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June 26th, 2007 · 4 Comments

A New York Times editorial today condemns “three bad rulings” by the Supreme Court. One is the “Bong Hits 4 Jesus” decision, which the Times calls a “mangling of sound precedent and the First Amendment.” Another, and the primary target of the editors’ ire, is the Wisconsin Right to Life campaign finance ruling, which “opened a big new loophole in time to do mischief in the 2008 elections. ”

While I too would have preferred a different outcome in the “Bong Hits” case, let’s maintain a touch of perspective here. This was a very narrow ruling upholding a student’s suspension for unfurling a banner at a school-sponsored event, as a prank. Alito’s concurrence specifically notes that the decision turned on the absence of any serious message being conveyed, and stresses that a banner urging the legalization of marijuana would have been protected. Again, I’m always for erring on the side of permitting more speech, and one can imagine applications of the ruling that would be troubling, but Tinker v. Des Moines this ain’t.

According to the Times, though, the First Amendment that is mangled if a principal can suspend a student for speech that was, by the student’s own account, a meaningless stunt. This very same First Amendment, however, is a mere loophole when invoked by groups seeking to buy an ad expressing a position on a political controversy. Unlike “Bong Hits 4 Jesus,” these messages may be restricted without raising First Amendment concerns, since they are so plainly “phony” or “bogus” or “sham” issue ads. It’s not clear what it would take for an ad to pass the NYT editorial board’s genuineness test—presumably it would have to criticize a candidate’s position on some issue without leaving anyone with the impression that this might constitute a reason to vote against said candidate. Bonus marks for this deliciously Orwellian line:

But magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens is hardly a free speech victory.

Ah, now I see. So a “free speech victory” would be, say, The New York Times ceasing publication so as to magnify the relative voice of bloggers and smaller papers? Gosh, I’ll miss the crossword.

Tags: Law



4 responses so far ↓

  • 1 Nate // Jun 26, 2007 at 9:09 pm

    Speaking of “Bong Hits”, this points to the paradoxical need for the courts to determine the value of speech before they can place it in the protected category (or not).

    I think it was motivated more by a desire not to interfere with educators’ work than anything. And that outcome-determinative call is not so far from most of the Court’s jurisprudence.

    The Ninth Circuit must have known what it was getting itself into.

  • 2 Dave W. // Jun 28, 2007 at 1:19 pm

    When a wealthy entity spends money in a way that benefits a political candidate or party, then that candidate, if elected, would be beholden in some measure to the wealthy person who helped.

    One approach to this problem is to try to limit the amount that is spent buying politicians. Another approach is to ignore the conflict of interest and deny that any conflict exists. I call this latter approach “doin’ the Sanch.”

  • 3 Julian Sanchez // Jun 28, 2007 at 3:49 pm

    Excellent. Perhaps now you can supply a similarly snappy term for the practice of tossing out simplistic rejoinders that ignore all the actual issues under consideration.

  • 4 Bobbo // Jun 29, 2007 at 3:37 pm

    If “Doin’ the Sanch” means I can buy air in the two months before the election to determinedly declare that I think John McCain is a duschbag, then I’ll do the Sanch.