So the Supreme Court ruled yesterday in two First Amendment cases. The first upheld the right of corporations and unions to subvert the political process through misleading so-called "issue ads" inside the windows set by the McCain-Feingold campaign finance law. The second dealt with the case of a student who was disciplined for holding up a banner reading Bong Hits 4 Jesus.
Both decisions were disappointments, and both were 5-4 split decisions, with the two new conservative nominees, Chief Justice Roberts and Justice Alito, tipping the scales in favor of a radical departure from the court's previous decisions in both lines. I would further argue, however, that the two decisions offer a perfect illustration of the intellectual bankruptcy of the neo-conservative movement.
The money quote from the McCain-Feingold case was cited by the New York Times and NPR that I know of. I'm sure others carried it as well. In his opinion, the chief justice wrote that "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."
That's actually not a bad rule of law. When a fundamental civil right is in question, the courts in any just society ought to come down on the side of the right whenever possible.
The problem I have with those words in the mouth of the chief justice is that if he truly believed them, he would have to have voted the other way on Morse v. Frederick. There, too, the First Amendment was implicated. But in that case, the chief justice decided to award the decision to the censor, not to the speaker.
True, the cases are not exactly parallel. The appellee, Joseph Frederick, was still in high school when he unfurled his banner at a school-sponsored rally for the passage of the Olympic torch through his hometown in Alaska. He was, however, 18 years of age or nearly so at the time, and he was standing on a public sidewalk where a reasonable bystander would have been hard-pressed indeed to connect either the young man or his sign with his school. And, as even the chief justice admitted, the message on his sign was "cryptic."
All of those considerations lead me to believe that the Court should have followed its brand-new precedent in the McCain-Feingold case and awarded the former student the damages he sought following his suspension from school and the consequent loss of his father's job. The chief justice, however, demurred on the grounds that the school principal's construction of "Bong Hits 4 Jesus" as somehow being a pro-drug message was not per se unreasonable.
I suppose one might be able to reach such a conclusion. If one were a typically drug- and vice-obsessed conservative. Perhaps. Mr. Frederick's banner did not advocate for the legalization or the use of any drug. Indeed, one has to read into the phrase "bong hits" to arrive at any kind of a drug message at all. To go from there to advocacy, one would have to imply a verb that is not even present in the sign's message.
A far more plausible construction, it seems to me, is the one the author thereof himself wanted to put on it--a catchy, funny phrase that he thought would guarantee at least a brief appearance on the television coverage of the torch relay. The fact that he was for all intents and purposes a legal adult at the time, and that he made his banner and displayed it off of school grounds, should, by my lights, have excused him from the school's tutelage on the occasion. It would have been different had he tried to hang that banner above his locker on school grounds, but he did not do so. Given that there was virtually no way to associate the young man standing on a street corner holding a quirky banner with that particular school, I think it stretches credibility (to say nothing of the law) to suggest that the school should still have been able to exercise quasi-parental authority over him: especially since he broke no laws by doing what he did.
Yes, he was technically attending a school-sponsored function. But attendance at that function was not required, and no attempt was made either to take attendance or to regulate the students who chose to attend in any way. The courts have held that schools have some enhanced rights to restrict the free expression of their students when that expression poses a problem or creates a diversion from the educational mission of the school. But I have a hard time seeing how anyone could reasonably argue that the events of the instant case posed anything like such a disruption.
And so I am disappointed. It would appear, at least based on the jurisprudence handed down by the highest court in the land yesterday, that corporate persons who do not technically enjoy civil rights are now freer than actual persons who do enjoy such rights. And that's just plain wrong.