Posted by: mutantpoodle | June 25, 2007

SCOTUS: Free Speech Rules, Except when it Doesn’t

scotus_seal_copy_1smI really didn’t need a lot of convincing that the current Supreme Court – led by the dark side of Roberts, Alito, Scalia, and Thomas, was going to take this country on a ride whose adherence to the constitution would just about parallel a roller coaster’s adherence to the ground. They’ll hit it every once in a while, but that’s not what the ride’s about.

Today’s decisions – and there are so many that are nauseating that I am just picking two – are perfect examples of an ideology-driven agenda pushing aside pesky constitutional issues, stare decisis, and even internal consistency.

Let’s start with the Bong Hits 4 Jesus Case. Joseph Frederick, a student at a Juneau, Alaska high school, unfurled, on public property, at a school-sponsored event, a banner with the phrase “Bong Hits 4 Jesus” on it. He claims he just wanted to get on television.

He succeeded.

Deborah Morse, the school’s principal, furious at Frederick’s action, claimed it was a pro-drug message and suspended him for a week.

I’ll stop here to say that Ms. Morse needs to lighten up.

Frederick sued, saying he had the right, outside of school, to say anything at all.

Not so, say the Fab Four plus Justice Kennedy. Ms. Morse “thought the banner would be interpreted by those viewing it as promoting illegal drug use,” wrote Chief Justice Roberts in the majority Opinion, and “that interpretation is plainly a reasonable one.”

Oh really?

I thought the point of free speech was that interpretations that might cause a government official to suppress that speech were off limits. According to Justices Kennedy and Alito, the court’s opinion only applies to speech which encourages drug use, and “provides no support” for any restriction applying to political or social issues.

OK, I think that’s just bullshit. Even if his banner said “Get happy – Smoke Dope” I would call that protected speech.

And pardon me, but isn’t the legalization of marijuana a political issue? Sure, “Bong Hits 4 Jesus” is pretty nonsensical, but that’s all the more reason that no one should be able to interpret it into a free speech vortex.

But rest assured, all you free speech advocates. If you’ve got money, speech is yours for the buying. It is not OK, say the court’s five precedent respecting demolishing justices, to regulate the contributions to and airing of ads that pretend to be issue advocacy but are, in fact, targeting a particular politician.

I am sensitive to the notion of limiting speech, but I think you need to decide what is and isn’t speech that gets protection.

Political “issue” ads are speech, but they’re in a weird netherworld.

First, the “speech” that is being protected is the giving of money to an organization, not the recitation of the idea. Organizational donations to issue groups don’t involve officers of those organizations getting up and saying that they, as officers of XYZ Corp, or, as president of the ABC Union, I think X – I’d welcome that, because it would at least have the transparency we lack today. No – they’re just allowed to funnel money into a group, without the disclosure requirements or donation limitations applied to other political campaign speech. And no one can evaluate who is behind the group in the 30 or 60 seconds the ad is playing.

Second, when the ads are, de facto, targeting a candidate, that’s double dipping. All the employees and officers of a corporation or union have the opportunity, as individuals, to donate funds to any candidate they like, for that candidate to use for ads, or travel, or however s/he sees fit. To additionally be able to use the organizational coffers to supplement that donation diminishes the “speech” rights (if money is speech) of those who do not have an organizational wallet to fall back on.

Third, there isn’t a level playing field. Message ads are not guaranteed air time, depending on the whims of the station with time available to sell. Famously, the United Church of Christ couldn’t get this ad aired on the major broadcast networks because it was too controversial – this when George Bush was busy pushing a constitutional amendment banning gay marriage, and despite airing other advocacy ads in the past. And the church’s ad said nothing about Bush, or lobbying Congress – it just said that all were welcome in their Church. I’m sure Jesus himself would bitch-slap them for that heresy.

I actually think we’d be better off with no political ads on radio or television – but that’ll never happen because elections are the great profit monster for networks and local stations alike. And I think there is a speech issue with that kind of restriction.

But if we have to have them, and apparently we do, why do we have to let the airwaves be dominated by those with grouped buying power, like corporations and unions? How are a corporations speech rights limited if their contribution to advocacy ads is limited to a set amount?

The court’s majority ducks that one. What they say is this: “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

Tell that to Joseph Frederick.

[Update: Digby reminds us to thank the gang of fourteen for the travesty that is this court.

And, of course, she nails the issue in 4 grafs. Check it out.]

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