Freedom of Expression/Conflicts with other Rights/Federalism
How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?
The principles of federalism play an interesting role in the manner in which the right to freedom of expression is exercised. Historically, the founding fathers were divided on whether there should even be a bill of rights; the Constitutional Convention of 1787 did not include an explication of rights in the writing of the Constitution (Hail, 2020). The Bill of Rights was written as an afterthought, and as political scientist James Burnham observed, “ ‘These rights, in short, are limits, not powers’ (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights” (Hail, 2020). Eventually, with the growth of the Union over the next 200 years, state constitutions started to include explications of the protected rights within their states, and as a result, some states are more protective over individual rights than the federal government itself: “For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.” (Hail, 2020).
Federalism scholar Daniel J. Elazar observed that the states participate in policy experimentation and also provide more legal protection in addressing the unique and specific local/regional needs (Hail, 2020). However, in terms of actual exercise of the freedom of expression in particular, and related conflicting law between that of state and federal, “Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.” (Winkler 187, 2009).
The federal government holds more power regarding cases involving freedom of expression, often bending both federal and state law to its will, oftentimes going out of its way to justify federal laws while heavily scrutinizing already narrow state laws. In the 1999 case of United States v. McCorkle, a federal court declined to identify the federal government’s reasoning for compelling secrecy regarding an order sealing transcripts of in camera proceedings sought by a newspaper. Another court deemed that the newspaper who was seeking access to the transcripts had failed at its job to offer effective alternatives to complete closure, “yet, under strict scrutiny the burden of showing no less-restrictive alternatives belongs to the government, not the challenger. Moreover, the newspaper had no information about what the subject of the bench conferences was and thus could not reasonably be expected to offer suitable alternatives to closure” (Winkler 172, 2009). This case saw federal right-of-access restrictions upheld solely because courts supposedly did not follow the traditional requirements of the strict scrutiny standard.
Another case, contrastingly, shows the federal courts doing everything they could to invalidate the state restrictions. In the 1993 case of Lind v. Grimmer, a federal court “invalidated the application of a state law denying media access to pending complaints filed with the state campaign-finance spending commission. The court reasoned that the government interest in encouraging people to run for office was not protected by the restriction because complainants and others remained free to air their charges informally to the public. Yet, the same could be said about any restriction on the right of access” (Winkler 172-173, 2009).
Since the 1965 case of Bond v. Floyd, legislators, like any other citizen, are protected under the free expression embodied in the First Amendment. After being elected to the Georgia House of Representatives, Julian Bond, who was an African-American, was refused his seat due to anti-Vietnam war statements he made. Some House members challenged that his statements aided the US’s enemies and violated his mandatory oath to support the Constitution and therefore, he was not permitted to a seat in the House (Hudson Jr., 2009). The Court ruled in favor of Bond due to his fundamental rights to freedom of expression and speech because: “Free expression in the legislature not only serves the deliberative process and allows voters to choose their representatives according to their expressed beliefs and opinions, it also reinforces the constitutional safeguards of federalism and the separation of powers. As an expressive act that registers the will, preference, and opinion of a legislator, voting performs a unique communicative function. It expresses loyalty or dissension, agreement or abstention. It can also inform voters of a legislator's position on matters of public concern. Not only is legislative voting expressive, it is also representative and political, and therefore critical to the proper functioning of participatory democracy” (Scherr 257, 1991).
From the provided evidence, federalism can serve to protect the right to freedom of expression, but oftentimes, it allows for the federal government to somewhat bully state courts into the decisions that best suit them at the time.
References:
Federalism, Michael W. Hail, The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro.
Freedom and Federalism: The First Amendment’s Protection of Legislative Voting, Steven N. Scherr, 257, The Yale Law Journal, 1991 New Haven.
Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo
Free Speech Federalism, Adam Winkler, 172-173, 187, Michigan Law Review, 2009 Ann Arbor.