| Dissent [ Thomas ] | Opinion [ Stevens ] | Concurrence [ Breyer ] | Syllabus | Dissent [ Scalia ] | Dissent [ Kennedy ] |
|---|---|---|---|---|---|
| HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version |
No.
FORTIS MORSE, KENNETH CURTIS BARTHOLOMEW and KIMBERLY J. ENDERSON,
APPELLANTS v.
on appeal from the united states district court for the western district of virginia
[
Justice
"Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). For that reason, we have always treated government assertion of control over the internal affairs of political parties--which, after all, are simply groups of like minded individual voters--as a matter of the utmost constitutional consequence. See, e.g., Democratic Party of United States, v. La Follette, 450 U.S. 107, 121-122 (1981); Cousins v. Wigoda, 419 U.S. 477, 487-488 (1975); O'Brien v. Brown, 409 U.S. 1, 4-5 (1972) (per curiam). What is at issue in this case, therefore, is not merely interpretation of §5 of the Voting Rights Act, 42 U.S.C. § 1973c but, inextricably bound up with that interpretation, the First Amendment freedom of political association.
There are several respects in which both Justice Stevens' and Justice Breyer's opinion constitute remarkable departures from the settled course of our First Amendment jurisprudence. The most obvious, perhaps, is their refusal to consider the present application of §5 unconstitutional on the basis of "hypothetical cases unrelated to the facts of this case [that] might implicate First Amendment concerns." Stevens, J., at 42. [n.1] Instead, they "leave consideration of hypothetical concerns for another day," id., at 43, and reserve such "difficult" questions "for a case that squarely presents them," Breyer, J., at 5. That is a luxury our precedents do not allow. It has been a constant of our free speech jurisprudence that claimants whose First Amendment rights are affected may challenge a statute, not merely on the ground that its specific application to them is unconstitutional, but also on the ground that its application is void in a substantial number of other contexts that arguably fall within its scope. This principle of "overbreadth" has been applied not only in the context of freedom of speech narrowly speaking, but also in the context of the freedom to associate for the purpose of political speech. See, e.g., United States v. Robel, 389 U.S. 258, 265-266 (1967); Elfbrandt v. Russell, 384 U.S. 11, 18-19 (1966).
Thus, to satisfy oneself that the particular practice challenged here lies "well outside the area of greatest `associational' concern," Breyer, J., at 5, is to take only the first and smallest step in treating the weighty constitutional question posed by application of §5 to political parties. In this First Amendment context, to "go no further than necessary to decide the case at hand" means going far enough to assure against overbreadth. We must do that whenever "rights of association [are] ensnared in statutes which, by their broad sweep, might result in burdening innocent associations." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (citing, inter alia, Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589 (1967)). Justice Stevens does not assert that applying §5 to party activity passes First Amendment muster except "in the case before us," ante, at 42-43, and Justice Breyer acknowledges that the First Amendment may bar application of §5 to other convention activity, see ante, at 5. Yet despite these indications of overbreadth, neither opinion attempts to provide what our cases require: a "limiting construction or partial invalidation" that will "remove the seeming threat or deterrence to constitutionally protected expression," Broadrick, supra, at 613.
Besides flouting the doctrine of overbreadth, the opinions' refusal to provide "[f]urther definition" of §5's application to political parties, Breyer, J., at 6, leaves political parties without guidance as to "when [their] activities are, in effect, substitutes for state nominating primaries," id., at 4, and as to "which party nominating convention practices fall within the scope of the Act," ibid. [n.2] Before today, this Court has not tolerated such uncertainty in rules bearing upon First Amendment activities, because it causes persons to refrain from engaging in constitutionally protected conduct for fear of violation. See, e.g., Baggett v. Bullitt, 377 U.S. 360,372 (1964). Surely such an effect can be expected here. Party officials will at least abstain from proceeding with certain convention activities without notification; and in light of the high degree of uncertainty they may well decide to hold no conventions at all.
Another respect in which the Court today diverges from our free speech jurisprudence is even more astounding, if possible, than its disregard of the doctrines of overbreadth and vagueness. From reading the majority's two opinions, one would surmise that the only constitutional question at issue is whether the First Amendment permits the Federal Government to make unlawful and set aside party rule changes designed to hinder racial minorities' full participation in election related functions. But this statute does not present only that question, any more than a statute establishing a Board of Obscenity Censors, to which films or books must be submitted for approval before publication, presents only the question whether the First Amendment permits the prohibition of obscenity. See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). A point entirely ignored by Justices Stevens and Breyer is that this case involves a classic prior restraint.
Our cases have heavily disfavored all manner of prior restraint upon the exercise of freedoms guaranteed by the First Amendment. Although most often imposed upon speech, prior restraints are no less noxious, and have been no less condemned, when directed against associational liberty (with which, we have said, freedom of speech "overlap[s] and blend[s]," Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 300 (1981)). See Thomas v. Collins, 323 U.S. 516, 539-540 (1945); Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 180-185 (1968); cf. Healy v. James, 408 U.S. 169, 184 (1972). Today, however, a majority of the Court readily accepts the proposition that §5 can subject this First Amendment freedom to a permit system, requiring its exercise to be "precleared" with the Government even when it is not being used unlawfully. The Court thus makes citizens supplicants in the exercise of their First Amendment rights.
As the five Justices who support the judgment of the Court choose to read this statute, a political party (or at least one that the State has awarded a place on the ballot [n.3] ) can make no change in its practices or procedures that might affect a voter's capacity to have his candidate elected--no matter how race neutral in purpose and effect--unless it first obtains prior clearance by the Government, see Stevens, J., at 16-19; Breyer, J., at 3-5. Any change not precleared--after a proceeding in which the burden rests on the party to show absence of discriminatory purpose and effect, see City of Rome v. United States, 446 U.S. 156, 172-173, 183, n. 18 (1980))--can be enjoined. Given that political parties are organized with the near exclusive purpose of influencing the outcomes of elections, I think it obvious that as construed today, §5 requires political parties to submit for prior Government approval, and bear the burden of justifying, virtually every decision of consequence regarding their internal operations. That is the most outrageous tyranny. A freedom of political association that must await the Government's favorable response to a "Mother, may I?" is no freedom of political association at all.
There would be reason enough for astonishment and regret if today's judgment upheld a statute clearly imposing a prior restraint upon private, First Amendment conduct. But what makes today's action astonishing and regrettable beyond belief is that this Court itself is the architect of a prior restraint that the law does not clearly express. And here is yet another respect in which today's opinions ignore established law: their total disregard of the doctrine that, where ambiguity exists, statutes should be construed to avoid substantial constitutional questions. That has been our practice because we presume that "Congress, which also has sworn to protect the Constitution, would intend to err on the side of fundamental constitutional liberties when its legislation implicates those liberties." Regan v. Time, Inc., 468 U.S. 641, 697 (1984) (Stevens, J., concurring in judgment in part and dissenting in part). We have in the past relied upon this canon to construe statutes narrowly, so as not to impose suspect prior restraints. For example, in Lowe v. SEC, 472 U.S. 181 (1985), we held that a statute requiring all "investment advisors" to register with the Securities and Exchange Commission, see 15 U.S.C. § 80b-3, does not extend to persons who publish "nonpersonalized" investment advice such as periodic market commentary--thereby avoiding the question whether Congress could constitutionally require such persons to register. Lowe, supra, at 190, 204-205, and n. 50. How insignificant that prior restraint when compared with the requirement for preclearance of all changes in self governance by political parties.
What drives the majority to find a prior restraint where the text does not demand (or even suggest) it is the notion that it "strains credulity" to think that Congress would enact a Voting Rights Act that did not reach political party activity, Stevens, J., at 30. Congress, the majority believes, "could not have intended" such a result, Breyer, J., at 5. I doubt the validity of that perception; the assumption it rests upon--that a legislature never adopts half way measures, never attacks the easy part of a problem without attacking the more sensitive part as well--seems to me quite false. Indeed, the one step at a time doctrine that we regularly employ in equal protection cases is based on precisely the opposite assumption. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488-489 (1955).
Moreover, even if one were to accept the majority's question begging assumption that Congress must have covered political party activity, and even if one were to credit the majority's sole textual support for such coverage, today's decision to impose a prior restraint upon purely private, political party activity would still be incomprehensible. The sole textual support adduced by the two opinions consists of §14's reference to elections for "party office," and §2's reference to "the political processes leading to nomination or election." See Stevens, J., at 20-22; Breyer, J., at 2. Justice Thomas gives compelling reasons why these phrases cannot bear the meaning the majority would ascribe, see post, at 27-32. But even accepting that they mean what the majority says, all that the phrase in §14 shows is that some portion of the Act reaches private, political party conduct; and all that the phrase in §2 shows is that (at least in some circumstances) §2 does so. Nothing in the text, nor anything in the assumption that Congress must have addressed political party activity, compels the conclusion that Congress addressed political party activity in the preclearance, prior restraint scheme of §5, [n.4] which is of course the only question immediately before us. Thus, the only real credulity strainer involved here is the notion that Congress would impose a restraint bearing a "heavy presumption against its constitutional validity," Bantam Books, 372 U. S., at 70, in such a backhanded fashion--saying simply "State[s]" and "political subdivision[s]" in §5, but meaning political parties as well. Because I find that impossible to believe, I respectfully dissent.
Notes
1 For brevity's sake, I cite each of today's opinions by the name of its author.
2 Justice Breyer apparently thinks that the First Amendment concerns raised by appellees are minimal because many activities engaged in by a party at its convention "are very likely not subject to preclearance." Ante, at 4. Of course, a mere "very likelihood" that failure to preclear a particular activity will not result in nullification of the work of the convention is hardly sufficient to induce a party organizer to take the chance. In any event, I find curious the proposition that certain subsidiary determinations of the convention, such as " `adoption of resolutions or platforms outlining the philosophy [of the party],' " ibid., are not subject to Government oversight, whereas the determination of who may attend the convention--upon which all else depends--is subject to Government oversight. That is a good bargain for the tyrant.
3 Justice Stevens makes much of the fact that the nominee selected by the Republican Party of Virginia, by reason of the outcome of prior elections, had automatically been given a place on the primary ballot, see ante, at 6-11, but he also explains his interpretation of §5 as "follow[ing] directly from our decision in Terry [v. Adams, 345 U.S. 461 (1953)]," ante, at 28, a case in which the private party's nominating election "did not involve the State's electoral apparatus in even the slightest way," ibid. Justice Breyer alludes to Virginia's election laws, see ante, at 4, but they are plainly incidental to his analysis, see ante, at 1-4. So one must assume that what the Court today holds for parties whose nominees are automatically listed is true for other parties as well.
4 The Court majority would respond, perhaps, that the phrase "State or political subdivision" in §5 should be read to have the same meaning that it has in §2. Of course it normally should. But if the majority fancies itself confronted with the choice between departing from that general rule of construction (which, like all rules of construction, can be overcome by other indication of statutory intent, see, e.g., Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 86-88 (1934)) and violating the inflexible principle that courts should not needlessly interpret a statute to impose a prior restraint upon private political activity, it is not debatable where the outcome must lie. Of course, the imagined conflict between the rule and the principle disappears if "State or political subdivision" is given its natural meaning in both §5 and §2, subjecting political parties to neither.