FREE SPEECH GOES ONE FOR TWO

Supreme Court upholds free speech rights for the politically powerful,
but not for high school students.

Free speech must be guaranteed to powerful forces trying to influence
the political process, but young people trying to send their own
messages deserve no similar protection. The United States Supreme
Court so ruled in two recent decisions.

The court found unconstitutional a provision in the McCain-Feingold
campaign finance reform law that sought to ban "phony issue ads" aired
close to an election. Labor, corporate and other special interests
bankroll such ads. Issue ads seek to skirt campaign-spending limits by
not directly naming candidates, but attacking the issues with which
they are associated.

In a 5-4 decision, the court correctly found that in trying to stop
such ads McCain-Feingold went too far. The court ruled that a
Wisconsin antiabortion group had a First Amendment right to broadcast
advertisements in 2004 pressuring two Democratic senators to allow
confirmation votes on President Bush's judicial nominees.

Two of those writing in the majority, Chief Justice G. Roberts Jr. and
Justice Samuel A. Alito Jr., held out the possibility that some "phony
issue ads" could be constitutionally banned under McCain-Feingold if
they are "susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate."

That is a murky definition and, unfortunately, will only invite more
legal challenges. It would have been better for Chief Justice Roberts
and Justice Alito simply to adopt the position held by the other three
justices in the majority -- that the issue-ad provisions of
McCain-Feingold are unconstitutional on their face.

Unfortunately, such last-minute attack ads do influence many voters.
It would be better if the voting public relied on objective sources of
information to reach an informed decision. But the government should
not be in the business of protecting the public from its own laziness
by limiting political free speech.

While the court was standing up for free speech in the political
arena, it was needlessly reducing such protections for students.

The court upheld the suspension of an Alaskan high school student who
unfurled a nonsensical banner declaring, "Bong hits 4 Jesus." The
court thus undermined, if not outright set aside, a 1969 landmark case
that assured high school students did not have to "shed their
constitutional rights to freedom of speech or expression at the
schoolhouse gate."

In the 1969 case, Tinker vs. Des Moines School District, the court
overturned the suspension of students for wearing armbands protesting
the Vietnam War.

Joseph Frederick, who was 18 when he unfurled the bong banner during a
school excursion in 2002 as the Olympic torch passed through Juneau,
has never adequately explained the intent of his bizarre message.
Perhaps he was tweaking public educators about two things that can
make them very uneasy, drugs and religion.

The majority in the 5-4 decision wrote that it was not setting aside
the Tinker precedent, but setting limits. Speech that may "reasonably
be viewed" as promoting illegal drug use can be punished, the majority
found.

But what about speech that questions the wisdom of drug laws or
questions other school policies? Where will the line be drawn?

It will take years to determine whether the decision is truly narrow
in scope, dealing only with a perceived promotion of drug use, or
whether high school students are being told to shut up and not raise
uncomfortable questions.