Rhetoric aside, most First Amendment claimants lose

Monday, July 16, 2007

WASHINGTON — “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

From the Supreme Court’s roster of First Amendment decisions in the term just ended, that is the quote that will live on, no doubt, in history books, First Amendment calendars and countless legal briefs filed by First Amendment litigants.

Chief Justice John Roberts proclaimed those words from the bench and in his opinion June 25 in FEC v. Wisconsin Right to Life. The ruling vindicated the Wisconsin group’s right to run issue advertising in advance of the 2006 elections, contrary to the ban on such ads contained in the McCain-Feingold campaign-finance law.

The star power of Roberts’ quote may be tempered, however, by its appearing in the only case of the term in which the First Amendment claimant was the clear winner over a government adversary.

And another thing: Roberts uttered those words moments after he had read another First Amendment decision in which the censor was the clear winner over the speaker.

That was Morse v. Frederick, in which the Court said that an Alaska high school principal did not violate the First Amendment when she confiscated a student’s nonsensical “Bong Hits 4 Jesus” banner. Allowing such official action to restrict possible student advocacy of illegal drugs, Roberts said, “hardly justifies sounding the First Amendment bugle.” In other words, Roberts might have been thinking, this was not even close to a tie in which the speaker should win.

It was that kind of term for the First Amendment: soaring rhetoric on one hand, less-than-positive results on the other.

First Amendment claims were also denied in Tennessee Secondary School Athletic Association v. Brentwood Academy (involving speech rights of private-school coaches). In Davenport v. Washington Education Association, First Amendment arguments were made on both sides, but the ruling was viewed as a loss for the free-speech rights of unions that seek fees from non-members. And in Hein v. Freedom From Religion Foundation, a group claiming a government violation of the establishment clause was denied standing in court, though not strictly speaking on First Amendment grounds.

Beyond the scorekeeping, however, the term gave important insights into how Roberts and Samuel Alito, the new justices on the Court, view the First Amendment. There, the news for First Amendment advocates was not all bad.

From Roberts, the most positive First Amendment pronouncements came in the campaign-finance case. He did not deny that political advertising expressly advocating a candidate’s election or defeat can be banned to combat corruption of the political system. But to expand the ban to cover ads that express views about political issues — and only incidentally mention individuals who are candidates — goes too far, Roberts said. “Enough is enough.” He added, “Discussion of issues cannot be supported simply because the issues may also be pertinent in an election.” To equate such issue advertising with quid pro quo political corruption, Roberts said, “is to ignore their value as political speech.”

In the final section of his opinion, Roberts lamented that “we have gotten this far in the analysis without quoting the [First] Amendment itself,” and he proceeded to quote its free-speech clause. “The framers’ actual words put these cases in proper perspective,” Roberts said. “When it comes to drawing lines in the area of pure political speech … it is worth recalling the language we are applying.”

Since the decision was issued, critics have suggested that the only reason that Roberts embraced the First Amendment in the case was that in this instance, it protects corporate free-speech interests.

“This criticism is not well founded,” says Richard Garnett, a First Amendment expert at Notre Dame Law School. Garnett, like Roberts himself, notes that the American Civil Liberties Union and organizations like the AFL-CIO urged the position that Roberts and the Court majority took. “This speech and activism is not suspect,” says Garnett. “It is, and has long been, vital to a thriving civil society, to limited constitutional government, and to authentically democratic politics.”

How to explain, then, why Roberts, almost in the same breath, ruled against the speaker in Morse v. Frederick, the “Bong Hits 4 Jesus” case?

Almost anticipating that question, perhaps, Roberts quoted from Tinker v. Des Moines Independent Community School District, the 1969 decision upholding student free-speech rights, which, he said, implicated “concerns at the heart of the First Amendment.” But even Tinker recognized that students’ speech rights were not limitless given the “special circumstances of the school environment.” Roberts said the serious and “palpable” problem of illegal drug use by students justified the principal’s action. In other words, by interpreting the banner as drug advocacy, Roberts placed it outside the core of protected speech that he was seeking to preserve in the campaign-finance case.

Interestingly, Alito — joined by Justice Anthony Kennedy — wrote a separate concurrence to underscore that the Court was making a narrow decision that cannot be used to justify broader restriction of student speech on political or social issues. Like the majority, Alito said, “I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far end of what the First Amendment permits.” Justice Clarence Thomas wrote another concurrence, urging the more extreme position that Tinker ought to be overturned altogether.

The fact that Alito wanted to make a strong statement limiting the scope of the Court’s decision was significant, and recalls his tenure on the 3rd U.S. Circuit Court of Appeals. In the 3rd Circuit's 2001 ruling Saxe v. State College, Alito wrote a decision striking down a student-speech code on First Amendment grounds.

“I think the Morse case is more interesting for the divisions among the conservatives than for the actual holding in the case itself,” Garnett says.

In another First Amendment-related decision on the same day, June 25, Roberts joined Alito in declining to follow the lead of their conservative brethren.

In Hein v. Freedom From Religion Foundation, Alito, Roberts and Kennedy joined to rule that taxpayers as taxpayers did not have standing to challenge President George W. Bush’s faith-based initiative as an establishment-clause violation.

But Alito, who wrote the opinion, based that determination on the fact that the aspects of the Bush program that were being challenged had been paid for with general funds at the disposal of the executive branch, not specifically appropriated for that purpose by Congress.

That interpretation allowed the three to stop short of overturning Flast v. Cohen, a 1968 precedent that gave taxpayers standing to mount establishment-clause challenges against congressional appropriations.

Justices Antonin Scalia and Thomas were the other two votes in the majority to deny standing, but they would have gone the next step and actually overturned Flast.

Though the vitality of Flast in the wake of the Hein decision is under debate, it does appear that in a potentially significant category of cases — congressional appropriations that aid religion — taxpayers retain the standing to sue that was articulated in Flast.

Scalia attacked Alito, Roberts and Kennedy for ruling too timidly. “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future,” Scalia said.

And in the campaign-finance case, Scalia accused Roberts of “faux judicial modesty.”

Are the splits among the conservatives just so much static that obscures or softens the sharp conservative turn the Court has taken? Or do they suggest that Roberts and Alito, sometimes joined by Kennedy — a usually strong First Amendment advocate — will develop as a true moderating force? For First Amendment advocates, that may be the key question in charting the direction of the Court. The answer, so far, is uncertain.

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