Tuesday, June 26, 2007

Supreme Court Rules For And Against Free Speech

Two important First Amendment cases were decided today in split decisions by the Supreme Court. It is not just the votes that were split—5-4 in both cases—but the reasoning. The court made rulings that were proper, but very narrow in scope.

Some time ago, I asked readers to watch out for several suits that would address whether a citizen has "standing" to sue the government over infractions of the separation of church and state. In a case in which a secularist group had sued to block presidential "faith-based initiatives," the Justices ruled against the plaintiffs, but on narrow grounds: that a citizen cannot claim to be damaged by a government action merely because he pays taxes.

But this ruling will not effect most church-state cases, and the justices explicitly refrained from overturning the precedent that allows most such lawsuits to go forward. That's a good thing, because preventing individuals from filing suit in the courts to enforce the separation of church and state would make the First Amendment a dead letter.

In another case, detailed in the report below, the Supreme Court properly ruled that "issue advertisements" that mention individual candidates are permissible during an election. Of course they are: how can a nation claim to have freedom of speech, if activists are barred from discussing the candidates' position on the issues during an election?

But the court did not strike down the overall principle, in the McCain-Feingold campaign finance "reform" act, of the government's authority to restrict campaign speech during an election season. So the court conceded the principle of controls on political speech—while blocking the worst implementation of that principle.

"Justices Loosen Restrictions on Campaign Ads," David Stout, New York Times, June 25 The Supreme Court today loosened the restrictions on what companies and unions can spend on television advertisements just before elections, and in so doing may well have affected the thinking of political strategists for the 2008 elections.

By 5 to 4, the court ruled that an anti-abortion group in Wisconsin should have been allowed to broadcast ads before the 2004 race for the United States Senate in that state. In its ruling today, the high court opened a significant loophole in the Bipartisan Campaign Reform Act of 2002, familiarly known as the McCain-Feingold law, to curb donations to campaigns.

Writing for the majority, Chief Justice John G. Roberts Jr. said that, when regulating what can be said in a campaign and when it may be said, “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.”…

The 2004 ads in question mentioned Senators Russell D. Feingold and Herb Kohl, both Wisconsin Democrats, and urged viewers to contact them and urge them to oppose their Democratic colleagues’ opposition to some of President Bush’s judicial nominees. The ads directed viewers to a Web site critical of Mr. Feingold, who was up for re-election….

Today, the Supreme Court majority concluded that the special judicial panel was right in holding that the ads should have been allowed. “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the majority said, using the term for ads that urge a candidate’s election or defeat….

In defining what qualifies as “express advocacy,” or ads zeroing in on a candidate to promote or denounce him, “the court should give the benefit of the doubt to speech, not censorship,” the majority said.

Chief Justice Roberts wrote the opinion upholding the special court. Siding with him were Justices Samuel A. Alito Jr., Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, although the last three jurists would have gone further and declared the pertinent section of the law unconstitutional.

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