- The result in Austin, allowing states to bar corporations from spending their general treasury funds to promote the election of a particular candidate, turned solely on the government's unique interest in protecting the electoral process. The majority opinion in Austin explicitly reaffirmed past decisions protecting corporate speech. See 58 U.S.L.W. at 4372 (reaffirming First National Bank of Boston v. Bellotti), and at 4373 (reaffirming FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986)). See also id. at 4376 (Brennan, J., concurring) (emphasizing the uniqueness of the need to protect the political marketplace, and harmonizing the limited Austin holding with Mass. Citizens for Life).
- Such a requirement is otherwise presumptively invalid. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714–17 (1977) (protecting individual's right not to be used as a medium for the government's messages); Pacific Gas & Elec. Co. v. Pub. Util. Comm'n, 475 U.S. 1, 6 (1986) (extending this right to protect a corporation from being forced to serve as a medium for the messages of others).
- Any theory that the BOCs derive monopoly power from the government likewise cannot justify the abridgement of First Amendment rights. Even in the areas of the country where the BOCs have been granted exclusive telephone franchises, the fact that a franchise is a mere privilege gives government no authority to condition that privilege on the surrender of a First Amendment right. See, e.g., Pacific Gas & Electric Co. v. Pub. Util, Comm'n, 475 U.S. 1,17 n. 14 (1986); Consolidated Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 534 n. 1 (1980); Pickering v. Board of Education, 391 U.S. 563, 568 (1968); Speiser v. Randall, 357 U.S. 513, 518–19 (1958). Indeed, not even the provision of government money to a television broadcaster can justify such a condition. FCC v. League of Women Voters, 468 U.S. 364 (1984).
- Even if Congress enacted a removal restriction that on its face appeared identical to the language of Section VII's public interest standard, it would still be more restrictive insofar as it replaced an entitlement to relief once a certain showing was made based solely upon the evidence presented to an Article III tribunal, with a mere opportunity to persuade an administrative or executive agency to exercise its discretion in the BOCs' favor. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (treating a cause of action, or a legal claim to relief before an adjudicative tribunal, as a species of “property” protected from deprivation by government action).
- See Blount V. Rizzi, 400 U.S. 410, 417 (1971); Freedman v. Maryland, 380 U.S. 51, 58 (1965); Speiser v. Randall, 357 U.S. 513, 526 (1958).
- See, e.g., Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in chambers) (explaining that “any First Amendment infringement that occurs with each passing day is irreparable”). See also National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 44 (1977) (per curiam) (reversing Illinois Supreme Court's denial of a stay, pending appellate review, of an injunction prohibiting Nazis from marching in Skokie, Illinois).
Law & Literature
Volume 2, 1990 - Issue 1: The Writer and The State