COURT 1-1 ON FREE SPEECH DECISIONS

Ties Go To Speaker, Judge Says, So Why Not Students?

If Supreme Court Chief Justice John Roberts is right about the tie
going to the speaker when it comes to the First Amendment, then the
increasingly conservative top court was batting .500 after two free
speech decisions handed down Monday.

The court ruled in favor of free speech -- specifically, political
speech -- in a campaign finance case and against free speech in a
case involving a high school student unfurling a banner with the
words "Bong Hits 4 Jesus."

In the first case, involving a challenge to the McCain-Feingold
campaign finance law, the court got it right.

No matter how distasteful the nation's electorate finds the monetary
influence of corporate and special interests on the election process,
setting arbitrary time limits on when individuals or corporations can
spend their money for political speech, and when they can't, isn't
going to pass muster.

It's the same argument that has caused the Missouri Supreme Court to
overturn legislative attempts to limit the ability of lawmakers to
raise campaign dollars during the legislative season.

Courts have ruled consistently that states have the right to limit
the influence of money by setting donation limits, for instance, but
telling donors that they can have their say in October but not
November doesn't pass constitutional muster.

In writing for the majority, Roberts said: "Where the First Amendment
is implicated, the tie goes to the speaker, not the censor."

That's why the court's second ruling Monday, against an Alaska high
school student who unveiled the seemingly pro-drug message, confounds
us. We agree that in limited cases, it's reasonable for high school
administrators to limit speech of students, when that speech might be
disruptive, for instance.

We're not sure the banner qualifies.

Is it pro-drug? Maybe. Or perhaps it's pro-Jesus. More likely, it's
simply the ramblings of a teenager trying to get attention. What it
is not is the equivalent of screaming "fire" in a crowded movie theater.

In other words, we believe the intent of the message is unclear
enough that the "tie" in this case should go to the speaker.

The nugget of wisdom in Roberts' "tie" analogy is this: It's
generally not the message that's important in First Amendment cases,
it's the process of preserving our freedom to say what's on our minds.

Students don't give up that right when they enter the schoolhouse
doors, and neither do corporations, or unions or others who seek to
influence public debate.

If lawmakers and voters want to rid our electoral process of the
negative influence of big bucks, they must find a way to do so
without taking away First Amendment rights.

Reasonable limits on campaign donations can help. So, too, might a
system of public financing, at least as it relates to candidates who
opt into such a system. But telling special interests that what they
could say yesterday is an unfair message today?

That's a foul ball.