Consistently Inconsistent

On the same day the U.S. Supreme Court issued its ruling putting new limits on enforcement of the federal McCain-Feingold campaign reform law, the court ruled that schools may censor the speech of students, even when the speech occurs off school property.

Writing for the narrow majority of a split U.S. Supreme Court, Chief Justice John Roberts leaned heavily on free speech arguments to carve out an exception to disclosure requirements and restrictions on campaign money. While not striking down McCain-Feingold as unconstitutional, the majority opinion invites special interests to play word games in their advertisements to get around the law.

The court ruled that advertisements targeting candidates for federal office and run in the days before an election may be funded with unlimited corporate or union funds unless the ads are the "functional equivalent of express advocacy" and only if the ads are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

By shielding ad sponsors from disclosure requirements and campaign contribution limitations if an ad has "content . . . consistent with that of a genuine issue ad" and "lacks indicia of express advocacy," the Court essentially revived the so-called magic words test that it found "functionally meaningless" less than four years ago in McConnell v. FEC. And made the nation's campaign finance laws prone to easy manipulation.

Roberts justified this result by saying the First Amendment "requires us to err on the side of protecting . . . speech rather than suppressing it." His majority opinion goes on to say: "We give the benefit to speech, not censorship."

Roberts saw things differently on the student speech case. Again writing for the majority, Roberts ruled that schools may prohibit student expression that can be interpreted as advocating drug use, even though Roberts acknowledged that the message at issue in the case – a banner saying "Bong Hits 4 Jesus" unfurled by a student outside of school – was "cryptic."

Cryptic? Hell, it was inane . . . even by the student's estimation. But no more inane than most of the campaign ads we are doomed to watch.

The irony is that, contrary to popular mischaracterization, the McCain-Feingold law does not prevent any group from airing a political ad at any time, all the way up to Election Day. It merely prevents groups from using corporate or labor union treasury funds to pay for ads run within 60 days of an election. And groups have to disclose their funding sources to the public. But there is no censorship. Yet disclosure and campaign money restrictions ran afoul of the First Amendment's free speech protections in the collective mind of the Roberts court, while outright censorship of student speech did not.

This may seem wildly inconsistent. But if you look closely at the trends in recent Supreme Court rulings, the powerful are served time and again. Weaker elements of our society are not. When you look at who's winning and who's losing in recent cases, this court is scrupulously consistent.