A Supreme Court Conversation
I agree that what is most striking about Chief Justice Roberts' back-to-back announcements of two First Amendment cases yesterday is the striking gap between the expansive free speech protection afforded corporations in the campaign-finance cases, and the more limited free speech protection afforded public-school students in the Bong Hits 4 Jesus case. In each case, courts must interpret the meaning of what is being said to decide whether it's protected by the First Amendment or not. In the campaign-finance case, corporate-funded speech can be prohibited if it advocates the election or defeat of a federal candidate, but not if it is "issue advocacy." In Bong Hits, student speech is protected if it concerns political or religious issues but can be prohibited if it advocates conduct by students that is illegal and dangerous. Given the inherent ambiguity of the lines drawn in either area, the choice of a default presumption becomes critical.
The chief's opinion protects campaign ads financed by corporate funds in virtually every case by assuming that the ads are issue advocacy and not ads seeking election or defeat of a candidate, saying that "we give the benefit of the doubt to speech." Student speech gets no such favorable presumption. Indeed, the exact reverse is true: If there is any reasonable basis for the school official's characterization of the speech as advocating illegal conduct the speech can be banned. In the school context, the chief might have paraphrased his then-minutes-old campaign-finance precedent and concluded "we give the benefit of the doubt to [suppression]."
You nailed the point: What the hell does "Bong Hits 4 Jesus" mean? Why assume that it represents advocacy of a crime when it is susceptible to more interpretations than the final scene of The Sopranos?
The school speech case promises freedom of speech for students, but doesn't implement it. The opinions—especially the separate controlling opinion by Justice Alito, joined by Justice Kennedy—sound very protective of student speech rights. But where the case goes off the track for me is when that fine rhetoric is applied to young Mr. Frederick and his banner. *
The campaign-finance decision is another story. The First Amendment says "Congress shall pass no law abridging the freedom of speech." Here, Congress has passed a law under which, for example, it can be a federal crime for the ACLU to spend money criticizing members of Congress. How can that possibly not raise a most profound constitutional issue? The real effect of the chief justice's presumption that campaign speech is protected issue advocacy is that he really believes that it is unconstitutional to ban the funding of such speech whether it's election speech or issue advocacy. That holding, however, would require expressly overruling the recent McConnell case. So, the presumption is just a fig leaf, a statement in effect that "We honor and leave standing our recent precedent that funding of election advocacy can be restricted; we merely decide that henceforth we will never again conclude that any speech falls into that category."
I prefer Justice Scalia's approach of honest overruling of McConnell. That doesn't mean I am happy about the terrible condition of our democracy and what money is doing to it. The only solution I know is some version of Bruce Ackerman's Patriot Dollars plan, as outlined yesterday in Slate in an article by Ackerman and his colleague Ian Ayres. Give every American a $25 voucher to spend on the candidate of his or her choice. You would flood the system with citizen money and dilute the influence of big-money special interests.
In a world without this type of solution, I don't see how you can limit "independent expenditures" intended to influence elections without limiting the speech of those who own the New York Times, the Washington Post, and the Fox empire as well. And that's a place we simply can't go.
Looking forward to your next,
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.