How Far Will the Court Go to Restrict Certain Types of Speech?

At the same time the Supreme Court is expanding corporate and union influence over elections via the regulation of issue ads (Federal Election Commission v. Wisconsin Right to Life, 06-969), they also weakened free speech with their ruling in the "Bong Hits for Jesus (BHFJ)" case (Morse v. Frederick, 06-278).

The BHFJ ruling is even more chilling since the speech was not school sponsored and not on school property. Even if it was on school property, a past case ruling clearly protects the free speech of students unless it interferes with the rights of others. Tinker et al. v. Des Moines, 1969:

"A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments."

If anyone thinks the phrase, "Bong Hits for Jesus" is going to drive students to smoke pot (for Jesus) or substantially interfere with school discipline, then they must be living in a cultural vacuum. I've seen students hold up signs at campus gay rights rallies that say, "Kill Fags Dead?" Isn't that promoting something illegal, too? Do all signs that refer to any illegal act need to be censored now? This case underscores how treacherous the subjective application of free speech can be.

Chief Justice John Roberts should universally apply his own judgement when he wrote for the majority in the political ads regulation case, "Where the First Amendment is implicated, the tie goes to the speaker, not the censor"? But, free speech is obviously not an equal opportunity.

Justice John Paul Stevens' says in his BHFJ dissent:

"In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the court does serious violence to the First Amendment in upholding -- indeed, lauding -- a school's decision to punish Frederick for expressing a view with which it disagreed."

Amen!

This was a Robert's led morality play, pure and simple. The Supreme Court has always decided the content of free speech and who enjoys free speech protection. Now we are seeing the direction an activist conservative court will take us. Controlling interests keep receiving larger, more far reaching pulpits and those without are being censored.

Justice David Souter's dissent in the decision to allow corporations greater election advertising freedoms underscores this dangerous trend:

"The indispensability of these huge sums has two significant consequences for American government that are particularly on point here. The enormous demands, first, assign power to deep pockets. ... At a critical level, contributions that underwrite elections are leverage for enormous political influence. Voters know this. Hence, the second important consequence of the demand for big money to finance publicity: pervasive public cynicism....

After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear."

These are the types of edicts that slowly whittle away the foundation of our democracy by limiting the general population's participation in the expressive political sphere. Students are being denied their free speech rights, while powerful corporate and special interests are being handed ever more influence in the public sphere. Democracy needs to be continually nurtured, otherwise it will be lost in small increments when no one is really paying attention. Like many Supreme Court rulings, these judgements have far reaching consequences:

"I don't think (Chief) Justice Roberts is naive," Richard L. Hasen, a professor at Loyola Law School Los Angeles, said. "He knows full well that the test that the court has articulated today will lead to a great deal of corporation- and union- funded election advertising." And, "Fundamentally what this case does is destabilize the state of campaign finance law as it existed when Justice (Sandra Day) O'Connor was on the court," said Nathaniel Persily, professor of law and political science at Columbia Law School. [source: Forbes]

Yes, there have always been limits to free speech but the specific application of free speech -- who gets to enjoy it and what content is allowed -- shapes our culture and politics in unseen and persuasive ways. Is it more dangerous to our society for a student to say the word "bong" or for corporations to influence elections with unfettered commercial content?

As a free speech public artist, I find both rulings unjust for our body politic. How far will the court go in the future to restrict certain types of speech while opening up more avenues of influence for controlling powers?