Supreme repercussions

There’s an awful lot of reaction, and over-reaction, in the media today to those Supreme Court rulings yesterday relating to freedom of speech in America.

On the same day that the Supreme Court imposed a new limit on students’ free speech in the Bong Hits 4 Jesus decision, the Justices ruled the opposite way in another first amendment case, protecting the rights of corporations and unions to shell out money for political ads shortly before an election.

Whoa…

That may sound sweeping, but it’s hard to know exactly what to make of the 5 to 4 decision, with the majority opinion also written, as in the Bong Hits case, by Chief Justice John Roberts. It seems to put a significant chink in the McCain-Feingold campaign finance law, and advocates for limiting campaign spending say it will draw a flood of corporate cash to TV spots pushing one candidate or another. But the decision is also very narrow, meaning it may well preserve the overall impact of McCain-Feingold and doesn’t necessarily justify predictions of the end to spending restraint.

So….which is it? After the hyper-ventilating, people need to actually look at the law and the rulings in these cases with some clarity.

Or, this kind of reasoning that Matthew Franck put up over at NRO’s Bench Memos…

But on the merits of the Morse case itself, I just don’t share David’s concern.  Calling high-school students the “canaries in the coal mine for our basic civil liberties,” he writes that the ruling “dramatically expands the scope of state authority over the speech of school children.”

Would that it were so.

Ha. He’ll get plenty of concurrence on that. 

In truth, the decision today, correct enough in its result for the case at hand, is just an invitation to more litigation of the kind that has been the bane of school administrators for the four decades since the wrongheaded Tinker decision of 1968.  Justice Clarence Thomas, concurring alone, has the only view of the matter to which I would fully subscribe:

“I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.”

And he’s got the historical analysis to back it up.  I would only add that in a saner world either 1) young Master Frederick’s parents would have given him a whipping, not hired an attorney who sued the school principal, or 2) the Fredericks would have lost the case at every stage, with certiorari denied without comment by the Supreme Court for such a timewaster as this.  Only the japery of the good old Ninth Circuit brought the case this far.

Enough said.