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Free speech for me, but not for thee

Freedom Watch
By HARVEY SILVERGLATE  |  January 29, 2010

Last Thursday's Supreme Court opinion striking down corporate campaign advertising restrictions might as well have been divorce papers in the rocky marriage between the political left and the First Amendment.

The contentious 5-4 decision in Citizens United vs. Federal Election Commission saw the high court's conservative wing invalidating, on free-speech grounds, two federal statutes that had prohibited corporations from financing partisan messages during elections. Liberal advocacy groups immediately sounded the alarm: "A disastrous decision with a disastrous outcome" (; "Shed a tear for our democracy" (Public Citizen); the decision "does not promote free speech; it mocks it" (People for the American Way).

Editorialists, too, mourned the death of democracy — soon to be buried, they wrote, by mega-corporate coffers (not realizing, perhaps, that nonprofits and labor unions are corporations, too). Even Barack Obama promised a "forceful response," notwithstanding that his presidential campaign already proved that an army of small donors on the Internet can best a regiment of moguls.

But what good is the First Amendment if it does not allow citizens, individually or organized as a corporate entity, to disseminate political speech (and in the case brought before the Court, a video broadside against Hillary Clinton) during an election cycle?

Seeing such restrictions as an affront to free speech, the conservative majority ruled for Citizens United, a nonprofit. Yet their stance is likely based not on principle but on politics; recent cases show that the right's affinity for the "free marketplace of ideas" can waver when it's their ox being gored. For example, pornography and obscenity have been favorite targets of the court's conservative bloc. Controversial expression on religion or drug use seems to be on shaky ground; combine the two, and all bets are off.

Such was the high court's message in 2007 in Morse v. Frederick. There, at a high school-supervised off-campus event, a student was suspended for unfurling a banner emblazoned with BONG HITS 4 JESUS. The court, splitting along partisan lines, upheld the student's suspension. The five-justice conservative majority wrote that high-school students do not possess the same First Amendment protections as adults — an uncontroversial proposition until one recognizes that the speech in question was obviously a nonsense parody of drug use and religion. Justice Samuel Alito's concurring opinion stressed that "illegal drug use presents a grave and in many ways unique threat to the physical safety of students," thus proving that even Supreme Court opinions should have to pass the giggle test.

Alito's 2007 position stands in direct contrast with a 2001 opinion he penned while a member of the Third Circuit Court of Appeals. In Saxe v. State College Area School District, Alito invalidated a public school district's "harassment" code that prohibited "unwelcome verbal . . . conduct which offends, denigrates, or belittles an individual" because of "sexual orientation" or other characteristics. A Christian student complained the policy inhibited him from expressing his conviction that "homosexuality is a sin." Because the First Amendment does not have a "harassment exception," wrote Alito, the policy was unconstitutional. He was right. Messy as it may be, our free society rests on the notion that government cannot curb expression unless there are compelling societal interests at stake and the censorship is as narrow as possible. But one has to wonder whether Alito was more interested in protecting a religious student's right to criticize a gay classmate than he was in neutrally protecting the First Amendment.

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