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A Supreme Court Conversation

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from: Walter Dellinger
to: Dahlia Lithwick

How Can You Limit Corporate Speech Without Limiting the New York Times?

Posted Tuesday, June 26, 2007, at 11:35 AM ET

Dear Dahlia,

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

*Correction, June 27, 2007: This artticle originally misidentified one of the parties to a lawsuit as Mr. Franklin. (Return to the corrected sentence.)

the breakfast table
entries
123456789101112131415161718
from: Walter Dellinger
to: Dahlia Lithwick

How Can You Limit Corporate Speech Without Limiting the New York Times?

Posted Tuesday, June 26, 2007, at 11:35 AM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor. Stuart Taylor, a New York Times reporter from 1980-88, writes for National Journal and Newsweek.
Illustration by Rob Donnelly. Photograph of Justice Antonin Scalia on Slate's home page by Alex Wong/Getty Images.
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Remarks from the Fray:

This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."

This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"

--CaLawyer

(To reply, click here.)

I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.

I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.

--SlateSurfer

(To reply, click here.)

It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.

--rrfan

(To reply, click here.)

With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

--Tori_Fox-Hunter

(To reply, click here.)

The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.

So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.

The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.

--randy-khan

(To reply, click here.)

Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?

--Aagcobb

(To reply, click here.)

Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!

The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.

Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.

--Dilan Esper

(To reply, click here.)

(6/26)