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.