COURT INCOHERENT ABOUT FREE SPEECH

In a case limiting the reach of the McCain-Feingold campaign finance
reform law, the U.S. Supreme Court on Monday came down on the side of
free speech. "Where the First Amendment is implicated, the tie goes to
the speaker, not the censor, " the court said. The 5-4 ruling will
allow unions and corporations, including nonprofit public interest
groups, to more easily raise their voices on issues as elections near.
It was the right call. It's too bad the conservative majority didn't
apply that same principle in another free speech case.

By ruling against a student who unfurled a nonsensical banner that
said "Bong Hits 4 Jesus" during an off-campus, school-sponsored event,
the same justices who upheld free speech for unions and corporations
abandoned their support for individual rights when it came to student
speech they disliked.

The case of Morse vs. Frederick involved an Alaska high school senior,
Joseph Frederick, who revealed the 14-foot banner during the Olympic
torch parade in 2002. He said the banner was meaningless, a joke, and
was intended to capture the attention of TV cameras. His principal
confiscated the banner and punished Frederick with a 10-day suspension
for promoting illegal drug use. Frederick then sued.

In a fractured decision, with Chief Justice John Roberts writing for
five of six justices who would have ruled for the principal, the court
carved out an exception to student free speech when it comes to
pro-drug messages. Roberts acknowledged that the banner could have
been "gibberish" but said it was reasonable for the principal and the
court to interpret it as encouraging drug use and that meant it could
be censored.

As the dissent written by Justice John Paul Stevens pointed out,
Roberts, who was ready to give every benefit of the doubt to free
speech in the campaign finance context, was quick to lean the other
way when uncomfortable student speech was at issue. Even assuming that
the banner promoted drug use, Stevens noted that never before had the
court suggested that a pro-drug message could be constitutionally
banned in the school context. Instead, the court had traditionally
protected unpopular viewpoints from official censorship, even in
public schools.

Citing the seminal student free speech case in which the wearing of
black armbands by high school students to protest the Vietnam War was
deemed protected by the First Amendment, Stevens wrote that students
"may not be confined to the expression of those sentiments that are
officially approved." He reminded the majority that in 1965, at the
time of the armband protest, opposition to the war was considered
unpatriotic if not treasonous and could have easily caused an argument
or disturbance. Yet the court stood by the students.

In Federal Election Commission vs. Wisconsin Right to Life Inc., the
conservative members of the court held that part of the
McCain-Feingold law infringed on the free speech of the antiabortion
group Wisconsin Right to Life. Specifically, the law barred the
advocacy group from mentioning the names of the state's two U.S.
senators, only one of whom was running for re-election, in a broadcast
ad 60 days before an election or 30 days before a primary, unless the
group paid for the ads with funds raised in small amounts and in
strict accordance with election law.

"Discussion of issues cannot be suppressed simply because the issues
may also be pertinent in an election, " Roberts wrote for the
majority. The ruling means that issue advocacy and voter education
before an election will no longer be handcuffed by federal law, a
result sought by a wide range of ideological groups including the
American Civil Liberties Union, the AFL-CIO, the U.S. Chamber of
Commerce and the National Rifle Association.

The Constitution's free speech guarantees should not be extended to
preferred interests only. Both the conservative and liberal wings of
the high court demonstrated in these opinions that the coherent and
consistent articulation of a constitutional principle is not their
strong suit.