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Supreme Court Rules on Three Free Speech Cases

June 25, 2007 at 12:00 AM EDT

GWEN IFILL: Three of today’s court decisions involve First Amendment issues, and each was decided 5-4. In one case, the court ruled that Wisconsin Right to Life, an anti-abortion group, should have been allowed to broadcast a campaign ad during the final two months before the 2004 elections. The ad asked viewers to urge Wisconsin’s two senators not to filibuster President Bush’s judicial nominees.

Local broadcasters said the message violated campaign finance laws because of its timing, because it mentioned candidates by name, and because corporations and unions paid for it. But today, the high court ruled these issue ads are legal.

As always, NewsHour regular Marcia Coyle of the National Law Journal was in the court. She walks us now through what turned out to be a very eventful day.

MARCIA COYLE, National Law Journal: Busy day.

GWEN IFILL: Was this first case a big blow to McCain-Feingold, the campaign finance law?

MARCIA COYLE: I think most experts who are sifting through the decisions now feel that it marks or signals a huge change in how the court views these types of regulations by Congress.

GWEN IFILL: Tell me how.

MARCIA COYLE: Well, what the court did here was it took a look at a provision of the 2002 McCain-Feingold act, a provision that Congress used to try to close a loophole, a big loophole used by corporations, nonprofit and for profit, as well as unions, to get around the ban on direct contributions to candidates. These corporations and unions would funnel thousands of dollars into so-called issue ads.

Some issue ads are genuine, Congress felt. They just deal with a controversy. Other issue ads are sham issue ads, and that’s what Congress was trying to get at. They really were intended to advocate for the election or defeat of a specific candidate; they didn’t use the magic words, but they did allow groups to get around the ban on direct contributions.

The court had upheld what Congress said in 2002 a year later, and it sounded — the provision was constitutional. But it later said that there may be some cases where the ban on advertising before a primary and before a general election could hit a genuine issue ad and there would be a First Amendment problem applied to that specific ad. Wisconsin Right to Life brought that case, saying this provision is unconstitutional as applied to our ads.

Timing and content of campaign ads

GWEN IFILL: And as applied by who was paying for the ad and as applied to the timing of the ad?

MARCIA COYLE: The timing, as well as the content of the ad. The chief justice, who wrote today's opinion, said it's very difficult to draw a line between a genuine issue ad and a sham issue ad. But this is political speech, which is at the core of the First Amendment, and we're going to err on the side of speech, not censorship.

What the majority did hear was to come up with a new test for what is genuine and what is sham. The chief justice said Congress can't regulate these ads unless the government can prove there is no reasonable interpretation of the ad other than that it advocates the election or defeat of a candidate.

GWEN IFILL: And Justice Souter was the one who wrote the dissent, and he mentioned a 2003 decision.

MARCIA COYLE: He said that really nothing had changed since the court had upheld the constitutionality of this provision. He also said that, even though the majority said it wasn't overruling that 2003 decision, the practical effect of the new test was to overrule it. And it now would allow corporations and unions to once again fund the same kind of ad from their general treasuries that Congress had sought to ban in the 2002 law.

GWEN IFILL: Each of these cases we're going to be talking about tonight, the same five, the same four in each case.

MARCIA COYLE: And something else, Gwen, just to note. Three justices in the majority, Kennedy, Alito -- I'm sorry, Kennedy, Scalia and Thomas said they would have gone farther. They would have struck down the provision outright.

GWEN IFILL: The whole campaign finance law?

MARCIA COYLE: Not the whole act, but that provision they would have just come right out and said -- and, yes, they would go farther.

Alaska high school student

GWEN IFILL: OK, well, let's move to the second case, because that was decided by the court today. And it involved an Alaskan high school student named Joseph Frederick. Frederick unveiled a 14-foot-long banner reading "Bong Hits 4 Jesus" across the street from his high school during an Olympic torch relay five years ago. The school's principal suspended Frederick, and Frederick sued.

The court, again 5-4, ruled against Frederick today. Chief Justice John Roberts wrote that the banner could be "interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one." Student speech versus general First Amendment rights, that's what we saw this boil down to, Marcia.

MARCIA COYLE: Absolutely. Chief Justice Roberts said in his opinion -- and he quoted from prior student speech opinions a very famous line -- "Students don't shed their constitutional rights at the schoolhouse gate." But, he said, the special circumstances of the school environment and the government's interest in stopping student drug abuse allows schools to restrict student expression that reasonably appears to advocate drug use.

GWEN IFILL: So this was more about drug use than it was about free speech, in some ways?

MARCIA COYLE: Well, it's both, but it was narrower than it might have been. The majority -- the court rejected a broader argument that the schools had made that they should be allowed to restrict any student expression that interferes with the school's educational program.

In this case, Justices Alito and Kennedy, who agreed with the majority, wrote separately to emphasize the understanding that this applied to student expression that advocates drug use and that's at the far reaches of what the First Amendment permits.

GWEN IFILL: So if a student were to wear a T-shirt to school that said something that was offensive or illegal in some other way, like for underage drinking, that necessarily wouldn't apply in this case?

MARCIA COYLE: Well, that's a good question. There are those who felt that the decision may be used by some schools to argue that policies against drinking, policies against drinking and driving that many schools promote and that government promotes, as it does with stopping drug abuse, is very similar, and it may be that they will try to argue that that expression should be limited, as well.

GWEN IFILL: Well, what about religious expression, something which is condoned by the society at large, but might not be by a subset of students or administrators?

MARCIA COYLE: I think that would be going a little too far. I think that -- I think the justices in the majority were very clear that they were talking particularly here about drug abuse. There was a dissent...

GWEN IFILL: Yeah, I was going to ask you about -- Justice Stevens wrote the dissent.

MARCIA COYLE: Yes, he did, and he felt that this banner was a nonsense banner and that the First Amendment requires a much higher justification for restricting student speech than was evident here. He said, no one's rights were intruded upon. No educational program was really interfered with. He said, admittedly, some students, including those who use drugs, are dumb. But, he said, students don't shed their brains at the schoolhouse gate, and they know dumb advocacy when they see it.

So he felt a higher standard was needed, and he also said that contrary views are important. And he spoke of past student protests involving the Vietnam War and even earlier debates about the use of alcohol. And he warned that the court may be shutting off those contrary views that someday may be a majority view.

Faith-based program challenges

GWEN IFILL: I don't think I've ever heard the court speak to "dumb advocacy" before. That's interesting.

Well, finally, there was a third case and one more split decision. The court ruled taxpayers do not have legal standing to challenge President Bush's faith-based programs that help religious charities. The decision throws out a lawsuit from a group of atheists who argued that their taxpayer money was being used to promote religion. So how did Freedom from Religion, how did the establishment clause, basically, get into this?

MARCIA COYLE: Well, Freedom from Religion, the foundation here, wanted to get into federal court to challenge the Bush administration's use of federal tax dollars and programs to advance its faith-based and community initiative program. They argued that this program favors religious organizations over nonreligious organizations in violation of the establishment clause. So this case was basically about getting in the courthouse door in order to prove that there had been a violation of the establishment clause.

GWEN IFILL: But that's not what the court was actually ruling on today?

MARCIA COYLE: No, it was ruling on the rules for getting into federal court. Generally, taxpayers don't have what we call "standing" to challenge government expenditures. Otherwise, the federal courts were probably be inundated with taxpayer suits.

But the court carved out an exception about 40 years ago for establishment clause challenges, because of the importance of separation of church and state under our Constitution. The question here was whether this particular suit fell into that exception and this foundation could go forward.

GWEN IFILL: Why didn't it, according to the court?

MARCIA COYLE: Justice Alito wrote the majority opinion here, and he said that that special exception that the court had announced applied only to expenditures and programs that had been specifically mandated by Congress. This program and expenditure was a general appropriation to the executive branch for its day-to-day activities. There was no specific act by Congress.

Ruling based on 'standing'

GWEN IFILL: So the atheists picked the wrong thing to challenge?

MARCIA COYLE: Well, no, they just -- they came into court in the wrong way. I mean, they probably thought they could get into court this way, obviously, but there are other ways to bring establishment clause challenges. The decision doesn't end all establishment clause challenges, but it does narrow the kinds of establishment clause challenges that can be brought in federal court.

GWEN IFILL: Justice Souter wrote the dissent. What did he say?

MARCIA COYLE: Yes, he did. He said he didn't see much difference between a specific, mandated appropriation by Congress and a general appropriation to the executive branch. It's taxpayer dollars. And the allegation here, he said, is taxpayer dollars are being used for religious purposes. He felt that was enough; they should be able to go forward and try to prove their case.

GWEN IFILL: I'm going to give you a task. Explain to we laypeople why something like standing really matters in a case like this?

MARCIA COYLE: If you don't have standing, you cannot get into federal court. Our federal courts determine cases and controversies. Our federal courts are what we call courts of limited jurisdiction. I can't say, "Well, you know, I don't really like this law. I'm going to go ask the Supreme Court if it's right or wrong, constitutional or not."

Standing is a requirement that makes you say, "OK, I've been injured by somebody or something. I have a specific injury, and there is a remedy for that injury. And if I don't have that, then I can't get into federal court." By the way, Gwen, so many of the cases this term have turned on the rules of getting into federal court.

GWEN IFILL: That's why I asked the question.

MARCIA COYLE: It's the ball game.

GWEN IFILL: It is the ball game. Marcia Coyle, thanks again, as always.

MARCIA COYLE: My pleasure.