…if only by a 5-4 margin:
The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.
The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group’s First Amendment rights, the court said.
Gee, ya think? In the words of Chief Justice Roberts: “Discussion of issues cannot be suppressed simply because the issues also may be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”
Although I’d say the court didn’t go far enough — I’d have voted with the Kennedy-Scalia-Thomas trio, which “would have overruled the court’s 2003 decision upholding the constitutionality” of McCain-Feingold’s issue-ads ban, rather than with Roberts and Alito, who distinguished this case by saying the ads in question “are not the equivalent of explicit campaign ads and are not covered by the court’s 2003 decision.” (Quoting the AP, not the justices directly.)
Meanwhile, in other Supreme Court news, if you’re across the street from a public school, then the First Amendment does not live.
P.S. According to Orin Kerr, two of the five justices in the public-school case “joined the majority opinion on the understanding that the holding was really very very narrow. According to Alito, the case is really just about speech that promotes illegal drug use in schools without a plausible claim to making an argument relating to a social or political issue (whether about the war on drugs or something else).”
On the flip side, Justice Thomas, if left to his own devices, would have held that “public school students don’t have First Amendment rights at school at all.” (Quoting Kerr, not Thomas.) So, I agree with Thomas on one of today’s two big cases, and completely disagree with him on the other.
P.P.S. This analysis suggests the opinion may not be as “narrow” as Roberts and Alito would like.
|
Categories: The Law & The Courts
|
June 25th, 2007 at 3:05:52 pm
(Homer Simpson voice, like when he thinks of Arthur Fortune):
“Chief Justice John Roberts! Ahhhhh.”
June 25th, 2007 at 3:08:14 pm
Though of course, I with you re Scalia et al; I’d have thrown the whole lousy McCain-Feingold Incumbent Protection Act straight in the trash.
June 25th, 2007 at 3:17:57 pm
As a public school teacher, I agree with Justice Thomas on both decisions.
June 25th, 2007 at 4:22:19 pm
I think high school students deserve some free speech protections, but I certainly believe it should be very narrow.
Simply put, the value of a student’s speech rarely seems to outweigh its cost. I don’t see the point in protecting speech that has no (or very little) value, particularly when that speech brings with it a substantial cost: namely, disruption.
What in the world is the value of “Bong Hits 4 Jesus?” Certainly it’s costly, it’s arguably offensive, devisive, and overall disruptive.
I didn’t read the case so I don’t know the Court’s reasoning, but my gut tells me that school speech like “Bong Hits 4 Jesus” simply has no value to a meaningful dialogue on any social or educational issues.
June 25th, 2007 at 4:25:21 pm
Orin Kerr, not Olin.
June 25th, 2007 at 4:27:46 pm
small correction: when I say that the “value of a student’s speech RARELY seems to outweigh its cost,” i’m referring to the type of student speech that school administrators tend to censor, such as speech referring to drugs, religion, race, etc. And I’m also referring to speech that is made outside of the classroom setting, in which a teacher is purposfully trying to create an open debate.
June 25th, 2007 at 5:37:38 pm
NCLB funds (or any federal funds) should be conditioned on schools forcing the kids to wear uniforms. Public Schools should be limited public forums where the speech can be content regulated but must still be viewpoint neutral (if I remember my Garnett). Wider latitude for religious expression if intertwined with actual exercise (muslim headdress, crucifix wearing, e.g.). just my two.
June 25th, 2007 at 5:55:36 pm
Well this particular speech was definitely “made outside of the classroom setting”, thebeef. Indeed it was made Outside of the Schoolhouse setting entirely, at a Parade.
“Students in public schools don’t have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from Vietnam era.” ~ from the linked article.
Maybe not but apparently when they Exit that schoolhouse door they don’t get to Pick up All of whichever rights they had Checked at the entrance when they came in, either.
Also from the article (emphases added; order tendentiously rearranged ;)~
Well I’d say it has now Done exactly that. Crypic, schmyptic, Mister Chief Justice sir; Drug, my Mug, Madam Principal ma’am; and Nonsensical Snowboards, yeahright, Punk :). Obviously the lad’s 14-foot-long “Bong Hits 4 Jesus” banner was advocating Jesus at a School Sanctioned Event :>.
Now Mee, if they hadn’t Suppressed the kid’s Evangelism I’d have wanted to sue the school for violating MYYY constitutional rights ;> by Permitting him to Proselytize the Parade with his
Bong-Faith-based Initiative ;}. However, it seems that They have just stolen my Standing. Fie. :)June 25th, 2007 at 7:58:08 pm
Brendan, what’s your take on the Bong Hits? I gather you’re not a fan. I definitely think the case is a big mistake, even though Alito/Kennedy soften its impact in their concurrence. I think it will be a green light for school districts to silence sutdent speech simply when the school does not like the message.
I don’t think the banner was inherently disruptive; at least it was not disruptive enough to justify punishment. Schools will be using this to silence free speech, and I am very concerned that in the long run, it is those who want to express a religious viewpoint (a viewpoint that many of the educators think is inherently disruptive)that will be gagged the most.
June 25th, 2007 at 8:16:06 pm
I haven’t read the case, but from what I understand of it, I agree with you, David, and with the SCOTUSblog analysis.
In general, I just don’t think we ought to be looking for excuses to give the government new leeway to regulate speech.
June 26th, 2007 at 3:28:22 am
Agreed with both decisions: McCain-Feingold should be dumped; and censorship has its rightful place in school settings. Given that the students were at the event on school time with special permission and were under the school’s official supervision, the fact that the speech took place off campus has no bearing — unless you believe a field trip to the zoo means a student should be able to wear clothing that would typically be banned in school.
OTOH, what’s up with the dissenting justices? It’s okay to ban anti-abortion ads during an election but it’s not okay to restrict students’ speech during classtime hours?
June 26th, 2007 at 8:15:47 am
Andrew, it’s not mentioned in the article linked on this post, but my previous reading about the Bong Hits 4 Jesus case said that the student in question was actually officially absent from school that day, but showed up to the event off school property anyway. If that is true, does that alter your opinion at all
June 26th, 2007 at 10:53:27 pm
No, because under that definition, the student is essentially “truant”.
June 26th, 2007 at 11:48:34 pm
But in the case that the student is truant, I understand the school being able to punish him for being truant, but not for engaging in specific behavior while truant of which they don’t approve.
June 27th, 2007 at 12:00:44 am
The reason I put “truant” in quotes is because he technically, legally, was not truant. But in the spirit of truancy, he was ditching school and using it as an opportunity to make mischief. Yet the spirit of the law is that minors should be in school during school hours, and thus it is no abridgement of liberty to limit minors’ rights during school hours. This is a step beyond my basic defense above of the SCOTUS opinion (I’m now arguing minors have less rights period, let alone defending schools’ perogative in limiting students’ basic freedoms).
Something tells me I’m a bit more familiar with the concept and spirit of truancy than you ever were, Mike. ;-) And once where I would have reviled this Supreme Court decision, the common-sense adult in me reacts quite oppositely.