Monday, June 25, 2007

Free (kinda) Speech day

I haven't read the opinions yet, but thought I should post a little something on the super-excitement coming out of the Supreme Court today.

So, look like today's opinion were all about weakening things. First, the good news: McCain Feingold loses some teeth (more like a tooth--and a chipped one at that). If the breakdowns are accurate--meaning that Roberts and Alito simply state that the Wisconsin ads do not rise to the level of campaign ads covered by the 2003 decision, but that Kennedy, Scalia and Thomas would overrule the 2003 decision--looks like this is pretty narrow. Nonetheless, issue ads seem to be allowed and free speech gets a nice little nudge of support.

Then just like that, it is taken away. The Court ruled against the high school student in the "Bong Hits 4 Jesus" case. Looks like state action limiting "sophomoric" speech is A-ok, especially if it *gasp* might possibly be interpreted by someone somewhere as encouraging drug use. Does this mean that Harold and Kumar Go to White Castle is now in danger (I know I am being extreme here--but note that whether Frederick was "at school" is arguable)? Just for fun read Judge Kleinfeld's Ninth Circuit Opinion (439 F.3d 1114) which the Supreme Court overruled (PS: Kleinfeld is generally considered one of the more conservative judges on the Ninth Circuit). Here's a nice little quote from Judge Kleinfeld:

Thus, the question comes down to whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during school-authorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly “No.”

Well, I guess now it is plainly "yes."

So First Amendment gets a +1 from the issue ads case but a -3 from the Bong Hits Case. I suppose it could have been worse. But not much.

1 comment:

Marcia said...

I have been so happy about the Right to Life case that I didn't even stop to hear what the outcome in Bong Hits for Jesus was. Even that can't completely chill my excitement over the blow to BCRA though.