Supreme Court Rules on Free-Speech Cases

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The Supreme Court ruled Monday on three cases related to the First Amendment. It struck down limits on some campaign ads, restricted when taxpayers may sue over government aid to faith groups, and ruled against a teen and his "Bong Hits for Jesus" banner.


From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block.

The U.S. Supreme Court issued three major First Amendment opinions today - two deal with what limits the government can impose on speech and one has to do with the separation of church and state.

All three were five-to-four decisions, with President Bush's two new appointees adding a distinctly more conservative tilt to the court's direction.

NPR's Nina Totenberg reports.

NINA TOTENBERG: The court's most important and sweeping decision today came when it effectively nullify a key provision of the McCain-Feingold campaign finance law, a law upheld just four years ago by a more moderate court.

At issue then and now was the provision that bars the use of corporate or union general treasury funds to finance what campaign reformers call sham issue ads. These are broadcast ads with a message that hurts or helps a named candidate; ads that run in the 60 days before a general election or 30 days before primary and that if financed - and this is critical - with money that would be illegal for candidates themselves to receive.

In this case, Wisconsin Rights to Life financed a string of ads about judicial filibusters in 2004, when Senator Russell Feingold was on the ballot. The ads, financed with unlimited and undisclosed contributions from corporations, urged listeners to contact Feingold and directed them to a Web site that attacked the senator. The Federal Election Commission and the Bush administration said the ads violated the law and the law had been upheld as constitutional.

But today, a newly constituted Supreme Court by a five-to-four vote cut the legs out from under the court's previous ruling. Three justices, Scalia, Kennedy and Thomas, would have simply overruled the court's decision of four years ago. Chief Justice John Roberts, joined by fellow Bush appointee, Samuel Alito, stopped short of that, saying the ads may only be regulated when they expressly advocate the election or defeat of a candidate. In contrast, ads like this may reasonably be interpreted as ads about an issue, said Roberts. And if there's any doubt, the tie goes to the speaker not the censor.

Loyola Law School Professor Rick Hasen, an expert in elections law, sees today's ruling as a sea change in the law.

Professor RICHARD HASEN (Elections Law, Loyola Law School): I think this is a huge win for those who want our campaign finance system deregulated so that more money can come in to the system.

TOTENBERG: Some campaign reformers saw today's ruling as a setback, but not a fatal one, since part of the McCain-Feingold law is still intact, the part that bars corporations and unions from giving money to candidates and parties.

Democracy 21 president Fred Wertheimer.

Mr. FRED WERTHEIMER (President, Democracy 21): It's important to keep in mind that the core provision of this law is untouched by this decision.

TOTENBERG: But most experts didn't see it that way. Here, for example, is Supreme Court advocate Tom Goldstein, who teaches at Stanford and Harvard law schools.

Professor TOM GOLDSTEIN (Supreme Court Litigation, Stanford and Harvard Law Schools): Today's decision really does say we may end up having campaign finance regulation in name, but not in practice because there're going to be enough free speech loopholes in the law that you can get around almost anything.

TOTENBERG: That sentiment was echoed in a passionate dissenting opinion announced from the bench today by Justice David Souter. The court, he said, had affectively overruled a law that Congress had enacted to deal with a problem that's been brewing for over a century.

Corporations and unions assemble a lot of money, and money has strings attached. People know that, he said, and this kind of campaign spending has bred cynicism about democracy. After today, Congress' attempt to deal with the problem is a dead letter, said Souter, and so is the 100-year-old attempt to limit the contributions of corporations and unions.

While today's campaign finance ruling gave broad free speech rights to corporations and unions, its other free speech decision limited student speech albeit narrowly.

The incident that precipitated the case occurred five years ago in Juneau, Alaska, when high school senior, Joseph Frederick, standing on a public sidewalk at a school-endorsed Olympic torch parade, unfurled a banner that said, quote, "Bong Hits 4 Jesus."

He said it was a nonsensical message aimed at getting seen on TV. But his school principal saw it as advocating drug use. She suspended him from school for 10 days. Frederick sued and today, a divided Supreme Court ruled against him.

Writing for the court, Chief Justice Roberts said the banner was cryptic, but the principal's interpretation of it as a message advocating drug use was reasonable.

In a separate concurring opinion, justices Alito and Kennedy said they were signing on only on the understanding that today's ruling does not restrict speech that can reasonably be interpreted as commenting on any political or social issue, including the wisdom of the war on drugs and the legalization of marijuana for medical use.

Finally, today, in an important case involving separation of church and state, the court ruled that ordinary taxpayers cannot challenge a White House initiative that promotes federal grants to religious charities. A group of taxpayers challenged President Bush's faith-based initiative, which was funded out of general executive branch treasury funds and helped religious charities get a larger share of federal funds.

Now, ordinarily, taxpayers don't have standing to challenge federal spending programs in court. But the Supreme Court, 40 years ago, made an exception for challenges to legislative appropriations for programs that promote religion.

Today, the court said there's a difference between specific legislative funding and executive programs paid for with discretionary funds. Today's ruling gives presidents a lot of power to promote religion says Supreme Court advocate Walter Dellinger.

Professor WALTER DELLINGER III (Law, Duke University): Under the court's faith-based initiative decisions, this president and future presidents are going to have a lot of power to spend discretionary money without any review by the courts in favor of religions, in favor of groups that don't like religion, in favor of some religions and not others. It's going to be off limits for the courts to decide these cases.

TOTENBERG: The recourse for citizens, says Dellinger, will not be in court, but at the ballot box.

Nina Totenberg, NPR News, Washington.

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