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Kennedy and the First Amendment

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Depressingly, it looks as if Kennedy will vote to strike down the Arizona campaign finance law.

Should he vote the way he seemed to be leaning at oral argument, a case worth pondering is Rust v. Sullivan. In that case, the Supreme Court upheld the first Bush administration’s reproductive freedom gag order, which prevented organizations and medical professionals who receive federal funding from providing any information to their patients about abortion. First of all, you’ll notice that whereas in the campaign finance case it’s not even clear exactly how speech is being suppressed, with respect to the gag order the suppression of speech is unequivocal: as Blackmun wrote in his dissent, it was “viewpoint-based suppression of speech solely because it is imposed on those dependent upon the Government for economic support.” Second, even if we accept Kennedy’s odd argument that public finances somehow suppresses the speech of some individual, it also expands speech for some who would otherwise lack access; there’s no such countervailing interest here. Indeed, the point of the Bush gag order was to restrict access women had to a fundamental right — the violation of liberty was compound rather than mitigated.

I think you can guess how Kennedy voted in Rust

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