The impact of the Supreme Court’s latest First Amendment rulings is well defined in one case and not so in the other, leaving a host of special interests applauding wildly and those who believe that student speech is as protected as any other shaken.
The practical result of the court’s 5-4 decision to allow issue ads before an election that mention a specific candidate probably will be to substantially increase the cost of the upcoming presidential and congressional elections, already approaching a record of over $1 billion.
Predictions are that freeing up all those special-interest groups, from businesses to unions to religious-based organizations with a social or economic agenda, to back one candidate or debase another could double the expenditures. For instance, the U.S. Chamber of Commerce reportedly has dramatically increased its election-year spending to push its policies on a number of issues despite the new laws on campaign expenditures.
From the very beginning, the McCain-Feingold restrictions on the use of so-called soft money have raised the eyebrows of constitutionalists, many of whom decried the bans before an election as being in direct contravention of freedom-of-speech guarantees. So using the name of a particular candidate to define an issue is now protected speech unless it is a blatant statement of advocacy for that candidate.
But it is the other ruling, in the case of an Alaska teenager who unfurled a silly banner across the street from his high school and was suspended, that is the more troublesome. The banner — “Bong Hits 4 Jesus” — was deemed by the court to advocate the use of illegal drugs and therefore not speech protected by the First Amendment. A school, it said, had the right to control the actions of its students when it came to anti-drug policies.
Justice John Paul Stevens denounced the majority opinion as ignoring the history of Prohibition and not permitting dissent to the illegality of marijuana use. And the student in the case had argued that he really wasn’t advocating the use of drugs, which, if true, merely certifies the legitimacy of the axiom that bad cases make bad law. In this instance, it was a typical, silly teen-age prank that ends up before the highest court in the land. Defending the student’s actions was a disparate array of groups ranging from civil libertarians to conservative Christians and advocates of gay and lesbian rights, who all saw the case as a potential threat to their own ability to speak out on campuses.
But before anyone gets too hysterical over this ruling, it should be noted that it is very narrowly drawn and does not restrict students from questioning the educational mission of their schools, as had been sought by Juneau school officials and the Bush administration. A reason for this seems to be the notice given by Justice Samuel Alito Jr. to others in the one-vote majority that he could not support a broader restriction on student speech. Had they insisted, he made it clear that he would vote the other way. In fact, Alito had made his attitude toward the First Amendment quite clear during an appearance before the ruling was announced. Without saying how he had voted on the cases, he said he would take a dim view of restricting free speech.
If that now seems contradictory to his public remarks, it is possibly explained by the public’s concern over drugs and schools. Few issues bring about a more emotional and volatile response. The fear of juvenile drug use that often begins with marijuana is almost overwhelming among parents, teachers and school administrators. Whether the prank by the Juneau student during a parade for the Olympic torch should have raised that level of concern, the fact is that somehow it did, making it difficult for the court to ignore.
It is too bad that the issue of student protections under the First Amendment had to be defined even partially by this matter. A much better test would have been how the court views those students who openly debate and disagree with campus or school policies. While the last word may rest with the teachers and administrators, shouldn’t students have the constitutional right to speak out about them in forums including the school newspaper? It is a question that the court needs to answer once and for all, rather than focusing on “Bong Hits 4 Jesus.”
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)