Free Speech Hypocrisy at the Supreme Court


The Bush administration’s successes in appointing its preferred nominees to the Supreme Court appear to have paid off in light of the judicial body’s recent rulings favoring corporate power over free speech rights. Monday’s Supreme Court students rights and lobbying decisions, while masked as efforts to prevent drug abuse and promote free speech, appear more likely to consolidate big business dominance, while giving short shrift to fundamental First Amendment protections.

Problematic in-and-of-itself is the court’s student free speech ruling, which constitutes a major step toward curtailing student expression. In a 5-4 decision, the ruling reaffirmed the suspension of an Alaskan high school student who held up a banner with the words "Bong Hits 4 Jesus" across the street from his school during the 2002 Olympic parade. The student, Joseph Frederick, was disciplined for violating a school policy, due to his alleged advocacy of drug use. Although Frederick was standing on a public sidewalk at the time of the incident, school Principal Deborah Morse claimed that Frederick was taking part in a school sanctioned event ­ hence his actions were seen as reflecting poorly on the institution as a whole.

Monday’s ruling is not the first attack on high school free speech rights, but merely the most recent, as the Supreme Court’s 1988 Hazelwood decision is commonly hailed as the first major decision aimed at restricting student expression. The Hazelwood case set a lower free speech threshold for high school student publications, which were not to be classified as "public forums," but rather became the subject of the prior review of high school administrators, many of whom have shown interest in censoring controversial stories and editorials.

While the Supreme Court was moving to demolish the free speech rights of real people, it set a new precedent for the strengthening of the First Amendment "rights" of artificial constructs, as it moved to weaken restrictions on use of political advertisements by major corporations. The new decision (which specifically ruled on the political advertising activities of an anti-abortion Wisconsin group) looks as if it will roll back a limitation put forth in the 2002 Campaign Reform Act (a.k.a. the McCain and Feingold bill) which prohibited corporations and unions from financing political ads during the two months before general elections and the month before primaries.

The ruling was defended by Chief Justice John Roberts, who claimed that, "the First Amendment requires us to err on the side of protecting political speech rather than suppressing it." Such a rationale is difficult to take seriously though, in light of the court’s flagrant contempt for the rights of real persons, as seen in the student free speech case, and its preference for artificial ones. The decision is also dubious, not only in its faulty historical reasoning (the Founding Fathers clearly did not have corporations in mind when they were laying out the free speech protections in the Bill of Rights), but also in terms of its implications for democracy.

While the Supreme Court ruling purports to have both labor unions and corporations in mind, the reality of campaign finance and election lobbying is heavily tilted in favor of corporate America and big business. In the 2006 mid-term election, for example, big business gave over 17 times as much in campaign contributions to candidates as did organized labor. Overall, business donations accounted for 73.5% of total contributions, whereas labor donations accounted for a mere 4.2% of contributions in the 2006 election cycle. In such a lopsided lobbying/advertising environment, it is difficult to believe that the Supreme Court’s ruling will somehow contribute to a strengthening of pluralistic, democratic competition amongst different interest groups. Quite the contrary, the court’s ruling will likely further cement the "shadow cast on society by big business" to borrow an insight John Dewey.

Although the recent federal rulings represent a major threat to American democracy, there are signs of hope, albeit on a more decentralized level. While the McCain-Feingold bill itself did much to enable a rebirth of "soft-money" contributions to local candidates and parties (ironically strengthening corporate lobbying power in the name of limiting it) state legislatures have stepped forward to reaffirm free speech rights for real people. State legislatures in Washington, Illinois, Michigan, and Oregon have proposed free speech bills this year that will protect students in higher education from the possible censorship of school administrators. Such initiatives, should they be implemented in these states, represent a major victory for those committed to free speech. While recent rulings such as Hosty v. Carter have sought to limit free speech in higher education exclusively to papers designated by universities and colleges as "publicly designated forums," the bills arising from within these states would extend publishing protections to all school newspapers, regardless of their technical titles. The Illinois College Campus Press Act, for example, circumvents the "publicly designated forum" restrictions entirely by designating all school papers as free forums for student expression. The bill has gained the support of civil liberties watchdogs such as the ACLU, as the initiative was heralded by Edwin Yohnka (Illinois ACLU Director of Communications and Public Policy) as "a major step in restoring the free speech and free press rights of student journalists on our college campuses."

Of course, such bills are still more the exception than the norm. Similar bills will need to be introduced and passed either in every state, or at the federal level, for student free expression to be ensured. In addition, there is still the issue of big business dominance of campaign finance and political advertising. Major steps toward eliminating legal bribery (a.k.a. political campaign contributions) and corporate dominance of advertising will be necessary if we are to move toward truly democratic, open elections. As John Dewey so presciently warned in his day: "talk of democracy has little content when big business rules the life of the country through its control of the means of production, exchange, the press, and other means of publicity, propaganda, and communication." Only time will tell whether the American people are up to the challenge of taking back their democracy from the corporate and political elite and their plutocratic stranglehold over government.

ANTHONY DiMAGGIO has taught Middle East Politics and American Government at Illinois State University. He is the author of the forthcoming book, Mass Media, Mass Propaganda: Understanding American News in the "War on Terror" (December 2007). He can be reached at: Adimag2@uic.edu


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