December 13, 2019
By Jacob Huebert
The First Amendment doesn’t just protect your right to speak freely; it also protects your right not to speak—including your right not to pay for somebody else’s speech. Yet the city of Seattle is forcing people who own property there to pay for other people’s contributions to candidates for office—whether they want to or not.
Seattle has imposed a special tax on property owners that is used exclusively to pay for “democracy vouchers.” Seattle residents each receive four of these vouchers, worth $25 each, which they may use to make contributions to qualifying candidates for city office.
As a result, property owners are forced to pay for the campaigns of candidates whose policies they disagree with. For example, landlords are forced to pay for contributions to candidates who seek to deprive landlords of their property rights through policies such as rent control. And property owners who don’t want to give money to any candidate cannot avoid doing so.
The program’s defenders say it doesn’t promote any particular political viewpoint, but of course it does. It inevitably promotes majority views over minority views because the candidates with the most support among residents receive most of the money.
Two Seattle property owners sued to challenge this scheme for violating their First Amendment rights. Unfortunately, the Washington Supreme Court ruled against them, so now they’re asking the U.S. Supreme Court to hear their case, Elster v. City of Seattle. The Goldwater Institute has filed an amicus brief supporting their petition.
How could anyone justify such a flagrant violation of fundamental First Amendment rights? The program’s supporters say it actually serves First Amendment values because it enables more people to participate in the political process. But, as the Goldwater Institute’s brief explains, that argument is based on a common misconception of what free speech and the First Amendment are about.
The First Amendment exists to protect individual rights. It reflects a presumption that the government may not dictate what people say, don’t say, write, don’t write, believe, or don’t believe. And it protects individual rights for the individual’s sake—not to serve some supposedly greater public good.
That was the Founders’ understanding. But in the early 20th century, a different notion of free speech arose and became popular among progressives. Under what has been called the “civic conception” of free speech, freedom of speech is seen as a social construct designed to foster democratic deliberation and decision-making—in other words, a privilege that the state gives to citizens to achieve social goals, not a human right the state must respect.
These two conceptions of free speech—the individualistic and the civic—inevitably conflict with each other because the civic conception implicitly assumes that individuals’ free speech may be curtailed (or compelled) to serve political leaders’ notions of the greater good. Seattle’s democracy voucher program illustrates the point: Based on the civic conception, it violates individuals’ right not to pay for other people’s political contributions for the sake of increasing democratic participation.
Fortunately, the Supreme Court has embraced the individualistic conception and rejected the civic conception, in recent decisions on compelled speech and campaign speech. It has rejected the idea that the government may try to amplify some voices to balance out others and “level the playing field” in politics. Yet official promotional materials published by the organization that sponsored the democracy voucher ballot measure said, in as many words, that the vouchers were intended to serve exactly those purposes.
Other groups that developed and helped enact the democracy voucher program defended it in a brief by arguing, explicitly, that the civic conception of First Amendment rights is more important than individual rights. They argued that “the public marketplace of ideas of the First Amendment does not exist in a vacuum, but rather is in service of our system of democratic self-government” and that “[t]he compelling interest of democratic self-government can only be realized … when ideas with the greatest public support are translated into government action.” They continued: “While it is true that the First Amendment is counter-majoritarian to the extent that it protects individual rights to express unpopular opinions, the Amendment cannot be read to uproot our entire system of majoritarian republicanism so integral to its very purpose.” In other words, individual rights are important only to the extent that they serve to implement ideas supported by the majority.
That is not how the First Amendment or our system of government works. On the contrary, when “majoritarian republicanism” would intrude on the free speech rights of minorities—including the smallest of all minorities, the individual—the Constitution’s message of clear: the rights of the individual take precedence. As the Supreme Court has said: “One’s right … to free speech [or] a free press … may not be submitted to vote; the[se rights] depend on the outcome of no elections.” The Court also put it well in a Goldwater Institute case, Arizona Free Enterprise Club v. Bennett: “The First Amendment embodies our choice as a Nation that, when it comes to [political] speech, the guiding principle is freedom—the ‘unfettered exchange of ideas’—not whatever the State may view as fair.”
The Court should hear the Elster case to make that clear to Seattle and to other governments that would consider following its example.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.