Mixed Day For Speech At The Supreme Court

The SupCt today found §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) unconstitutional as applied to genuine issue advocacy speech. Wisconsin Right to Life was prevented from running ads during the blackout period preceding the 2004 election (the ads implored viewers to call Senators Kohl and Feingold and ask them to oppose any filibuster of the President’s judicial nominees; the initial blackout period included the 30 days prior to the primary in which Feingold ran unopposed for the Democrat nomination for the Senate) and filed suit against the FEC to strike down the prohibition.

Previously, in McConnell v. Federal Election Comm’n, the Court had upheld §203 generally to the extent that “the speech in question was the ‘functional equivalent’ of express campaign speech.” Applying the strict scrutiny test for governmental burdens on political speech, Chief Justice Roberts, joined by Justice Alito, ruled that:

[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL’s three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office….

Issue advocacy conveys information and educates. An issue ad’s impact on an election, if it exists at all, will come only after the voters hear the information and choose — uninvited by the ad — to factor it into their voting decisions.

Justice Scalia, joined by Justices Kennedy and Thomas, concurred in the judgment but would have gone farther and overruled McConnell to the extent it upheld §203. Justice Alito filed a brief concurrence of his own which simply says that the question before the Court can be answered without striking down the entire provision, “is unnecessary to go further and decide whether §203 is unconstitutional on its face.”

While welcome, this ruling continues a regrettable trend in the last couple of decades of SupCt jurisprudence: Devising “tests” that can only be resolved by judges rather than setting down bright line rules that can be applied by anyone. That necessarily means that the the long-term effect will be more litigation, not less.

The Court also decided the infamous “BONG HiTS 4 JESUS” case today. It’s clear from the first clause of the opinion what the result will be without reading further. As soon as you read “[a]t a school-sanctioned and school-supervised event,” you know the student (Joseph Frederick) lost. And, indeed, he did. In another opinion by Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas, and Alito (along with separate concurrences by Thomas; Alito, joined by Kennedy; and Breyer – concurring in part and dissenting in part), the Court ruled that:

schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it.

Breyer concurred on the grounds that qualified immunity should sheild the school administrator from liability and the First Amendment issue therefore need not be decided.

Interestingly, the three dissenters “agree with the Court that the principal should not be held liable for pulling down Frederick’s banner.” They place a great deal of emphasis on Frederick’s stated intent – to get on national TV – however, and would hold, instead

that the school’s interest in protecting its students from exposure to speech ‘reasonably regarded as promoting illegal drug use,’ cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more….

[I]t is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively — and not very reasonably — thinks is tantamount to express advocacy. [Emphasis in the original.]

This is a difficult position with which to disagree.

FILED UNDER: Law and the Courts, Political Theory, Supreme Court, US Constitution, , , , , , ,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  1. floyd says:

    Free speech is regularly squelched in the workplace, restricting adults.
    Why is there a question of the restriction of free speech on school property, restricting students?

  2. Aaron says:

    Because a) most workplaces are private, and can restrict speech to a fare-thee-well, and b) students are legally compelled to attend school, which restricts what schools can do to them while they’re there.

  3. Dodd says:

    Private companies can, of course, restrict employees’ behaviour as a condition of employment. Public schools being government entitites, however, have Constitutional limitations not applicable to private companies.

    That public schools can restrict students’ behaviour more than the government can restrict adults generally is relatively non-controversial. But the Court seems to prefer case-by-case decisions over setting precise boundaries on that power.

  4. Billy says:

    Why is there a question of the restriction of free speech on school property, restricting students?

    The facts of this case belie such a simple statement of black and white. The students in question were actually absent from school, and on public property not owned or supervised by the school when they displayed their banner at an event generally attended by the public. It just so happened that the school temporarily allowed the general student population to attend the event, where they were supposedly harmed by seeing the phrase “Bong Hits 4 Jesus.” The principal left school property, snatched the banner from the students, and summarily suspended them for their exercise of speech.

    This is a much more far-reaching decision than merely saying free speech ends at the schoolhouse door (which the court has never really said, but still…). The court here has said that schools have the right to restrict student speech in public fora outside of the school itself. The logical conclusion would be that suspensions for students’ Myspace pages are also legal, whether or not the content or participation in such pages has any rational relationship to school whatsoever other than a thinly-defined anti-whatever-it-is-that-students-said policy on the part of the school. Indeed suspensions are already taking place for the arguably political views of students outside the schoolhouse.

    Advocates of a free and educated populace should be very worried indeed at the court’s willingness to engage in the supression of speech because the thinnest majority of justices do not like the content. When viewed in conjunction, Hein (the campaign finance case) and Morse (Bong Hits 4 Jesus) really stand for the proposition that the SCOTUS in its current form will decide whether speech is constituional based on whether it approves of the message. The only silver lining is that this is a 5-4 decision, and there is a very real possibility that this will someday be a widely-derided footnote in legal history.

  5. Gollum says:

    Thomas’ dissent argues that schools act in loco parentis and should be virtually unfettered in their discretion to censor and discipline students.

    Ironically, I am more comfortable with Thomas’ position because it doesn’t make such tomfoolery out of First Amendment analysis.

  6. Dodd says:

    Well, I think Billy overstates the breadth of the decision. The first and most obvious reason is the language that begins the opinion that I quoted that stresses that the event was “school-sanctioned and school-supervised.” That inherently limits the opinion to similar situations. The second is that, as I discussed on OTB Radio tonight, Alito, joined by Kennedy, went to great lengths in his concurring opinion to stress that he only joined the opinion to the extent it says that “the public schools may ban speech advocating illegal drug use” and no further. He specifically said that he understands the ruling “provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

    Thus, until and unless a student gets suspended for posting pro-drug messages on MySpace from a school computer – something I doubt very many people would say the school can’t act to prevent – MySpace is in no danger whatsoever from this decision.

  7. Billy says:

    While I agree that the “school-sanctioned and school-supervised” language does limit the scope of the rule announced by Roberts, that in and of itself is a disingenuous characterization of the event, which was the passing of the Olympic torch in front of the school on a public street. At most, the route was coordinated by the school, not the idea of the Olympic relay.

    That said, I was really surprised that Alito in particular went along with this ruling based on his comments during oral arguments, and his skepticism in general of limiting speech does lend some hope that this fact pattern will not repeat itself. But as for the MySpace analogy, under these facts it wouldn’t require the use of school computers, and indeed some schools have either suspended students for speech outside of school or are adopting policies to punish internet behavior that only bears a tangential relationship to the school’s in loco parentis authority.

    While many of these examples hardly constitute that which we should consider protected speech, it is a matter of time before overzealous school officials begin censoring speech that is absolutely political in nature, particularly with regard to unpopular causes. I am skeptical that the court would not find a similar justification for stifling speech if a case of a student advocating simply the legalization of drugs came before the court tomorrow (doesn’t such a viewpoint indirectly advocate drug use, after all?).

  8. jeff b says:

    Dodd, I appreciate the nuance of your position. However I don’t see how it squares with reality. The Court has said that free speech can be restricted for students if that speech addresses an illegal activity. How can a student comment on the law if they are forbidden from taking an entire side of the argument?

    The Court has effectively banned students from discussing whether anything should or should not be a crime.

  9. Dodd says:

    Perhaps the explanation I’m giving is too nuanced. No-one, except perhaps Thomas (who would re-instate the virtually plenary power enjoyed by school officials prior to Tinker) in the majority agreed to ban student speech that “addresses an illegal activity.” They agreed with actions to suppress advocacy of illegal drug use. Whether the message in question could reasonably be construed as such (and I tend to agree with the dissenters that that’s a stretch) was a big factor here, but not the underlying question as to what was at issue: advocacy, not mere discussion.

    So, again, I’ll point to Alito’s concurrence. I cut off the quotation right before the part that addresses your question, so I’ll quote it in full here:

    I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

    It’s pretty clear, then, that his and Kennedy’s votes go only to the suppression of advocacy of illegal drug use, not to discussions of the policies that cause them to be illegal or other forms of dissent. Without them, there’s no way this case gets extended beyond its facts.

  10. floyd says:

    Gollum; Me too.