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SCOTUS Review: Less Free Speech for Students, More for Everyone Else

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It’s rulings time at the Supreme Court, and this week we got handed an interesting mixed bag of what appear to be fairly sound and even-handed rulings on a variety of issues, particularly having to do with free speech.

The big headliner was the ‘Bong Hits 4 Jesus‘ case, in which a public high-school student in Juneau, Alaska was suspended for 10 days for holding up a banner with the slogan in question at the running of the Olympic torch on a street by his school. The ruling declared that the student did not have the right to endorse drug use at a school sponsored event while acknowledging that the slogan was ambiguous and that the student’s intent may merely have been humor or notoriety. The case had questionable gray areas, including the fact that the student in question was not on school property at the time, but the court clearly wanted to use this case to repeat the point made in previous rulings, that school students do not have unlimited free speech in the context of the educational environment.

In a somewhat more controversial ruling, the court decided by a 5-4 vote that a suit brought by atheist and civil rights groups against administration officials over their faith-based charity initiative would not be allowed to proceed. The plaintiffs had argued that the administration’s efforts to encourage religious charities to apply for federal grant money was a violation of the separation of church and state. The court ruling would seem to make sense, since the grants from the Office of Faith-Based and Community Initiatives are available to both religious and non-religious groups, with the main criteria being their delivery of legitimate charitable services. However, the ruling was actually made on mostly procedural grounds, sidestepping the larger issue and ruling on the basis of the technicality that taxpayer groups have limited standing to sue over the use of money not part of the regular federal budget.

The court also struck a blow against the McCain-Feingold campaign finance reform law by lifting restrictions on ‘issue’ ads placed by grassroots groups, including businesses and unions near the time of an election. The court resisted the urging of groups like the Cato Institute that it go further and strike down the entire law by reversing its 2003 ruling that the law as a whole was constitutional. With the 2008 election coming up this change in the campaign finance law should have a significant impact on the most hotly contested campaigns.

In another significant ruling, the court determined that when there is a conflict between the Endangered Species Act and the Clean Water Act the requirements of the Clean Water Act trump the needs of endangered species. While this has been described as a victory for developers over environmentalists, it is actually much more significant as an indicator of basic government philosophy. In this ruling the court is essentially saying that the needs of people are inherently superior to the needs of other species. The ruling also specifically counters a technique used by many radical environmental groups to delay and massively increase the cost of building projects by forcing multiple endangered species surveys on developers with little justification.

Some are going to argue that these rulings show a general anti-rights, conservative trend in the court because of superficial facts like the plaintiffs in the campaign finance case being a pro-life group, but the fact is that even that ruling benefits everyone equally, because they didn’t just lift the restriction for one type of group, they lifted it for everyone. Sure, some of these rulings could be bolder and more decisive, but so far even with the addition of Alito and Roberts the court certainly doesn’t seem to be running amok. These were mostly pretty conservative decisions – in the sense of being not very different from past decisions – and were mostly made by a one vote margin and without any of the really outraged dissents we saw in the last session. It looks like the Supreme Court still works the way it is supposed to.

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About Dave Nalle

  • http://www.roblogpolitics.blogspot.com RJ

    I generally agree with all the rulings, and they were all 5-4 decisions, correct?

    President Bush might be an incompetent buffoon, but he sure was brilliant with his USSC picks!

    (The notorious and ill-fated Harriet Myers pick excluded, of course…)

  • http://www.roblogpolitics.blogspot.com RJ

    From here:

    Supreme Court rulings reveal rightward lean

    Bush’s picks write the majority opinions on three 5-4 rulings with a conservative lean

    […]

    Five justices — Roberts, Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas — formed the majority in each decision. The court’s four liberals, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, dissented each time.

    Kennedy, the only justice in the majority in all 21 of the court’s 5-4 decisions this term, has voted with his conservative colleagues more often in recent close cases.

    With its term rapidly nearing an end, the court has perhaps the biggest issue of the year still to decide: whether public school districts can take account of race in assigning students to schools. Many court watchers are expecting a similar ideological split, with conservatives limiting the use of race.

    Criticism of the shift

    Democratic presidential candidate John Edwards was among those who bemoaned the court’s rightward tilt.

    The court “is moving the right wing’s agenda faster than we’ve seen in decades — slamming the courthouse doors in the faces of ordinary people, favoring big businesses over civil rights and undermining protections for women and the environment.”

  • Lumpy

    You might be able to see a rightward shift over the entire term but I don’t see it so much in these rulings. It helps that on certain issues like free speech a shift to the so-called right is a shif towards liberty.

  • Clavos

    I’m particularly pleased by the rulings on McCain-Feingold and in favor of the Clean Water Act.

    McCain-Feingold is, simply put, unconstitutional, and the sooner it is repealed altogether, the better off the whole country is.

    Without going into the political and economic implications, The ruling in favor of the Clean tWater Act over the Endangered Species Act is particularly important in this era. Water is increasingly becoming a limited commodity, and its necessity to all life is unarguable.

    To decide to jeopardize clean water in favor of the preservation of one (or even a few) species, is to favor that one species over all living things; it just doesn’t make sense. The Court definitely made the right decision.

  • troll

    sadly from the look of things the pattern of extinctions is going to continue no matter what people do…it’s like the question ‘can humans stop global warming’ – get over it

    and I do like a glass of fresh cool water

    ESA…CWA…too bad capitalists and consumers were such assholes that they required government to stop them from polluting the nest…

    and too bad government failed

  • bliffle

    Dave, as usual, is wrong. SCOTUS ruled against free speech for a PERSON, and ruled in favor of open bribery by Corporations, the Frankensteins Monster they’ve created out of whole cloth to serve powerful people.

    Corporations are NOT people. They are not flesh. They cannot be put in jail to suffer. they cannot be executed when they kill people. They are artificial constructs that are puppets of their owners and through which no liability for crime passes to those pulling the strings. That’s why I create Corporations, for example, to insulate myself from the dire effects of some of my decisions.

    And it can hardly be doubted that Corporate funds are used to openly bribe elected officials.

    The oppression and slavery that we fended off by defeating the communists will be brought to us by the Corporations as they continue on this privileged path to sovietization.

  • Clavos

    Oh woe, oh woe!!

  • Baronius

    Decisions that make sense, and don’t contradict each other: neat. The O’Connor years may come to be viewed as the worst in the Court’s history.

  • http://www.roblogpolitics.blogspot.com RJ

    “The O’Connor years may come to be viewed as the worst in the Court’s history.”

    Some of the worst, to be sure.

  • bliffle

    Clavos, Erroneous, RJ: watch out! Lest one of my corps track you down and defame, discredit, defraud or otherwise damage you. I, of course, will be blameless.

  • http://www.elitebloggers.com Dave Nalle

    I generally agree with all the rulings, and they were all 5-4 decisions, correct?

    As far as I know that’s correct, RJ. I didn’t see the exact vote on one of the decisions, but that seems to be the pattern. However, the dissents weren’t nearly as agitated as they were last time, for whatever that means.

    Dave, as usual, is wrong. SCOTUS ruled against free speech for a PERSON, and ruled in favor of open bribery by Corporations, the Frankensteins Monster they’ve created out of whole cloth to serve powerful people.

    No, Bliffle. The ruled against the free speech of a student in an educational environment, which follows rulings made prior to the Bush appointments. And of course, in the other ruling they ruled in favor of the rights not only of corporations, but also of grassroots organizations AND individuals to advertise on behalf of issues they’re concerned about. Even the specific case itself was NOT a case of corporate advertising, but involved a small, local grassroots organization. This was a decision in favor of the rights of the people as a whole.

    Corporations are NOT people. They are not flesh. They cannot be put in jail to suffer. they cannot be executed when they kill people. They are artificial constructs that are puppets of their owners and through which no liability for crime passes to those pulling the strings. That’s why I create Corporations, for example, to insulate myself from the dire effects of some of my decisions.

    The corporation can still be held accountable for damages just like a person, and in many cases corporation officers can also be held accountable, but this has nothing to do with the SCOTUS decision which wasn’t about corporations.

    And it can hardly be doubted that Corporate funds are used to openly bribe elected officials.

    That’s an entirely different issue, and still illegal and uneaffected by this decision.

    Decisions that make sense, and don’t contradict each other: neat. The O’Connor years may come to be viewed as the worst in the Court’s history.

    There I have to disagree with you, Baronius. I think O’Connor was a positive and moderating influence. In her tenure the court had to deal with much more difficult decisions than these and dealt with most of them pretty well. In comparison this week’s decisions were awfully hard for the court to get wrong regardless of its composition. It does trouble me a bit that the votes were so close, though. Something’s not at all right on the left side of that bench.

    Dave

  • Clavos

    bliffle,

    “Clavos, Erroneous”

    Huh??

  • Baronius

    O’Connor was a moderating force, but not by applying the law. She applied the brakes. She gave each side of the Court a little, but not too much. But she didn’t base that “too much” on a reading of the law. That’s why the decisions of the last couple of decades are often contradictory. They set up no rules or discernable precedents. Worse, they’ve sent the message that any case might be winnable, one week to the next. Thus she contributed to the boom in litigation. I really think that history may remember her as a worse Justice than Taney.

  • Baronius

    Clavos – I assume that “Erroneous” is a parody of my tag. (A good one, too.)

  • Clavos

    Ah, of course!

    I’m embarrassed I missed it!

    You’re right, it is pretty clever.

  • Leslie Bohn

    The “Bong Hits” ruling is ludicrous. Scalia’s corollary opinion is correct: The law now says that students have a right to free speech in school except when they don’t.

    I think the majority is wrong on both bases of the opinion: No exception to the First Amendment for “pro-drug” speech need be made. Advocating for drug use, even illegal drug use, is protected political speech, and restricting it, even for students, is a significant, onerous limitation on our free speech.

    AND the banner in question most decidedly does NOT advocate drug use in any fashion. Does any message that contains a drug reference automatically advocate drug use? The banner was a non-sequitor, designed to amuse and confound.

    I think they got the campaign finance case right. I’m really uncomfortable with limiting the right to expressing political opinions, and the court is right to weigh First Amendment rights heavily in these cases.

  • Doug Hunter

    “Advocating for drug use, even illegal drug use, is protected political speech, and restricting it, even for students, is a significant, onerous limitation on our free speech.”

    What about speech advocating copkilling, racism, homophobia, and gang violence? If you make an exception for one you should for these other illegal activities as well.

  • http://www.elitebloggers.com Dave Nalle

    “Advocating for drug use, even illegal drug use, is protected political speech, and restricting it, even for students, is a significant, onerous limitation on our free speech.”

    Very true, and I think that this is why this case may not be much of a precedent. The ruling makes very clear that one of the reasons the case was decided as it was is that the kid in question went out of his way to say that he was NOT making a political statement with the banner, but was in fact just trying to get attention so he’d get on TV. I think that if the banner had said ‘legalize marijuana in Alaska, now’ and he’d stuck by his guns the ruling would have been different. The majority opinion more or less says that the disruptive, attention-seeking intent of the banner was a deciding factor in the ruling.

    Dave

  • Lumpy

    Doug. Last I checked the right to free speech included advocating changes in the law or promoting different ways of doing things.

  • Doug Hunter

    Lumpy, not in school. That’s the issue, not general free speech.