and the court of Bush
poll a few months back found that more people could name all the
characters on the animated TV show “The Simpsons” and
all three “American Idol” judges, than could name all
five freedoms protected by the First Amendment of our Constitution.
This week’s decisions from the Supreme Court about free expression—who
has it and who doesn’t—ought to be water cooler conversation.
In subtle, and in some legal analysts’ view, narrow rulings,
we’re seeing how free expression fares on a court veering
One case took aim at McCain-Feingold campaign finance reform and
blew it out of the water. That legislation put some limits on corporations
and unions and said they could not run candidate ads in the closing
weeks of an election campaign. The goal was to reasonably level
the playing field in electoral politics so it’s not so skewed
toward those with the most money to spend. While it was Wisconsin
Right To Life who challenged McCain-Feingold, which limited campaign
ads that went beyond issue advocacy to naming specific candidates,
what the court addressed was corporate speech.
Chief Justice John Roberts wrote in the
deciding opinion that when weighing what’s permitted by corporations—’’issue
information’’—and what’s banned—specific
candidate advocacy—’’the court should give the
benefit of the doubt to speech, not censorship.” Legal scholars
say this decision would apply equally to nonprofits like the Sierra
Club as to Exxon. But it’s still a setback for cleaning up
our electoral system awash in money.
A high school student’s speech didn’t
fare so well. Just off school grounds, on a public sidewalk a student
raised a banner that said ‘’Bong Hits 4 Jesus.”
He was suspended from school for 10 days and he sued. Roberts and
the court noted students’ right to free speech on campus—even
though in this case the student wasn’t on campus—but
said that student speech advocating illegal drug use was not protected.
It could have been far worse; school administrators and the government
wanted to ban all student expression that was considered ‘’offensive’’
or whenever speech conflicted with what would ‘’promote
the educational mission.” Personally, I remain uneasy about
what might become known as the “Bong Hits” decision,
since a high school student—someone with far less power than
a giant corporation—was subjected to censorship. As the counter-military
recruitment movement on high school campuses spreads, it will be
interesting to see if a case comes to the Supreme Court and if Roberts
and the other conservatives on the court make good on their disclaimer
about protecting students’ ‘’core free speech
In a third First Amendment case, the court
looked at a group of agnostic and atheists challenging using public
money for religious groups. The court ruled that the Wisconsin Freedom
From Religion had no standing, simply as taxpayers, to file such
an overarching claim. Billions of tax dollars have been funneled
to church groups through Bush’s Office of Faith-Based Initiatives,
for everything from rehabilitating prisoners to drug treatment and
just this session, $140 million for abstinence-only sex education
The plaintiffs in the case cited a 1968
Supreme Court ruling that said the separation of church and state
was violated if the government used tax money to favor one religion
over another. In rejecting the case, the five-judge, conservative
Catholic majority may have been making two points. More bricks have
been removed from Thomas Jefferson’s wall separating church
and state. The White House wanted the case blocked from going forward
as it said government could not function if taxpayers could sue
over governmental spending decisions. One can imagine plenty of
corporate welfare—not to mention billion-dollar white elephant
weapons systems that don’t even work—being cut if We
The People actually had a real say in how our money is spent.
In the final analysis, the powerful got
heard and the less powerful were silenced in these three decisions.
Given the gains the Religious Right has made since one of their
own moved to 1600 Pennsylvania Avenue, I’m especially worried
by the way fundamentalist Christianity has reached into more and
more areas of the government from women’s health to the schools
to the military.
While, in exalted theory, the ruling against
McCain-Feingold protects progressive political action groups as
much as corporations, the reality on the ground is those with the
biggest megaphones are heard and ordinary people too often seem
to be shouting in the wind. Previous decisions from the Supreme
Court that give corporations the same standing than individuals—or
even more—are being strengthened by Bush’s court. Since
the 1950s’ civil rights movement, progressives have relied
on the Supreme Court.
With Justice Sandra Day O’ Conner’s practical and moderating
hand gone, judicial remedies to injustice will obviously be elusive.