Free Expression and Bush's Court
by LYDIA HOWELL
A poll a few months back found that more people could name all the characters on the animated TV show “The Simpsons” and all three “American Idol” judges, than could name all five freedoms protected by the First Amendment of our Constitution. This week's decisions from the Supreme Court about free expression--who has it and who doesn't--ought to be water cooler conversation. In subtle, and in some legal analysts' view, narrow rulings, we're seeing how free expression fares on a court veering rightward.
One case took aim at McCain-Feingold campaign finance reform and blew it out of the water. That legislation put some limits on corporations and unions and said they could not run candidate ads in the closing weeks of an election campaign. The goal was to reasonably level the playing field in electoral politics so it's not so skewed toward those with the most money to spend. While it was Wisconsin Right To Life who challenged McCain-Feingold, which limited campaign ads that went beyond issue advocacy to naming specific candidates, what the court addressed was corporate speech.
Chief Justice John Roberts wrote in the deciding opinion that when weighing what's permitted by corporations--''issue information''-- and what's banned—specific candidate advocacy--''the court should give the benefit of the doubt to speech, not censorship.” Legal scholars say this decision would apply equally to nonprofits like the Sierra Club as to Exxon. But it's still a setback for cleaning up our electoral system awash in money.
A high school student's speech didn't fare so well. Just off school grounds, on a public sidewalk a student raised a banner that said ''Bong Hits 4 Jesus.” He was suspended from school for 10 days and he sued. Roberts and the court noted students' right to free speech on campus—even though in this case the student wasn't on campus—but said that student speech advocating illegal drug use was not protected. It could have been far worse; school administrators and the government wanted to ban all student expression that was considered ''offensive'' or whenever speech conflicted with what would ''promote the educational mission.” Personally, I remain uneasy about what might become known as the “Bong Hits” decision, since a high school student—someone with far less power than a giant corporation--was subjected to censorship. As the counter-military recruitment movement on high school campuses spreads, it will be interesting to see if a case comes to the Supreme Court and if Roberts and the other conservatives on the court make good on their disclaimer about protecting students’ ''core free speech rights.”
In a third First Amendment case, the court looked at a group of agnostic and atheists challenging using public money for religious groups. The court ruled that the Wisconsin Freedom From Religion had no standing, simply as taxpayers, to file such an overarching claim. Billions of tax dollars have been funneled to church groups through Bush's Office of Faith-Based Initiatives, for everything from rehabilitating prisoners to drug treatment and just this session, $140 million for abstinence-only sex education in schools.
The plaintiffs in the case cited a 1968 Supreme Court ruling that said the separation of church and state was violated if the government used tax money to favor one religion over another. In rejecting the case, the five-judge, conservative Catholic majority may have been making two points. More bricks have been removed from Thomas Jefferson's wall separating church and state. The White House wanted the case blocked from going forward as it said government could not function if taxpayers could sue over governmental spending decisions. One can imagine plenty of corporate welfare—not to mention billion-dollar white elephant weapons systems that don't even work--being cut if We The People actually had a real say in how our money is spent.
In the final analysis, the powerful got heard and the less powerful were silenced in these three decisions. Given the gains the Religious Right has made since one of their own moved to 1600 Pennsylvania Avenue, I'm especially worried by the way fundamentalist Christianity has reached into more and more areas of the government from women's health to the schools to the military.
While, in exalted theory, the ruling against McCain-Feingold protects progressive political action groups as much as corporations, the reality on the ground is those with the biggest megaphones are heard and ordinary people too often seem to be shouting in the wind. Previous decisions from the Supreme Court that give corporations the same standing than individuals—or even more--are being strengthened by Bush's court. Since the 1950s' civil rights movement, progressives have relied on the Supreme Court.
With Justice Sandra Day O' Conner's practical and moderating hand gone, judicial remedies to injustice will obviously be elusive.