Freedom of speech, assembly, and the press 121the amendment six times between 1995 and 2005 with the necessary two-thirds vote,
but each time the measure failed by a narrow margin in the Senate (by just one vote in
2006). President Trump reignited this debate shortly after he was elected, tweeting,
“Nobody should be allowed to burn the American flag—if they do, there must be
consequences—perhaps loss of citizenship or year in jail!” However, Republican
leaders in Congress have not been interested in revisiting this fight.^56
Although the Court has protected flag burning and other forms of symbolic
speech, there are limits, especially when the symbolic speech conflicts with another
substantial governmental interest. Here the critical test is whether the action can
be regulated for important reasons unrelated to ideas. If so, then the “intermediate
scrutiny” standard will apply. For example, Vietnam War protesters who burned
their draft cards were not protected by the First Amendment because their actions
interfered with Congress’s constitutional authority to “raise and support” armies, and
the purpose of the draft was not to suppress speech.^57 The Court also ruled in 2015 that
states may ban the use of the Confederate battle flag on state vanity plates. The Sons
of Confederate Veterans argued that the battle flag honored their southern heritage,
but the state of Texas said it was offensive.^58 The debate over the flag intensified after
a “Unite the Right” rally in Charlottesville, Virginia, in which a white supremacist
killed a woman and injured 19 others, and demonstrators prominently displayed the
Confederate battle flag. At least 30 communities around the country took down statues
and memorials to Confederate leaders in response to the violence in Charlottesville.^59Money as Speech Spending money in political campaigns may also be protected
by the First Amendment since it provides the means for more conventional types of
political speech. Here the central question is whether the government can control
campaign contributions and spending for a broader public purpose such as lessening
the potential for corruption, or whether such laws violate the First Amendment rights
of candidates or their supporters. You probably have heard the old saying “Money
talks,” which implies that money is speech. Given the importance of advertising in
modern campaigns, limitations on raising and spending money could limit the ability
of candidates and groups to reach voters with their message. The Court has walked
a tightrope on this one, balancing the public interest in honest and ethical elections
and the First Amendment rights of candidates and their advocates. The Court has
upheld individual candidates’ right to spend their own money in federal elections,
but presidential candidates give up that right if they accept federal campaign funds
(taxpayers’ money) in a presidential election. Also, candidates in federal elections are
subject to limits on the types and size of contributions they can receive, and they must
report all contributions and spending to the Federal Election Commission.^60
The Bipartisan Campaign Reform Act, which went into effect for the 2004
elections, included a “Millionaires’ Amendment” that lifted restrictions on campaign
contributions for candidates whose opponents spent more than $350,000 of their
own money in the election. This attempt to level the campaign finance playing field
was struck down by the Supreme Court in 2008 as a violation of wealthy candidates’
First Amendment rights.^61 In 2010 the Court also extended First Amendment rights to
corporations and labor unions that want to spend money on campaign ads, and in 2014
it struck down the aggregate (collective) limits placed on individual contributions to
candidates and parties (these cases are discussed in more detail in Chapter 9).^62 However,
the Court upheld a ban on unlimited “soft money” contributions because they were seen
by the Court as the type of contribution with the most potential for corruption.^63
Student fees as a form of symbolic speech came up in a case in 2000 involving
student activity fees at the University of Wisconsin. A group of students argued
that they should not have to pay fees to fund groups whose activities they opposed,Full_05_APT_64431_ch04_102-147.indd 121 16/11/18 1:28 PM