Winding down its current term, the U.S. Supreme Court handed down two free-speech rulings Monday, a serious one that strikes a blow at congressional attempts to restrict political speech in the name of “campaign finance reform,” along with a ruling in a lesser (and somewhat goofy) case that marks a backward step on the issue.
The 2002 McCain-Feingold campaign finance bill attempts to reduce the impact of expensive political advertising in the closing weeks before an election by banning corporate spending on ads, including “issue ads” that cast candidates in a positive or negative light.
In the case in question, the federal ban imposed by the law effectively prevented Wisconsin Right to Life from broadcasting ads that asked voters to contact the state’s two senators, Democrats Russ Feingold and Herb Kohl, urging them not to filibuster President Bush’s judicial nominees.
Sen. Feingold, co-author of the campaign finance law, was up for re-election in 2004. The concern was that the ads were actually intended to get voters to cast ballots against Sen. Feingold. (Horrors.)
In Monday’s 5-4 decision, the justices upheld a lower court ruling that the anti-abortion group should have been allowed to air the ads during the final two months before the election. The law unreasonably limits speech and violates the group’s First Amendment rights, the court held.
“Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election,” Chief Justice John Roberts wrote for the majority. “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
Meantime, the wing of the court that generally favors more heavy-handed restrictions on financial and constitutional rights — Justice David Souter wrote for Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens — said in dissent that the court Monday “effectively and, unjustifiably, overruled” its own earlier decision upholding McCain-Feingold.
The ads could have been run, Justice Souter argued, had they been paid for out of the group’s political action committee, which is subject to federal campaign finance limits. Or, Sen. Feingold’s name could simply have been omitted, he said.
“Thus, what is called a ‘ban’ on speech is a limit on the financing of electioneering broadcasts by entities … that insist on acting as conduits from the campaign war chests of business corporations,” Justice Souter added.
In other words, the minority hold political speech remains free so long as the speakers don’t mention incumbent office-holders, and McCain-Feingold is OK because it restricts the political speech only of rich people?
The ruling, though regrettably close, re-invigorates the ability of Americans (and not just rich Americans) to finance political speech they favor by sending money for that purpose to anyone from Planned Parenthood to Gun Owners of America.
Meantime, in another divided ruling concerning free speech, the court gave new power to school officials to restrict public school students from making statements that diverge from official government policy — even when they’re off school grounds.
Joseph Frederick, 18 and a senior, joined several friends across the street from his Alaska high school during school hours in January 2002, hoisting a banner declaring “Bong Hits 4 Jesus” as the Olympic torch relay passed by. When Principal Deborah Morse told Mr. Frederick to take down the banner, he refused. It was confiscated and he was later suspended for 10 days.
The justices ruled that the banner was not political speech, but rather celebrated the illegal smoking of marijuana, and that public school officials have broad power to curtail expression they see as undermining their efforts to educate students about the harms of illegal drug use.
“The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers,” Chief Justice John Roberts wrote for the court.
In fact, this ruling feels more like a halftime pep talk for frustrated administrators attempting to deal with unruly if largely harmless wise guys.
The ruling is flawed because it encourages officials in charge of the public schools to regulate speech based on its content — always a dangerous road to start down. Presumably school officials — and the court — would have considered it just fine if young Mr. Frederick had unfurled a banner containing some fatuous expression such as “Say no to drugs,” or whatever.
This time, dissenting Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg got it right, Justice Stevens writing that the court here “does serious violence to the First Amendment in upholding — indeed, lauding — a school’s decision to punish Frederick for expressing a view with which it disagreed.”