First Amendment SCOTUS Decisions Criticized for Reflecting Varying Standards

June 25, 2007

Court Rejects Campaign Finance Regulations on "Electioneering Communications"
In Federal Election Commission v. Wisconsin Right to Life Inc. ("WRTL"), the Supreme Court on Monday held unconstitutional enforcement of campaign finance regulations to advertisements run in 2004 by a Wisconsin group calling attention to judicial nominations and insinuating its opposition to Senator Russ Feingold (D-WI).  The case implicated the "electioneering communications" provisions of the "McCain-Feingold" Bipartisan Campaign Reform Act of 2002, which the Court in 2003 upheld in a facial challenge in McConnell v. Federal Election Commission

The dissent by Justice Souter, joined by Justices Stevens, Ginsburg and Breyer, argued that "[a]fter today the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear."  Justice Souter also took issue with the majority's attitude towards stare decisis, arguing that WRTL "effectively and unjustifiably" overturned the 2003 McConnell decision, which upheld most the provisions struck down in WRTL.  Finally, Justice Souter noted the overinclusiveness of Chief Justice Roberts' ruling, arguing that "on [his] reasoning it is possible that even some ads with magic words could not be regulated."

In his concurrence, joined by Justices Kennedy and Thomas, Justice Scalia argued that:

"the principal opinion's attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation."

Yale law professor Jack Balkin argues that the decision may reflect nothing more than the recent shifts in the Court's composition: "Scalia, Kennedy and Thomas wanted to overrule the 2003 decision in McConnell v. FEC upholding McCain-Feingold on its face.  After all O'Connor was gone, so why should they keep her crazy 5-4 decisions around?"

Steven Law, chief legal officer of the U.S. Chamber of Commerce, said, "This decision is a clear vindication of the rights of all Americans -- including the private sector -- to speak out and publicly petition their government."  Former U.S. Solicitor General Walter Dellinger takes a similar view with a caveat, noting that "[t]he First Amendment says 'Congress shall pass no law abridging the freedom of speech.' Here, Congress has passed a law under which, for example, it can be a federal crime for the ACLU to spend money criticizing members of Congress. How can that possibly not raise a most profound constitutional issue? . . . . That doesn't mean I am happy about the terrible condition of our democracy and what money is doing to it."

Supreme Court Limits Student Free Speech in “Bong Hits 4 Jesus” Case
Also on Monday, the Court held in a 5-4 decision by Chief Justice Roberts in Morse v. Frederick that a public school did not violate the Constitution when disciplining a student for holding a banner that read "Bong Hits 4 Jesus" across the street from the school, on the ground that such speech advocates illegal drug use. 

Yale law professor Jack Balkin explains the differing views among the five Justices in the majority:

"In Morse v. Frederick, Thomas wanted to ditch another Warren Court precedent, Tinker, based on his reading of how states interpreted the First Amendment before it even applied to them.

Roberts' opinion creates a new rule allowing schools to ban student advocacy of illegal drug use -- but this rule would apparently not extend to student advocacy of changing the drug laws. (Which raises the obvious question: How can we tell whether "Bong Hits 4 Jesus" is advocacy of illegality, political advocacy of drug liberalization, or just a joke?)

Alito and Kennedy, who think of themselves as first amendment libertarians, tried to limit Roberts' opinion by arguing that students still had the right to make political and social statements, just not make statements that might threaten the physical safety of other students, and advocacy of illegal drug use threatened students' physical safety. (Of course the question of what sort of speech might threaten physical safety could easily swallow up the rule. For example, to use the facts of a recent 9th circuit case, what about a student who wears a t-shirt on "tolerance day" that says that homosexuality is against God's law? Would school officials be able to make the student remove the t-shirt on the ground that it might lead to fisticuffs? If so, then Alito and Kennedy's theory is not very speech protective at all.)"

Stanford Law Professor Pamela Karlan contrasted the Morse decision with the Court's decision in Wisconsin Right to Life, the campaign finance case, suggesting that "the Court announce[d] that the first amendment applies to corporations, in the Wisconsin Right to Life case, but not to students, in the 'Bong Hits 4 Jesus' case."  Norm Ornstein of the American Enterprise Institute specifically criticized the Chief Justice, both for presuming the meaning of the speech at issue and for applying different constitutional standards to free speech depending on its source:

"The Supreme Court’s concern about the First Amendment took a totally different turn the same day with the decision involving freedom of speech by students. Although the banner 'Bong Hits 4 Jesus' unfurled by Joseph Frederick across the street from his Juneau, Alaska, school could mean anything — and probably simply meant 'Look at me! Look at me!' — Roberts used exactly the opposite standard for freedom that he applied to WRTL, assuming that the meaning of the banner was encouragement of illegal drug use. That was his pretext for denying Frederick’s speech rights. In his WRTL decision Roberts wrote, 'Where the First Amendment is implicated, the tie goes to the speaker, not the censor.' Apparently, that principle applies only where it fits the ideological predisposition of the chief."

Former U.S. Solicitor General Walter Dellinger reiterated Ornstein's view, suggesting that:

"[W]hat is most striking about Chief Justice Roberts' back-to-back announcements of two First Amendment cases yesterday is the striking gap between the expansive free speech protection afforded corporations in the campaign-finance cases, and the more limited free speech protection afforded public-school students in the 'Bong Hits 4 Jesus' case. In each case, courts must interpret the meaning of what is being said to decide whether it's protected by the First Amendment or not. In the campaign-finance case, corporate-funded speech can be prohibited if it advocates the election or defeat of a federal candidate, but not if it is 'issue advocacy.' In Bong Hits, student speech is protected if it concerns political or religious issues but can be prohibited if it advocates conduct by students that is illegal and dangerous. Given the inherent ambiguity of the lines drawn in either area, the choice of a default presumption becomes critical.

The chief's opinion protects campaign ads financed by corporate funds in virtually every case by assuming that the ads are issue advocacy and not ads seeking election or defeat of a candidate, saying that 'we give the benefit of the doubt to speech.' Student speech gets no such favorable presumption. Indeed, the exact reverse is true: If there is any reasonable basis for the school official's characterization of the speech as advocating illegal conduct the speech can be banned. In the school context, the chief might have paraphrased his then-minutes-old campaign-finance precedent and concluded 'we give the benefit of the doubt to [suppression].'

[Dahlia Lithwick] nailed the point: What the hell does 'Bong Hits 4 Jesus' mean? Why assume that it represents advocacy of a crime when it is susceptible to more interpretations than the final scene of The Sopranos?


The real effect of the chief justice's presumption that campaign speech is protected issue advocacy is that he really believes that it is unconstitutional to ban the funding of such speech whether it's election speech or issue advocacy. That holding, however, would require expressly overruling the recent McConnell case. So, the presumption is just a fig leaf, a statement in effect that 'We honor and leave standing our recent precedent that funding of election advocacy can be restricted; we merely decide that henceforth we will never again conclude that any speech falls into that category.'"