JUSTiCES 4 FREE SPEECH
Can someone explain this to me?
Yesterday (25 June 2007), US Supreme Court Chief Justice John Roberts, in the case of Federal Election Commission v. Wisconsin Right to Life, wrote:
Where the First Amendment is implicated, the tie goes to the speaker, not the censor.
And yet, on the same day Chief Justice Roberts delivered the court's opinion in Morse v. Frederick. That opinion held that Joseph Frederick, the Alaska high school student who was suspended for holding up a banner reading "BONG HiTS 4 JESUS", had no First Amendment right to display that banner.
The Morse v. Frederick decision balances a number of precedents. Hazelwood School District v. Kuhlmeier (1988) held, "First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment."
On the other hand, a number of cases dating back to Tinker v. Des Moines (1969) have held that individuals do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
So, why is this tie decided in favor of the censor, and not the speaker? Is it the schoolhouse gate? or the bong hits?
[UPDATE: Norman Ornstein, guest blogger at The Economist's Democracy in America, comes to much the the same conclusion I did, albeit more eloquently.]
Labels: First Amendment, Supreme Court
posted by Chad Nilep @ 12:35 PM
2 Comments:
I think the answer to your question might be rather simple.
The line you've quoted from FEC v. Wisconsin Right To Life ("Where the First Amendment is implicated, the tie goes to the speaker, not the censor") is set within the very narrow context of the Court's consideration of the 'express advocacy' ban. The Syllabus (abstract) of the Court's decision supports this (narrow) reading; it refers specifically to the page on which the line in question appears:
But when it comes to de-fining what speech qualifies as the functional equivalent of express advocacy subject to such a ban—the question here—the Court should give the benefit of the doubt to speech, not censorship.
(Pp. 28-29)
- Syllabus (p.5), item #3.
The footnote to the line in question (#7) also indicates to the professional audience (i.e. the Bar) that the principle they've introduced ( "in dubio, pro orator" ?) should be applied only to the immediate context -- "express advocacy" prohibitions in election law. The text of the footnote discusses only the new test that the Court devised to apply in this and similar cases:
Our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate... (Pp. 21, fn7)
It is interesting that Justice Stevens' dissent in Morse v. Frederick raised the same point as the earlier post. Citing FEC v. Wisconsin RTL, he wrote:
If this were a close case, the tie would have to go to Frederick's speech, not to the principals strained reading of his quixotic message.
Clearly, though, whoever is responsible for that "tie goes to the speaker" line -- C.J. Roberts, his clerks, or another Justice may all claim authorship to various stretches of text -- knew that it would capture the public's attention. You needn't search far for many other, similar phrases penned with the hope that it would resonate with the wider audience's fundamental sense of fairness and thus come to be inscribed in our "legal consciousnesses." (Merry 1990).
If an attorney were to try to use this very bold, but very vague line out of context he would probably embarrass himself. Here's how it would go in oral argument:
ATTORNEY: The Court said in FEC v. Wisconsin RTL that, "Where the First Amendment is implicated, the tie goes to the speaker, [not the]"--
JUSTICE: [But that] was an election law case. This is a whistleblower case brought to us under the Uniform Code of Military Justice. Do you have a fallback argument, counsellor?
What interests me about this pair of decisions as a linguistic anthropologist (in training; I'm just an undergraduate) is the subtle contextualization clues that separate the professional audience from the general public. (Both are part of the "interpretive community" built around the Supreme Court, I would argue, but linguistic practices have an important role in limiting [or simply marking?] participation of the general public from non-lawyers.) For those interested in this topic, I would strongly recommend Elizabeth Mertz's new book The Language of Law School.
I think the answer to your question might be rather simple.
The line you've quoted from FEC v. Wisconsin Right To Life ("Where the First Amendment is implicated, the tie goes to the speaker, not the censor") is set within the very narrow context of the Court's consideration of the 'express advocacy' ban. The Syllabus (abstract) of the Court's decision supports this (narrow) reading; it refers specifically to the page on which the line in question appears:
"But when it comes to de-fining what speech qualifies as the functional equivalent of express advocacy subject to such a ban—the question here—the Court should give the benefit of the doubt to speech, not censorship. (Pp. 28-29)"
- Syllabus (p.5), item #3.
The footnote to the line in question (#7) also indicates to the professional audience (i.e. the Bar) that the principle they've introduced (in dubio, pro orator, I would call it) should be applied only to the immediate context -- "express advocacy" prohibitions in election law. The text of the footnote discusses only the new test that the Court devised to apply in this and similar cases:
"Our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate... " (Pp. 21, fn7)
It is interesting that Justice Stevens' dissent in Morse v. Frederick raised the same point as the earlier post. Citing FEC v. Wisconsin RTL, he wrote:
If this were a close case, the tie would have to go to Frederick's speech, not to the principal's strained reading of his quixotic message.
Clearly, though, whoever is responsible for that "tie goes to the speaker" line -- C.J. Roberts, his clerks, or another Justice may all claim authorship to various stretches of text -- knew that it would capture the public's attention. You needn't search far for many other, similar phrases penned with the hope that it would resonate with the wider audience's fundamental sense of fairness and thus come to be inscribed in our "legal consciousnesses." (Merry 1990).
If an attorney were to try to use this very bold, but very vague line out of context he would probably embarrass himself. Here's how it would go in oral argument:
ATTORNEY: The Court said in FEC v. Wisconsin RTL that, "Where the First Amendment is implicated, the tie goes to the speaker, [not the]"--
JUSTICE: [But that] was an election law case. This is a whistleblower case brought to us under the Uniform Code of Military Justice. Do you have a fallback argument, counsellor?
What interests me about this pair of decisions from a linguistic anthropology standpoint is the subtle contextualization clues that separate the professional audience from the general public. (Both are part of the "interpretive community" built around the Supreme Court, I would argue, but linguistic practices have an important role in limiting [or at least marking] participation of the general public from non-lawyers.) For those interested in this topic, I would strongly recommend Elizabeth Mertz's new book The Language of Law School.
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