Sotomayor and Neuborne on the First Amendment

March 26th, 2015

Justice Sotomayor, Burt Neuborne, and Trevor Morrison recently hosted a forum at NYU Law to discuss his new book on the First Amendment. Ron Collins (as usual) has an excellent summary of the hour-long discussion.

First, the Justice and Neuborne discussed the connection between Democracy and the First Amendment.

Later she asked: “You say that the focus of the First Amendment is democracy. You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

Neuborne: “I’m sort of shocked that you asked that, because it’s clear that I define it,” he said jokingly, to audience laughter. “But Sotomayor prevailed with the wry rejoinder, ‘No, no, no, you forget, I do,’ “prompting an eruption of mirth and applause.”

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” Neuborne added. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean — ‘Congress shall make no law abridging speech’ — and having it be sort of automatic, without even thinking about the consequences for democracy.”

Interestingly, Sotomayor had a “fanatical belief” about the First Amendment.

[My colleague Anthony Kennedy’s] approach to [the First Amendment], unlike some of my other colleagues,  is born on a very, very, almost fanatical belief that . . . the essence of democracy is no regulation of speech.

Second, what is the Madisonian view of the First Amendment?

When Neuborne took issue with the Roberts Court’s campaign finance line of cases, Justice Sotomayor asked: “How does a Madisonia judge strike on balance [when it comes to those] laws?” To which Neuborne replied: “Great question.” He then proceeded to discuss cases going back toBuckley v. Valeo (1976) and up to the Court’s latest rulings in this area. He took pointed exception to the Court’s “narrow, bribery, quid quo pro definition of corruption.”

Speaking in a very animated way, Neuborne was equally critical of the Court’s notion (one that “I genuinely . . . don’t understand”) that “contributions can create a risk of corruption because you give the money directly to a candidate, but the unlimited spending of money, without coordination with the candidate, doesn’t create a risk of corruption . . . .” He thought that citizens and judges alike need to ask themselves: “What kind of democracy are we trying to protect here?”

Returning more directly to his answer to Justice Sotomayor’s question, Neuborne remarked: “Everybody’s political power should be equal in a democracy, and money shouldn’t corrupt that idea. . . . I think if they adopted a Madisonian reading of the First Amendment  we would change campaign financing regulation overnight.”

Third, Neuborne said that Kenendy was the “most important First Amendment Judge” ever.

[Justice Kennedy is] the most important First Amendment Judge that has ever sat on the Supreme Court. . . .

I suppose this is a sleight to Justice Black…

I should note that Neuborne typified the divide within the ACLU over campaign finance with respect to McCutcheon, as Ron Collins explained:

There was division in the ranks and it had become public. “In a statement that will be formally released in the next few days,” the article continued, “the nine leaders –

among them, former ACLU president Norman Dorsen, former executive director Aryeh Neier, former legal director Burt Neuborne and former legislative director Morton Halperin – dispute the ACLU’s view that placing ‘reasonable limits on campaign spending’ violates the First Amendment.”

A tradition had ended. While the ACLU continued to file briefs defending First Amendment claims in campaign finance cases, after 1998 former ACLU officials filed briefs opposing many such First Amendment challenges to campaign finance laws. That conflict continues to this day.