04/12/2012 07:41 pm ET Updated Jun 12, 2012

The Supreme Court's 4-1 Split

Plenty of attention has been paid recently to splits on the Supreme Court: Who will divide with whom on the Affordable Care Act? Will the existence of a 5-4 split between Democrats and Republicans on the Court mean a permanent judicial assault on the New Deal? And so on.

But the Court's most serious split seems to have escaped comment. This is a split in the bowling sense, when someone takes down two pins that are far apart by having Pin #1 ricochet off Pin #2.

In deciding that a strip search without suspicion of contraband passes muster under the 4th Amendment, the Supreme Court managed to knock out the 1st Amendment at the very same time. At a time when local governments are already over-regulating speech and assembly (just ask me, I'm from Chicago), the Court's decision poses a very real threat to widespread citizen participation in protest.

Many of us have been willing to go into the streets to protest things: the war in Afghanistan, income inequality, even -- especially -- the very fact of trying to criminalize protest. And many of those (in a proud line of descent from Henry David Thoreau) have been willing to be jailed for civil disobedience, if protest requires that.

But how many of us will be willing to go to jail and risk being strip-searched? Just the thought of that violation of my privacy has me wondering whether it's worthwhile to raise my voice. The Supreme Court has just eradicated all the First Amendment jurisprudence protecting protesters from the "chilling effect" of excess regulation -- and without so much as reading briefs or hearing arguments on the subject. A neat trick, that.

It's hard to admire the skill of the bowler, though, when you're one of the ones being knocked down.