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Honoraria, Anonymity, and the Klan

The essay below for our thirty-day series about John Paul Stevens was written by Gregory Magarian, a professor at Washington University School of Law who clerked for Justice Stevens during the 1994 Supreme Court Term.

When I completed my clerkship with Justice John Paul Stevens in July 1995, I knew that fortune had smiled on me twice over.  First, I got the rare opportunity to begin my career assisting an extraordinarily wise, humane, and brilliant jurist in his important and exciting work.  Second, the Term when I happened to land at the Court featured several prominent cases in my greatest area of interest – First Amendment free speech law.  What I did not realize then was that Justice Stevens’ leading role in those First Amendment decisions provided a microcosm of the approach to free speech controversies that he would develop over thirty-five years on the Court.  I have called Justice Stevens a “pragmatic populist” on free speech matters.  That label denotes a focus on the real world consequences of the Court’s First Amendment pronouncements, with particular attention to how those decisions influence the capacities of ordinary people to participate in, and benefit from, public discourse.  Justice Stevens’ free speech opinions from 1994-95 exemplify that pragmatic populism.

Justice Stevens began his free speech work that Term by authoring the majority opinion in United States v. National Treasury Employees Union.  One distinctive feature of the Term was that Justice Blackmun had just retired, making Justice Stevens the Court’s senior associate Justice.  This status meant that he assigned majority opinions in cases in which the Court’s “liberal” wing prevailed.  Having spent a decade (1975-1986) as one of the Court’s two junior Justices, he understandably took several meaty, interesting majorities for himself, most notably U.S. Term Limits v. Thornton.  While not at that level of prominence, Treasury Employees made an important contribution to public employee speech doctrine.  Justice Stevens’ majority opinion overturned a ban on federal employees accepting honoraria for speaking and writing, as the ban applied to employees below grade GS-16.  The opinion found that the honorarium ban imposed a significant burden on speech while doing little to advance the government’s interest in avoiding actual or apparent abuses of power.

Treasury Employees might seem to contradict a prominent strain in Justice Stevens’ free speech jurisprudence.  He retires as the Court’s most vocal defender of campaign finance regulation against First Amendment challenges, and he has declared bluntly in Nixon v. Shrink Missouri Government PAC (2000), that “[m]oney is not speech.”  He has advocated an expansive view of the government interest in avoiding actual or apparent corruption as a justification for campaign finance regulations.  See McConnell v. Federal Election Comm. (2003).  Why, then, would he reject a regulation that did not ban speech itself, but instead only payment for speech, and that the government justified in anticorruption terms?  The answer, I think, has something to do with the relatively low status of the plaintiffs in Treasury Employees. In the campaign finance context, Justice Stevens has eloquently criticized a view of the First Amendment that safeguards the capacity of the powerful to dominate political debate.  In Treasury Employees, lower-level employees simply sought to preserve a minimal financial incentive to contribute to public discourse.  Justice Stevens has similarly defended political outliers’ use of financial incentives to press their positions – through an economic boycott in NAACP v. Claiborne Hardware Co. (1982), and through payment of petition circulators in Meyer v. Grant (1988).

Several weeks after announcing the Treasury Employees decision, Justice Stevens once again vindicated ground-level expressive interests in McIntyre v. Ohio Elections Comm. (1995).  His majority opinion in that case struck down an Ohio regulation that barred the distribution of anonymous political leaflets.  As he had in Treasury Employees, Justice Stevens drew upon historical lessons, noting the prominence of anonymous advocacy in the development of our political culture.  He acknowledged the importance of the government’s interests in preventing fraudulent statements and informing voters about the sources of political messages, but he found Ohio’s blanket prohibition on anonymous advocacy too broadly drawn to satisfy exacting First Amendment scrutiny.  He stressed the importance of anonymous leafleting in allowing speakers to express themselves frankly on political matters without sacrificing their personal privacy.

As in Treasury Employees, Justice Stevens in McIntyre might seem to have contradicted his own free speech commitments.  He has taken a leading role in making the First Amendment a facilitator of an honest, transparent political process that maximizes the information available to voters.  Thus he has authored what sadly remains the Supreme Court’s last serious effort to check the two major political parties’ anticompetitive impulses, Anderson v. Celebrezze (1983), and he led the First Amendment charge against political patronage systems in Rutan v. Republican Party of Illinois (1990).  Justice Stevens’ democratic ideals may stem from his background as a Republican who came of age amid the notoriously shady Chicago Democratic machine.   Indeed, I suspect that experience influenced my least favorite of his later majority opinions, upholding state photo identification requirements for voting in Crawford v. Marion County Election Board (2008).  In the end, however, McIntyre advances Justice Stevens’ vision of politics rather than undermining it.  As his opinion makes clear, this is a case about not just anonymity but leafleting – a medium of special value to political speakers of modest means.  In this respect Ohio’s regulation resembled the ban on residential political signs that a Stevens-led majority struck down in City of Ladue v. Gilleo (1994).  Like that restriction, and the federal honorarium ban in Treasury Employees, Ohio’s prohibition of anonymous leafleting discouraged public commentary by speakers with limited expressive means but potentially important ideas.

Beyond his majority opinions, the 1994 Term also yielded a significant dissent by Justice Stevens in a different sort of free speech case.  In Capitol Square Review and Advisory Board v. Pinette (1995), the Court sustained an injunction that required Ohio to let the Ku Klux Klan place a cross alongside other unattended displays in a public forum – not just any public forum, but the state capitol grounds.  Justice Stevens was the sole dissenter.  While his primary disagreement with the Court focused on the Establishment Clause, his analysis implicated the Court’s application of the public forum doctrine under the Free Speech Clause.  In Justice Stevens’ view, placing an unattended display on property so closely associated with the state sent an unavoidable message of religious endorsement.  Accordingly, he would have allowed, indeed required, the state to reject the religious symbol notwithstanding the forum’s general availability for expressive activity.

Even more than his majority opinions in Treasury Employees and McIntyre, Justice Stevens’ Capitol Square dissent might seem to clash with important elements of his free speech jurisprudence.  Every one of his First Amendment opinions cited here has, in some way, stressed the importance of making expressive opportunities available to a wide range of speakers.  The public forum principle, for all its inadequacy and inconsistent application, embodies the Court’s strongest commitment to some measure of distributive fairness in the free speech field.  Why would Justice Stevens in Capitol Square take such a narrow view of that principle?  Certainly his stalwart commitment to a separationist view of the Establishment Clause goes some distance toward explaining his position.  In free speech terms, Justice Stevens’ Capitol Square dissent illustrates his preference for case-specific analysis over inflexible doctrine.  In general, giving people access to the government’s resources distributes expressive opportunities more equitably.  Here, however, adherents (albeit hardly exemplars) of the nation’s dominant religion sought to use public expressive space to project a message of power and stature.  Justice Stevens’ dissent casts Capitol Square as a case in which validating the general principle without regard for the particular circumstances confounds the purpose that gives the principle its force.

Justice Stevens’ First Amendment opinions from the 1994 Term reveal a great deal about his general approach and broad convictions in free speech cases.  More than any other Justice during his tenure on the Court, he has disdained rigid doctrines, categories, and standards of review in favor of a pragmatic analysis that focused on how to provide the widest possible range of speakers access to expressive opportunities. Treasury Employees and McIntyre were hardly Justice Stevens’ first significant majority opinions in free speech cases, but their common themes and proximity in time heralded his newly prominent role in shaping the Court’s free speech jurisprudence.  His influence in this area would reach its apex in Reno v. ACLU (1997), which rejected sweeping indecency regulations for the Internet, and the aforementioned McConnell campaign finance decision, which he coauthored with Justice O’Connor (and which the Court’s present majority appears intent on dismantling).  Reno struck down one major federal regulation while McConnell upheld another.  Both decisions, however, advanced the inclusive and informative qualities of democratic public discourse.

The pragmatic populism of Justice Stevens’ free speech jurisprudence reflects his personality and character.  By the time I had the privilege of working for him, he had developed the quiet confidence of someone who knew very well how to apply his remarkable gifts to his critical job.  He took the work very seriously.  But, whether or not anyone believes me, not once did I see him waver in his kindness, humility, or essential decency.  This great man never for a moment acted as if he was more important than anyone else – to the extent that he seemed genuinely interested in the thoughts, such as they were, of a vastly ignorant and inexperienced law clerk.  No wonder that his First Amendment opinions resonate with the conviction that the powerful must not dominate public debate, because everyone has something valuable to contribute to the discussion.