Posted by Eugene Volokh:
Does the Proposed Auto Bailout Violate the Petition Clause of the First
Amendment:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228844407
The [1]proposed bill provides, among other things,
(g) WITHDRAWAL FROM CERTAIN ACTIONS. -- The terms of any financial
assistance under this Act shall prohibit the eligible automobile
manufacturer from participating in, pursuing, funding, or
supporting in any way, any legal challenge (existing or
contemplated) to State laws concerning greenhouse gas emission
standards.
My friend, Notre Dame lawprof Rick Garnett, asks: Does this violate
the First Amendment? Here are a few tentative thoughts:
1. The Petition Clause: To begin with, filing nonfrivolous lawsuits is
generally protected by the First Amendment, which protects "the right
of the people ... to petition the Government for a redress of
grievances." This is [2]solidly established First Amendment law. I
can't speak to any original meaning evidence on the subject (since I
haven't investigated the matter), but the precedent is clear.
2. Conditioning Grants on Refraining from First Amendment-Protected
Activity: It's also well established that the government generally may
not condition a grant of money on the speaker's refraining from the
use of the speaker's own unsubsidized money for First
Amendment-protected activity. That's the holding of [3]FCC v. League
of Women Voters (1984). (League of Women Voters was a 5-4 decision,
but one the Court has not retreated from, and has indeed cited
favorably.) The government is free to attach certain strings (though
not all strings) to the use of government-provided money. That's what
justifies the decision in Rust v. Sullivan allowing the government to
subsidize only speech about contraceptives and not speech about
abortion, the limits on electioneering by nonprofits that benefit from
the charitable tax exemption, and the like. But the government
generally can't limit what subsidy recipients do with money they get
from nongovernmental sources.
To be sure, because money is fungible, this League of Women Voters
principle in effect does stop the government from making sure that its
subsidies aren't indirectly used for certain speech. If the government
gives someone $1 million, and the speaker continues speaking using
what is ostensibly its own money, that speech will still be much
facilitated by the government grant -- the $1 million will free up
money that the recipient would otherwise have had to spend, and will
let the recipient use that freed-up money for its own speech. But the
Court considered that argument in League of Women Voters and rejected
it.
3. Ban on Viewpoint Discriminatory Conditions Attached Even to
Government-Provided Money (So Long as The Money Is Used for Private
Speech): It's also possible that the government may not attach
viewpoint-discriminatory conditions to the use of its own money, so
long as the money is used for private speech -- which would here
include petitioning the government via the court system -- rather than
the government's own speech. That's suggested by [4]Legal Services
Corp. v. Velazquez (another 5-4 opinion). But [5]Locke v. Davey
concludes that this principle is limited to programs that are intended
to "encourage a diversity of views from private speakers." Given that
the funding program here is aimed not at encouraging a diversity of
views, but rather at funding GM's general operation (incidentally
including a wide range of GM litigation and speech that would normally
happen in the course of GM's general operation, except for this one
particular kind of litigation position on GM's part), perhaps Locke v.
Davey governs instead of Velazquez.
* * *
In any case, those are my tentative thoughts on the subject. Some of
the cases I cite were controversial when decided, and may remain
controversial now; nor do I vouch for their correctness as a matter of
sound constitutional logic. Moreover, while there are structural
similarities between this situation and some of the past cases, it's
pretty clear that they were decided in contexts vastly different from
this one, and it's not clear how far the Court would take those cases'
logic here. Finally, it's odd that the government would be free to
constrain GM's speech if it simply nationalized it -- or, if you
prefer, bought all its stock -- but not if it took the less intrusive
step of offering it various financial benefits (though that might be
an oddity that is an inherent part of unconstitutional conditions
doctrine in this area).
So I don't know what should be the right result as a matter of deep
constitutional principles, or even what is doctrinally mandated here.
But I hope that the cases I cite above provide something of a starting
point for analysis.
References
1. http://static1.firedoglake.com/28/files//2008/12/bailout-proposal.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=536&invol=516
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=468&invol=364
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-603
5.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=540&invol=712#FNopinion1.3
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