Yesterday, the Supreme Court issued two First Amendment rulings, one expanding First Amendment protection and the other narrowing it.
In Morse v. Frederick, the Court ruled 5-to-4 that a high-school student could be disciplined for displaying a cryptical and nonsensical “Bong Hits 4 Jesus” banner near a school during a parade that passed the school. The Court resolved a split among the lower courts about whether drug-related speech can be censored by schools.
(This was a difficult case, and I predicted the court would do this. As I have explained elsewhere, the court should have ruled in favor of the student on the issue of whether his First Amendment rights were violated. But it nevertheless should have barred him from suing the principal of his school for money damages, and granted her qualified immunity, since the law in this area was so unclear that the principal did not know she was violating the First Amendment and acted in good faith).
In the other 5-to-4 decision, Federal Election Commission v. Wisconsin Right to Life , the Court rightly ruled that corporations (including non-profits), unions, and other groups can run ads criticizing elected officials in the months immediately before an election, despite the attempt by the McCain-Feingold “campaign finance reform” law to restrict such ads.
Of the two cases, the Wisconsin Right to Life case was the more important, since it involved core political speech, which supposedly occupies the highest rung of First Amendment protection.
Yet the press scarcely mentions the fact that the court based its decision in Wisconsin Right to Life on the First Amendment. Instead, reporters, most of whom are liberal, highlight the fact that corporations (which they assume favor Republicans) will benefit from the decision loosening restrictions on political ads. (Never mind that ideological groups and non-profit corporations are much more likely to run ads regulated by McCain-Feingold than a typical business).
Reporters like campaign finance “reform” laws, because such laws reinforce the special prerogatives of the press. Such laws invariably contain exemptions for the press, while restricting the speech of non-journalists to a far greater extent. That leaves the press with less competition from other speakers and greater influence over elections.
Since reporters like campaign finance “reform” laws, they simply ignore the inconvenient First Amendment when discussing them.
By contrast, they treat the “Bong Hits 4 Jesus” case as an important First Amendment case, even though it involved fairly trivial speech, since it involved a liberal student who was represented by the ACLU.
Nevertheless, a stopped clock is right twice a day, and the press is right to describe the “Bong Hits 4 Jesus” case as involving substantial First Amendment issues.
The First Amendment does not give the government license to censor speech just because it offends some people or is counter to the policies or preferred political views of government officials. Nor (outside the public employment context) is there an exception to First Amendment protections for speech that is trivial in nature.
The Supreme Court should have upheld the right to free speech in both the Wisconsin Right to Life case and Morse v. Frederick. But of the two cases, the one the Supreme Court got right (the Wisconsin Right to Life case) was vastly more important.