244
Scalia, J., dissenting
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. 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 "pre-cleared" 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 3) can
make no change in its practices or procedures that might affect a voter's capacity to have his candidate elected—no
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 195-199, 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 215, 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 238, but they are plainly incidental to his analysis, see ante, at 235-239. So one must assume that what the Court today holds for parties whose nominees are automatically listed is true for other parties as well.
Page: Index Previous 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 NextLast modified: October 4, 2007