Washington Post v. McManus and Clear Channel v. Department of Finance:  Important Lessons from Maryland’s State and Federal Court’s in Assessing Content and Means Based Abridgements of Speech

By Alan B. Sternstein

Two First Amendment cases recently decided in state and federal courts in Maryland interestingly parallel each other factually but reach different results as to the constitutionality of the governmental actions challenged in each case.  The facts and First Amendment issues in Clear Channel Outdoor, Inc. v. Department of Finance, No. 2910 (Md. App. Sept. Term, 2018) (“Clear Channel”),  which the Court of Special Appeals decided on January 29, 2020, bear a useful and instructive comparison to those in the Fourth Circuit’s decision in Washington Post v. McManus, No. 19-1132 (4th Cir. Dec. 6, 2019) (“Washington Post”), which was the subject of a post earlier this year on the Maryland Appellate Blog. 

Baltimore imposes an excise tax on operators of outdoor advertising displays that are 10 square feet or larger, where the operators charge third parties to use their displays.  Clear Channel Outdoor, Inc. operates billboards subject to the tax.  The tax exempts displays involving images or messages related to the premises on which they are located but is otherwise content neutral.  Among the three operators of billboards in Baltimore, Clear Channel bore the majority of the tax’s burden annually.  The tax ordinance also required Clear Channel to file an annual report specifying the number of advertising spaces it operated and the location and size of each display.  It imposed no recordkeeping requirement as to the content of advertisements displayed or the identity of advertisers.

After paying the tax under protest and pursuing administrative and judicial remedies, its case reached the Court of Special Appeals in Clear Channel.  There, it challenged the constitutionality of the tax under the First and Fourteenth Amendments and Article 40 of the Maryland Constitution, arguing that the tax resulted in an unconstitutional abridgement of speech.  The Court of Special Appeals rejected Clear Channel’s challenge as not implicating interests that the First Amendment protects.[1]

In Washington Post, Maryland amended its election laws in 2018 to extend disclosure and recordkeeping requirements for political advertising to online platforms.  Previously such requirements applied only to political advertising on broadcast (television and radio) and print platforms.  Online platforms, which included but were not limited to the press, were required to maintain somewhere on their websites information regarding the identity and control of each political ad purchaser and the total cost of ads each such advertiser had purchased.  Information about identity and control was required to be obtained only from advertisers themselves, not through information the platforms themselves independently generated.  Online platforms were also required to maintain, for one year, officially accessible information about the advertisements they run, information that was necessarily in any platforms’ hands, such as digital copies of ads run, run dates and times, and geographic coverage of the advertising.  Maryland’s election laws do not regulate the content of political advertising, including political speech where platforms are speaking for themselves.  Because Maryland’s election laws required online newspaper platforms, like the Washington Post, to carry and store information they would not otherwise carry, the Fourth Circuit determined that the election laws materially regulated editorial discretion, compelled political messages by the online press, and financially burdened the online press.  The Fourth Circuit ruled, therefore, that the laws, as applied to the online press, violated the First Amendment.  Only press interests, not advertisers or other online platforms challenged Maryland’s laws.

 

Content Based and Means Based Abridgements of First Amendment Interests

Comparing the Clear Channel and Washington Post cases requires an understanding of the ways that government actions abridge First Amendment interests.  Those ways take essentially two forms.  First, abridgement occurs where regulation directly affects the message content or emotive content that a communication relates.  This form of abridgement would include limitations on conduct constituting symbolic speech, which conveys message content, emotive content, or both, such as a prohibition on draft card burning.

Second, abridgement occurs where government regulation impairs or limits the means of communication (e.g., press, broadcast and cable, or public speech).  Government imposes such limitations, directly, by physical burdens or constraints on the magnitude of various means of communication (e.g., limiting the volume of a loudspeaker, the number of leaflets that may be distributed, the size and location of billboards, the hours of broadcast, or the hours of use of a public forum or making allocations that control the availability of resources essential to a means of communication, such as allocations of radio bandwidth or paper and ink for newspapers and magazines) or, indirectly, by economic burdens on the communication means, which then affect magnitude or quantity of speech (e.g., taxes that discourage the use of a means of communication or that constrain financial resources and, in turn, the means of communication affordable).  Speech, therefore, may be abridged in two basic dimensions, by affecting speech content or speech means, both of which abridgement effects may operate together.

The first form of government abridgement, actions affecting the message or emotive content of a communication, is, when it is undertaken, per se, content based regulation.  Government action taken without regard to the message or emotive content of a communication is content neutral.

The second form of government abridgement may be either “means based” or “means neutral.”  A means abridgement is means based if its application to one or more means of communication depends on the content or character of the communication being carried by the means (e.g., political speech, climate speech, political advertising, indecent speech, or antiabortion speech) or if its application physically or economically burdens communications means, including a wide variety of means, or depends on the particular type of means involved (e.g., a regulation that applies only to broadcast communication).  Accordingly, a means based abridgement may be applied to communications means without regard to the type of means but with regard to the content of the communications the means relates, that is, both means based and content based.

An abridgement of speech is means neutral, therefore, if it is economic or physical regulation of communication means that is imposed without regard to the content or character of the communication (message or emotive) that a means relates and without regard to the type or character of the communication means.  Accordingly, a tax on all communication means that carry antiabortion messages would be a means based abridgement, not means neutral, abridgement.  Likewise, a tax on all newspapers and periodicals but not any other means of communications would also be a means based, not means neutral, abridgement.  A tax on all means of communications with an audience or subscribership of 100,000 or more would also be means based, not means neutral.

In sum, government regulation can abridge First Amendment interests directly, by attempting to regulate content, or indirectly, by physical or economic burdens or constraints placed on one, more or all means of communications or by burdens or constraints on means of communication where the imposition depends on the content of the communications carried.  Importantly, instead of viewing the basic forms of government abridgement as limited to speech per se, viewing the forms of abridgement as, in addition, means based or means neutral distinctly includes consideration of the First Amendment impact of government action on the means of communication qua means of communication and not just on speech.[2]

 

Content and Means Based Abridgements in Judicial Decisions

Keeping explicit the consideration of whether or not government action is means based or means neutral, in addition to whether any abridgement of First Amendment interests that the action effects is content based or content neutral, allows for a clearer and more robust analysis of the First Amendment impact and, presumably, constitutionality with respect to the First Amendment of a government action.  Due regard to the means dimension of speech abridgement explains, for example, why the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), could characterize the First Amendment abridgement there as content “neutral,” id. at 39 – even though just political campaign speech, not all speech, was the subject – but, nevertheless, apply “exacting scrutiny,” an intermediate, not deferential, standard for judicial review of the constitutionality, with respect to the First Amendment, of governmental action restricting speech.[3]

In Buckley, the Court assessed the validity of various restrictions on spending for political campaign communications, regardless of the type of means for which the money was spent, under the Federal Election Campaign Act of 1971, including indirect spending for campaign communications through contributions to candidates.  Among other things, the Act limited independent expenditures by persons in support of an identifiable candidate to $1,000 per person and expenditures coordinated with or contributed directly to candidates to $1,000 per candidate per person.  Because the Act’s limitations applied to spending for means of communications and only to spending for campaign speech, their form of abridgement was both means based and content based.

Although the Buckley spending limitations were an abridgement that was both means and content based, the Supreme Court itself, as noted, expressly characterized the Act’s abridgement as content neutral.  The Court could only have meant this in the sense that the abridgement did not prohibit or favor any particular candidate or political point of view.  The limitations regarded, instead, a category of speech, as opposed to specific speech content, constraining their impact on content.  Because the limitations regarded just a category of speech and because the limitations did not cover all speech but only speech by communications means, campaign speech, the impact of the limitations on all campaign speech was far less burdensome and discriminatory toward campaign speech than, say, a means spending limitation that applied only to one party’s but not all parties’ candidates.  Accordingly, the circumscribed risk to campaign speech from a content standpoint could tolerate a judicial standard of review that was less than “strict scrutiny” ­– that is, exacting scrutiny – so much so that the Court characterized an abridgement that, still, was not truly content blind as, content neutral.

Exacting scrutiny or “intermediate scrutiny” generally requires that, for the abridgement under review to pass constitutional muster, it much be in furtherance of a public interest that is legitimate, that is substantial and that is more persuasively or preponderantly related to advancing the interest being asserted than not.  By contrast, strict scrutiny requires that, for the abridgement under review to pass constitutional muster, it must be in furtherance of a major or important public interest, necessary to further that interest and no greater than necessary to further that interest.[4]

In Buckley, the government’s primary interest justifying all of the spending limitations under review was avoiding the corruptive influence of money in political campaigns.  Approaching review with more than deference, that is, with exacting but not strict scrutiny, the Court invalidated the independent expenditure limitation because it did not serve to prevent corruptive influence as surely as did limiting expenditures coordinated with candidates and contributions directly to candidates.[5] In short, the Court conducted its review by balancing the degree that the limitations impacted speech means and content against the limitations’ efficacy in achieving the government’s objective in imposing them.  Although independent expenditures limitations might help limit corruption they would not likely do so as much as limiting coordinated expenditures and direct contributions or, therefore, enough to outweigh the campaign speech abridgement independent expenditure limitations caused.    See Buckley. 424 U.S. at 23-30, 44-51.

Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981), involving, like Buckley, a broad means based abridgement substantially restraining the magnitude of speech, is also instructive.  San Diego enacted a sign ordinance that largely forbade outdoor displays, except signs on sites that their messages concerned and signs carrying limited categories of messages, such as government signs, signs on public and commercial vehicles and temporary political campaign signs.  Although, in large measure, the ordinance was content neutral as to commercial speech,  with limited exception, noncommercial signage, unlike commercial signage, was nearly everywhere prohibited.

The San Diego sign ordinance in Metromedia was both means based and content based in its forms of abridgement.  It was means based because it limited the use of outdoor signs, a particular means of communication.  As regards abridgement of commercial speech, however, it passed constitutional muster because it could not be said that the city’s interests in safety and aesthetics were not significantly served by the abridgement and because the magnitude of speech through a variety of other means, such as press, periodicals and broadcasting, was not affected.

The San Diego ordinance’s abridgement was content based, primarily because of its differentiated treatment of types of noncommercial speech, speech, moreover, to which the First Amendment, in general, attaches a higher value than commercial speech.[6]  The ordinance allowed commercial signs in certain locations but not noncommercial signs having the same lack of impact on safety and aesthetics, and the ordinance allowed some noncommercial messages in certain areas but not all noncommercial messages in those areas.  Because there was no public interest offered to justify this differentiated treatment, the ordinance’s content based aspect failed to pass constitutional muster as to noncommercial speech.

Because of this disposition, the Metromedia Court did not address the constitutionality of the ordinance’s means based abridgement of noncommercial speech in general.  Although the Supreme Court did not reach the issue, presumably and but for the discriminatory treatment of noncommercial speech, the Court’s rationale would have as much justified the magnitude of speech precluded by prohibiting noncommercial speech on outdoor signs as it justified prohibiting commercial speech signs.  See Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (Minnesota law prohibiting the sale or distribution of any merchandise, including printed material, in parks upheld).

A comparison of the Supreme Court’s decision in Minneapolis Star v. Comm’r of Revenue, 460 U.S. 575, 581 (1983), with its earlier First Amendment decision in Grosjean v. American Press Co., 297 U.S. 233 (1936), is also useful.  In Grosjean, the Court invalidated a tax on all forms of print media selling advertising and having a circulation of more than 20,000.  This was a means based abridgement of communications.  Its application singled out a certain type of means, print media with a large (for the times) circulation and selling advertising space.  Raising revenue was proffered as the justification for the tax.  Despite this justification, because the tax was imposed essentially only on newspapers and magazines having a wide reach, a characteristic in keeping with a legislative history indicating the tax’s censorial intent, the Supreme Court held that the tax violated the First Amendment.

In Minneapolis Star, Minnesota imposed a tax on the use of print paper and ink by periodic publications, such as newspapers and magazines, but there was no history of a censorial intent in imposing the tax, distinguishing Grosjean.  Minneapolis Star, 460 U.S. at 579-80.  Like the tax in Grosjean, the abridgement was means based, because it was limited to a class of communications means, periodic publications.  Moreover, on its face, the tax was unique in the state’s tax scheme.  Use taxes were generally imposed on items purchased out of state, as a means of capturing what would otherwise be an in-state sales tax.  Because the paper and ink use tax did not distinguish between in and out of state purchases, the state was left without an interest that justified the economic burden that the tax placed on periodic publications, and the Supreme Court held that the tax, therefore, violated the First Amendment. 460 U.S. at 582-83.  According to the Court, “differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression, and such a goal is presumptively unconstitutional.”  Id. at 585 (emphasis added).  At the same time, the Court carefully noted that “the First Amendment does not prohibit all regulation of the press” and that “the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems.”  Id. at 581.[7]

The Supreme Court’s decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), like Metromedia, exemplifies another situation involving means based and content based abridgements.  The Court’s opinion plainly indicated that a regulation limiting the hours during which broadcast media may carry indecent (but not obscene) content would be constitutional.[8]  Such an abridgement would be primarily means based, but like the expenditure limitations addressed in Buckley, not completely content neutral.  That is, the type of means abridged (broadcast media) and the manner of abridgement (hours of the day) would depend on the character of the speech involved, indecent speech, though not the specific message or emotive content of the indecent speech.  And although the regulation would operate to limit adult opportunity to receive such content, the regulation would not completely foreclose the communication of such content.  The regulation, like political expenditure limitations, would affect the magnitude of such speech with regard to the general character of its content but would not entirely foreclose or change specific message or emotive content of indecent communications.

By contrast, a regulation that taxes all newspapers and periodicals that carry antiabortion advertising would be predominantly a content based and, to a lesser extent, means based abridgement of communications.  Because the tax would indirectly impact, if at all, the magnitude of newspaper and periodical publication (in most instances, likely, newspapers and periodicals would just pay the tax and pass it along to antiabortion advertisers) and would not directly preclude publication, it should not be invalidated as an impermissible means based abridgement.  In addition, the abridgement would be limited to a portion of print media and would not extend to all means of communication. The tax, though not as severe a content based abridgement as an outright ban on antiabortion speech, would plainly be a substantial content based abridgement and violative of the First Amendment, for it seeks to discourage newspapers and periodicals from carrying antiabortion content or at least results in an economic burden on antiabortion advertisers on newspapers and periodical publications.  See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“[T]he principal inquiry in determining content neutrality, in speech cases generally . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”).

Instead of focusing on whether a speech abridgement is content based or content neutral, therefore, analyzing abridgement cases and the constitutionality of government action abridging speech is more insightful and transparent and allows a more coherent explanation for judgments reached where it is recognized that some forms of abridgement may only involve the means of communication, while others may involve, in the same or differing degrees, both the means and the content of the communications and still others only content.[9]  Applying this analytical framework as a first step in appraising government actions abridging speech should help assure that future decisions regarding their constitutionality will be better explained and, like Clear Channel but, as will be seen, unlike Washington Post, correctly decided.

 

Clear Channel and Washington Post Compared

With the suggested scheme for analyzing forms of speech abridgement in mind, a first step in comparing Clear Channel to Washington Post is accurately to identify the forms of abridgement involved in each case.  In Clear Channel, the government action challenged, an excise tax on outdoor advertising, was content neutral.  It was not, however, means neutral.  Although the tax was applied to outdoor advertising without regard to its content, it did apply to a subclass of all means of communication, outdoor advertising.  Only Clear Channel challenged this abridgement, however, not, importantly, any advertisers using Clear Channel’s means of communication.

Washington Post, involved a means based and content based abridgement of speech.  The challenged Maryland laws imposed a burden on only online platforms, a subclass of all means of speech, and within that class of means, the burden was imposed only on those platforms that carried paid political campaign advertising.  Importantly, the Maryland laws did not impose burdens on all campaign advertising, regardless of how it was communicated, but only on campaign advertising communicated through a particular means, online platforms, and the abridgement did not affect the specific content of any political advertiser’s campaign advertising. Indeed, in the sense that the Supreme Court said of the campaign expenditure and contribution limitations in Buckley, the content aspect of the abridgement in Washington Post was “neutral.”  See 424 U.S. at 39.

Two means based burdens were imposed on online platforms by Maryland’s laws.  First, online platforms were required to maintain, online or elsewhere, but limited only to official access, records of information in their possession about the political advertising they carried.  Second, they were required to make publicly available and online information about the identity of their advertisers, to the extent provided to them by the advertisers.  These requirements did not regulate, control or change the political message content of any advertisement.

Clear Channel argued that because Baltimore’s excise tax burdened outdoor advertising, judicial review of the tax’s constitutionality required the application of strict scrutiny standards.  The Court of Special Appeals found, however, that the tax was content neutral in all respects. Rejecting Clear Channel’s call for strict scrutiny, the court noted that “the Tax at issue applies regardless of the message it displays or the topic it covers.” Clear Channel, Slip Op. at 11-12 & n.6.  The court also found and noted that, unlike in Metromedia, the tax “does not seek to completely eliminate billboards and certain content placed on them.”  Id. at 11.  The court reasoned, therefore, that the constitutionality of the tax was subject to rational review, the most deferential standard of judicial review, and found that the tax was constitutional, because it was rationally related to the legitimate governmental interest in raising revenue.  Id. at 12.  The court ultimately concluded that the tax did not implicate the First Amendment.  See id. at 12-13 & n.7.

Though reaching the correct result, the Clear Channel court’s opinion does not explicitly recognize the means based abridgement that the Baltimore tax imposes on outdoor advertising or explicitly explain why, in this instance, the means based abridgement that the tax effected was not unconstitutional.  This also leads the court to assume, but not offer any facts showing, that the burden fell on sign operators not passed on to their users.  This was probably an accurate assumption, given no advertiser challenged the tax, but still an assumption that should have been explicitly and empirically addressed, not a priori indulged.  Although the real question before the court was the First Amendment impact of the tax’s means based abridgement, what the court really does is discuss why the tax does not implicate forms of content abridgement and, because it does not do so, then concludes that the tax does not implicate the First Amendment.

Thus, the court’s opinion initially recognizes that “the speech displayed on . . . billboards is entitled to some level of First Amendment protection,” Slip Op. at 8, but it’s the means by which speech is displayed, not the speech displayed, that’s at issue (except to the extent that burdens on outdoor advertising would unduly constrict opportunities for speech, which does get to the real issue).  More seriously, the court missteps by accepting Baltimore’s argument that “Clear Channel displays the message of [a] third party, and therefore, a tax on its business does not implicate the First Amendment,” id. at 8-9, and its argument that “[t]he mere fact that billboards are a medium of communication does not transform a tax on the sale of billboard space into a regulation of speech.”  Id. at 10 (emphasis in original).  Buckley, Grosjean and Minneapolis Star each stand for the proposition that economic burdens, including taxes, on the means of speech are abridgements of speech and do not warrant these broad statements of First Amendment principle.

To be sure, later in its opinion, the court does distinguish Grosjean, Minneapolis Star and related cases, id. at 13-17, and, so, in a roundabout way, begins to address the Baltimore tax’s constitutionality, but the opinion does not squarely raise or address the question why the effect on speech that the tax does, in fact, have – in this case, an effect on means – is not of a character that warrants the tax’s invalidation.  The first question in any case where speech abridgement is alleged should be whether there is an abridgement, and whether there is depends on a careful examination of whether any of the forms of abridgement discussed here – to speech means, speech content or both ­– exists.  Only once that determination is made, should a court proceed, if there is an abridgement, to consideration of the appropriate standard of review, based on the character of the abridgement’s effects.

The determinative aspects for the constitutionality of Baltimore’s tax, proceeding from the answer to the first question to ask, are these.  The abridgement the tax effects is a means based abridgement only.  There is no aspect of the abridgement that involves speech content.  The abridgement is effected by imposing an economic burden only, the tax, on outdoor advertising.  There was nothing to indicate that this burden was passed along to advertisers, obviating concerns about foreclosing a speech means vital to any group of speakers or category of speech.  The abridgement did not totally preclude outdoor advertising, and there was nothing to indicate that the abridgement’s economic burden significantly limited the number of outdoor displays compared to the number that would exist without it.  Finally, there was no indication that the tax was targeted to outdoor advertising because of its speech function, as perhaps to its nuisance.  In short, the tax, as a means based abridgement, was entirely without any significant First Amendment impact, an a fortiori case in the light of Metromedia.

With respect to the framework for analyzing speech abridgements suggested here, Washington Post and Clear Channel were on a par.  Both involved predominantly means based abridgements, yet the outcomes as to the ruling courts’ decisions on constitutionality were different.  The difference is attributable to the Fourth Circuit’s misperception of the nature of the abridgements involved in Washington Post and the actual effect of the burdens imposed.

In the Fourth Circuit’s view, “Maryland’s law is different in kind from customary campaign finance regulations because the Act burdens platforms rather than political actors.”  Washington Post, Slip Op. at 14.  Although this distinction may have some “innocent third-party bystander” appeal, nevertheless, according to Grosjean and Minneapolis Star, the distinction is one without a relevant difference.  The First Amendment analysis should focus on the effect ­– the means burden or content control ­– of any governmental action on protected speech, not the position of the speaker.  If anything, that Maryland’s laws affected platforms and not political actors only shows that the laws, as regards only such actors, were “content neutral,”  even more so than in Buckley, where the Supreme Court characterized the abridgements on speakers there as content neutral, even though the abridgements related only to political speech.

As with the abridgement in Clear Channel, the abridgements in Washington Post were primarily effected through speech means, not through a direct regulation of the content of any speech or political speaker.  The Fourth Circuit, however, was quick to conclude in its opinion that the abridgements there were, foremost, content based.  In addition, although the Maryland laws challenged in Washington Post covered all online platforms carrying political advertisements, not just online press platforms, and concerned itself with just the identity of advertisers and information about their advertisements, not with the political message content of the advertising, the Fourth Circuit nevertheless characterized the laws as abridgements targeting and compelling protected speech.  As the court stated at the outset of its analysis:

[T]he Act is a content-based law that targets political speech and compels newspapers, among other platforms, to carry certain messages on their websites. In other words, Maryland’s law is a compendium of traditional First Amendment infirmities.

Washington Post, Slip Op. at 9.

The court’s misperceptions then infected the rest of its analysis.  Although the Maryland laws’ abridgement was content based, as that term would be applied in the analysis suggested here but not, again, as in Buckley (the abridgement involved only political speech), it did not “target” political speech in the sense of constraining political messaging, either by regulating message content or by narrowly constricting the means of relating such messaging.  Likewise, although the law did compel newspapers to carry “certain messages,” the court’s sliding by acknowledging that the “certain messages” compelled were not political messages (only neutral information about political advertisers and their advertisements) and acknowledging that not just online newspapers were required to carry those “certain messages” lacked judicial candor.

Moreover, this obfuscation served to enable the court’s hyperbolic findings that the Maryland law, with its recordkeeping and online disclosure requirements, effected an undue incursion on editorial control of platform content and unduly burdened the press with the cost of recordkeeping.  In the online digital age, however, the amount of electronic storage space the online disclosure and recordkeeping would require of any platform, press or otherwise, could probably fit on a thumb drive.  That the Maryland laws, for example, required any online platform to devote space to content at the expense of content it preferred to carry is doubtful and is certainly not a finding the Fourth Circuit’s opinion made, let alone supported.  The means abridgement involved in Washington Post, therefore, was minimal and content de minimis with respect to its effect on protected speech.[10]

At the same time, balanced against this dubious means burden was Maryland’s and democracy’s interest in assuring an informed electorate.  Although press interests argued that Maryland’s laws did not do enough in this regard, there was no claim that the laws did not contribute to this end or that the laws went further than necessary in this regard.  In short, whether assessed by strict or exacting standards of judicial review, Maryland laws should have been upheld against the First Amendment challenge in Washington Post.

 

 

[1] The court ruled that its First Amendment disposition obviated the need to consider Clear Channel’s Fourteenth Amendment challenge.  The court also saw no need to address Clear Channel’s Maryland Constitution challenge because Clear Channel offered no reason for the court materially to construe Article 40’s protections, as construed by Maryland’s courts, differently from application of the First Amendment in their precedents.

[2] The analytical scheme related here parallels that set forth in L. Tribe, American Constitutional Law, at 789-804 (2d ed. 1988) (The first volume of Professor Tribe’s third edition of his treatise was published in 2000.  The second volume, which would have covered the First Amendment, has never been published, because Professor Tribe determined that the rate of flux of constitutional doctrine has been too great to allow any treatise to be of value.).  There are, however, material differences from Professor Tribe’s scheme.  Both schemes view government abridgements of speech, in form, as fundamentally two.  Professor Tribe defines them as government action that aims to regulate specific information or ideas and government action that discourages the speech of information or ideas.  The forms identified in this post, abridgement of message or emotive content and abridgement of means of speech, are coincident with Professor Tribe’s two basic forms, but avoid ambiguity in his definitions of the forms.  This post also recognizes that some government actions comprise both forms.  For example, Professor Tribe would characterize “discharge of public employees found in possession of ‘subversive’ literature” as an example of his first form of abridgement.  Id. at 789.  Under the scheme proffered here, that abridgement contains elements of both forms; it aims at subversive speech and limits, with reference to a topic of speech, use of all forms of literature, as opposed more broadly to prohibit any subversive speech, regardless of the means of communication.  Importantly, dual forms of abridgement tend to involve lesser, though not necessarily constitutional, abridgements of speech than do abridgements that preclude speech, without regard to the means.

Further, for Professor Tribe, the method for testing the constitutionality of an abridgement depends on the form of abridgement.  For the first form, Professor Tribe’s “track one,” protected speech (speech that is not obscenity, falsehoods, etc.) may be abridged only if it is determined, after limited due process review, that that the speech poses some clear and present danger to people.  Id. at 791-92.  For the second form, “track two,” protected speech may be abridged only if “the flow of information and ideas” is not “unduly constrict[ed],” as determined after a “balanc[ing]” of values and interests on a “case-by-case basis.”  Id. at 792.  It is submitted, that Supreme Court cases to be subsequently discussed in this blog show that the method does not vary according to whether the abridgement is content based or means based but in accordance with the importance, under the First Amendment, of the type of speech abridged, the magnitude of speech abridgement effected (where the abridgement is means based), and the discriminatory nature of the abridgement.  In other words, the Supreme Court’s sliding scale of deferential, intermediate and strict review of government actions abridging speech applies to both content based and means based abridgements.

Likewise, G. Stone, “Content Neutral Restrictions,” 54 U. Chi. L. Rev. 46 (1987), recognizes that a regulation’s effect on the means of speech may be a factor in its constitutionality but does not explicitly make means based abridgement a part of any construct by which comprehensively to review the validity of government action abridging speech.  Instead, in reviewing “content neutral” cases, Professor Stone sometimes acknowledges the means based nature of the abridgement as explaining a Supreme Court decision.

[3] Stone, supra n.2, at 57-58.  Buckley illustrates a shortcoming of Professor Tribe’s scheme for analyzing forms of speech abridgement.  See, supra, n.2.  The expenditure and contribution limitations of the Federal Election Campaign Act of 1971 that Buckley addressed involved, as discussed below, a means based abridgement.  The limitations applied to and precluded paying for means of political campaign speech (not all campaign speech) above specified monetary amounts of value, whether indirectly, as an expenditure, or directly, as a contribution to a candidate.  However, as a content based interdiction of speech, indeed, speech protected at the First Amendment’s core, the Act’s expenditure and contribution limitations fit Professor Tribe’s first form of abridgement and warranted his “track one” invalidation, as a preclusion of political speech.  Nevertheless, the Supreme Court’s decision in Buckley largely avoided this result by, expressly, albeit dubiously, characterizing the abridgement as content neutral (presumably, because the Act neither advanced nor retarded a particular candidate or candidate point of view).  With relation to all subjects or topics of speech, however, the abridgement was plainly content based.

[4] See Stone, supra n.2, at 50-54.

[5] For essentially the same reasons, the Buckley Court also invalidated limitations on personal expenditures by candidates for federal office in support of their candidacies and total expenditures by federal candidates on their election campaigns, personal or otherwise.  See 424 U.S. at 51-58.

[6] See Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U. S. 557, 562-63 (1980) (“The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.”) (citation omitted).

[7] Stone, supra, n.2, does not distinguish between the means based impact aspect that a speech abridgement may or may not have and the content based impact that an abridgement may or may not also have.  In Leathers v. Medlock, 499 U.S. 439 (1991), cable television services challenged the imposition of Arkansas’ sales tax on them for a period during which the state did not impose such a tax on cable television services.  In an opinion rejecting this First Amendment challenge, Justice O’Connor, who also wrote the opinion in Minneapolis Star, qualified Minneapolis Star, noting that “in taxation, even more than in other fields, legislatures possess the greatest freedom in classification,” 499 U.S. at 451, and reconfirming the proposition that “a tax scheme that discriminates among speakers does not implicate the First Amendment unless it discriminates on the basis of ideas.”  Id. at 450.

In addition to this content directed test, which the facts in Leathers did not implicate, id. at 447, Justice O’Conner did note and assess the means based nature of the abridgement that the cable operators challenged, examining not just the abridgement’s impact on the magnitude of speech but also the discriminatory effect of the abridgement.  Specifically, she found that “[u]nlike the taxes involved in Grosjean and Minneapolis Star, the Arkansas tax has not selected a narrow group to bear fully the burden of the tax.”  Id. at 448.  This avoided the political isolation of a limited constituency that, as the Court explained, would leave that constituency vulnerable to censorship and discrimination.  See id. at 445-46.  Whether or not one is convinced of the Court’s distinctions among Grosjean, Minneapolis Star and Leathers, the takeaway most relevant here remains, and that is the importance of first determining whether government action involves a means based, content based or dual based abridgement, before deciding any First Amendment challenge to the abridgement.

[8] It is assumed here that there are reliable standards and methods for distinguishing between indecent speech and obscene speech.

[9] “Each method of communicating ideas is ‘a law unto itself’ and that law must reflect the ‘differing natures, values, abuses and dangers’ of each method.”  Metromedia, 453 U.S. at 501.

[10] Indeed, there was virtually no evidence that the means burden of Maryland’s laws was in any way limiting speech.  The Fourth Circuit could only say that press interests “claimed” as much.  Slip Op. at 16.  Although, by the time the court released its opinion, it had been known for months that both Maryland and Washington had enacted or were planning to enact laws regulating the manner in which political ads were placed on online platforms, the only evidence the Fourth Circuit cited on this matter was anecdotal hearsay, that Google, but only Google, had decided to stop carrying political ads in those states.  Moreover, it is doubtful that the cost of compliance was Google’s reason for its decision.  Indeed, in a political advertising policy statement released November 20, 2019, shortly before the court’s decision, Google strongly suggested, if not clearly stated, that the reason for its decision was based not on economics but policy.  In particular, it stated, “we’re making a few changes to how we handle political ads on our platforms globally.  Regardless of the cost or impact to spending on our platforms, we believe these changes will help promote confidence in digital political advertising and trust in electoral processes worldwide.”  (Emphasis added.)  Further, the court did not point to anything in the record showing that platforms would or could not pass their costs on to advertisers or that, if they did, the amount of political advertising would be significantly reduced, let alone reduced at all.  Nor was there any showing that any cost increases would be out of line with cost increases that platforms alone incur for complying with all sorts of state and federal regulation.