Opinion: Supreme Court justices can pick from two 1st Amendments


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The Supreme Court’s decision this week in an Arizona election financing case is a primer on two different approaches to the 1st Amendment. (The case involved a law that allowed candidates who accept public financing to receive extra funds based on what their opponents spent.)

The libertarian model, reflected in Chief Justice John Roberts’ majority opinion, sees the amendment as primarily about keeping government from repressing speech. The liberal view, expressed in Justice Elena Kagan’s dissenting opinion, is that the 1st Amendment is about government fostering speech -- the more, the better -- with public funds if necessary.


The first view cares not how much speech there is. All that matters is that the government not interfere with the quantity of speech that exists ‘naturally.’ It’s a matter of indifference whether there is a diversity of viewpoints or a few voices. The second view measures the vitality of the 1st Amendment based on how many people are benefiting from it.

This quantitative vs. qualitative distinction goes a long way toward explaining the differences on the court, and not just in campaign-finance cases. There’s one 1st Amendment, but it comes in two flavors.


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-- Michael McGough