SUPREME COURT PROTECTS MEGAPHONE, DENIES
PROTECTION TO SPEECH ITSELF

"Speech with which this court agrees must be afforded the highest
level of protection."

That exact phrase wasn't used in either free speech ruling handed down
by the U.S. Supreme Court last month, but it summarizes the majority
opinions. On the same day, the court upheld the business transactions
that amplify speech but ratified censorship of free speech itself. The
two cases -- Morse v. Frederick and Federal Elections Commission v.
Wisconsin Right to Life -- exposed a court that appears more eager to
defend political constituencies than a coherent view of the First Amendment.

In Morse v. Frederick, the court upheld a suspension of Joseph
Frederick, an 18-year-old Alaska high school student who unfurled a
banner that read "BONG HiTS 4 JESUS" while standing on a public
sidewalk during a parade for the 2002 Winter Olympics (students were
allowed to leave class to watch the parade). The principal confiscated
the banner and suspended him for 10 days. The court ruled the banner
advocated illegal drug use and was disruptive, but Justice John Paul
Stevens' dissent noted that the principal practiced blatant viewpoint
discrimination.

"The principal has unabashedly acknowledged that she disciplined
Frederick because she disagreed with the pro-drug viewpoint she
ascribed to the message on the banner," Stevens said.

Meanwhile, the court used the Wisconsin Right to Life case to uphold
the right of corporations to make unlimited contributions to political
campaigns. At issue wasn't WRTL's right to broadcast issue ads -- WRTL
could form a political action committee and say whatever it wanted
about any candidate anytime in any election cycle. Instead, the
question was whether WRTL could accept unlimited contributions from
corporations to broadcast television commercials and if Congress could
subject WRTL to the same fund-raising and disclosure limits imposed on
candidates themselves.

Chief Justice John Roberts, author of the majority opinion, offered
the following rationale: "When it comes to defining what speech
qualifies as the functional equivalent of expressed advocacy ... we
give the benefit of the doubt to speech, not censorship."

There you have it -- WRTL gets the benefit of the doubt, an
18-year-old high school student does not. There is, however, a thread
of consistency in the court's decisions. WRTL advocated a conservative
position of ratifying President Bush's judicial nominees. Frederick
advocated a liberal position in favor of relaxed penalties for
marijuana use. These days, the Supreme Court breaks ties in favor of
conservative speech. Such is the new paradigm of judicial restraint.