Monday, June 25, 2007


Free Speech Wins...And Loses

The exact same 5-4 Supreme Court split managed to get only one free speech case right today.

By partially overturning McCain-Feingold restrictions on advocacy ads right before an election, the SC -- basically the five conservative justices -- got it correct. It upheld the right for anti-abortion groups to run ads urging listeners to "call their senator."

The Bush administration filed briefs in support of the restrictions (not surprising, given that Bush signed the bill into law, but sad nonetheless).

Unfortunately, the conservative majority got it wrong on the other case -- ruling against a student who unveiled a sign that said
"Bong Hits 4 Jesus" -- off school grounds (though on the other side of the street) during a rally for the Olympic torch relay. The principal of the high school saw her students with the sign, ripped it away and suspended the student who came up with the idea. The student claimed that this was a violation of his free speech.

The court basically said that students do not have a free speech right to say something that constitutes support for illegal drug use:

Roberts said that Frederick was indeed at a school sponsored event and his sign while cryptic" could reasonably be defined by Principal Morse as "promoting illegal drug use."

Roberts wrote: "School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act -- or not act -- on the spot."

Justice John Paul Stevens, writing for Justices David Souter and Ruth Bader Ginsburg, in dissent agreed that the principal should not be held liable for pulling down Frederick's banner but that the school "cannot justify" it's punishment of Frederick for an "ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more."

Lawyers for Morse had argued that she was responsible for "maintaining order and proper decorum" at a gathering outside of the school. In briefs her lawyers argued, "She responsibly took the appropriate action to ensure that the Olympic torch relay event was not further disrupted by Frederick's pro-drug banner."
Note the language that SC Chief Justice John Roberts uses, "when [the student] suddently and unexpectedly unfurled his banner, [the principal] had to decide to act -- or not act -- on the spot."

The principal is described almost like a law-enforcement or military officer derailing the actions of a terrorist. As if an Olympic torch relay event could somehow be "disrupted" by the appearance of a seemingly pro-drug banner.

As many have observed in the past, the war on terror is the fraternal twin to the war on drugs: Two invidious siblings happily destroying the American family's rights.

UPDATE: Ryan Sager collects a number of responses to the McCain-Feingold pushback (i.e. Wisconsin Right To Life)

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