had a 10-day trial.

We had numerous witnesses here.

The... Shrink had been decided.

I mean, there was... everything was before the court to consider the... the matter.

And so, you know, they had their chance at... at proof.

And... and in the numerous witnesses, they made their best case.

They could not identify one single politician in Vermont that was... that anyone would... would claim was corrupted in any way by a contribution... by contributions under $1,000.

They could not name one single incumbent politician in Vermont that neglected any specific duty that he or she had.

Justice Scalia: Well, but you know.

You expect them to name names?

I mean, here--

[Laughter]

Mr. Bopp: Well, if--

Justice Scalia: Really, that... that's... that's a lot to ask.

Mr. Bopp: --Well... well, they at least have to give, you know, realistic circumstances.

They gave a few circumstances--

Justice Kennedy: Well, suppose three legislators had been corrupted, venal, criminal corruption, actually taking no wink wink, nod nod, a specific agreement to vote for money.

So what?

Does that change your case?

Mr. Bopp: --Well, the... the responsibility that Shrink imposes is to... to demonstrate both actual and perceived corruption at that the--

Justice Kennedy: Suppose... suppose that had been demonstrated in... in a particular State.

Does that mean, in your view, that a State can have strict contribution limits and support?

Mr. Bopp: --If it's just anecdotal, no.

It has to be--

Justice Kennedy: No.

It's true.

It's... it's done.

There have been criminal convictions.

Mr. Bopp: --Well, the... if it's isolated examples that are unconnected to any perception of corruption at that level, then it would not be adequate on... on its... on its... by itself.

Now, of course, in Shrink, the Court cited to both actual and perceived evidence of corruption at the level that the... you were considering that limit.

Justice Kennedy: Well... well, if... if you... if you concede and... and you tend, at least, to back away from the proposition that the case I put would be an inadequate ground or an adequate ground for legislative limits, then I suppose you can say the State has the power to prevent this from happening to begin with.

Mr. Bopp: Well, this Court has never approved restrictions on fundamental First Amendment values based purely upon speculation or concern about something that's happening some other place.

In other words, these are real limits on people in Vermont, and it seems to me that to approve the lowest contribution limits in the Nation and these very low expenditure limits, the State would have to demonstrate that Vermont is the most corrupt State in the Nation.

And they're far from it.

In fact, the opposite--

Justice Scalia: Only... only the most corruptible.

[Laughter]

Mr. Bopp: --Nor corruptible.

The... the evidence is quite clear.

Even in the few examples that they cite to like the tobacco industry passing out $40 checks after a... a vote defeating a bill.

Of course, that's still legal under this... this act.

But, you know, even pointing out that they... that the person who talked about that example made it clear that he didn't believe anybody was... was influenced by post contributions after a vote regarding a matter that's not even prohibited by this... by this act.

So it was... it was a lot of testimony about how truly clean Vermont is, not the most corrupt, where people... politicians would be tempted at these quite low limits to, you know, sell their honor and... and personal, you know... and their... and affect their own, you know, personal character and reputation.

Justice Souter: Mr. Bopp, toward the end of your brief, you... you make the argument that if we accepted the State's position in this case, we implicitly would have accepted the position that totally... totally publicly funded elections would be constitutional.

And... and I... I realize your... your concern there was with expenditure limits, obviously, not contribution limits.

You didn't come out and say it, but I... I assume your position is that that would be unconstitutional per se.

A totally publicly funded scheme would be unconstitutional per se.

Mr. Bopp: The key would be if it's mandated, voluntary--

Justice Souter: Yes.

Mr. Bopp: --If it was mandated, yes, it would be unconstitutional.

Justice Souter: And... and its unconstitutionality would rest on the limitation on expenditure, in effect?

Mr. Bopp: Yes.

Oh, yes.

Well, there would be a prohibition in that case if I understand your--

Justice Souter: Oh, yes, yes.

Mr. Bopp: --on... on contributions, and there would be also a... a mandatory expenditure limit because you could only spend what the government gave you.

So that would have all those features.

Now, if it was, of course, voluntary, it would solve the... the two problems that... that the State talks about because if you have a voluntary public funding system... and this is, again, why remand is... is inappropriate.

You don't need to go back and... and determine whether or not the legislature considered providing adequate public funds.

I mean, it's whether that alternative exists.

Justice Souter: But on... on your view, if... if there were a... a mandatory publicly funded scheme and the... the limits on expenditure were very high... it was a very generous scheme.

They gave them lots of money... it would still be unconstitutional because there would be... I... I take it on your view, because there would be an elimination of any way to participate by contributing.

Is that correct?

Mr. Bopp: There would be an absolute prohibition, and this Court in... in Beaumont reserved that question of whether or not an absolute prohibition... and... and then in McConnell, you struck down the absolute prohibition on minors' contributing to campaigns.

So, yes, there would be a absolute prohibition on any way for any individual to associate with a campaign through a contribution.

Justice Scalia: Well, it would also prevent the candidate himself from expending his entire fortune, if he wishes, in informing people of why he should be elected--

Mr. Bopp: Yes, that is true.

Justice Scalia: --think that's okay.

Mr. Bopp: And... and in the record below, plaintiff Donald Brunelle said that he was prepared to spend considerable sums in support of his State Senate election, which... and considerable sums above the expenditure limits that were before... that were adopted by Vermont.

So the... the question is an independent--

Justice Scalia: Which raises no possibility of corruption.

Mr. Bopp: --Well, nor... nor on fund raising using up your time because all a wealthy person has to do is write a check.

And... and, of course, in Vermont, they even have an exception for not only just the wealthy... wealthy candidate, but the wealthy family.

So, you know--

Justice Scalia: I don't know what you mean they have an exception for the wealthy family.

Mr. Bopp: --Yes.

To a third degree of consanguinity, people who are related to you to that degree are not subject to the contribution limit.

So, you know, it's hard to justify Vermont's scheme if you're concerned about the influence of the wealthy because they're giving the wealthy carte blanche to fund their own campaigns, even under these limits.

So a wealthy person who runs for Governor... he has no fund raising costs.

So... and... and he can get contributions from others that are related by blood, but not by marriage, interestingly, to... to him.

So the public funding or the expenditures by... by the wealthy neither give rise to... and both solve... either don't give rise or solve the problems that they claim.

So there's... there's... you don't need a remand to consider that... that question, and that is one of the questions that the Second Circuit has asked that... that the matter be remanded for.

Now, in addition, the expenditure and contribution limits here are not going to allow even effective campaigns.

We have considerable evidence in the record that to run an effective campaign for Governor in Vermont, it takes $600,000 to $800,000; for the Senate--

Justice Ginsburg: --Mr. Bopp, may I ask you?

You keep... the way you're discussing this case, one would think that the trial court found there was an evidentiary insufficiency, but I thought, at least on the contributions part, the trial court found that the evidence sufficed to justify those limits.

Mr. Bopp: --They did, but erroneously, and I... we believe that you have a responsibility to do an independent examination of the record.

For instance, there was a finding by the district court that these amounts were, quote, suspiciously large.

Now, if you look at the record and you look at the six individuals--

Justice Scalia: Excuse me.

What... what amounts were suspiciously large?

Mr. Bopp: --The contribution limits... amounts over the contribution limits for--

Justice Ginsburg: Can you... can you point to the place in the district court opinion that you're referring to?

Mr. Bopp: --I am sorry.

I do not have that in front of me.

That the district court found that the amounts prohibited under the contribution limits by Vermont were, quote, suspiciously large, and then they cited six different witnesses.

We have reviewed each... in our reply, each one of those witnesses, and it is simply not true that any of them said that it was suspiciously large, that is, that if there was any relationship between contributions between the old limits of $1,000 per election and these new, much... much lower limits, if there was any... any witness related contributions of that size to any threat of corruption.

In fact, in the examples that are given, they disclaim that there was any... that anybody was bought or influenced in any way by the contributions that were made.

Now, the... in terms of an effective campaign, of course, under Shrink if a expenditure... if a contribution limit amounts to an expenditure limit... and the Court commented on this.

This Court commented on this in... in Citizens Against Rent Control v. Berkeley.

If a contribution limit acts as an expenditure limit, then it can... it will be also be struck down if the candidates cannot mount effective campaigns.

And here we have demonstrated in the record what an effective campaign amounts to, and the amounts even for the House district of $2,000 would be simply used up by 1 brochure, 100 yard signs, and 1 postcard mailing.

All of these have been valued in the record, and that would amount to $1,500 to $2,000, almost the entire amount allowed, not allowing even one mailing to all voters in... in that House district.

I'd like to reserve the balance of my time.

Argument of William H. Sorrell

Chief Justice Roberts: Thank you, counsel.

General Sorrell.

Mr. Sorrell: Mr. Chief Justice, thank you, and may it please the Court--

Justice Kennedy, you raised the issue of whether money buys access.

It clearly does.

Our Governor admitted that in a State of the State address.

But we also had testimony at trial from a former statewide officeholder that money, of course, buys access, but on the bad days, it buys influence.

And we had the President--

Chief Justice Roberts: Counsel--

Mr. Sorrell: --of the Senate--

Chief Justice Roberts: --Counsel, you... you say in your brief... I'm reading from page 13... that the record convincingly shows that the ties among donor groups and elected officials often determine the positions officials take.

Can you give me an example of an official who took a position because of the ties to donor groups?

Mr. Sorrell: --The... there was testimony that the President of the Senate said to another Senator who was testifying at trial, we've lost the drug money.

I'm not willing to lose the food manufacturer money, so I'm not going to sign this bill.

That same President of the Senate testified in a legislative hearing... I... he admitted that he makes decisions in performing his legislative duties because of that whole lot of money that he had collected in the year before.

Chief Justice Roberts: So your position is that that official's official positions were determined by the donor groups, as you say in your brief.

Mr. Sorrell: Influenced and--

Chief Justice Roberts: Well, your brief says determined.

And did... did you--

Mr. Sorrell: --Have an influence and we would suggest an undue influence in some cases.

Chief Justice Roberts: --So it should say influenced rather than determined.

Mr. Sorrell: We didn't have anyone, as Justice Scalia asked, who stood up and admitted to having taken bribes.

We did have the Senator, who was the chair of the Senate Finance Committee, who said that she's not in favor of tax credits, but she had a donor to her campaign who had given $500 in one campaign cycle and $1,000 in another cycle, and she allowed a tax credit to go through her taxing committee, even though substantively she didn't like tax credits.

Chief Justice Roberts: How many prosecutions for political corruption have you brought?

Mr. Sorrell: We have not had any of legislators or statewide officers that I'm aware of.

Chief Justice Roberts: Do you think that political corruption in Vermont is a serious problem?

Mr. Sorrell: It is a serious problem.

Over 70 percent of Vermonters at... there was testimony at trial from an expert that over 70 percent of Vermonters believed that corporate interests and wealthy individuals have an undue influence on politics in the State, and I think 73 percent believe that the average citizen--

Chief Justice Roberts: Would you describe your State as a clean State politically or as a corrupt one?

Mr. Sorrell: --We have a real problem in Vermont.

We haven't had a Governor go to prison.

We haven't had legislators tearfully apologizing for having taken bribes, facing an indictment the next day.

But we have got a problem in Vermont.

In over 65 hearings before our legislature and then through a 10-day trial, we established that as the trial court said, the threat of corruption in Vermont is far from illusory.

Justice Scalia: To the extent that Vermont legislators can be bought off by $51?

[Laughter]

Mr. Sorrell: There's nothing in the record--

Justice Scalia: That's very sad.

[Laughter]

But that's the limit you've placed on... on contributions.

Mr. Sorrell: --I... no.

Justice Scalia: I mean, the... you know, if... if you accept more than $51, you're... you're likely to have your vote determined by that.

Mr. Sorrell: No, I... we don't suggest... we don't suggest that.

Justice Scalia: Then why... why the $50 limit?

It certainly isn't based on the corruption--

Mr. Sorrell: I don't know what $50 limit you are talking--

Justice Breyer: No, no.

He's thinking in... he sometimes thinks in the past.

He's--

[Laughter]

He's translated it into 1974 or '72 real dollars.

Mr. Sorrell: --Oh, it's--

Justice Breyer: It's $200.

The same question or $201.

Mr. Sorrell: --It's the math.

The reality is that these contribution limits that we had... we had examples under the old contribution limits.

Even Petitioner Randall admitted that in Vermont, a $1,000 contribution... if you receive a $1,000 contribution in Vermont... this is one of the petitioners... then Vermonters think that you've been bought.

And that's the reality--

Chief Justice Roberts: And they can... and presumably they act accordingly at the polls.

If they think someone has been bought, I assume they don't reelect the person.

Mr. Sorrell: --The Buckley court thought that disclosure obligations and contribution limits alone would be... would suffice to address corruption and--

Justice Breyer: But I have the same question Justice Scalia had.

I mean, the... the question is you... you have limits here of $100 per election.

It's $200 per cycle.

Mr. Sorrell: --For a House race, yes.

Justice Breyer: For a House.

$300 for the Senate, $400 for a candidate for statewide office, including the Governor.

That's $200 for an election for Governor.

You throw in contributions in kind.

You say that the political parties themselves cannot give more than that $200 for an election for the Governor.

If we translated those into 1974 dollars, they're just the numbers Justice Scalia mentioned, and I would like to know why are they... why does not give incumbents a tremendous advantage, that if you have the incumbent plus a newspaper, it's hopeless, that there's no way of spending as a challenger.

In other words, why aren't these limits far too low?

Mr. Sorrell: Incumbents had a much more of an advantage in the pre Act 64 world.

They could raise more money and spend more money than--

Justice Breyer: It's not going to help to say incumbents had a bigger advantage before.

That is, the question is, what we're interested in is... at least what I've written that I'm interested in, is at what point do these become so low that they really, as a significant matter, shut off the possibility of a challenge.

And from that point of view, your numbers, which do not tell me the expenditures in a competitive district, and your numbers, which do not explain all the problems that Judge Winter had with these things, do not help.

That's why I'm asking you the question.

Mr. Sorrell: --Vermont has the--

Justice Breyer: I want your answer.

Mr. Sorrell: --Vermont has the second lowest gubernatorial spending in the country.

In the record it shows that in the largest urban area in the State, in the Burlington area, you can buy three 30-second TV ads in prime time on tier one cable for $45.

Justice Breyer: I'm not talking about the expenditure.

I'm talking about the contribution limits.

I and my friends have the following thought.

We don't know who the candidates for State rep are, but we want a Republican slate or we want a Democratic slate.

So we get all our $5 together, give them to the Democratic Party or the Republican Party in Vermont, and lo and behold, that party cannot give more than $100 in an election to a State rep, et cetera.

Now, to the... to the ear, that sounds as if a challenger or a slate of challengers or a party that wants to challenge is going to have a really tough time.

So I want you to explain it.

Mr. Sorrell: The extensive record below shows that with these contribution limits, attacking the corruption and the appearance of corruption issue, the candidates can amass the resources necessary to run effective campaigns at all levels.

Justice Scalia: --It shows that on average.

It doesn't show that in the competitive races, which is where the... where the shoe pinches.

Mr. Sorrell: The... the reality is that... that in virtually all classes of races, other than the single member Senate races, that average spending was below these expenditure limits, and these include contested cases with primaries, without.

Justice Scalia: That's just what I said.

Your figures show that the average spending is below, but that's not what's significant.

What's significant is what Justice Breyer posed, where... where there is a contested race and... and some new candidate wants to unseat somebody who's been in there for years.

That's... that's where the shoe pinches.

Mr. Sorrell: And, Justice Scalia, under our law, the challenger can spend more than the incumbent because the incumbent has a lid not... of 85 percent or 90 percent of the expenditure limit, depending on whether it's a legislative race or a... or a statewide race.

But the... the issue here is you're going to have some... some outliers.

But we have core constitutional interests in trying to enhance the integrity of our campaigns.

We have this problem.

The legislature reached a balance here.

It looked at what... how much you would need to run effective campaigns.

It set--

Justice Kennedy: But in... in any... or in many campaigns, the... the issues take shape during the process of the campaign, and there are historical events, national events that suddenly occur that people want to comment on.

And I... I just don't see that there's any capacity for adjusting so that the public can know how candidates are facing issues that are beginning to emerge that the public has a vital interest in.

My understanding was that a quarter page ad in the Burlington newspaper was, I think, $1,400.

Now, it's... it's gratifying to know that Vermonters are splurging on cable television, but it... it--

[Laughter]

--it seems to me that this is a highly restrictive rule insofar as having the campaign be able to address the issues that the voters say that they've become interested in.

Mr. Sorrell: --We have the second lowest... smallest legislative districts in the country, 4,000 citizens per single member legislative district.

Sure, that's what it costs to take out an ad in the Free Press, but there's nothing in the record to show that House candidates, legislative candidates, take out those size ads in... in the Burlington Free Press.

The record is otherwise.

The record reflects that it's primarily door to door campaigning for legislative races.

If you're taking out an ad, it's in... it's a flyer in one of the... the weekly papers.

Petitioner Donald Brunelle admitted that he ran a competitive race for the House, spending $1,000, that included yard signs, a mailing to his constituents, and flyer advertisements in... in the newspaper.

Justice Scalia: Did he have a primary?

Mr. Sorrell: I don't know whether he had a primary or not.

Justice Scalia: That's another feature of... of this scheme that I find quite puzzling.

You get the same expenditure limit for the election cycle whether you go through a primary or not.

What an advantage that is for the incumbent.

Mr. Sorrell: The... there was testimony in the record that those who have a primary might actually get a bump over others who are not challenged.

But as the district court pointed out, in Vermont what makes Vermont different is that our primary is late.

It's the second Tuesday in September, and so it's less than 8 weeks from the general election.

It's not like having a primary in the spring.

And as the legislature during those 65 hearings considered the campaigning, they considered all kinds of campaigns, including contested primaries and not, and again, average spending in these campaigns was, with minor exception of the single member Senate districts, of which there are three... that average spending was below these expenditure limits.

So in the average campaign, you could actually spend more than... than on average is being spent.

And the issue, when you've got competing constitutional interests, is whether we address our problems of corruption, appearance of corruption.

We try to free up candidates' and public officials' time from fund raising.

We try to create competitive elections and bring more citizens into the process voting, grassroots campaigning, and standing for election.

We want more people to run.

Justice Souter: Mr. Sorrell, would you go back to the... your comment on... on average expenditures?

Do we know from the record how many of the... how many of the contests, on the basis of which the average was calculated, were contests in which there was a... a contested primary?

Mr. Sorrell: We don't have that evidence in the record.

What we have is that we... the experts looked at total spending, which would include primary spending and general election spending, and our figures went from that.

And our expert, by the way, considered all races, even those for which campaign finance reports were not filed, meaning that the candidate hadn't raised or expended more than $500, and assumed $500 in spending in each one of those... each one of those races.

So our average spending figures actually might be a little higher than... than reality.

Justice Ginsburg: Was there any testimony or evidence on the other side of the point that Judge Winter makes?

That is, you have someone running in a primary and then faces an incumbent in the general election, but there's nothing left in the till because it was a hard fought primary.

That... the advantage to the incumbent in that situation was a large concern to at least some of the judges on the Second Circuit.

Mr. Sorrell: And that might be an issue that on remand... and this case is being remanded on a couple of issues that aren't even before this Court.

Justice Ginsburg: Not on the contributions, is it?

Mr. Sorrell: No, it's not on the contributions, but it is going back to the court on issues of transfers of money from national parties to State parties and on whether related or coordinated expenditures are, indeed, allowed to be an expenditure.

So the case is going back to the trial court on those bases anyway.

Justice Souter: But it's not going back on the expenditure limit.

Mr. Sorrell: I--

Justice Souter: I mean, the problem, I mean, I was getting at and Justice Ginsburg is getting at, Judge Winter got at it.

The... the problem is... is the... the total limitation on an election cycle, including the primary, when the primary involves a challenge so that the challenger has an uphill fight presumably to start with in the primary.

And if he's going to maintain an effective uphill fight in the primary and he's lucky enough to win, he's going to get to the general election and he's going to be broke.

That's... I mean, that's... that's the problem that we're concerned with.

Mr. Sorrell: --That has not been a problem that was reflected in the record either before the legislature or at trial.

This is a facial challenge for the law, and you know, that situation of a primary candidate who, for whatever reason, felt that he or she needed to expend up to close to the expenditure limit... it wouldn't be very prudent, but that could be an issue.

But, you know, we do not control independent expenditures under our law, and we certainly don't limit volunteer services.

There's a tremendous amount of campaigning that can go on between a primary and a general election even with a limited amount of funds available.

Justice Scalia: If the burden is on the candidate to establish that... that somebody's expenditure is independent and shouldn't be counted against his expenditure limit.

Mr. Sorrell: No.

There is a presumption under our law--

Justice Scalia: A presumption, which means the burden, to go forward and show the opposite, is on him.

Right?

Mr. Sorrell: --Well, but it could be on the... on the party because--

Justice Scalia: And the money that he spends in overcoming that presumption is charged against his expenditure.

Isn't that right?

Mr. Sorrell: --No, Justice Scalia.

The Secretary of State reached a... issued an opinion that we... our office agrees with, that expenditures on attorneys for, you know, ballot access questions and the like are not in furtherance of the candidacy and would not apply against the expenditure--

Justice Scalia: The other side says the opposite.

I'll ask them whether that's--

Mr. Sorrell: --But the... the Secretary of State's public opinion that we, the enforcement authority, agree with is to the contrary.

Justice Souter: May... may I ask--

Justice Kennedy: Well, I suppose the Vermont courts could construe it more narrowly at some later point.

I would hate to rest the opinion on that.

Mr. Sorrell: The... the... under Vermont law, a presumption such... such as this is not a burden... creates no burden of persuasion, nor does it change the burden of proof.

Justice Souter: --Well, you know, I looked at your... the... the references in your brief for that proposition, and I did not see them borne out.

You referred to a... a footnote in the district court opinion which, in turn, refers to the remark of a sponsor of the amendment that... that resulted in the presumption being in the law.

And the only thing that was attributed to the sponsor was that the presumption should be regarded as rebuttable.

The... the footnote in the statement did not indicate that the presumption was a disappearing presumption, once the other side went forward with any evidence.

So I don't see, based on your... your citations, that the presumption goes away simply by... by one party going forward with evidence.

Mr. Sorrell: Well, if you... if some entity that has the burden of proof to show, in fact, that it was a related or coordinated expenditure has the party on the one hand and the candidate on the other saying, we did not coordinate here, I didn't ask for it, I didn't approve it, and then where is the evidence?

Justice Souter: The... the point is what if we don't have that simple of a situation.

Let... let me ask you this.

Maybe we can short circuit this.

I mean, do you represent as an... as a statement of Vermont law that this Court should decide the case on the assumption that the presumption is a disappearing presumption, once evidence is offered against it?

Mr. Sorrell: Yes.

Justice Souter: Okay.

Mr. Sorrell: Well, credible evidence, yes.

Yes.

Chief Justice Roberts: Is... is an affidavit from the candidate enough credible evidence in your view?

Mr. Sorrell: Yes.

Justice Scalia: --And thereafter, all the... all the candidate has to say is in an affidavit, no, it wasn't coordinated, and then the burden is on the State to show that it was.

Mr. Sorrell: If the State is the party that's trying to prove that it was, in fact, a coordinated expenditure, under the law... it would typically be a opposing candidate who tries to--

Justice Scalia: Okay, the opposing candidate or the State.

Mr. Sorrell: --So Justice Brandeis said that there's room under our system for a courageous State to experiment.

Justice Breyer: Just can I ask a technical question here?

Mr. Sorrell: Yes.

Justice Breyer: Just... is... is it the case or not the case that if I contribute my car to drive the candidate for Governor, let's say, between Burlington and Montpelier, and I buy the gas, does that count against the limit?

Yes or no.

I'm a volunteer and I buy gas and drive him back and forth.

Mr. Sorrell: Yes, you drive.

Then the answer is no.

Justice Breyer: No.

He drives.

Mr. Sorrell: Well, but it's your car, you're there.

No.

Justice Breyer: No, I'm not there.

I lent him the car.

[Laughter]

Okay.

I got the idea.

If he does... if I do, it's not.

What about I have a coffee... coffee.

I wanted to get the line.

I see it.

Coffee.

I want to have coffee and donuts, free donuts because... and coffee for people to come in.

Is that counted or not?

Mr. Sorrell: As long as it's under $100.

Justice Breyer: No, no.

It's $200.

Coffee and donuts are expensive.

[Laughter]

Okay?

Count it or not?

Mr. Sorrell: We don't... our coffee is not that expensive, but--

Justice Breyer: Donuts and coffee.

In other words, it counts as long as it's over $100.

Mr. Sorrell: --Yes.

Justice Breyer: Under $100.

Under $100.

Mr. Sorrell: No.

Over $100 counts.

Justice Breyer: Counts.

Mr. Sorrell: Under $100, it does not.

My time is expired.

Chief Justice Roberts: Thank you, counsel.

Mr. Sorrell: Thank you.

Argument of Brenda Wright

Chief Justice Roberts: Ms. Wright.

Mr. Wright: Mr. Chief Justice, and may it please the Court--

I'd like to return to a question that Justice Kennedy asked earlier about why, if there are examples of corruption that the public becomes aware of, why the public doesn't respond simply by voting the individual out of office.

And I think it's important to point out that some of the most serious examples of corruption on this record or of the undue influence achieved by monetary concerns were not examples that ever became public except in the course of the trial of this case when we had witnesses come forward to testify about some of their own personal experiences in the legislature.

By the very nature of the problem of candidates becoming unduly beholden to the interests that can provide the greatest sums for their campaigns, those kinds of incidents are not going to typically be a matter of discussion--

Justice Scalia: No, but I... I thought that the point was that the public mistrusts their representatives because of large donations, and I thought the point being made was, well, if that's the case and the public sees that this fellow has gotten a $10,000 donation, the public will say this... this fellow is in that... is in that corporation's or that person's pocket.

Mr. Wright: --But the--

Justice Scalia: And I won't vote for that person.

You... you don't have to show that... out of the mouth of the candidate, that... that he voted for the bill because he got $10,000.

The mere fact that it's on the public record that he got $10,000, if... if what you say is correct, that... that people are worried about, the... the corruptive effect of such donations, people should logically vote against that candidate who accepts so much money.

Mr. Wright: --Two points on that, Your Honor.

First of all, the problem of holding candidates accountable in that manner is greatly exacerbated when you have a system of unlimited spending in which all of the candidates involved feel compelled to go out and raise as much as they can in order to forestall the possibility of being outspent.

Then when a voter says, well, why are you doing this, the candidate has a ready made answer.

If I don't do this... you know, maybe I'd rather not, but if I don't, I'm going to be bested in the fund raising arms race.

And voters reluctantly have come to--

Chief Justice Roberts: But I thought--

Mr. Wright: --understand that that's--

Chief Justice Roberts: --when you look at the... the record, Vermont would be the last place that you'd be worried about it.

The political culture, as we just heard, is that it's easy to go door to door, and that's what the Vermonters expect.

And it doesn't take an arms race to get on your feet and go door to door.

And it seems to me that there's a real dilemma on the respondents' side of the case between justifying low limits by saying you don't really need money to run effectively and at the same time suggesting that there's a serious problem with too much money.

Mr. Wright: --Well, but--

Chief Justice Roberts: Which is it?

Mr. Wright: --what we do have is candidates... even though it is possible to run effective campaigns in Vermont for lower amounts, candidates nevertheless go out and raise often much more than what they need.

Here's an example from the record.

We had Senate candidate Vincent Illuzzi.

In 1998, he raised $39,000, almost $40,000, for his Senate campaign.

His challenger was able to raise almost nothing.

He only spent $30,000 worth of that.

Candidates don't need $39,000 or $30,000 to run an effective Senate campaign, but an incumbent that builds a war chest has the ability to deter serious challenges.

Justice Alito: Could candidates--

Justice Breyer: On your question... the... I'm sorry.

Justice Alito: --Could candidates run effective campaigns if there were no... with these contribution limits if there were no expenditure limits?

Mr. Wright: Yes, Your Honor.

The... we believe the record strongly shows that.

For example, there was a mayoral election in Burlington run under these limits during the time that the case was--

Justice Alito: No.

I mean, if there were no expenditure limits, if candidates could expend as much as they want, could they raise enough money with these contribution limits--

Mr. Wright: --Yes.

Justice Alito: --to run effective campaigns.

Mr. Wright: Yes, Your Honor, because this Burlington mayor's race, as an example, was one in which there was no limit on... on spending, and both candidates were able to raise amounts either similar to what they had raised in the past or at least amounts that met the campaign budget that they had sought to... to follow.

I think in looking at the level of the contribution limits, it's important again to understand the scale of politics in Vermont.

If we want to compare them to Missouri, a $2,000 limit for a gubernatorial race in Missouri was approved by this Court, and in Missouri you had an election in 2000 where each candidate was spending $8 million or $9 million in a gubernatorial race.

I mean, that compares very directly if you--

Justice Breyer: I thought the--

Mr. Wright: --did the same ratio for Vermont.

Pardon me?

Justice Breyer: --Wasn't it the State auditor?

Mr. Wright: Not the $8 million or $9 million.

Justice Breyer: No, I know, but didn't we have in front of us a limit, which I wrote was rather border, that involved a State auditor campaign?

Mr. Wright: In Missouri?

Justice Breyer: I thought so, in Shrink Missouri.

Mr. Wright: It may have been the State auditor, but it also the--

Justice Breyer: Which is not quite the same political volatility perhaps, but--

Mr. Wright: --No, but the--

Justice Breyer: --I have a different question I'd like to ask you which I haven't heard addressed yet.

On the expenditure limits, there is a case, Buckley v. Valeo, and the Court held in that case that expenditure limits are not constitutional.

Now, whether I agree with that or don't agree with that, am I not bound by that?

And insofar as you try to distinguish it, you've read what Judge Winter said about your efforts to distinguish it.

And therefore, I'd like to hear why you think I'm not bound by a past precedent in an important matter, with which I may or may not have agreed at the time.

Mr. Wright: --Yes, Your Honor.

We believe expenditure limits can be upheld without overruling Buckley v. Valeo, and that's for several reasons.

First, Buckley created a rule of exacting scrutiny that applies to expenditure limits.

That is not a rule of automatic invalidation.

And very importantly, when Buckley declared that the interest in deterring corruption and its appearance was not adequate to support the expenditure limits, that was on a record in which neither spending nor contributions had been subject to meaningful limits prior to the time of FECA and the amendments that the Court was considering.

There simply was no record to show the Court of how contribution limits alone would really work to address the problem of corruption and the appearance of... of corruption and encouraging public confidence in government.

Now--

Justice Scalia: I thought... I thought what that case said and what many of our other cases say, with regard to expenditures in particular, is that you're not talking about money here.

You're talking about speech.

So long as all that money is going to campaigning, you're talking about speech.

And when you say you don't need any more speech than this, that's a very odd thing for... for a... a United States Government to say.

Enough speech.

You don't need any more than this.

And that's the reason the expenditure limits, as opposed to contribution limits, were regarded quite differently in Buckley and I think should still be regarded differently today.

You're constraining speech.

It's not money you're constraining.

Contribution limits, you're constraining money, but when you say you can't expend more than this on your campaign, you're saying, no, no, no, this is enough speech.

We're going to... we, the State, are going to tell you how much you should campaign.

That's very unusual in... in American democracy.

Mr. Wright: --Your Honor, I think that's certainly why Buckley applied exacting scrutiny.

But I think what Vermont understood is that political spending has inescapably a dual character.

Yes, campaign spending enables many forms of speech, but it also has another side because higher and higher levels of campaign spending result in candidates who are beholden to the constituencies that can provide the greatest amounts of funds for their campaigns.

And what you end up with, the consequence, is legislators who say, you know, I've lost the drug money and I can't afford to lose the food manufacturer money--

Justice Scalia: Limit the contributions.

Mr. Wright: --so I'm not going to--

Justice Scalia: That solves that problem.

Limit the contributions.

Mr. Wright: --Well--

Justice Scalia: But you want to limit expenditures, even if it's the person's own money.

No possibility of corruption.

You're saying, no, this is enough speech.

We don't want to hear any more from you.

We, the State, will tell you how much campaigning is enough.

That's extraordinary.

Mr. Wright: --Because the... the interests that Vermont is seeking to serve are fundamental to the core functions of government, preserving the quality of representative government, preserving the integrity of government, assuring the public that its officeholders can act in the best interests of the public and make decisions on the merits, not simply based on their need for campaign cash.

And this question of accountability that's so important is tied to the ability to say, I've... I've met my spending limits, I've raised all that I need to... to raise.

If somebody comes to me with contributions from a source that I don't feel comfortable taking, I can turn that down without suffering a tremendous competitive disadvantage.

I think one of the other key features of the expenditure limits that Vermont seeks to impose here is that they will do so much to encourage competitive campaigns.

We had a record in Vermont that showed that for the previous nine election cycles before the act was enacted, only one incumbent had been defeated for a statewide office.

In the meantime, in the City of Albuquerque where they had spending limits for 25 years, every challenger who came out to challenge an incumbent mayor was successful.

No one can say on that record that spending limits would do anything but to enhance competition.

In the... one of the other interests that I would like to turn to, before we close, is Vermont's interest in protecting the time of officeholders from the burdens and distractions of fund raising.

We had a record in which seasoned politicians in Vermont were saying that candidates for office, even in Vermont, were spending as much time begging for funds as they do campaigning.

We had a record in which a Senator reported leaving the floor of the Senate during a floor debate to take a call from a donor.

Chief Justice Roberts: How do you... how do you police that, though?

Because an incumbent can... has so many opportunities to go before the public that wouldn't necessarily be categorized as campaigning but as part of his or her official duties, while everything a challenger does is going to be credited against his account.

Mr. Wright: Well, Your--

Chief Justice Roberts: You may answer the question.

Mr. Wright: --Yes, Your Honor.

We believe that under almost any system, incumbents are going to still have advantages and no campaign finance system can fully address that.

But we believe that if the challenger now has the ability to outspend the incumbent and the incumbent doesn't have that additional advantage of being able to outspend the challenger, as is most often the case, then competition can only be enhanced.

Rebuttal of James Bopp, Jr.

Chief Justice Roberts: Thank you, counsel.

Mr. Bopp, you have 4 minutes remaining.

Mr. Bopp: Thank you.

The one example that they keep going back to regarding the President of the Senate tells the breadth of this challenge.

As long as Vermont allows periodic elections, incumbents are going to consider the effect that their votes have on future elections.

And... and while it makes it more scandalous to say we will lose the food manufacturers' money, what they are concerned about is losing the food manufacturers' support.

So as... if this the definition of corruption, it is sufficient now to... for the State of Vermont to abolish elections generally.

Now, secondly, as to the effect on challengers, the record demonstrates that challengers... and there's expert testimony to the fact that challengers are more frequently challenged in primaries than are incumbents, and the Randall brief on pages 16 and 17 point out the testimony of people who have been subject to a primary and demonstrates that they are not able to mount an effective campaign in the general.

Furthermore, the expenditure limits have the perverse result of depriving challengers of more money than incumbents, probably making them attractive to incumbents.

In the Senate, for instance, incumbents would be deprived of 20 percent of their total resources, while challengers would be deprived of 36 percent of their total resources.

Justice Scalia: I don't understand how that comes.

How does that come about?

Mr. Bopp: It comes about because challengers frequently in Vermont actually spend more than do incumbents.

I... I know that... that the general perception is the opposite, but the general perception is not true in Vermont.

And... and that points to the... the fact that the way this law is constructed strongly suggests that is... it is seeking to favor incumbents.

Furthermore, we had expert witness testimony on the effect of contribution limits on competitive races.

The... we had... Mr. McNeil testified in examining the competitive races in the 1998 election that the vast majority in both the House and the Senate would not be able to mount an effective campaign with the available resources that would have been available after imposing the contribution limits.

And, of course, these were in the amounts of 28 percent in the Senate, 22 percent in the House, which is way beyond the 5.1 percent that this Court in Buckley thought that could be made up by the imposition of a $1,000 limit.

I mean, this... this law is so constructed that it would make it virtually impossible for, for instance, countywide candidates in Chittenden County, a county of 150,000, the largest county in Vermont... they would be limited to $4,000 for the primary and the general election.

That's 3 cents for each person in Chittenden County.

And, of course, this is an important county.

Senator Leahy came from that county as State's attorney and became the United States Senator.

And finally, with respect to the rebuttable presumption, actually the... the statute answers the question of whether or not this presumption disappears.

If you look at 2809, subsection (e), the last sentence says, the findings and determination of the court... and this is in this court proceeding by your opponent that is trying to claim that this spending over here is actually yours... that the findings and the determination of the court shall be prima facie evidence in any proceeding brought for violation of the chapter.

So it doesn't go away.

The rebuttable presumption never goes away.

And, in fact, each person... each candidate and each independent spender can look at the rebuttable presumption requirement and say, I have to file a report and that governs my report.

Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted.

Attribution:

The Oyez Project

Featured:

Wisconsin Right to Life v. Federal Election Commission (FEC) - Oral Argument

Fri, 09 Jan 2009 14:48:55 +0000

Case:

Wisconsin Right to Life v. Federal Election Commission (FEC)

Media File:

04-1581_20060117-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James Bopp, Jr.

Chief Justice Roberts: We'll hear argument first today in No. 04-1581, Wisconsin Right to Life, Incorporated v. Federal Election Commission.

Mr. Bopp.

Mr. Bopp: Thank you, and Mr. Chief Justice, and may it please the Court--

This case involves the fundamental First Amendment question of whether the Government can shield lawmakers from grassroots lobbying about upcoming votes in Congress through campaign finance laws.

This Court has distinguished the regulation of corporate electioneering from efforts to influence law making, finding sufficiently compelling governmental interests in regulating electioneering, but not grassroots lobbying.

Justice Souter: Mr. Bopp, right... right there I guess I... I have a problem with... with your argument, and I just want to get it out.

I went back and looked at some of the examples that were given at... in... in the McConnell case for parallels between what we... what we thought was covered in those cases and... and yours... your case.

And the... the one which I... I guess was probably the closest was the... was the advertisements there in... in the McConnell case on the... the lobbying on the Chinese trade relations.

The basic message in... in that case was China uses forced labor.

The Congress of the United States is about to make it easier for... for Chinese goods to get in here and for China to have a respectable trade status.

And... and it said, call Congressman Myrick, I think it was, in any case, a Member of Congress, and... and say what you think.

In this case, you're... you're talking about a... a filibuster, and you say, you know, they're filibustering nominees and they're not coming up to... to a vote.

Tell the two Senators in this State, Kohl and Feingold, that... that you don't like this.

The only difference that I could see basically between the two kinds of ads was that in the first one... in... in the Myrick ad, they actually gave the number of the... of the congressional office to call and say, hey, don't do this.

In this case, your clients did not give a... a number.

They gave a Web site to an organization.

Insofar as I know, it doesn't have a number.

Which gets me to the question.

If the... the Chinese trade relations ad was presumably validly subject to the act, I don't see why your client's ad is not, for the same reason, subject to the act and for the further reason that it doesn't even give a phone number to call... to... to lobby people.

So it seems to me that on stare decisis grounds, unless we're going to go back and simply reexamine McConnell to... to... from... from scratch, that your clients fall within the general rule as... as we held it in McConnell.

So why doesn't precedent foreclose this?

Mr. Bopp: Well, there... there is a few specifics about the... about our ad that... that I would like to remind the Court of.

First, it was not... the call to action at the end of the ad was not just call them up and tell them what you think.

The call to action was to call the Senators and ask them to oppose the filibuster.

So it was specific.

Justice Souter: Yes, but you didn't even give their phone numbers.

Mr. Bopp: Well, and then it refers to a Web site, [befairDOTorg,] which contained prominently on the first page the phone numbers and addresses and all contact information for these two Senators.

The decision was made by the speaker here that it would be more likely that the recipient of the ad would remember the phrase, [befairDOTorg,] and seek the information on that Web site than to have a... you know, a... a phone number that is just simply more difficult to... to remember.

Justice Souter: Okay.

So if we accept that extra step, that's... that gets you... if... if we accept the extra step that gets you parallel to the... to the ad that we considered in McConnell.

Mr. Bopp: Well, it... it doesn't, the one that you mentioned, because it was just call them up and--

Justice Breyer: If... if it's the fact that you go to the Web site and that's what's supposed to make this what it was in McConnell which, by the way, we said was illegal, what they... the first thing they're going to see when they get to the Web site, which I agree with you... four times in 3 of the 12 sentences of this ad... in 3 of the 12... it says, [befairDOTorg,] visit [befairDOTorg,] go to [befairDOTorg.]

And the first thing that they're going to see when they get to [befairDOTorg] is a big headline in bold... gold... bold letters which says, Feingold and Kohl continue to support unprecedented filibusters of judicial nominees.

So, in fact, if [befairDOTorg] is brought into the picture, that makes this ad look much more like an effort to... to defeat Senator Feingold than the ad that we considered in our previous case.

Mr. Bopp: --Well, it--

Justice Breyer: Doesn't it?

Mr. Bopp: --No.

In your previous case, there were certainly genuine issue ads.

This Court recognized that it... that there were genuine issue ads that were not for the purpose of influencing an election.

I believe that these ads are at the very core of what a genuine issue ad is.

It involves a... a pending legislative issue, and the only reference to the Senator... and it was both Senators, not just the one up for election... was to contact them about... about how... whether to support or oppose that specific initiative.

Justice O'Connor: Yes, but in McConnell--

Justice Souter: But if you are right--

Justice O'Connor: --in McConnell, the Court said corporations and unions may finance genuine issue ads during election blackout periods by simply avoiding any specific reference to Federal candidates or, in doubtful cases, by paying for the ad from a segregated fund.

Now, that language indicates, to me at least, that the Court was saying there are no genuine issue ads meeting the definition as you would have us apply it here.

Mr. Bopp: Well, that... that part of the opinion needs to be read in light of the footnote, which is attached to those very words, which said in footnote 88 that the interests that support regulation of electioneering may not apply to genuine grassroots lobbying and distinguished the McConnell case from Bellotti and McIntyre.

So we do have to recognize that there's two things going on here.

There... there is an election, but also Congress is in session.

The Government is engaging in its law making function.

Justice Ginsburg: Mr. Bopp, to what extent can we take into account the surrounding circumstances?

One thing that you advocate is to look at this ad in isolation, but if you add to it that your organization made it clear that it opposed the candidacy of Senator Feingold and that it supported his opponents, that your organization also connected, as Justice Breyer just brought out, Senator Feingold with this filibuster, and then if the filibuster was such an important thing for grassroots lobbying, why was it that when the election was over, this ad was not repeated?

Mr. Bopp: Well, of course, the final point is... is in the record, that... that is, it was... the... it was supposed to come to a head in November and then it did not.

It was abandoned.

But the... but the point is you cannot... I don't think that the Government can condition--

Justice Scalia: I... I don't... I don't understand what you just said.

Mr. Bopp: --Well... well, the... the filibuster issue, as it related to that session of Congress, it was thought that it was going to come to a head in... in October... excuse me... but it... but as a... but it did not.

So that is the reason why it was... it would not have been run after November.

Justice Scalia: I mean, once it didn't come to a head in November and it was still an issue, why didn't you continue to run it?

Mr. Bopp: Well, each organization has to make an assessment with respect to the different issues that they want to be lobbying on and the... their pressing nature.

And--

Chief Justice Roberts: I thought your point was that it was not an issue after the election.

Mr. Bopp: --Well... well, it was in the... in the next session of Congress and has been an... an issue.

But each... a lobby organization makes a decision about the priorities that they have and whether or not their lobbying effort will most likely affect legislative action.

So--

Chief Justice Roberts: Were you taking a position on this issue prior to the election time frame?

Mr. Bopp: --Yes.

The--

Chief Justice Roberts: Had you taken out advertisements prior to that time frame?

Mr. Bopp: --Yes.

Yes, and in fact these radio and television ads were continuing up until the blackout period and it was the blackout period that triggered the case.

Justice Breyer: But the basic question I think is this.

All of us... or almost all of us who are here... spent an entire summer reading through one of the longest set of opinions I've ever seen from the lower courts and going through a record that they had compiled over months reflecting 6 years of congressional effort.

And what that record showed with dozens, hundreds I think, of examples was the basis for Congress' conclusion that there's simply no way to know whether an ad like yours is a genuine issue ad or isn't.

And the only way that we have a hope of stopping rich people or corporations or labor unions from simply trying to defeat candidates by writing sham ads is to have the rule that we have.

Now, you have a very good argument, but it's an argument that I heard right in that case.

And we considered right in that case issues like yours, just ads like yours, ads that were even less sham like than yours, if you want to call yours a sham... I don't mean to be pejorative.

But we considered all that, and then we used them as an example.

And of course, it was close.

5 to 4 this Court said ads that are even more apparently neutral on their face than yours, Congress can impose this requirement.

Now, what's different about your ad than the ads we put right in that opinion as examples of what we'd allow Congress to control?

What's different now or are you asking us to go back only a year later and undo what we did?

Mr. Bopp: No.

I'm asking you to give meaning to the holding of this Court that there were genuine issue ads that were broadcast during that period of time.

The Government conceded 7 percent, asked you to do a Broadrick analysis upholding the statute on its face, reserving as applied challenges to genuine issue ads in subsequent cases.

That is what this case is about.

And the difference here is that as Judge Leon... the record of the case... in Judge Leon's opinion, he went for a number of pages explaining what genuine issue ads in his view were, and what... and he said that if the ad discusses a current legislative issue and refers to the Member of Congress in calling on him or her to take a particular action on that issue, that constitutes a genuine issue ad.

Justice Ginsburg: Can we return to--

Mr. Bopp: These people are law making.

Justice Ginsburg: --Mr. Bopp, then can we return to my question?

Do we view the ad in isolation, and do we discount the connection by your organization of this Senator with the filibusters that you said was a very bad thing?

Mr. Bopp: And I'm sorry.

I was interrupted.

I wasn't able to get to that question.

And the... the Government cannot condition the exercise of one right on exercising another.

There's a First Amendment right for the PAC of Wisconsin Right to Life to support or oppose a candidate.

That's different than what its lobby group does.

Its lobby group is primarily involved in influencing current law making.

And so that is why, in the First Amendment, petition is separately listed.

Justice Ginsburg: But the electorate will know that this issue is presented to them in connection with this Senator and that your organization has linked the two very clearly.

Mr. Bopp: But, you know, the... the effect on an election is remote and speculative and not proven by... in terms of genuine issue ads in this record.

But these people are law making now.

So there's a pressing need and, indeed, right for people today to influence the Government's law making regardless of the incidental, remote, speculative, and unproven effect that that genuine issue ad may have on an election.

There... there is simply... we just cannot get away from the fact that the most important thing that Government does is law making, and because they've scheduled an election should not immunize the incumbents from being lobbied about that very law making function that they're engaged in today.

Justice Souter: --Then why didn't we have to go the other way in the Chinese trade relation example?

I mean, everything--

Mr. Bopp: Well, I don't think you--

Justice Souter: --unless I'm missing something in your argument, everything you are saying in this argument could have been said with respect to that ad and, as Justice Breyer said, to a couple of others.

Mr. Bopp: --Well that may very well have been a genuine issue ad in the mind of this Court.

You only cited one ad, which was on page 193, which was the Yellowtail ad, as an example of sham issue advertising.

Justice Souter: Yes.

Mr. Bopp: And there, you know--

Justice Souter: And... and we... we cited some other examples as... as examples that, on the face of it and on the face of the record, would... would lawfully fall within the... the general rule that we said Congress could prescribe.

Mr. Bopp: --Well... well, the Yellowtail ad, which you cited and quoted as a example of sham issue ad, said that the... Mr. Yellowtail had taken a swing at his wife and he justified that because he said he didn't hit her.

Justice Souter: No, but the point--

Mr. Bopp: And then it said basically call him up and yell at him.

Justice Souter: --But I... I don't want to cut you off from your Yellowtail argument, if... if you want to make it, but it seems to me that the problem in this case is that your ad is very much like a nonYellowtail ad.

And the problem that we would have in accepting your argument is, number one, a problem of precedent and, number two, the problem that Justice Breyer raised that, again, we had dealt with in the prior case.

Mr. Bopp: How could it be--

Justice Souter: No, no.

Let me just finish my question.

Mr. Bopp: --Sorry.

Justice Souter: Once you get out of the sphere of... of kind of sham ads that just hit you in your face, there isn't a practical way to tell the difference.

There isn't a kind of magic formula.

We rejected the magic word, or Congress rejected the magic word's approach.

And therefore, Congress came up with a rule that it did within certain time limits, identified candidates, identified audiences.

You can't do it within this period of time unless you do it through a PAC.

What is different in your case from those paradigm examples in... in McConnell?

Mr. Bopp: Well, as I was describing, the Yellowtail ad was--

Justice Souter: But Yellowtail--

Mr. Bopp: --which involves very--

Justice Souter: --is... is an ad of... an obviously sham ad.

The problem that we're dealing with--

Justice Scalia: Mr. Bopp, did... did the opinion refer to--

Justice Souter: --May... may I finish?

Justice Scalia: --sham ads?

Justice Souter: Excuse me.

May I... may I finish my question?

Justice Scalia: Did the opinion refer to--

Chief Justice Roberts: Justice Souter.

Justice Souter: May I finish my question?

The... the... no one is saying that your ad in this case is an obviously sham ad like Yellowtail.

Your ad in this case is one of those ads that it's difficult to deal with fairly.

You can say, well, you know, it's an electioneering ad and you can say it's... it's a lobbying ad.

And... and Congress decided how to deal with them.

We said that's okay.

Why doesn't--

Mr. Bopp: --Only on a facial challenge.

Justice Souter: --Yes, but why doesn't your ad fall within the reasoning that we used in approving... on the facial challenge, in approving the statute?

Mr. Bopp: Because the Broadrick facial challenge analysis that you engaged in in McConnell is not completed because that includes future as applied challenges.

The Government argues that there were--

Justice Souter: No... no question about it.

Mr. Bopp: --7 percent--

Justice Souter: But your... your as applied--

Mr. Bopp: --genuine issue ads--

Justice Souter: --challenge has got to have something different about it, something unusual that says this is why my ad does not fall within the general rule.

And that's what I'm trying to get at.

Mr. Bopp: --Well, I... I will repeat.

The... it involves a currently pending legislative issue.

It does not talk--

Justice Souter: Wasn't the Chinese trade issue currently pending?

Mr. Bopp: --Yes, it was, and you know, the Chinese--

Justice Souter: So that's no difference.

Mr. Bopp: --But... but, Your Honor, the Chinese example was not cited by this Court.

It was in the record.

And it may be a... a genuine issue ad.

Justice Souter: Sure.

Mr. Bopp: Okay?

And... and the Government argued there were 7 percent genuine issue ads really trying to exercise the constitutional right to petition Government, because Government is regulating us right now in terms of their votes and their actions.

And, of course, that's why in the First Amendment, it doesn't just say speech and... and association and press.

It... it says--

Justice Stevens: May I--

Mr. Bopp: --petition the Government.

Justice Stevens: --may I ask one question just to find out?

Are you contending that there is a sharp distinction?

There's a category of issue ads and a category of election ads that are mutually exclusive?

Mr. Bopp: I think you can create objective criteria, just like this Court has--

Justice Stevens: No.

If you can answer my question yes or no.

Are... are you arguing there are two mutually exclusive categories, or are there ads that fit somewhat in both?

Mr. Bopp: --Well, I... I think that you can adopt objective criteria as you have in the Noerr v. Pennington doctrine to separate the two.

Justice Stevens: Are you able to answer my question yes or no?

Mr. Bopp: I... I would say no.

Justice Stevens: You're not claiming there are separate categories.

Mr. Bopp: Then I misunderstood your question, Your Honor.

I am saying that they are separate categories.

This Court--

Justice Stevens: So it's either... it's either an issue ad or it's a candidate ad.

Mr. Bopp: --Yes.

And I'm not saying at the... at the margins there... there may not be doubtful cases, but what I'm saying is that this Court in Noerr v. Pennington doctrine has recognized and adopted objective criteria to distinguish between genuine efforts to influence the Government, which is not subject to the Sherman Act, and sham issues... efforts to regulate--

Chief Justice Roberts: Does the... does the FEC draw... distinguish between sham ads and genuine issue ads?

Mr. Bopp: --No, the... no, they haven't.

But right before the 2004 election... excuse me... they gave an exception to an auto dealership that wanted to continue to run the name of the owner of the dealership, despite the fact that he was a Senator... a candidate for United States Senate, during the blackout period.

And the commercial interests at stake there were sufficient for the FEC to grant an as applied exception even though there may have been some incidental effect on the election.

So the FEC has recognized that there is interests which are sufficient and... and also that the... the possible impact on an election is so remote that... that the interests are... are sufficient.

Justice Breyer: All right.

So what is the test?

Because I... my vague recollection from a year and a half ago is that there was in that testimony political consultants who said if you really want to defeat a Senator, here's how you do it.

Mr. Bopp: Yes.

Justice Breyer: Run an ad that just speaks about a group of Senators.

It's plain that they're bad, and then put in some words that mention his name and everybody will get the point.

They said that's even better than saying, vote against.

And then our opinion said there is little difference between an ad that urges voters to vote against Jane Doe and one that condemns Jane Doe's record on a particular issue while exhorting viewers to call Jane Doe and tell her what you think.

That was the opinion.

So, now, what's your test to decide whether that's what's going on or whether this is a genuine issue ad?

Mr. Bopp: I think that you would look at, one, whether the... the ad discusses a current legislative issue; two, whether or not it made any reference to the legislator beyond lobbying him or her about that specific issue.

So there should not be any references to the election or the candidacy of the incumbent or any of those type references.

And if you had that, you would have a bona fide, genuine effort to lobby.

They are voting.

They're taxing us.

They're regulating us.

And as we know, the record reflects that usually most of the... of these issues are decided in the context of this blackout period at the end of... end of Congress.

So I know it is difficult to balance these interests, but there is more interest among the people than simply the remote and speculative effort to influence an election.

There is an immediate need to influence how Government is regulating and taxing us.

So that is the interest that is presented here.

That is the interest that the Court in McConnell recognized when the Court said there are genuine issue ads and... and only engage in what the Government urged was a Broadrick facial challenge analysis.

The Government said in McConnell, well, any of these genuine issue ads can be dealt with in an as applied challenge.

Now, they have switched sides here, having asked the Court and the Court engaging in a Broadrick facial challenge analysis... are now saying that even though Broadrick would allow as applied, that you are not to entertain any as applied.

I just don't see--

Justice O'Connor: Now, this ad could have been run by your clients by a segregated fund.

Mr. Bopp: --Yes.

Yes, that is true.

And... and, of course, as... as this Court has recognized--

Justice O'Connor: It just ran out of money.

Is that the deal?

Mr. Bopp: --Well, that was only part of it.

They... they didn't raise money with the anticipation of doing their lobbying with it.

In other words, they raised all their lobbying money in their... in their general treasury.

The... the only funds they raised in their PAC is to advocate the election or defeat of candidates or give money to candidates, which... which this Court has recognized is a proper way of directly affecting an election.

But making lobbying into a PAC means that, number one, you're going to have to identify that effort to influence a vote... about an upcoming vote in Congress, you're going to have to identify that as a political activity.

Justice Breyer: All right.

If you can do this, can a labor union do it?

Mr. Bopp: Yes.

Justice Breyer: And a corporation?

Mr. Bopp: Yes.

Of course, the prohibition we're attacking is against corporations--

Justice Breyer: All right.

Well, then... then we're back to... I mean, I've heard this.

This is very familiar music to me and I think you raise a tough issue.

I just thought we perhaps had decided it.

But the... the reason that this was so tough was then these very, very wealthy individuals... and since I once read through the list, I know who they are.

And they... they say, I'm going to give $15 million.

You know, I'm going to give $15 million.

So they hire this genius political consultant that's there in the record.

And what happens is ads that look an awful like this, and this consultant says, hey, we have $15 million to pay for it from this one person.

And they run them all over the country.

And Senator after Senator is boom, boom, boom, boom.

Mr. Bopp: --Yes, but--

Justice Breyer: It becomes a question of motive and how do we know what the motive is?

Mr. Bopp: --That's not what advocacy groups are doing.

You know, people who want... the wealthy people you're talking about have gone into giving money to 527 unincorporated groups that... that are using issue ads lawfully through that vehicle.

But, you know, before this all happened, the 1996 and the record of McConnell where, all of a sudden, there were more of these issue ads, the record also reflects that there had been issue ads, you know, throughout history.

And... and, of course, those were all these efforts to influence the upcoming votes in Congress.

So that occurred before this effort with sham issue ads.

It... it would occur now except that genuine issue advocacy through grassroots lobbying is now swept in under the reason that it might have an incidental effect on elections.

This Court just simply needs to recognize that there's more to Government than elections, and even more importantly than elections is the law making function and that... that people should not be disabled from using most effective means to influence that law making with... on the basis that simply there's an election coming up.

I'd like to reserve the balance of my time.

Argument of Paul D. Clement

Chief Justice Roberts: Thank you, Mr. Bopp.

General Clement, we'll hear now from you.

Mr. Clement: Mr. Chief Justice, and may it please the Court--

In McConnell against FEC, this Court upheld title II's definition and regulation of electioneering communications by corporations and unions as defined in the act.

Chief Justice Roberts: In McConnell against FEC, you stood there and told us that this was a facial challenge and that as applied challenges could be brought in the future.

This is an as applied challenge and now you're telling us that it's already been decided.

It's a classic bait and switch.

Mr. Clement: No.

In... in fairness, Mr. Chief Justice, in the McConnell case at pages 105 and 106 of our brief, we said that as applied challenges would arguably be available.

But the principal argument we stressed in the brief and in oral argument was that, in a sense, overbreadth analysis here and even as applied challenges, though we didn't put it in those terms, are a little bit beside the point because of the nature of the regulatory structure here.

Chief Justice Roberts: Is there any other case that you can cite where we've upheld a facial challenge and then later said that an as applied challenge was barred by our ruling on the facial challenge?

Mr. Clement: Well, Mr. Chief Justice, I will answer it, and I... and I think actually--

Chief Justice Roberts: Like Justice Stevens, I think that's a yes or no.

[Laughter]

Mr. Clement: --Okay.

Yes.

Chief Justice Roberts: What--

Mr. Clement: Lane and Hibbs.

I can't imagine after those two decisions which upheld in facial challenges the statutes at issue there and said that there was not too much prophylaxis for purposes of section 5 of the Fourteenth Amendment--

Justice Kennedy: I... I beg your pardon.

I didn't hear the names of the cases.

Mr. Clement: --Lane and Hibbs.

Tennessee against Lane and Nevada against Hibbs.

I can't imagine after those decisions that somebody--

Chief Justice Roberts: --Well, that's a very different question.

That's interpreting the scope of Congress's power under section 5 of the Fourteenth Amendment.

The issue is whether it's limited to the constitutional violations or sweeps more broadly.

If you conclude that it sweeps more broadly, it's not suggesting that an as applied challenge can be brought by someone who's covered by the broader sweep.

That's a very different question.

Is there any First Amendment case where we've said this is facially valid and then said as applied challenges can't be brought?

Mr. Clement: --I don't think this Court has--

Chief Justice Roberts: Well, it would be like in any of those cases where you have a... a broad prohibition and you say, yes, there may be situations where it's unconstitutional, but the statute is valid on its face.

And then someone comes in and says, well, my situation is one where it's unconstitutional.

We've never said, well, it's too bad because it's valid on its face, have we?

Mr. Clement: --Well, I think the case really hasn't arisen because generally when this Court clearly identifies an area where Congress can regulate in prophylactic terms, somebody doesn't come back in and try to bring the exact same challenge.

And if I could give you two examples.

If somebody after Burson against Freeman, which you may remember is the case where this Court upheld a 100-foot buffer zone around a polling place... if somebody came in after that decision and said, well, that can't apply to me in an as applied challenge because I only want to stand 90 feet away, I think they would have gotten laughed out of Court because this Court already said that a 100-foot buffer zone was sufficient.

I think in a similar way--

Justice Kennedy: Well, it might have been that 90 feet included a public street and you couldn't go down a public street without... so... and so--

Mr. Clement: --Well, Justice Kennedy--

Justice Kennedy: --It... it does seems strange to me in a speech case to say we're foreclosing as applied challenges.

Mr. Clement: --And... and, Justice Kennedy, please understand me.

I don't mean to suggest that McConnell somehow magically jurisdictionally foreclosed as applied challenges.

And I suppose if somebody could come in after Burson and give a good reason why their situation is very different, that there's a super highway 90 feet away or that all they were talking about is a bumper sticker on a car, well, then maybe that--

Justice O'Connor: Well, I suppose you can say, yes, you can have an as applied challenge, but this one doesn't meet the test.

Mr. Clement: --Exactly, Justice O'Connor.

And again, it's not because it's foreclosed.

It's because the reasoning of this Court in McConnell forecloses the decision.

Chief Justice Roberts: So let's say you had an organization that every month of every year it took out an ad the first week of every month, and it said the same thing and it said, contact your Senators.

This issue is important to us.

And they do that every month.

All of a sudden, their ad's nature changes because an election is... happens to be coming up and it's illegal the month before the election, even though it was clearly something that they did without regard to the election.

Mr. Clement: Mr. Chief Justice, that would be a better as applied challenge.

I still think that with respect to the ads in the 30 days before the primary and the 60 days before the... the general election, that corporation could look at this Court's decision in McConnell and say, oh, I understand.

Our remedy is not an as as applied challenge.

Our remedy--

Chief Justice Roberts: If we want to place an ad in October, the solution is to place an ad November through September, and then we're okay.

And the only reason we're going to do it November through September is so we can do it in October?

Mr. Clement: --No, no.

Chief Justice Roberts: That's a pretty broad definition of a sham.

Mr. Clement: No, no.

The point would be in October either... do exactly what this Court said at page 206 of the McConnell opinion, either make the ad in terms that doesn't expressly refer to the candidate which, if you're not interested in influencing the candidate election, shouldn't be a problem, or fund that one advertisement through a separate, segregated fund.

Chief Justice Roberts: But on an issue like this, the filibuster, it's the Senators who are doing it, and their ad referred to not only the Senator who was up for election, but the one who was not.

Mr. Clement: I understand that, Mr. Chief Justice, but I think if you focus in on this particular ad, you will see that whatever the true intent of the advertisers here, this is the kind of ad that clearly would have an impact on the election.

I mean, it talks about the... the filibusters in colorful terms, associates them with gridlock and with a state of emergency, and then associates it with a candidate.

Justice Scalia: You think Congress has the power to prohibit any First Amendment contact... conduct that might have an impact on the election?

I mean, is that the criterion for whether it... it can be prohibited?

Mr. Clement: No, Justice Scalia, it's not.

But I think what this Court very clearly did in McConnell is it rejected an argument that said that the only thing that Congress could regulate is that which was unambiguously targeted at candidate elections.

Justice Kennedy: So you think there is a compelling interest in preventing people from thinking about an issue and then calling their Senator during the blackout period.

That's the compelling interest that, in effect, you are arguing for.

Mr. Clement: No, Justice Kennedy.

What we're arguing for stems from the observation that this Court made in McConnell, which is that when you get up between 60 days before an election and you look at the ads that are run, most of the ads, in fact, are designed to influence candidate elections.

It's very difficult to figure out exactly which ones, and there are very serious problems with adopting a very vague intent standard.

Justice Kennedy: Are... are Web sites and chat rooms covered by the McCain Feingold?

Mr. Clement: No, they're not, Justice Kennedy.

The Internet is not covered.

Justice Kennedy: But certainly under your view, they ought to be.

If you funded a Web site which was very popular or a chat room, I certainly think it should come within your proscription so that we can't talk about issues during an election.

Mr. Clement: No, Justice Kennedy.

I think the fact that there are alternative methods available to communicate these ideas in these ads is a virtue, not a defect with this regulatory structure.

And I would like to focus in on these ads because while it is true that--

Justice Kennedy: Well, why... why not?

Suppose... suppose most people look at the Web site and they don't listen to the... listen to the radio.

I think certainly McCain Feingold should be extended to that under your view.

Mr. Clement: --Well, Justice Kennedy, I... I'm not sure you really do think that... that McCain Feingold should be extended to that.

[Laughter]

And I do think that this is an area where this Court, in fairness, has recognized that... that any effort to regulate in this area effectively has to avoid three pitfalls.

And it's a very difficult task for Congress.

It has to avoid being vague.

It has to avoid being overbroad.

And as your question suggests, it also has to avoid being so under inclusive and easy to evade that it can simply be circumvented in a way that Congress can't achieve its purpose.

Justice Breyer: What is the difference with this?

I mean, in my mind are possible as applied challenges.

Bread for the City.

Never supported the candidate, worried about the hurricane in Louisiana.

Vote for relief for New Orleans.

Write your Senator, Senator X.

Organization two.

Never supported a candidate one way or the other, but has an issue they're always interested in, and they run ads cycle after cycle after cycle and they don't want to pull them just because October has come along.

All right?

Now, think of those organizations where I think maybe, sure, maybe they'd win their as applied challenge.

And here, you're not arguing it... he doesn't have a right to bring it.

You're arguing, of course, he can bring an as applied challenge.

He's just going to lose given our rationale.

All right?

Why?

Mr. Clement: Well, I... I want to be responsive and I think the way to respond is that this Court's decision recognized that these ads were going to be difficult to classify and that you needed some kind of bright line rule and that the consequences of having a bright line rule in this consequence... in this area weren't terrible because there were alternative ways for them to communicate either through a separate, segregated fund which served the issue of the interests of the statute or by avoiding the kind of references that would raise serious questions about tying the ad to a candidate election.

And I think if you look at... if... if you want to keep the possibility open of some as applied challenge and you focus on these ads, these are ads that clearly, I think, would implicate the concerns of Congress.

Justice Scalia: What was the bright line rule that... that you think the... the opinion established?

I thought the bright line rule was whether it's an issue ad or... or, rather, a phony issue ad.

I thought that was the... the line that... that the opinion was trying to... to draw.

You... you say that the opinion drew the line between what?

All issue ads are out?

Mr. Clement: I think all issue ads that come within the statutory prohibition are permissibly regulable.

I think--

Justice Scalia: No issue ads during the... the blackout.

Mr. Clement: --Sure, you can run issue ads as long as you either fund them through a separate, segregated fund or you--

Justice Scalia: No--

Mr. Clement: --omit the reference to the candidate.

Justice Scalia: --Oh, of course, I know.

Mr. Clement: And... and--

Justice Scalia: And stand on your head.

But the--

[Laughter]

Within... within the framework of the statute, you think the clear line that is established by the opinion is no issue ads without this special funding during the blackout.

You think that's what the opinion says?

Mr. Clement: --I think that this... I do think that is what the opinion says and stands for.

And I think this Court recognized--

Justice Scalia: Why does it speak about sham issue ads?

Mr. Clement: --Well, Justice Scalia, for one thing, I think it's important to recognize that the discussion about sham versus genuine issue ads was really a factor of the fact that necessarily in looking at the record there, what the Court had to do is look at ads that were run in previous election cycles where this regulatory structure wasn't in place and try to classify those ads.

And as I understand it, sort of genuine versus sham was a way of capturing whether or not it was an ad that seemed primarily focused on an issue or primarily focused on a candidate election.

Justice Scalia: Why did you say there were 7 percent of these that... that are probably okay?

Mr. Clement: I'm not sure which figure Mr. Bopp is referring to as the 7 percent figure.

I don't... I don't remember conceding that 7 percent of the ads were okay.

And I think what we very clearly said... and if you go back and look at our briefs, as I did, I think you'll see this.

What we very clearly said... and the Court picked up on it in that line on page 206 that Justice O'Connor read earlier... is that whatever was true about a retrospective analysis of ads that were run in an election cycle that wasn't governed by the statute, that in the future corporations could avoid the... the strictures of the statute by simply doing one of two things, either avoiding making an express reference to the candidate, which ought not to be too difficult if you're really just engaged in issue advocacy, not trying to influence a candidate election, or alternatively, you can fund it through the separate, segregated fund.

Justice Scalia: I... I deny the first thing, that it's easy to do issue ads without naming the candidate.

The... the point of an issue ad is to put pressure on... on the candidate that you want to vote your way.

Without... without telling people to call... not the candidate... the... the incumbent that you want to vote your way... without telling people to call the office of that incumbent, you're not doing very much.

Mr. Clement: Well, Justice Scalia, they didn't even do that in this ad, as has already been pointed out.

And if they would have said find out what you can do to stop judicial filibusters, visit [befairDOTorg,] and avoided a reference to Senator Feingold, they could have run this through their general treasury funds.

But they couldn't resist the temptation to mention Senator Feingold in this context--

Justice O'Connor: Could they have said in the ad, call your elected representatives, not naming any names?

Mr. Clement: --Yes, Justice O'Connor, they also could have done that.

And I think that the very fact that they couldn't resist the temptation to link the filibuster issue to Senator Feingold is not that surprising--

Justice Kennedy: General--

Chief Justice Roberts: That may be because the people who were doing the filibuster were the Senators.

It's not... it's not a surprising thing to link the Senators to that issue.

Mr. Clement: --Well, and again, Mr. Chief Justice, though, I mean, fair enough, but I think you also have to keep in mind that this is a context where this filibuster issue isn't some idiosyncratic interest of the appellant here.

This is an issue that was identified as a campaign issue by the... by... by the candidates opposing Senator Feingold, by the Wisconsin Republican Party, and by appellant's own PAC.

And to the extent you're trying to figure out whether this was really designed to influence the pending legislative votes or the election, the timing of this ad strongly suggests it was designed to influence the election.

Chief Justice Roberts: The fact that it mentions both... the fact that it mentions both Senators strongly suggests to me that it's concerned about the issue because one of the Senators wasn't up for election.

Mr. Clement: Well, Mr. Chief Justice, that gets back to Justice Stevens' question as to whether or not these categories are mutually exclusive.

I'm not here to tell you that appellants weren't genuinely issued about... genuinely interested about the filibuster issue.

I think they were also, as their political action committee press release shows, genuinely interested in sending Senator Feingold packing.

And they had an opportunity to run this ad and effectively get a twofer by naming Senator Feingold.

Now, they could have resisted that and only gotten the influence on the... the filibuster issue, if they had taken the--

Justice Kennedy: --And they... and they could have... they could have named Senator Kohl, I take it.

Mr. Clement: --They... they could have, Senator Kennedy.

Justice Kennedy: It's such an odd calculus.

Who is the person more likely to be influenced with an issue ad?

The person who's running or the person who's not going to run for 4 years?

Obviously, the former.

Mr. Clement: Obviously--

Justice Kennedy: And that's... and that's the one area where the ad is prohibited.

Mr. Clement: --Obviously, you're right, Justice Kennedy, but obviously, there are concerns that are implicated when somebody is running in cycle and the ad has targeted the electorate in the immediate run up to the election that aren't present there with Senator Kohl and, therefore, the Congress has... has struck a different balance in that case.

But just to focus on the timing of these ads, they were run on day 4 of a 45-day August recess of the Senate.

Now, that timing, if what you were trying to do, is to influence a pending legislative vote, is very, very odd timing.

It could hardly be worse.

If, on the other hand, you're trying to influence the upcoming election, the timing of that ad makes a great deal of sense.

Chief Justice Roberts: Well, if you're trying to influence the Senators who are presumably or possibly in their home State during a recess, that's perfect timing to influence the Senators who are the ones engaging in the filibuster--

Mr. Clement: I'm not sure I would--

Chief Justice Roberts: --without regard to whether they're running for election or not.

Mr. Clement: --With respect, Mr. Chief Justice, I'm not sure I'd pick day 4 of the August recess to do that.

Maybe 14 days before they're going back, something like that, would be an appropriate time to catch their attention in a... in a period where they're going to remember it when they go and vote.

But I think day 4 of a 45-day recess is probably not when I would pick to start running these ads.

I don't suggest, though, the timing factor or any other one factor ought to be dispositive.

I think what it goes to show is how difficult it would be to try to get into a fact intensive as applied analysis of these various issues.

And all of that presumably would have to be done in the context of TRO hearings and preliminary injunction hearings on the eve of elections.

Chief Justice Roberts: I've lost track of it.

Your... your answer to Justice Breyer's hypothetical about Bread for the City and the hurricane and all that is that that would be an illegal ad?

Mr. Clement: Well, no, I think my answer to that would be that we'd still be here suggesting that that's controlled.

I think my answer was also that that would be a far better as applied challenge than the one that this Court has before it.

And I think, you know, in... in one sense we make this point in the brief.

I mean, contrasting this case with a case like MCFL I think is quite instructive.

There, you're not focused on the content or intent of specific ads.

You look at the organization as a whole and come up with fairly bright lines.

And once you've made a determination about the organization in an as applied challenge, you're done with the issue.

Here, the kind of--

Justice Kennedy: So you do... you do an ideological history, an ideological pedigree of various speakers.

You think that's consistent with the First Amendment?

That... that was the ACLU's suggestion which, it seems to me, shows you how far we've gone down this road.

Mr. Clement: --Well, I mean, that may speak about where the ACLU is going.

I don't think it speaks about where this Court is going because this Court hasn't adopted that test.

The test that this Court adopted in MCFL would... did not get into that kind of inquiry.

What it did is it focused on three relatively bright line factors about whether you accept corporate money, whether you have other sources of income from the corporation, and whether or not you were formed expressly for political views but without any sort of censorship or inquiry into what kind of political views.

And that I think this Court has found administrable.

Justice Breyer: But--

Mr. Clement: The FEC administer that.

That's--

Justice Breyer: --That's what I want to know exactly.

I didn't think... I thought Congress considered this impossible question.

I thought that 7 percent figure was from a study, in fact, dozens of studies, where these people who were experts, quote, decided that about 7 percent of the ads like this one distinguishing between really interested in issues or interested in issues but, in significant part, defeating the Senator.

In the latter, of course, it's campaign and it's part of the regulation of campaign funds.

But they didn't think we could do it.

They thought first they could do it, and then they told the FEC to go and produce a set of regs that would, in fact, try to screen out that legitimate 7 percent.

Am I wrong about how the statute was supposed to work?

Mr. Clement: --No, you're not wrong, Justice Breyer.

And I would say that the--

Justice Breyer: Well, why haven't they done it?

And I had thought also that they were supposed to control 527's by having regs or individual cases that would decide whether there was a mix of personnel between the campaign and the 527, whether they talked to people and planned their strategy.

Have there been those regs written?

Mr. Clement: --Well, Justice Breyer, let me answer both questions.

As to the 527 issue, as I understand it, the commission has decided to proceed on case by case inquiries and has not tried to have a broad regulatory approach yet.

Now, on to the issue of electioneering communications, you're absolutely right that there is a statutory authorization to create exceptions.

But the regulatory authority of the commission is limited, and it's limited in the sense that they can't approve an exception that would allow for ads that engage... that... that fairly read, engage in promoting, attacking, supporting, or opposing a candidate.

And what the FEC has found in practice is that it's very difficult to create that kind of regulatory exception because, as this Court recognized in Buckley and in McConnell, one does not want to naively underestimate the creativity of corporate spenders or political consultants.

And if you create a bright line and say, all right, if you do this, that's grassroots lobbying, that's not electioneering communication, they're going to be able to drive a truck through that kind of exception--

Justice Ginsburg: General--

Mr. Clement: --unless you're exceedingly careful.

Justice Ginsburg: --General Clement, if you could clarify for me some... a response that Mr. Bopp gave.

Did this ad run, was it broadcast or televised before the blackout period?

Mr. Clement: Well, Justice Ginsburg, as I understand the record, the first effort to broadcast this ad was on, I think, July 26th, and that was sort of a few days before the... the cutoff period would kick in.

So there was an effort by a matter of weeks to broadcast this ad.

But I think, you know, whether one views that as setting the stage for this litigation or being kind of an independent decision, I'll... I'll leave to others.

What I think is important, though, is that although they were engaged on this issue before then, up until that point, they had found it perfectly satisfactory to engage on the issue without engaging in broadcast advertisement.

Justice Ginsburg: May I ask you one other thing about the setting?

When you went to the Web site to get further information, what was conveyed about Senator Feingold when you went to get that further information?

Mr. Clement: Well, Justice Ginsburg, I... I don't have as good an answer for that as I would like because the... the Web site is now defunct.

And so maybe Mr. Bopp can answer that in rebuttal.

As I understand it, consistent with what Justice Breyer said, that there was sort of additional arguments about the Feingold record on... on filibusters and Senator Kohl's record on filibusters, and then there was... there was information about how to contact them.

But I think, again, as... as Mr. Bopp has said, if... if you don't find the broadcast medium a particularly effective way to convey the phone numbers and you have to reference people to the Web site anyway, the very fact that you could reference them to the Web sites without naming the candidates' names and avoid the strictures entirely seems like the kind of thing that this Court had in mind when it said on page 206 that there were ways to deal with this problem prospectively and that you didn't need a as applied challenge like this one.

And again, I think you can't overestimate the difficulties here because--

Justice Scalia: General Clement, you... you've pointed out the difficulties, but I don't know any other area where we said, well, you know, the... the... when you're dealing with important... important freedoms, important guarantees, where we shrug our shoulders and say, well, the only way to accomplish what the Government wants to do is to ride right... right over those guarantees.

I mean, we say, we... we cannot bust up this... this drug conspiracy unless we use warrantless searches.

So, you know, whatever it takes.

We don't... we don't operate that way.

And here, you're... you're dealing with a very fundamental guarantee--

Mr. Clement: --Justice Scalia--

Justice Scalia: --the... the right which I think applies to corporations, as well as to anybody else, and for individuals to associate with one another to bring to bear influence on the legislative process.

That's a fundamental guarantee.

And it doesn't satisfy me to say, well, there's no other way to stop people from criticizing incumbents during... during the election blackout period.

Maybe you can't do entirely what you want to do.

Mr. Clement: --Well, I hope that's not the case, Justice Scalia.

Let me give you two other First Amendment examples, the first admittedly involving intermediate scrutiny; the second, a strict scrutiny case.

The first thing I have in mind is the contribution limits themselves.

This Court has fully admitted that it doesn't have a scalpel to probe the difference between $2,000, $1,000, $4,000 as a contribution limit.

And it's perfectly willing to admit in its opinions that not every high value donor is going to be involved in an effort at corruption.

Yet, this Court approved the approach of the contribution limits, which are hard to understand as anything other than prophylactic limits.

Now, that's an example from intermediate scrutiny.

Even in the strict scrutiny context, though, a case like Burson, I mean, this Court understood and said in the opinion, we can't tell whether 75 feet would be precisely okay or whether 90 feet or 100 feet.

We don't have a scalpel to probe that either.

But we're going to approve 100 feet because it's a basic way of dealing with this problem, identifying the area of potential concern, and people can do their electioneering 101 feet away.

They can do it here on the 61st day.

They can do it through the segregated fund.

I think that is an approach that this Court has found acceptable, even in the First Amendment area, in dealing with these intractable problems.

And I think Buckley--

Chief Justice Roberts: Both of those examples, of course, are quantities, and once you... I think it was Holmes who said, once you admit the necessity of drawing a line, you know, you can always find something on one side or the other.

It's quite different between $1,000 and $2,000 or 100 feet and 75 feet and advocacy with respect to an election and advocacy with respect to an issue.

It's an entirely different quality of a distinction, it seems to me.

Justice Kennedy: And... and the difference... the difference is this is a content based inquiry.

Mr. Clement: --Well but, Justice Kennedy, precisely because you can't engage in just a formless content based inquiry and precisely because there isn't any neat division between issue ads and candidate ads, that is why you need to have a different regulatory approach.

I mean, this Court recognized--

Justice Stevens: I think the real bottom line for the... your opponent is that even a pure election ad should get the same constitutional protection as an issue ad, which is something we've rejected.

Mr. Clement: --Absolutely, Justice Stevens.

And of course, an even position one step intermediary from that or one step backtracking from that would be to say that all Congress can do in this area is regulate those ads that are unambiguously election oriented.

And, of course, what's the class of those ads?

Well, that would be express advocacy.

And the one thing that I think is clear from this Court's decision in McConnell is this Court made clear that express advocacy is not a constitutional line.

Congress is not disempowered to go after mixed ads that are... yes, they have a component of issue ads, but you bet you they're intended to influence the election.

Those ads are what are at issue here, and I think in order to be able to regulate those in a way that makes sense, the key is to regulate in a way that's not vague, that's not overbroad, but is not so under inclusive that it can be easily evaded.

And I think Buckley shows how hard that is.

It's a tall order.

In Buckley, this Court had a provision of FECA that prohibited independent expenditures related to a candidate election.

The only way the Court could save that provision from the vagueness concern was to limit it to express advocacy.

But having done that, the Court said, well, it's so limited, it's so easy to evade, we're going to find that it fails strict scrutiny.

In McConnell, this Court said that in BCRA, after careful study, Congress had actually found out a way to avoid those three pitfalls.

All of the proposed alternatives of... of appellants run headlong into one or more of those obstacles.

Look at the tests they've proposed.

They've proposed looking at 16 factors, 4 details.

They disclaim any interest intent, but any of those tests I think would be vague and unworkable.

In contrast, they pluck a definition from the IRS regs that is designed to deal with 501(c)(3) corporations in a completely different context or a modification of a proposal by BCRA's sponsors, and they... and they put those tests out there.

And those would be very, very easy to evade in practice.

In fact, I think if you use some of the tests that they propose or their amici proposed and you look at the body of ads that were before this Court in McConnell, you'd end up finding that a substantial percentage of them were grassroots lobbying.

Well, if one thing has to be inconsistent with this Court's decision in McConnell, it's the conclusion that a substantial amount of the ads covered by this definition are unconstitutionally regulated because this Court clearly rejected a substantial overbreadth claim.

The one thing I would say in... in closing is to understand that Congress, having sort of voided these very difficult pitfalls of vagueness, overbreadth, and easy evasion, came up with this definition in title II.

But as this Court recognized in McConnell, title II of the statute does not stand alone.

It is part and parcel of the broader regulatory regime here.

And without title II, title I's limitations on soft money contributions to parties will succeed only in taking that soft money and directing it to corporations that are closely aligned with candidates or with the parties themselves.

This statutory as applied challenge that you have before it... you strikes at the heart of the McConnell decision and at the heart of BCRA's title II.

This Court should reject the invitation to revisit the McConnell decision and should give Congress' effort in this area a fair chance at success.

Thank you.

Rebuttal of James Bopp, Jr.

Chief Justice Roberts: Thank you, General.

Mr. Bopp, you have 4 minutes remaining.

Mr. Bopp: Thank you, Mr. Chief Justice.

What this... what plaintiffs are relying upon here is the distinction that this Court has made between lobbying, on the one hand, and political campaigns on the other.

As summarized by Justice Stevens' concurrence in Austin, quote, there is a vast difference between lobbying and debating public issues, on the one hand, and political campaigns for election to public office on the other hand.

And that is because that the interests that have justified the regulation of corporate electioneering do not apply to corporate--

Justice Stevens: There is a vast difference, but the question I have is whether Congress has any voice in trying to draw the line that divides the two categories.

Mr. Bopp: --I think they do, and they drew a line that was upheld on its face because the vast majority of ads--

Justice Stevens: And... and if we are in a gray area that there's some who could say it's issue and some could say it's electioneering, do we owe any deference to Congress' test that it has drafted?

Mr. Bopp: --I... I don't think you owe deference to the test.

Under strict scrutiny, you owe the fidelity of the Constitution, and the Constitution includes the right to petition.

So it is a difficult question.

It's fact intensive, as all as applied questions are.

Justice Scalia: So your position basically would say we should take all of these cases on a case by case basis and not give any presumptive weight to what... what Congress has done.

Mr. Bopp: No.

I think that you can draw a rule that relies on objective criteria, just as you have in the Noerr Pennington doctrine, to distinguish between illegitimate efforts to... for predatory anticompetitive practices or monopolies, to distinguish between those and... and... the Court has even used the phrase, genuine efforts to influence Congress with respect to... or any governmental agency with respect to the adoption of laws.

That has been based on objective criteria as the Court has explained.

You have adopted objective criteria to distinguish lawsuits that fall within the right to a petition or those that were brought illegitimately for anticompetitive reasons.

It's not that this is... this exercise is an easy exercise, but it is demanded by the fact that the... the Congress adopted a very broad statute.

The only content in this electioneering communication provision... the only content requirement is that you name the candidate.

And the reality is that those candidates often are incumbents and they are engaged in law making functions during these election periods.

I mean, there is a difference like in Britain.

You know, Parliament is dissolved so that there... there is a bright line distinction between an election and Parliament actually exercising governmental power.

But when these things overlap and when the Constitution demands the recognition of the right to petition, then that needs to be dealt with in this as applied challenge.

Now, there's a vast... there's a huge number of... of lobby groups.

They have made a conscious decision that it is more important to them to influence what Government does today than to influence in a speculative and remote manner who is going to be exercising that power next year through elections.

Wisconsin Right to Life, in the face of these restrictions, have still decided that it's more important to lobby than it is to advocate the election or defeat of candidates and give money to candidates.

The... this is just the reality of our complex Government.

It's the reality of the freedoms that individuals have to participate in that Government.

It's not just about elections.

It's more importantly about law making and citizens have a robust right to participate in that law making power, and as a result, this Court should recognize an as applied exception for grassroots lobbying.

Thank you.

Chief Justice Roberts: Thank you, Mr. Bopp. The case is submitted.

Attribution:

The Oyez Project

Featured:

Hartman v. Moore - Oral Argument

Fri, 09 Jan 2009 14:48:58 +0000

Case:

Hartman v. Moore

Media File:

04-1495_20060110-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Edwin S. Kneedler

Justice Stevens: We'll hear argument now in 04-1495, Hartman against Moore.

Mr. Kneedler, whenever you're ready, you may proceed.

Mr. Kneedler: Justice Stevens, and may it please the Court--

Respondent alleges in this Bivens action that petitioners, who were postal inspectors, caused him to be prosecuted in retaliation for activity protected by the First Amendment.

In order to make out such a claim, however, respondent must establish that there was no probable cause for the prosecution.

That is so for three mutually reinforcing reasons.

First, that requirement accords with the deference this Court has consistently held in Armstrong and other cases must be given to the prosecutorial function because that function is core to the executive branch's operations and because prosecutorial decision making is ill suited to judicial second guessing.

Second, that rule accords a... an important objective screen and check against claims of retaliatory prosecution in order to guard against the chilling effect that would otherwise routinely arise from inquiry into the subjective motivations of those involved in the prosecutorial decision making process.

And third, that rule is deeply rooted in history.

A claim of First Amendment retaliatory prosecution is but one species of a claim of malicious prosecution, and it has long been required that an essential element of a claim of malicious prosecution is that the plaintiff show an absence of probable cause for the prosecution.

Justice Souter: I'm... I'm not sure why... why we should make the classification that you did, that... that retaliatory is simply a species of... of malicious.

I mean, I... I can see the similarities, but we've also got an entirely separate First Amendment value here which just is not part of the... the analytical mix when you're talking about malicious prosecution.

So I'm not sure why we should... we... we should classify it as you argue.

Mr. Kneedler: Well, I... for several reasons.

First of all, the... the First Amendment... the alleged First Amendment retaliation describes the malice, a form of the malice that would arise in--

Justice Souter: But it's... it's a peculiar, if you will, a peculiar malice with its own set of constitutional values, and I don't know of anything comparable in... in malicious prosecution generically.

Mr. Kneedler: --Well, to be sure, what renders it malice or wrongful is the First Amendment, but... but the derivation of... of the reason for why it's wrongful does not, I think, detract from the essential relevance of the tort of malicious prosecution.

And if... if I may add to that, the... the reason why the... the tort of malicious prosecution is highly relevant here is not simply because on the malice side of it, but also because it has long been recognized, beginning with Blackstone before the First Amendment and the Constitution were even adopted, that there are critical interests on the other side, not simply the defendant's interests in avoiding badly motivated prosecutions, but the important countervailing public interest of ensuring that wrongdoers are brought to justice and that those who have information about it will come forward.

And... and that was recognized by Blackstone early on and has been recognized consistent... consistently by this Court in... in many, many decisions, including recent cases of this Court involving immunity issues, which is what we have here, specifically recognizing that the tort of malicious prosecution is very instructive in deciding how rules should be applied when a Bivens action or a 1983 action is brought in the specific context of prosecution.

Justice Stevens: But, of course, here--

Justice Kennedy: Suppose there is probable cause for a prosecution, but the prosecutors are extremely busy and they... they have to select their cases and they select one in which they bring the prosecution against the defendant on account of his speech.

Is that a violation of the prosecutorial duty?

Mr. Kneedler: Well, in... in terms... in terms of the responsibilities of the prosecutor, there--

Justice Kennedy: Yes.

Mr. Kneedler: --that... that should not... that should not be a... a selection criterion in itself, but it--

Justice Kennedy: I'm... I'm asking is it a violation of the prosecutor's professional obligations and his professional duties?

Mr. Kneedler: --Well, I... I would think ordinarily yes, but with this caveat.

Unlike race which is never relevant to the prosecutorial decision making process, there can often be a prosecution... and this case is one of them... in which you might have claims of public corruption.

And... and in fact, there was a guilty plea here on the part of a member of the Postal Service board of directors for receiving payments to... for his activity on behalf of respondent's corporation and others.

This... this... involving contracts for $250 million.

This was a very, very important procurement by the Post Office Department and it is understandable that in connection with that prosecution, the prosecutors and the Postal Service investigators would look into issues of respondent's, or people in his behalf, approaching the Government.

Justice Kennedy: Just going back to the hypothetical, if... if you acknowledge... and I think you must... that there's a violation of the prosecutorial duty in... in the instance I suppose, then why shouldn't the law recognize it and... and give force to that sanction and give force to that rule?

Mr. Kneedler: Well, there... there are certain restrictions... certainly restrictions on what the prosecutor may do, but several points about that.

First of all, this is not a Bivens action against the prosecutor.

The prosecutor is absolutely immune from suit.

The prosecutor's decision making process is... is, in fact, as is the grand jury's, a... a critical protection against malicious prosecution--

Justice Kennedy: All right.

Well, then we'll just change the hypothetical to make it the investigators.

The investigators select their case based on this speech that they consider unwelcome.

Mr. Kneedler: --Well, the... the question is whether in that circumstance the... the Bivens plaintiff, the criminal defendant, has a First Amendment right to be excused from prosecution or, after the prosecution is unsuccessful, to bring a civil action, whether he has a right not to have been prosecuted in those circumstances notwithstanding the existence of probable cause and the independent judgment by the prosecutor.

Justice Kennedy: Well, does he have a right not to be singled out because of his speech?

Mr. Kneedler: He does... he does not have a... he does not have a First Amendment claim in those circumstances where there is probable cause for the violation.

The--

Justice Kennedy: I asked does he have a right not to be singled out because of his speech.

Mr. Kneedler: --He does not have a First Amendment right not to be singled out in those circumstances.

Justice Kennedy: In other words, you... you would advise law enforcement officials that they can single out persons for prosecution based on distasteful speech.

Mr. Kneedler: I would not.

I... I'm not... I'm not endorsing the motivation.

What I'm... what I'm saying is what is--

Justice Kennedy: What I want you to do is to agree.

I... I think you have to concede there is this principle in the law, and I think your answer has to be even though there's that principle, there are a lot of problems with enforcing it because there are going to be too many suits, it's hard to... it's difficult for the Government to defend, and... and so forth and so on.

Mr. Kneedler: --Right.

I... I'm not disputing that it... that... that a... a prosecution should not be brought or should not be heard--

Justice Stevens: --And you're not disputing either, as I understand it.

As the case comes to us, we assume the prosecution would not have been brought but for the retaliatory motive.

Mr. Kneedler: --I... it is... we certainly disagree with that with our proposition.

Justice Stevens: But don't you assume that for the purposes of your argument?

Mr. Kneedler: For... for purposes of our probable... probable cause claim, yes.

Justice Stevens: Well, that's the only argument.

Mr. Kneedler: That... that is true, but that, of course, was also true at common law for... for malicious prosecution.

Justice Stevens: But the... one of the differences... am I not correct, that at common law the prosecutor did not have absolute immunity?

Mr. Kneedler: At common law... at common law, yes.

As this Court has recognized in reformulating the common law principles of... of immunity, the... the public prosecutor now has absolute immunity under... under these--

Justice Stevens: Now does, but not at common law.

Mr. Kneedler: --under these Court's... under this Court's decisions.

But at common law, the prosecutor did have the protection of malicious prosecution, and as Justice Scalia observed in his concurring opinion in the Kalina decision, the elements of a tort of prosecution essentially had a built in qualified immunity, and the probable cause requirement was essentially that.

It afforded protection for the prosecutor.

The... the private citizen who... who... the complaining witness... he could not be the subject of a suit for damages if... if the charges were dismissed, not simply upon a showing... it required more than simply a showing of malice.

It required a showing of an absence of probable cause for reasons that are essentially identical to the qualified immunity and absolute immunity... the... the reasons for qualified immunity and absolute immunity.

Justice Ginsburg: Mr.--

Justice Stevens: Well, they're not totally identical because you didn't have the First Amendment interest involved in those cases, whereas you do have a First Amendment interest at stake here.

Mr. Kneedler: But... but on... on the... on the governmental interest side of the balance, the interests are exactly the same in both... in both circumstances.

And that is not to chill... not... not to create circumstances where people would hold back from coming forward with information of violations of the law because of fear that they would be sued and retaliated against afterward.

And that hasn't changed now that we have public prosecutors.

It's still critical.

Justice Ginsburg: --Mr. Kneedler, may... would you clarify just one point about this probable cause?

There was a grand jury that indicted this man, and then there was a trial judge who said, I'm throwing this out at the close of the Government's case.

There is not enough evidence here to convict this man.

Are you saying that as long as the grand jury indicts, there can be no Bivens claim because in order to indict, the grand jury would have had to find probable cause?

Mr. Kneedler: Well, at... at common law under the tort of malicious prosecution, the indictment created a presumption because an indictment does have to depend upon probable cause, and under the... under this Court's decision in Gerstein v. Pugh and other decisions, that can't be reexamined by the court in the prosecution.

But at common law, the... the indictment created a presumption that was subject to rebuttal by the... by the civil plaintiff.

There was some disagreement about what would be necessary, whether you would have to show fraud on the grand jury or whether you could just retry--

Justice Ginsburg: Well, tell me about now, not at the common law.

Mr. Kneedler: --Yes.

We do not... we do not think that the existence of the grand... it has not been our position that the existence of the indictment is dispositive and cannot be challenged, but we do think it--

Justice Ginsburg: But the grand jury did find probable cause.

So what would the plaintiff have to show to overcome... to... to negate that finding of probable cause?

Mr. Kneedler: --We... we think in a... in a... it would have to show by at least a preponderance of the evidence, maybe a clear showing, that there was not probable cause.

And I think that also ties in to the... to the standard for qualified immunity, which is could a reasonable person in those circumstances have believed that there was probable cause.

I think, if the grand jury returns an indictment, that that should be pretty persuasive evidence but not compelling evidence... I mean, not dispositive evidence that there was probable cause.

Justice O'Connor: The case that comes closest, as far as I can see, is probably United States v. Armstrong, and in that case, this Court said in the ordinary case, so long as the prosecutor has probable cause to believe the offense was committed, the decision to prosecute or go before a grand jury rests entirely in his discretion.

But, of course, the discretion is subject to constitutional constraints, the equal protection component of the Due Process Clause.

The decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.

And the standard the Court articulated there was the defendant must present clear evidence--

Mr. Kneedler: Yes, clear evidence, and the Court stressed that it was a--

Justice O'Connor: --to the contrary.

Now, that's different from your proposition of probable cause.

Mr. Kneedler: --Well, I... I think several things may explain that.

In Armstrong, that was a claim of selective prosecution that was brought--

Justice O'Connor: Based on race.

Mr. Kneedler: --Based on race.

That was one of the distinctions I was going to point to.

And secondly--

Justice O'Connor: So why should that be different than the First Amendment violation?

Mr. Kneedler: --Well, as... as this Court's decision in... in Johnson, for example, shows, there... distinctions based on race are subject to strict scrutiny no matter what the context, in that case even in the prison context, whereas First Amendment claims often take account of the context in which they are raised.

For example, this Court in the American Arab Anti Discrimination case held that there would... could be no claim at all of selective prosecution in the immigration context because of the important countervailing interest in enforcing the law.

Justice Scalia: But you're willing to acknowledge... and... and the Government concedes that you can have a different standard when the... the basis for the selective prosecution happens to violate the Constitution from the standard you apply where the basis for the selective prosecution doesn't violate the Constitution, such as I'm prosecuting him because he was mean to my brother in law.

Okay?

Mr. Kneedler: No.

Justice Scalia: Would you apply a different standard there than you would apply where... where the reason is some First Amendment reason?

Mr. Kneedler: Well, no.

The... the other distinction... and... and I'm not sure if this goes to your point or not.

The other distinction is that in Armstrong the claim was made in the criminal prosecution itself.

Here, the claim is the civil action after the criminal prosecution is over with, and it's in that... in that context especially that the analogy to malicious prosecution is very strong and why the element of... that the person has to... that the... there has to have been a favorable termination for the... for the plaintiff and there has to be--

Justice Stevens: But that doesn't--

Justice Scalia: But would you answer my question?

Justice Stevens: --Yes.

Mr. Kneedler: --I'm... I'm not sure that I... maybe... I guess I--

Justice Scalia: It would be a different criterion... you... you say it's going to be different for the First Amendment and the... and... and the Equal Protection Clause, at least where race is involved.

What if there's no constitutional violation at all, but I just selectively prosecute him just because I don't like this guy or because he was mean to a relative of mine?

Mr. Kneedler: --No, I don't... I don't--

Justice Scalia: Is there going to be a different standard--

Mr. Kneedler: --No.

There... there wouldn't be any... any constitutional claim and any... any common law--

Justice Scalia: --Exactly, and would you apply a different standard because there isn't a constitutional claim?

Mr. Kneedler: --No.

There wouldn't be any claim at all.

I mean, there wouldn't be any basis for a claim.

Justice Stevens: --a malicious prosecution claim.

You'd have a malicious prosecution claim.

Mr. Kneedler: There... there... and in the... in the Federal sphere, if there was a malicious... a common law malicious prosecution claim, that would have to be brought under the Federal Tort Claims Act against the United States.

Justice Stevens: But, Mr. Kneedler, I understand your argument to be they should be treated just like a malicious prosecution claim, which is no distinction between a constitutional basis and a common... and just that he hated his brother in law.

I think you're saying they're the same.

That's what I understand Justice Scalia to be asking you.

Justice Scalia: That's what I'm asking.

Mr. Kneedler: Well, yes.

I... I am... I am saying that--

Justice Stevens: Which places no weight at all on the fact the Constitution is involved.

Mr. Kneedler: --Oh... oh, it does because the... because the... the first... the existence of the First Amendment claim is what gives you the Bivens cause of action in the first place.

So otherwise, there wouldn't be any Federal cause of action at all without... without the First Amendment claim.

Justice Stevens: That's how you'd get at least as much protection as if it was an ordinary malicious prosecution claim, but you don't get any more under your view.

Mr. Kneedler: No, because... and... and again, this... this is... this is because of the... of the background of the common law tort of malicious prosecution, which strikes exactly the balance that I... that I'm talking about.

Justice Breyer: But you really want three things.

You say we want the protection, number one, of there... if you're... if there's probable cause, that's the end of it.

Number two, if you're trying to show there wasn't probable cause, you have to bear clear and convincing evidence, and number three, we also have qualified immunity.

And I guess, number four, you have to prove the whole thing by clear and convincing evidence.

Mr. Kneedler: Well--

Justice Breyer: It sounds a little bit like the person who has the overcoat, turns up the heat, you know, five or... what about one?

Mr. Kneedler: --The... the--

Justice Breyer: What about this one?

And I want to know... you simply say you need clear and convincing evidence that that was the motive and it wouldn't have been brought otherwise.

And the existence of probable cause is a strong factor, maybe even a presumption, that suggests to the contrary.

Now, have States and other places tried things like that without the world collapsing?

Mr. Kneedler: --No.

My understanding from... from reading the treatises on... on malicious prosecution, for example, that there has been no watering down of the probable cause requirement because it is understood to be a critical check against--

Justice Breyer: So as far as you know, every State and every jurisdiction where... and investigators if they don't have absolutely immunity, whatever... in all those jurisdictions, nobody has ever said that even a constitutional violation, if there's probable cause, that's the end of it.

Mr. Kneedler: --Well, I'm... I'm focusing on the tort of malicious prosecution which is--

Justice Breyer: Oh, I'm not focusing.

Mr. Kneedler: --which--

Justice Breyer: I want to know--

Mr. Kneedler: --Yes.

Justice Breyer: --if--

Mr. Kneedler: I'm not... I'm not aware... I'm not aware that any jurisdiction has done that.

But in response to your proposal, the... the... what... what's wrong with that is that it would allow extensive inquiry, discovery, other inquiry into the subjective motivations of persons involved in the decision making process with no mechanism analogous to immunity or the... or the probable cause criterion to weed out--

Justice Breyer: --We have no experience.

We don't know.

Okay.

As your... as far as you can tell.

The other question I have, which you might want to be brief about, is in looking through this record, as far as I could see from the briefs, they went ahead and prosecuted this man with only two pieces of evidence.

The first evidence was that he tore some pages out of his notebook.

But he introduced lots of notebooks to show he always tore pages out when he gave them to his secretary.

And the second was that he told some witnesses be very careful and answer the question.

Now, you know, he said a few other things, but they all seemed like the kind of things that people would always say to witnesses.

Now, if that's the only evidence, except for the fact he owns the company, how is there probable cause here?

Mr. Kneedler: --There... there was much, much more evidence.

Justice Breyer: Well, I didn't see any in the brief.

Mr. Kneedler: There--

Justice Breyer: I saw a lot about other people in the brief, but not about him.

Mr. Kneedler: --Well, for one thing, it's absolutely conceded that there was a conspiracy.

Three people pleaded guilty, including--

Justice Breyer: There are all kinds of things about other people.

Mr. Kneedler: --No, but... but--

Justice Breyer: I didn't--

Mr. Kneedler: --the... it isn't all about other people.

The... the... that crime included... and it's accepted in this case that the Postal Service board of... board member accepted 30 percent of the fees paid by respondent's company to the consulting firm.

Respondent's company.

He was the chief executive officer.

Justice Breyer: --I would like you to limit yourself to what I didn't concede.

I concede it's his company.

I concede that he tore some pages out of his notebook, and I concede that he told... which he did a lot of times.

And I concede that he told witnesses answer the question, et cetera.

Now, is there anything else connecting him, not his company?

Mr. Kneedler: Yes.

In... in the summer of 1984, before there was even a consulting agreement, there was a series of conversations between Voss, the postal board board member, and respondent, including one for which there are notes in which Voss said I am working for you.

There... there was an... there is an abundance of evidence involving Reedy who is... no.

I... I know, but just in... just in terms of... just in terms of the sequence.

There is evidence that Voss and Moore were good friends.

Voss said that he had a close relationship with respondent, and when the contract was first being negotiated, Reedy acknowledged that Voss and Moore were good friends.

They had a close relationship.

They were not distant.

Justice Stevens: Mr. Kneedler, I know you're responding to Justice Breyer's question, but I think for purposes of our decision, we're not supposed to decide whether there was probable cause or not, but we're to give you the opportunity to prove there was if... if you win on your--

Mr. Kneedler: Yes, although I... I certainly do not want to leave the misimpression that... and there is... there is much more.

Justice Stevens: --But that's a disputed issue, and we don't have to decide the probable cause issue.

Is that not correct?

Mr. Kneedler: That... that... you do not have... you do not have to decide it, but I would certainly urge the Court not to proceed on the assumption or make any comments that there is because there were... there were--

Justice Stevens: But because the other side is arguing that even if there is probable cause, the burden shifts when they prove the retaliatory motive, and you have to prove that you would never... you made... you would have brought the prosecution even if there had been no retaliatory motive.

That's what we're arguing--

Mr. Kneedler: --Right, and that is their position.

And that position accords... yes, that is their position.

And that accords no particular--

Justice Stevens: --And the question I would ask is why should this be different from a wrongful discharge case in which there's ample cause to discharge and the issue boils down to whether or not he would have been discharged anyway.

Why isn't it the same... same situation?

Mr. Kneedler: --What is very different is that this is the prosecutorial function.

As this Court recognized in Armstrong, that is a core executive branch function and it is one that the courts are ill suited to second guess because a whole variety of determinations can enter into whether to prosecute somebody, whether they... whether the particular conduct... how culpable the person is, whether the conduct fits into the overall prosecutorial priorities, whether there will be cooperating witnesses, what... what the office's resources are.

There are a whole bunch of... of judgments that courts are ill suited to second guess, and it would be very chilling if the prosecutor had to--

Justice Stevens: Wouldn't... wouldn't all those considerations justify a rule that makes the burden of proving the retaliatory motive very high, say, maybe it has to be by clear and convincing evidence or something like that?

But once you have it acknowledged... I don't know if they're really acknowledged here, but there's strong evidence of retaliatory motive... why shouldn't the burden shift just on that, on the basis of that proof?

Mr. Kneedler: --Well... oh, not... we do not think there is strong evidence of retaliatory motive.

And I... I can... can address that, but--

Justice Stevens: And if you had a--

Mr. Kneedler: --but--

Justice Stevens: --if you had a heavy burden of proof at that stage of the proceeding, wouldn't that protect the interests that mainly concern you?

Mr. Kneedler: --We... we think the more direct... I don't think so for... partly for the reason that I... that I gave to Justice Breyer is that... that that would not protect against discovery and... and the sort of chilling inquiry that this Court has recognized in its immunity cases, and especially in the prosecutorial function where the prosecutor would be required to disclose.

Even though the prosecutor is absolutely immune, the prosecutor's decision making process and his communication with law enforcement agents would... would be exposed for judicial scrutiny, public scrutiny in a way that could chill the prosecutorial function.

Justice Scalia: Mr. Kneedler, the defendant here is not the prosecutor.

Right?

Mr. Kneedler: Right.

Justice Scalia: Just someone who provided information to the prosecutor that... that was erroneous and allegedly maliciously motivated.

Mr. Kneedler: I don't think erroneous.

It was allegedly maliciously motivated.

Justice Scalia: Allegedly maliciously motivated, at least.

I don't understand how you would apply the test, would... you know, would you have prosecuted anyway, when... you know, but for the malicious motive, when the person you're... you're suing is not the prosecutor.

It wasn't up to this person whether there would be a prosecution.

Mr. Kneedler: I think that's a... I think that's a very important point, and before a... a court enters into that, in the end, unknowable question, maybe a court can... can, in the end, determine probabilities, but before a court undertakes that, which requires looking not simply at the motivation of the... of the law enforcement officers, but the prosecutor and... and who knows whether the grand jury would have returned an indictment, and yet a court certainly couldn't be expected to inquire into that.

Now, so we... we think that that's another reason why the probable cause requirement is a critical gateway before a court is... is going to enter into that determination.

And all... and it's important to remember it's not just proving the question of causation, but these are people who are several steps removed from the... from the prosecutorial decision.

And the... and the personal liability would be visited on the law enforcement agents who were doing their job and cooperating with the U.S. Attorney's Office.

This case was... this case got attention at the highest levels of the U.S. Attorney's Office.

The U.S. Attorney personally met with the... the respondent... lawyers for respondent.

Justice Ginsburg: Mr. Kneedler, the D.C. Circuit, looking at this case, looking at the record closely, typed it one in which the evidence of retaliation was strong and probable cause weak.

This is on 28a of the appendix to the petition for cert. That was the appraisal of the D.C. Circuit panel.

And I think you've been arguing that that is not the case, but at least for our purposes at this posture, don't we... shouldn't we accept that that is the picture here, weak evidence of probable cause, strong indications of retaliation?

Mr. Kneedler: I... I don't... I don't think there's any reason to accept that because there's no factual determinations to that effect.

There... there are really just two snippets of evidence that are primarily relied upon by the court of appeals for the view that there was a retaliatory motive here.

And they were... they were really observations that the... that the inspectors made to... to show... the first one was why the corporation should be indicted, not just... not just Moore, but why the corporation should be indicted.

And it was just an observation that the corporation, through its agents, was involved in a lot of activities and should be held accountable.

It was not... it was not evidence of a... of a retaliatory motive, and there were subpoenas for... for documents about political contributions.

But let's remember that this was a case involving bribery of a public official, and it was... it was understandable that the AUSA and the... and the inspectors would... would look to see whether there was money directed elsewhere.

If I may, I'd like to reserve the balance of my time.

Justice Stevens: Mr. McCartan.

Argument of Patrick F. McCartan

Mr. McCartan: Justice Stevens, if it please the Court--

If I may, Your Honors, I would like to start with the very pointed inquiry that Justice Kennedy made at the opening of the argument here.

The petitioners here do not challenge, because they cannot challenge, as was evident from the concession made here this morning, that a criminal prosecution cannot be based upon the exercise of a constitutional right.

What they want is an exception to that rule, an exception that would mean, despite the overwhelming evidence of retaliation of record in this case, there would be no violation of the First Amendment here and that would treat any prosecution based solely upon race, religion, or protected speech the same as a tort for malicious prosecution.

And to accomplish this end, what they are trying to do is to force probable cause as a standard into a framework where it doesn't belong, where it won't work, and which, if done here, is going to be contrary to several existing decisions of this Court.

Justice Scalia: Mr. McCartan, how does... how does your standard work?

The same question I asked Mr. Kneedler.

The... the test you would propose is whether but for the retaliatory motive, the prosecution would have been brought anyway?

Mr. McCartan: That would be the test, Your Honor, for recovery when the matter goes to trial.

Justice Scalia: Right.

Mr. McCartan: The test that I would propose is the very test that this Court set forth in Harlow against Fitzgerald because we're here really on a very limited issue of qualified immunity.

We have to determine whether the defense of qualified immunity is available to the petitioners here.

The standard, the proper standard for making that determination was set forth by this Court in Harlow and it's whether the conduct alleged--

Justice Stevens: But, Mr. McCartan, I don't mean to interrupt you, but I thought the primary issue was not the qualified immunity issue, but whether we have a cause of action in the first place.

Mr. McCartan: --Well, Your Honor, whether... no, I think that the--

Justice Stevens: And on that, they say you don't have a cause of action unless you're able to prove an absence of probable cause.

Mr. McCartan: --I think what they are saying is the defense of qualified immunity should be available if there should be probable cause for the action that was taken here.

I think the case before the Court is on the very limited issue of whether the defense of qualified immunity is available to the petitioners.

Justice Scalia: No.

I think they would say absolute immunity, not qualified.

I... I think they're saying if there's probable cause, the game is over.

Mr. McCartan: That's exactly what they're saying, and what I'm saying is that is the wrong standard to be applying.

Justice Stevens: Well, but there are two questions in the cert petition and it's the second one that's the qualified immunity issue, and the first one is whether there's a cause of action.

Mr. McCartan: All right.

Well, Your Honor, let... let me... let me back up for just a moment then with respect to that.

Let me say that probable cause is not the proper standard which should be applied here.

The proper standard is the standard that is set forth by this Court in Harlow and as refined later in Anderson against Creighton and a number of other decisions.

Justice Souter: But the difficulty I think we're all having with it is that the qualified immunity issue and the standard to which you are... are adverting responds to a question that doesn't arise unless we first assume that there is... that there is a constitutional violation.

Mr. McCartan: That's correct.

Justice Souter: And our questions are what is the standard for determining the constitutional violation.

Once we get that squared away, then we'll get to Harlow.

Mr. McCartan: The standard that is to be set forth to determine whether there is a constitutional violation is that that this Court applied in Mt.

Healthy City School District against Doyle and in Crawford El against Britton, and that is if there is illegally or unconstitutionally motivated conduct, it will not be excused simply because there may be some objectively valid basis for taking such action.

That is the conceptual framework that was established in those cases and which should be applied by way of analysis.

Justice Breyer: If it is applied here, I... I thought we just granted question one.

There were two in the cert petition.

I... my notes say we just granted question one.

And that means what they have is the screen.

We're going to screen out absolutely any such claim as yours if there is probable cause.

Now, the reason they advance for doing that is that in the... a reason is in the absence of a screen like that, here's what's going to happen.

Every single case... not every one, but millions of cases or thousands, anyway... involving companies... well, companies are going to Congress all the time.

They have ads all the time.

They run into agency hostility all the time.

The Hell's Angels?

That's a pretty unpopular defendant.

They say things all the time that investigators disagree with.

And what will happen is in a vast number of cases the defendant will decide to bring a Bivens action, particularly if he gets off, and then we'll have discovery and we'll look into every statement that the... the investigator made to the prosecutor, and before you know it, we have a nightmare of tort cases.

And they say that's unfortunate to cut off a claim like yours, but after all, the prosecutors totally cut them off because they have absolute immunity.

Now, we're saying at least let's restrict them, where investigators are involved, to cases where it turned out there was no probable cause, otherwise the criminal process itself will be seriously injured.

Now, I take it that's the argument.

I'd like to hear your reply.

Mr. McCartan: That is exactly the argument, Your Honor, and what it comes down to is whether the burdens of litigation in a situation of this kind will justify judicial alteration of the protection of the First Amendment.

And I think that's been very clear from the outset in the first question Justice Kennedy asked.

Justice Breyer: No, but are you going to... I mean, is there any light you could shed?

And that's why I asked in my question initially.

I thought maybe there were some jurisdictions somewhere that... that survive without the rule they want, but maybe I'm wrong.

And... and how do I judge this?

I would be concerned.

I don't... the... after all, these other cases you mentioned are civil tort cases and... and they don't involve the criminal process.

And when we get into criminal prosecutions, we have rules on selective prosecution that are designed to screen out all but the very worst.

Mr. McCartan: But see--

Justice Breyer: And that's what he's arguing for here.

Mr. McCartan: --That's what he's arguing, and those are not screening mechanisms, Your Honor.

Probable cause was evident and was present in United States against Armstrong and Wayte against the United States.

It was not deemed by this Court to be a bar to the selective prosecution claims that were advanced in that... in those cases.

Justice Breyer: Leaving... is there anything you can say before I give up on this?

And maybe the answer is no.

Is there anything you can say that would relieve my concern, which is completely practical at the moment, that if I decide in your favor, there suddenly are going to be large numbers of criminal cases where defendants will say the reason I was prosecuted was because of something I said?

I was advocating motor cycles.

I was advocating beating people up.

I was advocating a congressional change of something.

Many, many such cases.

They'll all get at least discovery, and the prosecutor's door will become open to the world.

Now, that's what's concerning.

Can you say anything to relieve that concern?

Mr. McCartan: Yes.

I think, first of all, empirically, Your Honor, there's no evidence to the effect that Bivens has had that result after 35 years in full force and effect.

Justice O'Connor: But if this Court opens that door, don't you think we might see a different problem?

Mr. McCartan: I don't think so, Justice O'Connor.

I think if you examine part IV of the Court's opinion in Crawford El, there is a very careful pattern that is set forth as to how cases of this kind should proceed and what protections are available to protect Government officials against overly burdensome litigation.

Justice Stevens: Which opinion was that?

I missed that.

Mr. McCartan: Pardon, Your Honor?

Justice Stevens: Which opinion are you talking about?

I missed it... missed it.

Mr. McCartan: The opinion in Crawford El against Britton.

Justice Stevens: Okay.

Mr. McCartan: There, the Court held that if there are factually specific allegations that would indicate a violation of the Constitution, that at that point the court may consider whether some additional discovery should be permitted even if there should be an independently valid basis.

Justice Scalia: This wasn't addressing... this wasn't... didn't involve prosecution, though.

It didn't involve unlawful prosecution.

Mr. McCartan: It did not, Your Honor, but it provides the same--

Justice Scalia: It... it was a suit against a prison.

Mr. McCartan: --It provides the same framework for the proper analysis of a claim of this kind.

Justice Scalia: No, but... but we treat prosecutions quite differently.

We do not give, for example, absolute immunity to the wardens of prisons as we give absolute immunity to prosecutors.

Mr. McCartan: That's--

Justice Scalia: This is a specially dangerous area in which to allow litigation.

Mr. McCartan: --It is far less dangerous, Your Honor, than when this is asserted by way of defense in the middle of an ongoing criminal prosecution.

It can be far more disruptive to allege a violation of constitutional rights as a defense to a criminal prosecution, while that prosecution is in progress, and an effort is made to examine prosecutorial decision making than in an after the fact, after acquittal civil action for damages, such as we have here.

You have already permitted that kind of examination in criminal cases where probable cause is present.

Justice Scalia: Mr. McCartan, I... I still don't entirely understand what you would want the Government to prove under your system in order to... in order to... to win this case.

They would have to prove what?

That... that--

Mr. McCartan: They would have to prove that something other than hostility to protected speech was the reason for the prosecution being advanced.

Justice Scalia: --And it would not be enough to show that the prosecution would have gone forward anyway.

Mr. McCartan: No.

That's... that's what I mean.

Absent... if there is an objectively valid basis--

Justice Scalia: Yes.

Mr. McCartan: --the Government claims there is an objectively valid basis for the action they action they would take.

Justice Scalia: Right.

Mr. McCartan: Then if the plaintiff has made a showing that there was an improper motivation, the burden shifts to the Government to show that the prosecution would have proceeded absent the illicit intent.

Justice Scalia: You see now in... in the employment cases where... where somebody is dismissed for a... a racially discriminatory reason and... and you have to prove that the same action would have been taken anyway, you ask the person who fired them with the discriminatory motive whether that person would have taken that action anyway.

Whereas here, the person who brought the prosecution is not in this case.

It's somebody who gave information to the prosecutor.

I don't know how that person could... could possibly establish that the prosecution would have been brought anyway.

It wasn't up to him.

Mr. McCartan: Well, as--

Justice Scalia: It had nothing to do with--

Mr. McCartan: --as... as you pointed out earlier, probable cause is not the standard that governs the investigator's conduct.

These investigators procured a prosecution based upon a violation of the petitioner's... or excuse me... the respondent's constitutional rights.

Justice Souter: Well, they did, but wouldn't you have to prove under your standard not that they would have procured or tried to procure it anyway, but that in fact the prosecutor would have prosecuted anyway?

In other words, that's the distinction between the... the normal case and... and the case that we're dealing with here--

Mr. McCartan: No, I--

Justice Souter: --with a prosecutor who has absolute immunity.

Mr. McCartan: --Well, the prosecutor has absolute immunity.

There's a qualified immunity here with respect to the investigators, and that means that the facts and circumstances of the case are going to have to determine whether there's liability.

Justice Souter: No.

All right--

Mr. McCartan: The burden would shift once the illegal motivation is shown.

It would shift to the Government to establish that the prosecution would have proceeded absent the illicit event.

Justice Stevens: But would it... would it have been a complete defense?

Suppose the prosecutor, who is immune, gets on the witness stand and says, well, I know all about this... the First Amendment stuff, but I was going to bring this prosecution anyway because it seemed to me there was a serious crime here.

That's all he says.

Wouldn't that be the end of the case?

Mr. McCartan: It shouldn't be the end of the case.

There would be an issue of causation at that point, Your Honor, if there were evidence.

Justice Stevens: But... but the question is the motivation for his decision to bring the case.

Mr. McCartan: The motivation for his decision--

Justice Stevens: And he says I... I would have brought it anyway.

Mr. McCartan: --But in this case, the prosecutor's decision to bring these charges to the grand jury I don't think has any probative force whatsoever.

Justice Souter: --Why--

Justice Scalia: --Do you think the defendant can subpoena the prosecutor?

Mr. McCartan: Of course.

Justice Scalia: Why?

I thought the prosecutor had absolute immunity.

Mr. McCartan: The prosecutor is not a defendant, Your Honor.

Justice Scalia: You say he... he can't be brought into court to defend his own... his own judgment, but he can be brought into court when... when an investigator is sued in... in order to take his testimony as to what would have happened?

Mr. McCartan: His testimony was taken in this case and can be taken in this case because at that point in these proceedings... and you have to look at the evidence of record to this point in this proceeding... there is very clear evidence of retaliation as a motive for this prosecution.

Justice Scalia: Well, he may have done it voluntarily here, but I find it hard to believe that he could be subpoenaed, when... when he has absolute immunity from suit against himself, to testify in a suit against somebody else.

It seems to me a very strange kind of a--

Mr. McCartan: Your Honor, the fact that he has absolute immunity does not immunize him from giving testimony in the case.

Justice Breyer: So he's a witness.

Suppose his testimony--

Mr. McCartan: He's a... he's a witness.

Justice Breyer: --Suppose that the person is convicted.

Mr. McCartan: Suppose the person is convicted.

Justice Breyer: Yes.

Can you bring your Bivens claim anyway?

Mr. McCartan: Well, Heck against Humphrey I think would stand in the way of that, Your Honor.

Justice Breyer: Really?

So that's a... but it's not a civil case.

Mr. McCartan: Well, it's not a simple case.

Justice Breyer: So you say that if he's convicted, after all, he may have been convicted but it may be because of the retaliatory motive.

Mr. McCartan: Well, if he is convicted and a civil action for damages is then brought--

Justice Breyer: Yes.

Mr. McCartan: --then I think you are in the framework of Heck against Humphrey--

Justice Breyer: All right.

So you... so you say--

Mr. McCartan: --where the court--

Justice Breyer: --if he's convicted, that's the end of it--

Mr. McCartan: --No.

Justice Breyer: --whether there was a retaliatory motive or not.

Mr. McCartan: No.

I think it's very difficult in that case.

In Heck against Humphrey, which this Court viewed as a collateral attack on an outstanding conviction, the Court held that there had to be a favorable termination of the criminal proceeding in order to maintain the civil action for damages under section 1983.

Justice Breyer: Oh, that's 1983.

Mr. McCartan: The Court went on to say, however, that if the civil damage action would not necessarily impugn the conviction, that the case could proceed even though there had not been a favorable termination, reversal, or expungement--

Justice Breyer: All right.

So what he does is he--

Mr. McCartan: --of the conviction.

Justice Breyer: --he brings his action and he says here I am 20 years in prison and I agree I'm guilty, but they never would have prosecuted me without the fact that they hate the Hell's Angels and they, in fact, criticize everything that we say.

Mr. McCartan: I don't think that action would be permitted to proceed.

Justice Breyer: Because?

Mr. McCartan: It would be viewed as a collateral attack on an outstanding conviction.

Justice Breyer: No, no.

He's saying I was... I was guilty, but the... all right.

Anyway--

Mr. McCartan: I... I don't think--

Justice Breyer: --I won't force you into that.

Mr. McCartan: --with all due respect, Your Honor, that's a real world example.

Justice Breyer: I'll take basically virtually never if he's convicted.

They concede that you could bring this kind of action if there's no probable cause.

So we're talking about that range where there was probable cause but acquittal.

That's what we're talking about here.

Mr. McCartan: That's right.

And why probable cause is not the appropriate standard is because it does not distinguish between what might be an unconstitutional prosecution... that is, one based solely upon race, religion, or protected speech... and one that is not.

When you look to these earlier cases, Your Honor, I agree they arose in employment contexts.

They arose in the context of a prison.

Justice Breyer: Now, you're... you're in the cases, but I'm... I'm trying to pursue this.

You've given me another idea--

Mr. McCartan: Yes.

Justice Breyer: --which is I would like to say one word about this.

I'm sorry to interrupt your train of thought here, but look.

I'm looking for other screens.

Is there... is there... the particular point that they're worried about is you say we want to establish the retaliatory motive.

That's what's worrying them because they see, in that establishment of the retaliatory motive, discovery, and discovery means you not only talk to the investigators, but you're also talking to, as a witness, the prosecutors to find out who said what to whom in order to see if you could establish that they didn't like the speech of the defendant.

Now, can you give me any screen, not your case, but any kind of a screen that will help--

Mr. McCartan: Yes.

Justice Breyer: --weed out the sheep from the lambs--

Mr. McCartan: And I--

Justice Breyer: --the goats from the sheep or whatever--

Mr. McCartan: --Your Honor--

Justice Breyer: --in that area?

Mr. McCartan: --I submit the screen is that set forth by this Court in Harlow, which is an objective standard and which is whether the conduct involved violated a clearly established statutory or constitutional right of which a reasonably prudent law enforcement officer or Government official should be aware.

That's why I tried to say earlier this standard that should govern this case is not probable cause, but the standard set forth by this Court in Harlow--

Justice Souter: --So the... the screen, in effect, is--

Mr. McCartan: --And is a screening.

Justice Souter: --the qualified immunity screen.

Mr. McCartan: That's right.

And there was no screening mechanism in United States against Armstrong.

The Court made it very clear that what you were applying there were ordinary equal protection standards.

Justice Kennedy: Have there been cases where in the context of the prosecution, there's been a motion to dismiss the prosecution because it was brought in retaliation for the exercise of the First Amendment right?

Mr. McCartan: This Court has not decided what the proper remedy would be there, Your Honor.

And the cases--

Justice Kennedy: Have there been cases in the other courts?

Mr. McCartan: --I'm not aware of any cases where that has succeeded except at the circuit court level--

Justice Stevens: No, but it did in the Armstrong--

Mr. McCartan: --where the conviction has been invalidated for that reason.

Justice Stevens: --But in the race context, it is a dismissal of the prosecution itself.

Isn't it?

Mr. McCartan: Yes, Your Honor.

It might be the same here.

Justice Stevens: --with Harlow here.

Justice Kennedy: My... my question was directed to the First Amendment.

Mr. McCartan: For the First Amendment.

No, I'm not aware of... certainly no decisions of this Court, and I think the only cases arise--

Justice Scalia: --Well... well, surely the prosecution--

Mr. McCartan: --in the circuit courts of appeals, Your Honor.

Justice Scalia: --Surely the prosecution would go ahead if there were probable cause.

No?

I mean, suppose it was brought up during the prosecution.

Mr. McCartan: Well, the question--

Justice Scalia: You mean to say if there was... if there was perfect probable cause for the prosecution, that you can stop the prosecution in its tracks by... by an allegation of the First Amendment violation?

Mr. McCartan: --You can move for dismissal of the charges.

But look, as far back as 1886, this Court... this Court found a violation of the Equal Protection Clause in a racially motivated prosecution in a situation where there was clearly probable cause and, indeed, overwhelming evidence of guilt for violation of a facially neutral statute.

In United States against Armstrong, the existence of probable cause did not stand as a bar to the selective prosecution claims.

Justice Breyer: But that... that's true.

I now think we're making some progress.

I don't think it is quite a qualified immunity.

I think it's possible and don't... I'm putting words in your mouth and deny them if I am.

One, he's convicted, no case.

Two, no probable cause, everybody agrees there's a case.

Three, now there is probable cause, but he's acquitted.

Okay?

Mr. McCartan: That's this case.

Justice Breyer: In that circumstance, suppose you say we cannot even allow discovery.

You don't even get to discovery on your retaliatory motive unless you show clearly, question mark, or unless you show likely, question mark, that the investigator not only retaliated, but he retaliated under conditions where any reasonable person would have known that what he was doing was contrary to the Constitution.

Mr. McCartan: Exactly, Your Honor.

That--

Justice Breyer: And if you don't show that as a... as a threshold, you don't even get discovery.

Mr. McCartan: --We don't... that is exactly the Harlow standard.

That is exactly the standard that was applied in Crawford El against Britton as the first step in the stage of developments in that case.

Justice Souter: But if you turn the Harlow standard around... I mean, you're... you're making the... the negation of the Harlow standard the screening device--

Mr. McCartan: Exactly.

Justice Souter: --in Justice Breyer's example.

Mr. McCartan: Exactly.

Justice Souter: Yes.

Mr. McCartan: That's the threshold determination in a Bivens action of this kind.

Justice Scalia: Mr. McCartan, what was the 1887 case or 1880--

Mr. McCartan: Yick Wo against Hopkins.

Justice Kennedy: Yick Wo.

Justice Scalia: --I thought you said Armstrong.

Mr. McCartan: No, no.

Armstrong--

Justice Kennedy: Yick Wo.

Mr. McCartan: --much more recently, but Yick Wo against Hopkins.

Justice Scalia: I thought it was--

Justice Kennedy: Let... let me ask you this.

Suppose the law enforcement official... the postal inspectors bring the prosecution to the prosecutor because of their disagreement with his First Amendment views.

The prosecutor said, I don't care about the First Amendment views.

I'm glad you brought this to me.

I'm going to prosecute because there's probable cause here and this is a bad actor.

What results?

Mr. McCartan: The result is that's a question of causation, Your Honor, if there is evidence.

Justice Kennedy: That's why--

Mr. McCartan: Yes.

If there is evidence here with respect to retaliation, then the question of whether the independent act of the prosecutor somehow immunizes that conduct is a question of fact for the trier of fact in the case.

If the action--

Justice Kennedy: --Suppose the prosecutor said, you shouldn't have brought this to me because you... you're... you're motivated by the First Amendment.

But now that it's here, I have my own independent interest in going ahead.

Mr. McCartan: --That's the evidence the Government can bring forward when the burden of proof shifts upon a showing of an illegal or unconstitutional motive for bringing the prosecution to begin with.

That's the kind of evidence the Government would present to show that the prosecution would have taken effect in any--

Justice Souter: And if the burden does shift that way--

Mr. McCartan: --Exactly.

Justice Souter: --wouldn't it be consistent with the screening mechanism that Justice Breyer suggested and... and that you accepted?

Wouldn't... wouldn't the... the... when the burden shifts, wouldn't the obligation be on... on the point of substance, as opposed to the point of... of screening, not to show that the... that the prosecutor would have brought the prosecution anyway, but to show that the investigator would have acted to procure that prosecution anyway?

So you would have parallel standards.

Mr. McCartan: Exactly.

Justice Souter: Okay.

Mr. McCartan: Because the prosecutor has immunity, cannot be a defendant in the case.

Justice Souter: All right.

But just... I just want to nail this--

Mr. McCartan: No, absolutely.

Justice Souter: --to make sure I understand it.

So you're... you're modifying your position of a minute ago in which you said the standard would be would the prosecution have been brought anyway, and you're now saying, which I think would be consistent with your answer to Justice Breyer, the... the question is would the investigators have tried to procure the prosecution anyway.

And do I understand you correctly, and... and have you changed your position?

Mr. McCartan: Well, I think that is a significant distinction, Your Honor, but I think we have to establish that they procured the prosecution and that it did proceed by reasons of the illegal motivation and not for some independently objective standard.

Justice Scalia: --Right, because the prosecutor could have gotten a lot of other information from other people.

Mr. McCartan: Absolutely.

Justice Scalia: And you're not going to throw out the prosecution just because this one piece of information was bad.

Justice Souter: So it's a dual--

Mr. McCartan: Consider too what the facts of record are here.

This prosecutor was a complicit conduit in this action.

He admitted in the presence of a grand jury witness that he couldn't care less about the guilt or innocence of these people.

He just wanted a conviction so he could obtain a lucrative position in private practice.

I understand he is still a prosecutor at this time.

But that decision of the prosecutor, based upon facts of that kind, has no probative value whatsoever in terms of the independent action that might have broken the chain of causation in a case of this kind.

Nor does the indictment of the grand jury have any probative value because exculpatory evidence was withheld from the grand jury.

And I think in determining the value of the grand jury's action, you have to really determine not only what was presented to the grand jury, but also what was withheld from examination.

Justice Stevens: May I go back to one question Justice O'Connor asked you earlier?

To what extent are there... is there precedent out there in other courts that have decided this very issue?

Are there... is there precedent for what you're asking us to do?

Mr. McCartan: There... there is precedent in the courts of appeals, Your Honor.

The cases, I think, are cited in our brief where prosecutions have been invalidated based upon violations of constitutional rights.

Justice Stevens: But a violation of First Amendment rights or--

Mr. McCartan: First Amendment rights.

I think that is the case.

Not cited in our brief.

But there are cases to that effect.

Justice Stevens: --And... and were those cases in which the prosecution itself was brought to a halt, or were they post prosecution damage actions?

Mr. McCartan: Post prosecution.

Not post prosecution damage actions but appeals, direct appeals, to invalidate the conviction--

Justice Stevens: The conviction.

Mr. McCartan: --based upon the violation--

Justice Stevens: But is there any precedent for a damage action of this kind?

Mr. McCartan: --Well, Bivens is.

Justice Stevens: Well, but not quite.

Bivens isn't exactly like that.

This is Fourth Amendment.

So is there... is there precedent for a damage action brought on the theory that the prosecution was brought for... to retaliate for First Amendment speech?

Mr. McCartan: I'm not aware, Your Honor, of any precedents--

Justice Stevens: I'm not either.

Mr. McCartan: --in the three circuits where probable cause is not a bar to an action of that kind.

Justice Kennedy: Now, that... that means one of two things, either what you're arguing for is not going to bring a flood of litigation, or everyone has assumed that probable cause is a... is a requirement.

Mr. McCartan: Well, I think it would be the former rather than the latter, Your Honor, since probable cause does not distinguish between what may be an unconstitutional act on the part of the Government and one that might be motivated by a legitimate grievance.

Justice Kennedy: Well, but... but I'm not sure that that proposition has been established in the cases.

Mr. McCartan: No, Your Honor, and that's why I think this case is before this Court at this time.

Justice Scalia: Neither... neither does absolute immunity for the prosecutor distinguish between whether the prosecutor was acting just illegally or just acting unconstitutionally.

I mean, yes.

Mr. McCartan: If I may--

Justice Scalia: You apply the same rule there.

Mr. McCartan: --I'm sorry, Your Honor.

Is that... was that an observation or a question?

Justice Scalia: Yes, well, your... your point that... that there... there has to be a difference between whether there's a constitutional violation or not in this context seems to me not well taken because we don't make that distinction in the context of giving absolute immunity to the prosecutor.

We don't say he doesn't have absolute immunity when... when he's been guilty of a constitutional violation.

Mr. McCartan: But as Justice Souter brought... questioned whether the prosecution was procured for unconstitutional reasons, the immunity of the prosecutor has nothing to do with the reasons for which the prosecution is brought.

It only protects him from civil damage liability.

The investigators themselves have no such immunity.

It is qualified.

Justice Kennedy: No, no.

But the point remains that if in the prosecutorial context the immunity exists whether or not there's a constitutional violation, then that teaches us that the same rule should apply to this case.

That was Justice Scalia's--

Mr. McCartan: No.

I think that is the difference, Your Honor, between absolute and qualified immunity.

The Court has given absolute immunity only to those functions that are so intimately associated with the judicial process, that they have to give immunity to those people, otherwise there would be an unjust interference with--

Justice Stevens: May I ask this question?

Maybe I should ask Mr. Kneedler.

But I am correct in assuming that even if you should lose on the issue that we're faced with today, the case would, nevertheless, go forward because you would still seek to prove an absence of probable cause?

Mr. McCartan: --Well, certainly that would be a question for the jury, Your Honor, absence of probable cause.

Justice Stevens: Yes, but the case wouldn't be over if you lose here.

Mr. McCartan: Well, it depends on what ground we would lose here.

If the Court went on to decide the sufficiency of the allegations in a Bivens type case, which I don't think it should and which the Court declined the invitation to do so in Harlow, then we would not lose.

If you did--

Justice Scalia: I wouldn't worry a lot about that, Mr.--

Mr. McCartan: --All right.

May I say one word about the tort of malicious prosecution, which I say is not a proper analog for the analysis of cases of this kind?

The interests that are protected by the First Amendment are far different from those that are remedied by the tort of malicious prosecution, and the injury to which is of far greater magnitude than what the common law sought to address by the tort of malicious prosecution.

The tort of a malicious prosecution tells us nothing about the interests protected by the First Amendment.

It remedies different interests.

It is not a proper analog and, therefore, shouldn't be involved in definition of what the First Amendment rights may be.

If you look at those cases where the Court has referenced the common law in determining how constitutional rights should be remedied, they have been situations where the interests protected at common law are identical to those that are protected by the particular constitutional provision that is involved.

A good example is Wilson against Arkansas, Fourth Amendment situation, the question of whether the knock and announce principle of common law should be incorporated into the reasonableness determination of the Fourth Amendment.

The interest protected by the common law in that situation against unreasonable searches and seizures was identical to the interest protected by the Fourth Amendment.

For that reason, the Court said that should be taken into consideration in determining the reasonableness of the action under the Fourth Amendment.

Justice Breyer: I'd like to ask you one other question.

Suppose you win on this on the grounds we've been discussing.

What happens in the middle of the trial when a defendant wants to say the same thing?

Can he avoid conviction by showing the same thing?

Mr. McCartan: I'm sorry, Your Honor.

Justice Breyer: What happens when the same claim is made in the middle of a trial that I... whether I'm guilty or innocent?

I haven't been convicted yet, and I want to show that this prosecution wouldn't have been brought in the absence of the retaliatory motive.

Can he make that claim in the middle of trial or not?

Mr. McCartan: Well, if he were foolish enough to make such a claim--

Justice Breyer: Well, no, he believes it.

Mr. McCartan: --I can't believe that a defendant in a criminal prosecution who is acquitted in a subsequent civil suit--

Justice Breyer: No, no.

He's not acquitted.

Mr. McCartan: --Oh, I'm sorry, Your Honor.

You say he's not acquitted.

Justice Breyer: He's in the middle of trial and he wants to say--

Mr. McCartan: Well, I don't think he'd be in the middle of trial under Heck against Humphrey.

Justice Souter: --It's the criminal trial.

Justice Breyer: --It's a criminal trial.

Justice Souter: The original criminal trial.

Justice Breyer: He's in a criminal trial, and what he wants--

Mr. McCartan: This is not a civil action for damages.

Justice Breyer: --No.

Mr. McCartan: This is a criminal case.

Justice Breyer: They read our opinion which holds in your favor.

Then the next thing is in... in the criminal cases the defense lawyers say, hey, I... I think my client wouldn't be here today were it not that the FBI had a retaliatory motive.

Mr. McCartan: That would not suffice.

Justice Breyer: Because?

Mr. McCartan: And that was the whole purpose of Harlow, mere--

Justice Breyer: No, no, no.

They're going to show exactly the elements that we write in our opinion.

Mr. McCartan: --If the... if the defendant in that case had established evidence tending to show the essential elements of the claim, it would present a question for the court, but I think the court would use the admission against interest as a basis for paying no attention to such--

Justice Stevens: Thank you very much, Mr. McCartan.

Mr. Kneedler, you have 3 minutes left.

Rebuttal of Edwin S. Kneedler

Mr. Kneedler: Thank you, Justice Stevens.

I'd like to respond to Justice Breyer's suggestion that this could all be solved by an application of the Harlow qualified immunity standard.

With all respect, I don't think that that would really work at all because if... if the point is that it would be unconstitutional to bring a prosecution only because of protected First Amendment activity, that could be taken as a given and still be enormous inquiry into what actually happened between the investigator and the prosecutor, what the real motivation was, what the prosecution's policies were.

That is the concern we have for the post hoc inquiry into the process.

And not only that, it isn't just the discovery.

It's what... what consequences this will have on law enforcement generally if police officers operate under the assumption that if the prosecution fails, they will be subject to civil liability, which is exactly what Blackstone said, as this Court quoted in Dinsman v. Wilkes.

The reason for the rule is that it would be a very great discouragement to public justice if prosecutors, who have a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried.

Justice Ginsburg: But we're not talking about prosecutors there--

Mr. Kneedler: No, but... but that included complaining witnesses.

That... that was what prosecutor meant at common... at common law.

And there's no reason to grope for some sort of screen because the common law furnishes it.

The tort of malicious prosecution is what this Court relied upon in Heck v. Humphrey for the favorable termination rule, that you could not bring a 1983 suit unless the conviction had been set aside and the proceeding was terminated in favor of the plaintiff.

That same tort, that tort of malicious prosecution, contains the probable cause requirement to guard against an objective screen, to guard against the very thing that Blackstone was worried about and that this Court noticed in... in the Dinsman case.

And that is, that it is important not to have law enforcement officers be chilled from the important function of furnishing information to prosecutors.

And this Court's decision in Armstrong imposed an important objective test that you have to show that there's somebody similarly situated before you even inquire into prosecutorial motives.

You have to show an objective factor that someone else was similarly situated.

Respondent's position would offer no such... no such protection.

Justice Ginsburg: --How about the judge granting a motion to quit at the close of the Government's evidence?

Why isn't that objective?

Mr. Kneedler: Because at... at common law... and I think this was an important insight.

At common law, it was not even evidence of the absence of probable cause because a judgment of acquittal turns on the determination that a fact finder... a reasonable fact finder could not find beyond a reasonable doubt that the defendant had actually committed the crime.

Probable cause is a very different standard, which is whether it would lead a reasonable, cautious, prudent person to believe that a crime had been committed.

That is the--

Justice Ginsburg: I wasn't--

Mr. Kneedler: --An acquittal does not--

Justice Ginsburg: --Your opponent says... says there is no probable cause requirement.

You are now on there's no objective test.

It's all subjective.

I suggest that there could be an objective test.

This is not going to the probable cause question.

Objective test?

Was this case thrown out at the close of the Government's evidence?

Mr. Kneedler: --But... but my... my point was at common law, that the wisdom of the courts was that... that that wasn't even evidence of a... that should... that... that shouldn't allow the suit to go forward because it was a sufficient guard... protection for the prosecutors.

Justice Stevens: Thank you, Mr. Kneedler.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Rumsfeld v. Forum for Academic and Institutional Rights (FAIR)

Media File:

04-1152_20051206-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Roberts: We'll hear argument first this morning in Rumsfeld versus Forum for Academic and Institutional Rights.

General Clement.

Mr. Clement: Thank you, Mr. Chief Justice, and may it please the Court--

The Solomon Amendment conditions the Federal funding of educational institutions on receiving something that any donor would expect, the opportunity to recruit students educated at the funded institutions.

That opportunity allows the military a fair shot at recruiting the best and the brightest for the military's critical and vital mission.

The Federal Government does not insist on any predetermined level of access; rather, it simply asks what other employers receive.

Likewise, the recipient schools remain free to criticize the military and its policies, and, of course, they remain free to decline Federal funds altogether.

As a result of these circumstances, the Solomon Amendment comports with both the Constitution and with common sense.

Justice Scalia: When you say that it asks what other employers receive, but these institutions, I gather, would not allow other employers, who have the same policy against the hiring of homosexuals, to interview at their institutions.

So, you're receiving what other employers in the same situation would receive.

Mr. Clement: Well, I think, Justice Scalia, that you have to look at the... I think, the statute in two steps.

One is, I think it's quite clear that it gives the military a right to gain access to campus as a condition, that it has... that they have to gain access to campus in order to perform their military recruitment.

Justice O'Connor: Yes, but it says... I thought it says that the military must have equal access with any other employer.

Now, every other employer is subject to the same policy, presumably, of the law school.

Mr. Clement: Well, with respect, Justice O'Connor, I think there's several points to be made in response to that.

First of all, I think the Solomon Amendment itself is a recognition that the military is not like any other employer for purposes of its policy and its treatments of homosexuals.

And I think that, unlike any other employer, the military's policy is a result of a congressional mandate.

And--

Justice Kennedy: Well, that's fine, but you were the one that made the argument that they want the same access as other employers.

That's--

Mr. Clement: --And what--

Justice Kennedy: --when you... I just--

Mr. Clement: --what I would say--

Justice Kennedy: --want to make sure what the calculus is, at the outset.

Mr. Clement: --Well, and Justice Kennedy, I think the point I would say is, in terms of gaining access to campus, we want to gain access at a level, and under circumstances, that perhaps some other employer would be excluded.

Well, once access is gained, then the question arose under the prior version of the statute, all right, if access is gained, what level of access suffices?

And on that second order question of what level of access suffices, then you look to what is provided to any other employer.

And so, that's why, when I say that we don't ask for any predetermined level, we don't ask for seven meetings a year, we don't ask for entrance into the public address system or the email system.

We simply say,

"Once you let us on campus, just give us, and extend to us, an opportunity to recruit on the same terms as others. "

And that obviously reflects the commonsense judgment that the military is competing for the same pool of students that the other employers are competing for.

Justice Breyer: The constitutional argument, I guess, is,

"Does the Constitution require access... is... does it permit a statute which says you have to give access to the military, when you wouldn't give access to any other employer? "

Mr. Clement: That's exactly right, Justice Breyer.

Justice Breyer: All right.

Now--

Mr. Clement: And, of course, we take the--

Justice Breyer: --So, then what you're saying, it--

Mr. Clement: --position that--

Justice Breyer: --and then what's the answer to that question, "Does the Constitution"... how does the... what's the answer?

Mr. Clement: --I think there's... I mean, there's... the Constitution is... has no difficulty with such a statute.

It is this statute.

As I say, there's... if you want to think about it being preferential entry into campus, and then, at that point, equal access on terms of the... the terms that are extended... however you want to think about it, though, there's no difficult constitutional question here.

Justice Souter: Well, your argument--

Justice Scalia: No, but it seems me you've got us off galloping in the wrong direction.

The statute doesn't require simply giving the same access that you give to other employers.

It requires much more than that.

It requires that they... it prohibits, or cuts off, funds if an institution either prohibits or, in effect, prevents the Secretary of a military department from gaining access to campuses for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.

So, it seems to me that the statute demands more than simply you give the same access as all other employers.

If you allow any other employer, you have to give it to the military in the same manner.

Mr. Clement: I think that's right, Justice Scalia.

I'm... and I'm sorry if I got us off on the wrong foot.

Justice Ginsburg: General--

Mr. Clement: I think there is this debate--

Justice Breyer: Yes, but it is an important question, because the... there is an amicus brief that says, "Go read the statute".

And, really, the statute was not about homosexuals in the military, it was a statute about universities in Vietnam not letting military people on campus.

So, in the... at the heart of the statute was a matter which was unique to the military.

Now, this is a matter that isn't unique to the military.

So, why not interpret the statute in the way that the amicus brief suggests in order to avoid a difficult constitutional question?

Mr. Clement: --Well, a couple of points, Justice Breyer.

I don't think there is a difficult constitutional question to be avoided here, and I'll get back to that whenever I can.

As to the statutory interpretation question itself, I think that in... the proper frame of reference here is probably not the original 1969 version of this, which conditioned only NASA's fund.

The original starting point is probably about 1996, when the first version of the modern Solomon Amendment was introduced.

And there have been a couple of iterations of it, but I think one important reference point is the version that was in force at the start of this litigation, and that's actually reproduced at page 88(a) of the petition appendix in the District Court opinion.

And if you look at that against 88(a) of the petition appendix, there would be no question that what is at stake here is access to the campus, and the amicus argument that's being raised is not even available; because the statute at that point is, I think, in fairness, materially identical, except for that last clause, which says

"in a manner equal in scope to... in character to that of any other institution. "

So, it's clear that when this litigation starts, there's no argument available to the amicus that the statute effectively accomplishes nothing.

Now, what happens under this version of the statute is, a second order question arises.

Okay, the... in order to comply with the Solomon Amendment, universities have to give access, they have to allow the military to gain entry and gain access to the students in the terms of the then extant statute.

The--

Justice Stevens: May I interrupt with one--

Mr. Clement: --Sure.

Justice Stevens: --brief question?

Would that be true if the university didn't allow any access whatsoever to any employer?

Mr. Clement: As a regulatory matter, the military took the position that if they simply barred access to--

Justice Stevens: No--

Mr. Clement: --anybody--

Justice Stevens: --not the regulatory matter.

The statute.

Mr. Clement: --I think you could read the statute either way on that question, Justice Stevens.

They interpreted it to say that there was no equal... there is no obligation to give entry if no employer was on campus at that time.

The other thing they interpreted in the statute as a regulatory matter, though, was this second order question of,

"All right, if they get some access, is unequal access enough? "

And as a regulatory matter, they said,

"No. "

"We need access that is equal in character and scope to that provided to any other employer. "

And then what Congress did in the iteration of the statute that's at issue here, which is reproduced starting at page 185(a) of the petition appendix is they effectively codified and ratified that regulatory interpretation by adding the phrase

"in a manner that is at least as equal in quality and scope to the access to campuses and to other students that is to provide it to any other employer. "

Justice Ginsburg: --General--

Mr. Clement: But I think--

Justice Ginsburg: --Clement, do I understand, with respect to that brief that offered a statutory interpretation to avoid a constitutional question, your answer is, that would be an unreasonable interpretation of the statute that we now have?

And if we're talking about a predecessor statute in 1968, from the Vietnam days, that... this would have been a highly academic question, because there weren't any such policies in any law schools with respect to recruiting.

Mr. Clement: --No, that's true, Justice Ginsburg.

That's why I said, in response to Justice Breyer, that I think that the proper point to start to focus on is the... these... is the 1994 Solomon Amendment.

And, at that point, there is a question about this policy.

At that point, the American Association of Law Schools does have its recruiting policies beginning in place, and I think the provision has been amended a number of times in the years since 1994.

There have been changes in the scope of the funding that's covered.

First, student aid funds were put in, then they were taken out.

And then, this is the most recent iteration of the provision.

There's no question that what's at issue here is more than just the Vietnam era concerns about ROTC presence on statute, because that's addressed in a different subsection of the statute.

That's addressed in 10 U.S.C. 983(a).

So this provision, 10 90... 10 U.S.C. 983(b) is specifically addressed at the problem of access to campuses for recruiting.

And, I think, especially when you read the statute in light of the relevant history of the prior administrative interpretation, and that being codified and ratified by Congress, it's very clear that this phrase

"in a manner that is at least equal in quality and scope to the access provided to any other employer. "

is just that, it's a regulation of the manner of access, once access is granted.

And it addresses this difficult question of, If you allow some entry and access onto campus, what level of access is sufficient?

And so, I think that--

Justice Scalia: What does Title X of the United States Code deal with?

Mr. Clement: --It deals with the military.

Justice Scalia: Why do you chose to defend this principally on the basis of the Spending Clause, and not on the basis of what it... what it was, seemed to me, enacted in order to achieve, and that is the congressional power to raise and support armies.

Mr. Clement: Well, Justice Scalia, I think the statute is clearly supported under both provisions, under the spending authority and the Article I authority to raise and support armies.

I think, in answering your question, we tended to focus on the fact that it was a spending condition, because we thought, under this Court's precedence, that made it an even more straightforward case.

We certainly think it would be constitutional, even if it were a direct imposition, and we certainly think the fact that this is an exercise of Congress's undoubted authority to raise and support an army, is relevant to the constitutional analysis.

And if I could move over to the constitutional question and address that for a minute, I think one of the arguments that's raised on the other side is that there's an interference with associational interests in this case, and I think there are other statutes that, frankly, have much more of an interference with a university's associational interest.

I mean, Title VII, for example, regulates who can be members of the university.

And I raise that also because another provision in Title... in terms of this same area of the military, requires that there not be discrimination against veterans in hiring and employment.

And you could easily see that a university could take their position to its logical conclusion and say,

"In order to show just how much we don't like the military's policy, we're not only going to not let military recruiters on campus, but we are going to not hire former military people, veterans, and we're not going to admit them to our classes. "

Now, who's in the classroom, and who's a member of the university--

Justice Ginsburg: That would--

Mr. Clement: --seems--

Justice Ginsburg: --be rather farfetched.

The pitch that's being made is an equality pitch, that we are teaching our students equality, the equal stature of all people.

So, I think that your example does not fit--

Mr. Clement: --Well, with respect, Justice Ginsburg, I'm not sure I understand why not.

It's the same idea.

In order to teach equality, that there should be no discrimination against homosexuals, we're going to exclude, (a), military recruiters, and, while we're at it, the former military, as well, because they voluntarily joined the forces knowing that they had a discriminatory practice.

It's no stretch of the imagination to think that the principle that's being articulated by Respondents, would stretch well beyond simply a direct antidiscrimination motive.

For example, NYU... this is in the joint appendix, at page 153... NYU, for 3 years, had a policy of excluding recruiters from the State of Colorado, simply because Colorado had passed Amendment II, which this Court dealt with in the Romer case.

And so, it's not a matter of saying that,

"Well, you know, the only think that's at issue here is excluding employers that are, themselves, discriminatory. "

The free speech interests that are articulated on the other side, would extend to any basis for criticizing the military, whether it was not liking the war in Iraq, the war in Afghanistan, or the discriminatory hiring policies.

I also think, with respect to the issue of discrimination, it's worth pointing out here that there's more than one way to understand whether or not the military's policy is discriminatory.

Certainly respondents are entitled to view it as being discriminatory.

But the Congress that mandates this same policy towards homosexuals, I think, is equally entitled to look at it and say,

"No, there's no discrimination going on here, because you have to take into account the special role of the military. "

Justice Souter: --Okay, but even if you do that, you're still left, it seems to me, with the problem... whether you characterize the problem as discriminatory and antidiscriminatory university policy or not, you're still left with a speech problem that they raise, that, in effect, you are forcing them, in effect, to underwrite your speech, up to a point, and you are forcing them to change their own message.

You're forcing them into hypocrisy, in one alternative.

And those arguments don't depend upon the... sort of, the discriminatory character of what may be at stake.

Mr. Clement: I think that's exactly right Justice Souter, and I think those arguments would be the same even if what was going on here was a concern about the military's other policies.

You would still have a concern that the military is being forced onto campus to make its own speech, and you would still have the concern that that interferes with the message--

Justice Souter: So, discrimination--

Mr. Clement: --the university--

Justice Souter: --or no discrimination, you've got a speech issue that you're going to address.

Mr. Clement: --I agree.

I mean, I think, ultimately, that cuts in our favor, because it shows that the other side's position is not limited to this narrow context, but is a much broader first amendment claim.

Now, turning to that first amendment claim, I think what's wrong with that claim is several things.

I think, with respect to what the military itself wants, it simply does not want a... primarily a speech activity to take place, it wants access for recruiting, which is a traditional commercial enterprise, it is an activity that is something that is regulated by Title VII in other Federal statutes.

Sure, there may be some incidental speech involved in that, but primarily it is an instrumental activity designed to get--

Justice Scalia: It happens, in this case, to be specifically authorized by the Constitution.

Mr. Clement: --It does, indeed, Justice Scalia, and I think, though... I mean, there is this sense in which we certainly concede that there maybe some incidental speech involved; certainly, the military recruiters are engaged in speech.

I'm... we're not sure that's really the relevant speech.

But even the university itself--

Justice Souter: No, but you're making a... if I understand what you're saying, you are making a kind of O'Brien argument that the... that the burden on speech, whatever it may be, is an incidental burden to something else.

Well, that... I think we have to draw this line between recruiting, on the one hand, which is what the military wants to do, and the Solomon Amendment, on the other hand.

As I understand it, the Solomon Amendment is directed, or is responsive, entirely to positions taken by law schools on, among other things, first amendment expressive grounds, so that if we are going to address the Solomon Amendment, I think we are addressing an exclusively first amendment speech expression issue.

Mr. Clement: --Well, Justice Souter, I guess... I'm inferring that you're drawing that conclusion from some of the statements of some of the floor sponsors about their purposes enacting the Solomon Amendment.

I mean, if you look at the test of the Act alone--

Justice Souter: I don't--

Mr. Clement: --I don't think--

Justice Souter: --know of any other reason for the Solomon Amendment.

Mr. Clement: --Well, I think the reason for the Solomon Amendment is to ensure that military recruiters, in fact, have an equal opportunity to recruit the same pool of individuals that all the other employers are trying--

Justice Souter: But--

Mr. Clement: --to recruit.

Justice Souter: --But they're... but the Solomon Amendment, in order to accomplish that, is addressed to a particular expressive problem which occurs for the military... and for the law schools, for that matter... in law school recruiting.

So, it seems to me that... for... I mean, my only point is that the Solomon Amendment seems to have one objective.

Whereas, the "don't burn your draft card rule", in O'Brien, had two... or had a... let's say, had a primarily nonspeech objective with an incidental speech burden.

Here, the sole objective, in the real world, seems to be an expressive objective.

Mr. Clement: Well, if by... "the expressive objective" you're talking about is the military's own recruiting, I guess--

Justice Souter: No, this express--

Mr. Clement: --I agree with you.

Justice Souter: --Yes, but the expressive objective is, the law schools are taking a position on first amendment grounds.

That position is interfering with military recruitment.

No question about it.

I don't know how much, but I will assume that there is no question about it.

The Solomon Amendment is addressed solely, as I understand it, at the expressive activities which have, as you say, this interference.

Its sole objective is expressive.

Mr. Clement: No, I would disagree, Justice Souter.

If the... if the law schools were denying access to military recruiters, for any reason, be it a first amendment reason that they'd say it's a first amendment reason, or just because they couldn't be bothered, the Solomon Amendment would be written exactly the same way, which would say,

"Look, the military has an opportunity to get onto campus, and, once it gets there, it ought to get the same basic opportunities as other employers. "

Justice Scalia: You cannot convert a law into a law directed at the first... at first amendment rights, can you, by simply saying,

"The reason I am disobeying it is to express... whatever, disaffection with the war, my objection to homosexuality, or anything else... or to homosexual discrimination... or anything else? "

Does that convert it to a law directed against the first amendment?

Mr. Clement: Absolutely not, Justice Scalia.

And I would go further and say it's also not a problem, if, in the real world, the conduct that Congress sought to regulate was, in fact, in practice, generated by first amendment concerns.

I think that describes O'Brien.

Justice Souter: Well, in--

Justice O'Connor: Well, let me ask another question that may shed a little light on it.

Does the Solomon Amendment pose any restrictions on the extent to which the law schools can distance themselves from the military's views?

Can there be signs up at every recruitment office, saying,

"Our law school doesn't agree with any discrimination against gays? "

I mean, can they come forward with their position on this in every recruitment office without violation of the amendment?

Mr. Clement: Yes, they can, Justice O'Connor.

I think they would be, in fairness... I want to be clear... I think there might be a line where there would be... the recruitment office could conduct itself in a way that would effectively deny access.

But I think, with that caveat, there is--

Justice Stevens: But--

Mr. Clement: --nothing in the Act that prevents the universities--

Justice Stevens: --Let me ask you--

Mr. Clement: --from disclaiming--

Justice Stevens: --this question, to follow up on Justice O'Connor's thought.

Can... are you saying that the school can engage in speech expressing its views about the military policies, can engage in symbolic speech by affording access, which is equal in all functional requirements, but yet sends a message that they are really disagreeing with what's going on by, say... let a law school say,

"Well, for... most employers will let you use the regular law school placement facilities, but, for the military, we will require you use the college facilities to send a message that we disapprove, if the college facility is equally of... good, as a matter of functioning? "

Mr. Clement: --Well, Justice Stevens, I would say, to the... I think, the main thrust of your question, no, which is to say that if what you have in mind is really forcing them to go to the undergraduate campus, I think the military would take the position that that's not equal in scope.

Now, if there's a way, though--

Justice Stevens: But is it not equal because of the message it sends or because it denies the opportunity to recruit as effectively?

Mr. Clement: --It's the latter, Justice Stevens, and only the latter--

Justice Stevens: What if I had an example where they were equal... equally effective as recruitment avenues.

Could they... could they make the military take one that was equally effective, but it sent a message,

"Well, we really don't like what you're doing? "

Mr. Clement: --I mean, my own--

Chief Justice Roberts: Sort of like a separate but equal.

Justice Stevens: Yes.

Mr. Clement: --Well, I mean--

[Laughter]

--I guess I'm... I'm resisting a little bit just because I'm not... I think it would depend on the--

Justice Stevens: So, the--

Mr. Clement: --hypothetical.

Justice Stevens: --the point I'm trying to make is, Does your agreement, that you can engage in speech by posting banners or handing a note, apply to symbolic speech--

Mr. Clement: It could--

Justice Stevens: --the kind of conduct that is symbolic speech?

Mr. Clement: --It could apply to some symbolic speech, I believe.

It's just... I'm having trouble, because, in a practical matter, if you look at the record here, I think it's telling.

If you look, at joint appendix, at pages 215 and 219, describes the real situation at Boston College.

And they want to say that,

"Well, it's not really much of an imposition on the military, because all you have to do is get the recruiting list from the reserve desk at the law library, and then go to-- "

Justice Stevens: No, that's a functional--

Mr. Clement: --the main campus, which is a mile and a half away.

Justice Kennedy: But the--

Justice Stevens: --That's a functional difference.

Justice Kennedy: --the resistance to any statute, I assume, could be justified as symbolic speech.

Mr. Clement: Well, and I think... I mean, I'm... I think that some resistance by some parts of the university might be fine.

I think if the recruiting office... this is the caveat I tried to give Justice O'Connor... if the recruiting office engages in conduct that effectively negates the access that they're providing, then I think you would have a different situation.

Justice Ginsburg: --General Clement, can you be affirmative now?

Because we have an example, from Justice Stevens, which is the Yale example.

The... it was the main campus, instead of the law school.

What... the recruiter is there.

He's in the same room that other recruiters use.

What can the law faculty do to disassociate itself from... to say that,

"We don't tolerate discrimination of any kind? "

What can the law school do, concretely, while the recruiter is in the room?

Mr. Clement: I mean, concretely, they could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.

I would draw the line, though, at saying that they have to go to the undergraduate campus, because I think, as a practical matter--

Justice Kennedy: You mean, they could organize a student protest at the hiring interview rooms, so that everybody jeers when the applicant comes in the door and the school could organize that?

Mr. Clement: --The school could--

Justice Kennedy: As... when it's--

Mr. Clement: --organize--

Justice Kennedy: --when it's, say, a job fair, and all the employers are there, but then they jeer just the... and the school organizes a line jeering the... both the recruiters and the applicants, that's equal access?

Mr. Clement: --I think that would be equal access.

I think you have to draw a practical line--

Justice Kennedy: I'm surprised that--

Mr. Clement: --here between--

Justice Kennedy: --you think that--

Mr. Clement: --between access and allowing the speech, but I think it... you have to be--

Justice Scalia: You're not going to be an Army recruiter, are you?

[Laughter]

Mr. Clement: --I don't think the military and the Army recruiters... and I... and I won't be one of them... but I think the Army recruiters are not worried about being confronted with speech, they're worried about actually not being allowed onto the same law schools--

Justice Kennedy: --Well, worried about--

Justice Scalia: --having students driven off.

And if you have jeering and picketing, do you really think that that fulfills the purposes of this amendment?

Mr. Clement: --I don't know if it would fulfill every purpose, but I think the amendment has to accommodate the first amendment--

Justice Kennedy: --You think if you--

Mr. Clement: --interests at--

Justice Kennedy: --have jeering--

Mr. Clement: --a university.

Justice Kennedy: --jeering and picketing if a black person came to recruit and people didn't... and a school faculty didn't like blacks?

Mr. Clement: Well, I think that would--

Justice Kennedy: I think that that's an extraordinary position you're taking.

Mr. Clement: --Well, but, Justice Kennedy, I think you have to distinguish what the Constitution would allow the Government to do and what this statute does, which is to say... I mean, what you have in mind is a--

Justice Kennedy: We're talking--

Mr. Clement: --race example--

Justice Kennedy: --about the practical meaning of "equal access".

Mr. Clement: --Right, but in... the practical meaning has to turn on the statute at issue.

And Title VI, for example, in the race context, forbids all discrimination because of race.

And so, some of the conduct that you have in mind may well violate that statute.

And if Congress wants to write a different statute that provides more rights to the military, we would be here defending it as valid first amendment legislation.

But this statute gives, not a right to be free of any discrimination, but a right to equal access.

And we think that the right way to frame that inquiry is say,

"Access, yes, but be respectful of speech. "

And the last thing I would say, if I could reserve the rest of my time for rebuttal, is simply that it's worth remembering that the recruiting office is not the heart of first amendment activity on campus.

And if the recruiting office acts in a way that ensures access, and the rest of the university engages in speech, that's a commonsense way to accommodate the interest of the military recruiters and the first amendment.

If I may reserve.

Argument of E. Joshua Rosenkranz

Chief Justice Roberts: Thank you, General.

Mr. Rosenkranz, we'll hear now from you.

Mr. Rosenkranz: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court--

This case is not about whether military recruiters will be barred at the campus gates.

Congress had a law on the books that guaranteed entry to campus, but that was not what Congress really wanted.

So, it passed a new law.

What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message, which is why it gave us the current version of the statute.

The current version isolates for regulation the most communicative aspects of the law schools' resistance.

The law schools--

Chief Justice Roberts: No, that's--

Mr. Rosenkranz: --are saying--

Chief Justice Roberts: --I'm sorry, but the most communicative aspect is saying what you think about a particular policy.

This is conduct, denying access to the military recruiters.

Mr. Rosenkranz: --Your Honor, this is a refusal to disseminate the messages of the military recruiters.

It is a refusal to send emails, host bulletins, and make arrangements for mutual exchange of ideas.

It is "conduct" only in the sense that they are moving molecules, but it's speech that they are being forced to engage in.

And I have to emphasize, this case is not about entry.

The Solomon Amendment does not require schools to give entry to military recruiters, it requires them to give entry to a recruiter only if they provide entry to some--

Chief Justice Roberts: Well, no that--

Mr. Rosenkranz: --other employer.

Chief Justice Roberts: --So, if you had a policy that,

"We're going to deny any employer that uses tanks. "

do you think that would pass muster under the Solomon Amendment?

Mr. Rosenkranz: Well, Your Honor, for a pacifist religious institution, absolutely.

Chief Justice Roberts: What about Yale Law School?

Mr. Rosenkranz: No, because it has no morally based, conscious driven reason for refusing to disseminate that message.

Justice Scalia: Oh, where do you find that?

In... it has to be a morally based, conscience driven--

Mr. Rosenkranz: Well, Your Honor--

Justice Scalia: --I thought we were talking about freedom of speech, not the religion clauses.

Mr. Rosenkranz: --Well, Your Honor, what I'm saying is, under the... under this Court's jurisprudence in the first amendment, it's actually relevant whether the reason for refusing to disseminate the message lies at the heart of the first amendment.

Justice Souter: Well, is... what about Hurley?

Is there something deeply moral or conscience driven about the position to exclude the gay rights contingent in the parade, in Hurley?

Mr. Rosenkranz: Well, Your Honor, it was certainly a reason that they gave, and it was based upon a political view of the legitimacy of homosexuality.

Justice Souter: So, you're--

Mr. Rosenkranz: But I hasten to add, I'm not arguing that that is a required element of a compelled speech claim.

I'm simply arguing that when someone has a reason for resisting disseminating a message, that situates it further... closer to the heart of the first amendment.

Congress came back, after it--

Justice Souter: --Well--

Mr. Rosenkranz: --had a--

Justice Souter: --Excuse me, that... I understand that, so far as the associational claim may go.

But so far as the speech claims may go, I don't understand it.

Mr. Rosenkranz: --Your Honor, I--

Justice Souter: I can say, or refuse to say, anything I want to, for any reason I want to, however bad that reason, however nonmoral that reason is.

And I don't see how, in the speech... on the speech claims, we get into moral basis at all.

Mr. Rosenkranz: --Your Honor, I accept that as a proposition of the compelled speech doctrine, absolutely.

And what I'm trying to point out is that in this case what Congress has done is to engage in the most viewpoint oriented regulation of speech.

The reason Congress does not... the reason Congress is insisting that the law schools disseminate the recruiting messages is because of the message of the law--

Chief Justice Roberts: But it doesn't--

Mr. Rosenkranz: --schools themselves--

Chief Justice Roberts: --it doesn't insist--

Mr. Rosenkranz: --in providing--

Chief Justice Roberts: --It doesn't insist that you do anything.

It says that,

"If you want our money, you have to let our recruiters on campus. "

Mr. Rosenkranz: --Yes, Your Honor, and, under the doctrine of unconstitutional conditions, the analysis is exactly the same.

Chief Justice Roberts: Under... what about South Dakota against Dole?

South Dakota had a constitutional right, under the twenty first amendment, to set whatever drinking age it wanted, and yet we upheld the Spending Clause condition that if they accepted Federal funds, they had to set their drinking age at 21.

Mr. Rosenkranz: Yes, Your Honor.

And in subsequent cases... and, in fact, in Dole itself... this Court pointed out that all bets are off when there is a superceding constitutional right.

Here, we're talking about the Bill of Rights and the first amendment.

I mean, Rosenberger and Rust--

Chief Justice Roberts: There's the right to... in the Constitution, to raise a military.

Mr. Rosenkranz: --Well, that is a Government interest, for sure.

All Government interests--

Justice Kennedy: What--

Mr. Rosenkranz: --can be--

Justice Kennedy: --What you're--

Mr. Rosenkranz: --traced--

Justice Kennedy: --What you're arguing is that what is, for all intents and purposes, "conduct" can be infused by the school, at its option, with a first amendment quality.

Yet your argument would allow schools to exclude anybody in uniform from a cafeteria.

Mr. Rosenkranz: --Absolutely not, Your Honor, because--

Justice Kennedy: Why not?

Mr. Rosenkranz: --because--

Justice Kennedy: What's the point?

Mr. Rosenkranz: --what the law schools are engaging in--

Justice Kennedy: It's an express... it's an... it's solely for an expressive purpose.

Mr. Rosenkranz: --Your Honor, there's a difference between refusing to abide by a universally applicable regulation of conduct, on the one hand, and the Solomon on... Amendment, on the other hand, which is refusing to assist the dissemination of a message.

Recruiting is all about speech.

Yes--

Justice Scalia: What do you--

Mr. Rosenkranz: --it has--

Justice Scalia: --What do you do about the... about the cases where we have required colleges to allow some student activities to put forward their views on campus, when other student activities are allowed to do that?

It seems to me that that flatly contradicts the proposition that when you compel an institution to permit somebody else to speak, you are violating that institution's first amendment rights.

Mr. Rosenkranz: --Well, Your Honor, that is for public schools, and public schools are subject to the first amendment rights of those who want to enter their forum.

But there is a critical difference between that forum, Your Honor, which the schools opened up to everyone, and the forums in career services, which the schools filter on the basis of one very important--

Justice Souter: No, but, Mr. Rosenkranz, isn't the... I thought the distinction was that in determining the forum for recruiting, the university is speaking.

The university isn't creating a forum from a lot... for a lot of third parties; it's speaking, itself.

And I understand the essence of your claim to be that its speech is being affected, either by being mixed with something it doesn't want to say or by being, in effect, forced to support it doesn't... something it does not want to say.

Mr. Rosenkranz: --Your Honor, it's important to keep in mind that there are two messages going on here, and they are clashing.

There is the military's message, which the schools are interpreting as,

"Uncle Sam does not want you. "

and there is the school's message, which is,

"We do not abet those who discriminate. "

"That is immoral. "

And--

Justice Ginsburg: And you would take, Mr. Rosenkranz, that same position.

If this was not special to law faculties... I mean, we're told that the recruiters could go to the main campus; most of these places, the restriction is limited to the law faculties.

Suppose it was universitywide policy that we do not give equal access to military recruiters.

I think your argument says it doesn't matter if it's special to the law school or the whole university.

Do I understand it correctly?

Mr. Rosenkranz: --Yes, Your Honor.

If the university had such a policy, then the university would be able to enforce it.

But I hasten to add--

Justice Kennedy: And so for members--

Mr. Rosenkranz: --the university--

Justice Kennedy: --for medical schools, we can't get medical schools for our Armed Forces... chaplains, the same way, because it... schoolteachers who teach on military bases... in order to make the point.

Mr. Rosenkranz: --Your Honor, at this point, and for some--

Justice Kennedy: And that's--

Mr. Rosenkranz: --several--

Justice Kennedy: --that's all for an expressive reason.

Mr. Rosenkranz: --Justice Kennedy, for several decades, law schools have had these policies and applied them to career services offices.

No other schools within the--

Justice Breyer: But that isn't--

Justice O'Connor: But--

Mr. Rosenkranz: --universities.

Justice Breyer: --that isn't relevant.

Justice O'Connor: --But the Government takes the position that the law school is entirely free to convey its message to everyone who comes.

Mr. Rosenkranz: Yes, Justice O'Connor, and--

Justice O'Connor: So, how is the message affected--

Mr. Rosenkranz: --Well--

Justice O'Connor: --in that environment?

Mr. Rosenkranz: --let me answer in two parts.

First, of course, under the compelled speech cases, the ability to protest the forced message is never a cure for compelled speech violation, but--

Chief Justice Roberts: But--

Mr. Rosenkranz: --what's going on--

Chief Justice Roberts: --I'm sorry, but, on compelled speech, nobody thinks that these... law school is speaking through those employers who come onto its campus for recruitment.

Everybody knows that those are the employers.

Nobody thinks the law school believes everything that the employers are doing or saying.

Mr. Rosenkranz: --That's correct, Your Honor, but, again, endorsement is also not an element of compelled speech claim.

But let me... let me bring those two questions together on a factual point.

The law schools are disseminating a message that they believe it is immoral to abet discrimination.

When--

Justice O'Connor: But--

Mr. Rosenkranz: --they--

Justice O'Connor: --they can say that to every student who enters the room.

Mr. Rosenkranz: --And when they do it, Your Honor, the answer of the students is,

"We don't believe you. "

"We read your message as being that there are two tiers. "

"There's a-- "

Justice Breyer: Oh, there are--

Mr. Rosenkranz: --"# double standard"--

Justice Breyer: --students--

Chief Justice Roberts: The reason they don't believe you is because you're willing to take the money.

What you're saying is, "This is a message"--

[Laughter]

"# we believe in strongly, but we don't believe in it, to the tune of $100 million. "

Mr. Rosenkranz: --That's right, Your Honor.

And the problem with this Solomon Amendment is that the unconstitutional conditions doctrine says that you can't put a private speaker to that crisis of conscience.

Justice Stevens: May I just be sure I have one thing straight?

The content of the compelled speech, as I understand it, is you're aiding in the recruitment of the Armed Forces, right?

Mr. Rosenkranz: That's correct--

Justice Stevens: And so, it--

Mr. Rosenkranz: --Your Honor.

Justice Stevens: --would still have been compelled speech if, 25 years ago, Congress passed a statute saying,

"University, you must allow our people on campus to recruit. "

and they some... for some reason, didn't want to help.

But that would have been a violation of the first amendment of the school if there were no other debate, just they didn't want the Army on because they had to provide facilities that would aid recruitment.

Mr. Rosenkranz: Yes, Your Honor.

If it was... certainly, if it was against their conscience to do so--

Justice Stevens: So that it would have violated the first amendment during World War II when the... whenever they are trying to raise an army, if they had compelled an unwilling university to provide recruitment facilities to the military.

Mr. Rosenkranz: --Well, yes, Your Honor, unless there is a compelling need.

And the difficulty with the Solomon Amendment--

Justice Stevens: Well, that be compelled speech, though, in your view.

That's the kind of speech we're talking about, anything that helps the military raise an army.

Mr. Rosenkranz: --Anything that... not anything that helps the military raise an army; any communication that a school is required to engage in.

Justice Souter: Okay.

Justice Stevens: So, why isn't--

Justice Souter: Isn't that the point?

I mean, your point is not that... as I understand, that, for any reason, if the... if the university, for any reason, during World War II, had excluded recruiters, and there had been the equivalent of the Solomon Amendment, that there would have been a first amendment problem.

As I... is... maybe I don't understand your argument, but I thought your argument was, or is, that if they do it for some purpose of conscience, which implies a message... e.g., if it is a pacifist college... there would be a first amendment problem.

But if they're doing it simply because space is short and they would rather provide one more biology classroom, there wouldn't be a first amendment problem, World War II or today, would there?

Mr. Rosenkranz: That is absolutely right... correct, Justice Souter, which is why I answered your very early question with--

Justice Scalia: So, you--

Mr. Rosenkranz: --an answer that is--

Justice Scalia: --are saying that--

Mr. Rosenkranz: --by conscience--

Justice Scalia: --that every time somebody gives as his reason for violating a law that he wants to send a message that he disagrees with that law--

Mr. Rosenkranz: --No, Your Honor.

Justice Scalia: --that raises a first amendment question.

Mr. Rosenkranz: No, Your Honor.

Every time--

Justice Scalia: Well--

Mr. Rosenkranz: --someone says that as a reason for refusing to host a message of an unwelcome messenger, that's a compelled speech violation.

Justice Breyer: --So, in fact, to be clear, you also think schools that are angry at the military because they're too favorable to gays in the military, they have the same right.

Mr. Rosenkranz: Absolutely, Your--

Justice Breyer: Okay.

Mr. Rosenkranz: --Honor, because--

Justice Breyer: And also the same right Bob Jones University, because they disapprove of social mixing of the races?

Mr. Rosenkranz: --If... to answer the first hypothetical first, if that's a matter of conscience, absolutely--

Justice Breyer: All right, so--

Mr. Rosenkranz: --if we're talking--

Justice Breyer: --so, what... and there are a lot of people in the country, they may... there's few, anyway... may not believe in either affirmative action, they may not believe in... they may not believe in diversity, they may not... they may even believe in racial segregation, for all I know.

I hope there are not too many--

Mr. Rosenkranz: --Your Honor--

Justice Breyer: --but there might, and those people all have the same right.

Mr. Rosenkranz: --Well, they have the same first amendment right.

Justice Breyer: Yes, okay.

So, if that--

Mr. Rosenkranz: But--

Justice Breyer: --if that's the case, then of course it's going to be pretty tough--

Mr. Rosenkranz: --But, Your Honor, the--

Justice Breyer: --for the military to get people on campus.

And I just wonder, if that's an important need, why you don't have here what I'd say is normal in the first amendment area, that the remedy for speech you don't like, is not less speech, it is more speech.

Mr. Rosenkranz: --Your Honor, the problem with the Solomon Amendment is that the Government is demanding absolute parity.

We have a statute before us that demands exactly the same services, without regard to whether the military actually needs them.

In order for Congress to justify the parity requirement, which is the only statute before this Court, Congress has to state a need.

It has to say why it needs what--

Justice Scalia: --Here's a need.

How about this?

We have said in our opinions... and I am quoting from Rostker versus Goldberg...

"Judicial deference is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. "

And that's precisely what we have here.

Mr. Rosenkranz: --Your Honor, this Court defers to Congress, in matters of the military, when the military or the Congress is especially expert and this Court is especially naive.

This Court has never deferred to a congressional statute about military when--

Justice Scalia: I don't think it has to do with expertise.

I think it has to do with immense national importance.

Mr. Rosenkranz: --Your Honor, it has to do with expertise, as well.

That's precisely what this Court--

Justice Breyer: But I would--

Mr. Rosenkranz: --said in Rostker.

Justice Breyer: --I would like the answer to my question, because I'm thinking, as you correctly say, if you have that right, so do all the worse segregationists you can imagine, et cetera.

Mr. Rosenkranz: And the--

Justice Breyer: And here... yes, and here there is a need of some kind to get the military in.

And what the Government in this statute asks you... because I, personally, couldn't find anything in the record that finds that student who thinks, by letting the military person in, that that school, which basically is completely against the military in this area, suddenly becomes for it.

And I haven't even found in the record an instance where there was a recruiter who told people that they couldn't join the military if they were gay.

Mr. Rosenkranz: --Well--

Justice Breyer: So, we have not a tremendous demonstration there of a need on the university side.

And my question was, What's wrong with the Government saying,

"University, you disapprove of what we do. "

"The remedy for such a situation is not less speech, it is more speech. "

Mr. Rosenkranz: --Your Honor, the--

Justice Breyer: You can go and explain.

Mr. Rosenkranz: --the direct answer to that last question is that all bets are off when what the Government is doing is compelling the speech of a private actor, because the Government is not allowed--

Justice Ginsburg: Does it compel the speech of a private actor when the Government says,

"Colleges and Universities, you are not going to get Federal money if you discriminate on grounds of race or gender. "

"And we don't care what your private attitude may be, we will refuse to contract, we will debar you from future contracts, if you don't... not only say, 'We won't discriminate, ' but have an affirmative action plan. "

You know that is not hypothetical.

This was the U.S. policy in the early '70s.

Rebuttal of Paul D. Clement

Mr. Clement: Yes, Your Honor.

I understand the hypothetical, at least... especially as to the first half, which links to Justice Breyer's earlier question.

There is an enormous difference, under this Court's jurisprudence, between antidiscrimination laws and the sort of law we have here, the Solomon Amendment.

And the difference is, the Government... it is both on the need side and on the infringement side.

On the need side, the Government has a compelling interest that is different from just regulating the conduct.

The compelling interest that the Government has is a completely separate interest in seeing to it that not a penny of Federal money ever goes to support an institution that taxpayers would not be in a position to go to.

That's Bob Jones and Norwood.

And, on the infringement side, this Court has said, that the act of discriminating against individuals is entitled to no first amendment protection, regardless of whether there's a first amendment right at stake.

And I should add, also, that the vast majority of schools that are subject to Title VI or to Title IX have no such expression that is at stake.

They are not articulating a message,

"We really need to discriminate on the basis of race or on the basis of gender. "

Justice Scalia: Mr. Rosenkranz, could you tell me which elements of your argument rest upon compelled actual speech and which rest upon compelled symbolic speech?

Because the latter, I have to tell you, I'm not very fond of.

What compelled actual speech is imposed on the... you mentioned something about emails, they have to send emails to say where the recruiter will be located--

Rebuttal of E. Joshua Rosenkranz

Mr. Rosenkranz: --Well--

Justice Scalia: --is that the compelled speech you're worried about?

Mr. Rosenkranz: --It is... Your Honor, it is the forced hosting of a messenger based decision--

Justice Scalia: Well, that's symbolic speech.

I'm talking about actual speech.

What expression is the university... real, you know, words... words... is the--

Mr. Rosenkranz: --Well, but--

Justice Scalia: --university--

Mr. Rosenkranz: --with the--

Justice Scalia: --compelled to utter by this legislation?

Mr. Rosenkranz: --Under the parity requirement, what the university is compelled to do is sit down with the employers and help counsel them on what their students are interested in and how best to shape the message.

The Third Circuit went out of its way to point out that, and the National Association for Law Placement brief is very compelling on that.

They also have to disseminate literature, post bulletins on bulletin boards, help the recruiter... or, excuse me, the law firm develop cocktail parties--

Justice Scalia: No, I suppose when you... when the police knock at the door and say, you know, "I have a warrant", I suppose somebody has to say, "Come in".

Is that compelled speech?

Does that--

Mr. Rosenkranz: --No, Your Honor, there are--

Justice Scalia: --Does that... does that raise a first amendment problem?

Mr. Rosenkranz: --It does not.

And there are many circumstances in which words are used that are incidental to an action.

These are not words used that are incidental to the action.

Justice Kennedy: What's happening here is the perspective employers, the recruiters, are proposing a commercial transaction.

And it seems to me quite a simple matter for the law schools to have a disclaimer on all of their emails and advertisements that say,

"The law school does not approve... and, in fact, disapproves... of the policies of some of the employers who you will meet. "

Mr. Rosenkranz: Your Honor--

Justice Kennedy: That's the end of it.

Mr. Rosenkranz: --no matter what the Government does, it cannot convert the career services enterprise into value neutral proposition.

For the law school, from its perspective, it's especially value driven.

Yes, the--

Justice Kennedy: Do law schools have an interest in the Constitution that other people don't?

Mr. Rosenkranz: --Your Honor, I'm not claiming any exceptionalism for the law schools.

The AAUP brief does--

Justice Kennedy: All right.

Well, I--

Mr. Rosenkranz: --a brilliant job--

Justice Kennedy: --I suppose, under your view, law schools really shouldn't permit firms... law firms on campus if those firms, say, oppose... take litigation positions opposing gay marriage.

Mr. Rosenkranz: --Your Honor, as Dale points out, it's up to the private institution to decide what its metrics--

Justice Kennedy: That's--

Mr. Rosenkranz: --are going to be.

Justice Kennedy: --That's your position.

Your position is, the schools could, and probably should, do that to make their message known.

Mr. Rosenkranz: My position, Your Honor, is that the schools are entitled to make their own judgments about what messages they will disseminate.

And even--

Chief Justice Roberts: Dale is... Dale--

Justice Kennedy: Even with reference to commercial... proposed commercial transactions?

Mr. Rosenkranz: --Yes, Your Honor.

But, I would hasten to add, that is not what recruiters are doing.

It is no more commercial than what United Foods was doing in an... advertizing, saying... or resisting the message, "Mushrooms are good".

Justice Breyer: Do you agree with the Government, that the statute, as fairly interpreted, is violated when a school which uniformly applies to all employers the rule,

"You can't come in if you have the discrimination against hiring gay people? "

Mr. Rosenkranz: Yes, Your Honor.

Justice Stevens: --You agree that it is violated.

Mr. Rosenkranz: Yes, Your Honor.

The statute focuses on the manner of providing access; and the manner of providing access is through the career services--

Justice Ginsburg: Would you require any accommodation... I mean, you have said,

"It's up to the faculty to choose which causes to assist. "

--I think you put it that way, or one of the amici did... "and which to resist".

And you've already told me that this happens to be the law school, could be the whole university.

Could the law faculty, or the university, take the position,

"We're not going to... we don't like your message, and we are not going to let you have any of our facilities. "

"We're not going give you the room on the main campus. "

"Just a total bar? "

Mr. Rosenkranz: --Your Honor, we're certainly not advancing that position here.

The Solomon Amendment requires no such thing.

The Solomon Amendment does not require that schools give entry to military personnel.

Justice Ginsburg: No, but a school--

Mr. Rosenkranz: It says you must do it only if the other guy does it.

Justice Ginsburg: --a school, as a matter of its own policy says,

"We don't like discrimination, and we're not going to give discriminators access to any of our facilities, period. "

Mr. Rosenkranz: Your Honor, are... you're asking me what I would be arguing for my clients if they were actually making--

Justice Ginsburg: I'm asking--

Mr. Rosenkranz: --taking that position?

Justice Ginsburg: --you, Is there any obligation, since you've said there is a compelling State interest... compelling Government interest in recruiting, is there some obligation to accommodate, or could the faculty just say,

"We choose the causes that we assist and the ones we resist? "

Mr. Rosenkranz: And that is as to entry to campus, Your Honor?

You're--

Justice Ginsburg: Yes.

Mr. Rosenkranz: --asking if... we are not pressing this point to the Court.

If the Court is asking what my opinion would be if I--

Justice Ginsburg: I'm asking--

Mr. Rosenkranz: --were a judge--

Justice Ginsburg: --is the... if it logically follows, from your position, about

"choosing the causes we resist and the ones that we assist. "

Mr. Rosenkranz: --Your Honor, if I were advancing that argument, it would be, this is a viewpoint discriminatory statute which is subject to strict scrutiny.

The Government is advancing a single message, and, even when the first amendment rights that are at stake are minimal under this Court's opinion in R.A.V., strict scrutiny would apply.

The Government has never come forward which a shred of evidence that it actually needs to be on campus, as opposed to directly off campus, or as opposed to publishing notices in student publications, or advertizing.

But--

Justice Stevens: When you--

Mr. Rosenkranz: --we are not advancing--

Justice Stevens: --were talking about--

Mr. Rosenkranz: --that argument.

Justice Stevens: --the government's message, the message is, "Join the Army".

Is that right?

Mr. Rosenkranz: Yes, Your Honor.

The message is, "Join the Army".

What the schools hear is--

Justice Stevens: And that's a viewpoint discriminatory message.

Mr. Rosenkranz: --No, I'm sorry.

The viewpoint discrimination, Your Honor, is in the congressional statute that says,

"We will force you to host a single speaker with a single message. "

just as in Pacific Gas--

Justice Stevens: The single message is, "Join the Army".

Mr. Rosenkranz: --I'm sorry, Justice Stevens, I didn't--

Justice Stevens: The single message is, "Join the Army".

Mr. Rosenkranz: --The single message is, "Join the Army", that is correct.

And the Government is promoting only that one message.

But this--

Justice Souter: I thought your argument was, the single message is,

"Join the Army, but not if you're gay. "

Mr. Rosenkranz: --Yes, Your Honor--

Justice Souter: And--

Mr. Rosenkranz: --that is--

Justice Souter: --which leads me to the question, in response to your answer to Justice Ginsburg a moment ago, in your view is the compelling interest on the part of the Government recruitment or the refusal to accept gays?

Mr. Rosenkranz: --The compelling interest on the Government's side is the recruitment interest.

We're not arguing that the Government has a compelling interest in excluding anyone.

That's precisely why--

Justice Souter: No, but, are you--

Mr. Rosenkranz: --the law--

Justice Souter: --are you saying that the Government... that the only compelling interest argument that the Government can raise here is the discriminatory argument?

Since nobody denies that, if the Government were recruiting without the discrimination, that there would... there would... there would be no problem with it.

Everyone would agree with... that that was a compelling--

Mr. Rosenkranz: --Well--

Justice Souter: --interest.

But, I thought your argument on compelling interest was that the only compelling interest that the Government can assert is the discriminatory interest.

Mr. Rosenkranz: --No, Your Honor, what I'm saying is, if the Government wants to assert a need, it has to identify the need.

It has to say,

"We need more than contact information. "

"We need more than a room... entry to campus... a room on campus, a posting on a bulletin board. "

"We need everything. "

The story of the Solomon Amendment, Your Honor, is the story of private institutions trying desperately to accommodate the Government's need, even in light of their own moral scruples.

Justice Breyer: Well, the speech is on their side.

The Government just says, "Let our recruiters in".

So, why isn't it sort of like, "Pay the property tax"?

"I don't want to. "

"I hate the government. "

Mr. Rosenkranz: Well, Your Honor--

Justice Breyer: "# I'm withholding the money because I want to express my message. "

Mr. Rosenkranz: --The speech is on both sides, because the schools are being forced to host the Government's message.

The--

Justice Breyer: The message is, "Join the Army".

The--

Mr. Rosenkranz: --The message--

Justice Breyer: --message of the property tax is,

"Pay the... pay for the-- "

Mr. Rosenkranz: --The message--

Justice Breyer: --"# Government's expenses".

Mr. Rosenkranz: --The message that the schools are hearing is,

"Join the Army, but not if you're gay. "

And the schools have been trying desperately to accommodate the Government, up until the point where Congress says,

"We don't actually want any of those things. "

"We want them only if you supply them to someone else. "

"We want them only if you have viewpoint based reason that you don't want to give it to us. "

There's some reason in the law school's conscience, or the academic institution's conscience, that it wants to treat this category of employers differently from any other.

Congress's--

Chief Justice Roberts: --And you... and you're perfectly free to do that if you don't take the money.

Mr. Rosenkranz: --Your Honor, Congress, here, is imposing a sanction, which this Court has treated as exactly the same as a penalty.

When--

Justice Scalia: Suppose that a law school faculty could decide that it does not favor a particular war, and use that as the basis for excluding recruiters,

"By allowing this recruiter to come on campus, you are making me speak, in effect, to our students, saying, 'Join the Army and fight the war that we're now engaged in. "

"'. "

Mr. Rosenkranz: --Your Honor, again, we're not--

Justice Scalia: "And I don't want to do that. "

Now--

Mr. Rosenkranz: --We are not talking about--

Justice Scalia: --what would be the difference?

Mr. Rosenkranz: --coming on campus.

We are talking about affirmative assistance to the highest degree--

Justice Scalia: Yes, okay--

Mr. Rosenkranz: --in disseminating the--

Justice Scalia: --fine.

I'm saying the same thing.

Mr. Rosenkranz: --The answer is yes, Your--

Justice Scalia: But I'm saying--

Mr. Rosenkranz: --Honor.

Justice Scalia: --you would say that the same situation would apply if the university faculty does not favor the particular war that the United States is--

Mr. Rosenkranz: Yes, Your Honor.

Justice Scalia: --engaged in, and, therefore, obstructs the effort to raise--

Mr. Rosenkranz: Your Honor--

Justice Scalia: --an army--

Mr. Rosenkranz: --it's very--

Justice Scalia: --by not allowing them to come on campus.

Mr. Rosenkranz: --It is very important to distinguish obstruction from refusal to subsidize, which, at the Government's instance, this Court has been doing for 30 years, both--

Justice Scalia: It's obstruction when you refuse to give them what you give what you give everybody else.

Mr. Rosenkranz: --It is refusal to treat them the same as everyone else, because they are not the same as everyone else in the law schools' estimation.

And the Government--

Justice Scalia: --fighting a war.

Mr. Rosenkranz: --Well, the Government has to identify precisely what its need is, why it needs Yale college personnel rather than Yale... excuse me... why it needs Yale law school personnel rather than Yale college personnel--

Justice Stevens: May I ask you--

Mr. Rosenkranz: --to make the appointments.

Justice Stevens: --this question, with that very point in mind?

Does it necessarily follow, if there are occasional applications of this statute that might be invalid, that the whole Solomon Amendment needs to be struck down?

Mr. Rosenkranz: Your Honor, the... this is not about application of the statute in one circumstance.

The whole statute has to be struck down, because the Government is demanding absolute parity and there's no way for this Court to rewrite the statute.

We don't know whether Congress would go back and go to the entry requirement, just bear entry, to entry plus, or to a parity requirement, which is... which it has now shifted to.

So, there is simply no way to know exactly how Congress would rewrite the statute.

But this is, at its heart, an as applied challenge.

It's about law schools with nondiscrimination policies.

Chief Justice Roberts: Thank you--

Mr. Rosenkranz: Thank you--

Chief Justice Roberts: --Counsel.

Mr. Rosenkranz: --Your Honors.

Rebuttal of Paul D. Clement

Chief Justice Roberts: General Clement, you have 4 minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

I'd like to make just a few points in rebuttal.

First of all, in starting with the compelled speech problem, there are only two kinds of speech that are at issue here.

First, there is the compelled speech of the military recruiters.

And no one thinks that that speech is being misattributed to the schools.

Even in the secondary school context, in Mergens, this Court understood that secondary students could distinguish between the school's message and that of school groups.

Now, the second piece of speech that's at issue is that of the university, when they incidentally send an email around telling the students where the military recruiters are going to be on a certain day.

And certainly in the context of recruiting, that kind of incidental speech does not implicate any compelled speech doctrine.

In the Title VII context, for example, if an employer says that there's a job opening, and says that to a white applicant, it has to say the same thing to an African American applicant.

Nobody would think that that other... saying that to the African American applicant, which is, of course, compelled speech by Title VII, violates the Constitution.

I would also say, just as the last point on compelled speech, that it's something of a stranger in a strange land in the context of this case, since we are talking about a funding condition, not a compulsion.

Second, let me move to the argument that the Respondents have about trying to distinguish this case from Justice Stevens' World War II hypothetical.

And, as I understand it, it boils down to the argument that the way that the legislature was reacting here to this problem and observing what it observed on campus somehow implicates different constitutional issues, different first amendment issues.

And I think the O'Brien case stands as an obstacle to that argument.

In that case, if you look at it, the argument was exactly the same.

There already was a prohibition that required you to have your draft card with you.

Congress then passed a second statute that prohibited burning your draft card.

Now, what did the Representatives say about that?

Well, Representative Bray, of Indiana, said that this was an effort to get at "communist stooges and beatniks".

Now, this Court did not strike the statute down on that basis.

It looked at the text of the statute and upheld the statute as a reasonable statute.

Let me also, then, move to what you could call the "Bob Jones problem".

And I think you have to have be cautious about interpreting this statute in applying a rule and having it come back in the context of other statutes that even the law schools like, like Title VI and Title IX.

I don't think it's enough to simply say that race is going to be different.

For one thing, Federal statutes also prohibit, as a condition on funding, universitywide discrimination on the basis of disability and on the basis of age.

Now, those aren't things that trigger heightened scrutiny, and I think one has to be worried about converting this rule in this case to something that's going to threaten those statutes.

This Court, in Hishon, for example, made the point that all discrimination can be recharacterized as somebody simply saying... exercising their associational rights,

"I don't want to associate with you, because you're female. "

in Hishon.

You have to be leery of that kind of recharacterization.

The last point I would make is that there's simply no limit on Respondent's argument in this case.

I don't think their matter of conscious limitation is going to be enforceable by the courts.

And, beyond that, I think, even in this case, there is more at issue here than just the military's policy on homosexuals.

If you look at the original statement of the American Association of Law Schools... which is in the joint appendix at 246 and 249... they were concerned, first and foremost, about the military's policies on homosexuals, but also about the discrimination in sex, on what kind of combat roles that women could have, what they call career advancing positions.

So, even if Congress changed "don't ask, don't tell" tomorrow, the... presumably, the law schools would still be here protesting the military's position on gender, or perhaps the war in Iraq, or perhaps the war in Afghanistan.

And the last point in showing there is no limits on their position is, as Justice Kennedy pointed out, any conduct can be imbued with communicative force just by saying,

"We're opposed to this, and, therefore, we're going to engage in this conduct. "

That's simply not enough to generate a significant first amendment interest.

Thank you.

Chief Justice Roberts: Thank you, General. The case is submitted.

Attribution:

The Oyez Project

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