Chief Justice Roberts on a “First Amendment Cost”

October 9th, 2013

In McCutcheon, the Chief used a phrase that I had never seen before, “First Amendment cost.”

I appreciate the argument you are making about the 3-point-whatever million-dollar check and the need for the aggregate limits to address that. I understand that point. But what do you do with the flip side? I mean, you can’t pretend that that is pursued with no First Amendment cost quite apart from the one that’s there. It seems to me a very direct restriction on much smaller contributions that Congress said do not present a problem with corruption.

Roberts likely means costs “to” the First Amendment, rather than costs “of” the First Amendment, which is often how it is used. The former focuses on harms to individual liberty from the goals of protecting society (costs to the First Amendment). The latter refers to costs to the collective from protecting freedom. I call the first type safety costs, and the second liberty costs. I’m all in favor of considering the social costs of constitutional rights, having written about the First and Second Amendments in these two articles.

The Supreme Court has recognized two types of social cost, that I have labeled liberty costs and security costs. First, liberty costs, refer to the risk of negative externalities to society as a whole that can result from individuals exercising liberty. Second, safety costs, refer to the risk of negative externalities to individual liberty that can result from the state providing for collective safety.

Verrilli, ever the astute advocate, picks up the usage in a follow-up response to the Chief:

But the point is, with respect to elected officials and the giving of money to the elected officials, there is this content-neutral justification that just doesn’t exist with respect to any other entity out there in the world. And, yes, it is not free of First Amendment costs and we acknowledge that, but -­ but that cost is mitigated in that this is not a prohibition, that you can — you can’t make it at the maximum, but you can make less. And then you have all the -­

A quick search turns up only one other usage of “FIrst Amendment” cost  in Justice Breyer’s dissent in Golan v. Holder:

The fact that the statute has significant First Amendment costs is relevant in this respect, for that Amendment ordinarily requires courts to evaluate less restrictive, alternative possibilities. Doing so here, reveals that neither Congress nor the Executive took advantage of less-restrictive methods of compliance that the Convention itself provides. And that fact means that the Convention cannot provide the statute with a constitutionally sufficient justification that is otherwise lacking.

A related usage was in Justice Kennedy’s opinion in United States v. Alvarez (also known as the case decided before NFIB that no one cared about):

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.