Special Report

Speaking Softly

In two major freedom of speech rulings yesterday, the Roberts Court moved cautiously.

By 6.26.07

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Yesterday the Supreme Court handed down two major freedom of speech cases. One of them expands the bounds of protected speech; one of them circumscribes them. But both are guaranteed to lead to more litigation.

Consider first FEC v. Wisconsin Right to Life. At issue was Section 203 of the Bipartisan Campaign Reform Act of 2002. That section makes it illegal to refer by name to a candidate for federal office in an ad run 30 days before a primary election, or 60 days before a general election, in an ad paid for directly by a labor union or corporation (this includes not-for-profit corporations). This provision was upheld against a First Amendment challenge in 2003's McConnell v. FEC, in which the Court ruled that "issue advocacy" ads can be regulated if they are "functionally equivalent" to "express advocacy" ads -- that is, ads intended to persuade viewers to vote for or against a certain candidate.

Wisconsin Right to Life, Inc. (WRTL) aired an ad in 2004 that urged viewers to "Contact Senators Feingold and Kohl and tell them to oppose the filibuster." The ad aired during the month before the Wisconsin primary in which Russ Feingold was running (unopposed, incidentally). A five-justice majority ruled that Section 203 of McCain-Feingold is unconstitutional as applied in this case -- but divided on the reason why.

In the principal opinion, Chief Justice John Roberts, joined by Justice Samuel Alito, argues that WRTL's ad does not amount to electioneering merely because it mentions a candidate's name. McConnell's holding thus remains intact in cases where issue advocacy is not "functionally equivalent" to express advocacy. It is left to judges to decide when that standard is met.

Concurring in the judgment, and joined by Justices Anthony Kennedy and Clarence Thomas, Justice Antonin Scalia points out that this is not a workable resolution. It is a fundamental feature of democratic politics that policies and election results are inextricably connected. Scalia "would therefore reconsider the decision [that is, McConnell] that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion."

In a concurring opinion, Alito writes that because it's possible to draw the issue/election distinction in this case, there's no need to consider the broader question of whether the McConnell ruling on Section 203 needs to be reconsidered. "If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech... we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm'n," writes Alito.

Alito is right, except about the "if" part. By declining to strike down Section 203 outright, the Court virtually guarantees that it will be asked to revisit this issue.

NEXT CONSIDER MORSE v. FREDERICK, the so-called "BONG HiTS 4 JESUS" case. Joseph Frederick, a high school student, was suspended for displaying a banner bearing that peculiar message across the street from his school as the Olympic Torch passed by in 2002, on the grounds that promoting illegal drug use is against school policy. Frederick sued, alleging a First Amendment violation.

In 1969, the Court ruled in Tinker v. Des Moines that students had engaged in protected speech when they came to school wearing armbands in protest of the Vietnam War. Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Justice Abe Fortas wrote for the majority. But the Court has also ruled that kids in school do not have the same rights as adults, and the current Court, once again led by Roberts, ruled against Frederick on the grounds that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."

Justice Thomas, who joined the majority, takes the simple position that high school students have no First Amendment rights -- that is, that Tinker should be overturned. He makes a historically grounded originalist argument that public schools have an in loco parentis role that gives them the absolute right to regulate student conduct. Thomas's position is cogent, but its implications are far-reaching. While Thomas says in a footnote that his analysis applies only to elementary and secondary schools, it's naive to think that colleges and universities won't defend (for example) restrictive speech codes by claiming an expansive in loco parentis role as well. "In every single free speech case I've ever argued," frets David French, who advocates for Christian students at the Alliance Defense Fund's Center for Academic Freedom, "the university's first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder."

In any case, Thomas is alone in his willingness to reconsider Tinker. And if high school students do have a right to free speech, carving out an exception for "promoting illegal drug use" (Roberts's words) is problematic at best.

Justice Alito filed a concurring opinion to note that he joins the majority opinion only

on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use." [This quotation comes from the dissent by Justice John Paul Stevens.]
In other words, Alito emphasizes that in a high school context, a T-shirt that says "Legalize Marijuana" is protected speech, while a T-shirt that says "Smoke Marijuana" is not. This is a well-meaning but ultimately unsatisfactory distinction. Imagine the same distinction being drawn outside the context of drug use. By this standard, a T-shirt that says "Don't Pay Taxes" warrants less protection than one that says "Abolish the IRS." Breaking the law, after all, in some contexts constitutes civil disobedience, and encouraging civil disobedience -- even of the quixotic and counterproductive variety (both open drug use and tax evasion fall into that category) -- is well within the scope of political speech.

Again, this is all irrelevant if Thomas is right and public schools may restrict student speech however they see fit. But since the majority won't adopt that view, they are instead embracing a role as ultimate arbiter between principal and student. You can bet that the "Legalize"/"Smoke" distinction will be tested in court at some point.

THESE CASES HIGHLIGHT the minimalist temperament of George W. Bush's appointees. Roberts and Alito both show a preference for narrow rulings over broad rulings. This approach has its advantages; incremental changes are more easily digested by the body politic, and thus create less backlash in the political arena. But the downside is plain: Such incrementalism kicks issues forward to be dealt with in a future round of judicial review. Paradoxically, the reluctance to exercise judicial power broadly can, in long run, actually expand the role that judges have in setting policy.

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John Tabin is a frequent contributor to The American Spectator online.