Free Speech (For The Wealthy & Powerful)

Yesterday’s troika of SCOTUS rulings (as Hart wrote about below), mostly centering on issues of speech and the first amendment, seem to have come down mainly in favor of speech by the wealthy. In other words, if you’re “average”, poor or disenfranchised, your speech doesn’t count (once again, Jeannie Shawl at Jurist has a great roundup).

The major ruling, of course, involved campaign finance. Breaking 5-4, the “gang of five” conservative majority in FEC v. Wisconsin Right To Life (2007) said that “as interpreted broadly by federal regulators and the law’s supporters, the restrictions on television advertisements paid for from corporate or union treasuries in the weeks before an election amounted to censorship of core political speech unless those advertisements explicitly urge a vote for or against a particular candidate.”

“Where the First Amendment is implicated,” the chief justice said, “the tie goes to the speaker, not the censor.”

Mighty big words, and words I would probably normally agree with except for the fact that the “speaker” in question has to be a corporation or 527 group. Because if the speaker happens to be a kid waiving a sign that says “Bong Hits For Jesus”, the tie goes to the censor.

In Morse v. Frederick (2007), the same gang of five who felt so strongly about free speech for fat cats, ruled that the high school student waiving said banner did not enjoy an “unlimited first amendment right” to do so. Apparently, after the banner was unfurled, the dude was suspended and he promptly filed suit. The suit (standing, again) was tossed by the gang of five (with a concurrence by Breyer).

Wrote Roberts: “The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.”

[snicker] If only those “students” were corporations or fat cat political donors…

Lastly, the court slammed the door on “average taxpayers” who might find the government’s sponsor of religion (a clear violation of the Establishment Clause of said 1st amendment) objectionable. Writing again in a 5-4 split (Hein, et al v. Freedom From Religion Foundation 2007), Justice Alito and the gang of five wrote that “average taxpayers do not have standing to challenge executive branch actions under the Establishment Clause.”

Ah, but if those “average taxpayers” were fat cat corporations and 527 political smear organizations…

As the Times editorialized this morning, it “The Supreme Court hit the trifecta yesterday: Three cases involving the First Amendment. Three dismaying decisions by Chief Justice John Roberts’s new conservative majority.”

I’m dreading Thursday. For more on these decisions, as usual, see SCOTUSblog.

Cross posted in re AoF

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12 Responses to Free Speech (For The Wealthy & Powerful)

  1. Right on, Todd!

    The hypocrisy between the Campaign Ad case and the Bong Hits case is not only breathtaking, it is breathtakingly telling.

    When you espouse some core principle on one page and then contradict it exactly on another –that coincidentally were released on the same day–it means that the writer is not making his decisions rationally.

    He is rationalizing his decisions, which is the only possible way that such a blatant logical contradiction can exist.

    In other words, rational excuses are being used for fundamentally irrational/nonrational (call it “faith” or “emotional”) decisions.

    So, I guess that John Roberts is already well on the way to being the finest Catholic jurist since Tomas de Torquemada: It’s only a matter of degree, not approach.

    “Outta da way! Auto da fe!”

  2. Ginny Cotts says:

    So, do we hope that one or more of them does something stupid enough to be impeached?

  3. I thought they already HAD. (2000)

  4. Darrell Prows says:

    I cut my teeth on First Amendment jurisprudence reading the opinions of William O. Douglas and thought that it was always going to be like that. I know the criticism of his writing style and his “legal thinking” but, for me at least, he so inspired.

    The Warren Court made history, and this bunch seem like they would be just as happy to keep slapping us backward until we stumble.

    Douglas, in trying to stetch minds and the law once asked the question “Do trees and rocks have rights?” Many more years of the stuff we’re getting now, and we’ll be left asking if common, ordinary people have rights.

  5. You know, Darrell, I was thinking somewhat the same thing last night:

    For my entire life, the Supreme Court was the last bastion, the rock breaking the surf of right (and, occasionally left) crankiness, repression, etc. That shining city on the hill.

    And now it looks like it may not be that again in my lifetime.

    But then I remembered how lucky I’d been to grow up with the Warren Court, and how, generally, the Supreme Court has been a historical disaster, filled with cronism, and crazy rulings (think of “Dred Scott” or “a corporation is a person” or “Plessy v Ferguson”).

    And I thought, well, at least I lived for a long time under the illusion that the Supreme Court was something special, and not a bunch of political hacks dismantling the Constitution for kindling.

    Which has been the usual state of things.

  6. Ginny Cotts says:


    Maybe I should have asked if they would do something so stupid and obvious the citizens would hold the congressional tootsies to the fire. 🙄

    I agree the SC has too much history of political versus judicial decisions. The media has also gone into reverse from professional to yellow journalism.

    And I feel opitimistic enough today to hope you are both wrong.

    Darrell, isn’t this something else a Constitutional convention could address? I tend to think that, like the first one, the discussions might have as much impact as the documents or articles produced. Which is probably all the more reason to have one.

  7. Darrell, I agree 100% with you about Douglas. His opinions were always inspiring to me as well, even if, as you noted, his “legal thinking” was taken to task by law school professors. I wonder what today’s law school profs will say about the “legal thinking” (if you can call it that) of these first years of the Roberts Court.

    Hart, I also agree about SCOTUS and its perception. While the history of the court has its dark moments (Plessy, Dred, et al), the modern court (post 1940’s) seemed, as you said, the last bastion of protection and safety for the people. Even the Rehnquist Court, as wacky as it could be, never seemed so hellbent on wacking various groups at the knees as this group.

  8. Ginny:

    I am an eternal optimist, but, increasingly, it’s looking like all our birds are coming home to roost, and we may have to face the fact that the second half of our lives will be beset with restrictions, shortages, calamaties and epidemics that all seem to be coalescing into a ‘perfect storm.’

    It’s Carter’s “Age of Limits” that Reagan famously made “go away” by proclaiming “Morning in America” and sweeping EVERYTHING under the rug. It’s hard to believe that in the 26 years since Ronnie “Death Valley Daze” Reagan reformulated the GOP into the Dixiecrats and the cranks, virtually every liberal (in the classical and best sense) institution we have has eroded significantly, and, worse, eroded at the foundations.

    Where we are today was unthinkable in 2000.

    The rhetoric of the Right is more poisonous than it’s ever been, and their semantic universe is entirely insulated from ours.

    We were the luckiest generation in human history: no real wars, no pestilence, air conditioning, 300 channels of cable (with nothing on worth watching, half the time), unlimited access to North America via great cars and cheap gas … plenty of fertile midwestern farmland, irrigated by the Ogallala Aquifer (now, increasingly, depleted).

    So: plenty of food, for one of the few times in human history. (A lot of people I know remember going without food on and off in the Depression).

    And now it may be time to pay the piper.

    Hope not, but we have to face the possibility that the incredible post WWII ride of peace, prosperity, tolerance, health and plenty may be coming to a “correction” as they euphemize stock market dips.

    Our optimism shouldn’t blind us to cold hard facts.

  9. Ginny Cotts says:


    One outspoken woman in South America refers to that ‘correction’ as postmodern barbarism, something my daughter has concerns about. And me.

    I was hoping that whatever corrections we have to live through, we might get back the distinquished court, and more professional media, to keep it from being any worse or longer than necessary.

    Not that you, Darrell or I, are likely to live long enough to see the ‘end’ of it. Todd might be young enough 😉

    Where we are today was unthinkable in 2000.

    Amen. Had a really bad experience with the early changes in the news media in ’88. The editorial page editor insisted that the religous faction that had taken over the state GOP could not do any harm in America.

    Would love to ask him what he thinks now.

  10. Darrell Prows says:

    If and when we manage to conduct a Constitutional Convention there would be an intellectual enlightenemnt that would be the most beneficial aspect of the experience. For some reason people love to be told “these are historic times” and to be repeating an event that has occured only once before in American history will make that claim ring true to virtually everyone.

    My own fantasy is that what will shift things dramatically to the left is when people focus long and hard on the poison that will come streaming at them from the right. “That ain’t who we are, and that ain’t something we should ever become”, should be the dominant social theme for a very long time.

  11. Ginny Cotts says:


    “The America I believe in” would NOT

    Torture anyone.

    Use chemical or biological weapons.

    Use military force or covert operations to interfere with an elected government of another Sovereign nation.

    Give up on extensive Diplomacy to solve or preempt problems from becoming crises.

    Allow or assist our big corporations to interfere with the economies, or unfairly take the resources, of other countries.

    Have over 725 overseas military bases.

    Have a Military budget that is higher than the budgets of the Nato countries, China and Russia combined.

    Have a military budget that exceeds all other spending combined.

    Proclaim Earth’s orbiting space to be our exclusive right to use for warfare on rogue nations.

    Keep a stockpile of nuclear armaments far in excess of what we could possibly need.

    Use illegal, DU tipped armaments in other countries.

    Outsource critical government functions, such as intelligence work, to private companies.

    Have 47 million Americans without health insurance.

    Have a growing population of poor, especially children, when the all important ticker tapes are at all time highs.

    I like your fantasy. 😉 ‘Intellectual enlightenment’ is my ‘all the more reason to have one’. The energy the discussions would generate might keep Americans more involved in governement of the people, for the people and by the people for enough decades to make it a national habit. Oh, what fantasies we weave…

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