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Experts Analyze Supreme Court Free Speech Rulings

June 25, 2007 at 12:00 AM EDT
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JUDY WOODRUFF: What signals does the court send with today’s decisions? For that, we turn to: Walter Dellinger, former acting solicitor general under President Clinton, and now a law professor at Duke University; and Richard Garnett, associate professor at Notre Dame Law School, where he teaches on First Amendment issues.

Richard Garnett, to you, first, three decisions, three split decisions, 5-4. Is there a common thread here as it relates to the First Amendment? Are we learning something about this court and the First Amendment today?

RICHARD GARNETT, Notre Dame Law School: You know, one thread that seems to hold these cases together is that, in all three, you had an older decision that the courts have had the option of either rejecting or reversing entirely or trying to live with. And in several of the cases, you saw some of the justices on the conservative side saying, “Look, we should take this farther. The cases you’re asking us to work with, they were wrongly decided. Let’s scratch them and move on.”

But in all of these cases, the court decided not to do that. And instead you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases. So you might say that these three cases are consistent with a theme that some people have seen in the new chief justice’s thinking and writing, namely, incrementalism.

JUDY WOODRUFF: Is that what you’re seeing, Walter Dellinger, incrementalism?

WALTER DELLINGER, Former Acting Solicitor General: Well, we saw a little bit of incrementalism today, Judy, but I think, when you look at the term as the whole, you’re going to see that the court, while not saying that it’s overruling cases, is effectively overruling cases and doing so on the basis of, in some cases, the absence of Justice O’Connor.

I think the abortion cases from earlier in the term and, perhaps, in the school race cases that are probably coming down on Thursday, you’re going to see a court that, whether it says it’s overruling earlier cases, is doing so in fact.

Narrow definitions of the law

Walter Dellinger
Duke University School of Law
In the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use.

JUDY WOODRUFF: Well, we hear Professor Garnett saying, though, they're doing this along pretty narrow definitions of the law.

WALTER DELLINGER: Well, that was true at least in one of the cases today, the school case. One of the things we learned about the First Amendment today was that the court -- it's a little more differential to free speech rights of corporations than it is to public school students in one important respect.

The chief justice said in the campaign finance case that, if you're trying to decide whether corporate speech is permissible issue advocacy or whether it is -- the impermissible can be banned advocacy for the election of a candidate, he says the court should give the benefit of the doubt to speech, not to censorship.

And yet in the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use. But what does the phrase "Bong Hits 4 Jesus" mean? Nobody knows. The kid may have just wanted to get on television.

But in that case, the court went the other way and assumed that this was an advocacy of illegal drug use. I don't think that an earlier court in Tinker would have thought this unprotected speech by the student.

JUDY WOODRUFF: Do you see that -- go ahead.

RICHARD GARNETT: Just briefly on what Walter said, I think he makes an important point about how today's student speech case actually was careful to be protective of core political and religious student expression. I mean, you didn't see a court here going as far as the government had asked and as far as some people asked, saying school administrators can regulate speech whenever it's important to curb offensive speech or to promote the educational mission of the schools.

As Walter says, the case is careful to make sure that core First Amendment activities remain protected. And I think that's consistent with the campaign finance case. I mean, one reason why the chief justice can say that, when in doubt, go against censorship is, after all, in the campaign finance case, we are dealing with what by any measure has to be the core of First Amendment activity, election speech around election time.

Upholding corporate interests

Richard Garnett
Notre Dame Law School
It is true that, in a number of sort of hot button cases from this term, it appears that the conservative side, for lack of a better word, is winning.

JUDY WOODRUFF: And what about Walter Dellinger's other point that the court upholding corporate interests, in effect, today?

RICHARD GARNETT: In my view -- and reasonable people disagree on this -- my view is that it's a mistake to draw a really sharp line between speech by corporations and groups and associations on the one hand and speech by individuals on the other. I mean, if we take seriously the marketplace of ideas, and if we take seriously the role that groups play in that marketplace, I don't see any reason to devalue the speech of a group like Wisconsin Right to Life.

WALTER DELLINGER: Let me add that I agree with Rick on that. It's important to note that the corporations whose speech is protected by today's decision include not just big companies, but the Wisconsin Right to Life, the American Civil Liberties Union, the Sierra Club...

JUDY WOODRUFF: Labor unions.

WALTER DELLINGER: ... labor unions, but nonprofit groups, as well, have their speech protected. And, surely, it's a sobering thought that the chief justice said in his oral presentation, "Remember, we're talking about Congress making it a crime for groups to criticize elected officials," and that does have to go right near the core of the First Amendment.

JUDY WOODRUFF: Richard Garnett, though, to get back to your original point, it sounds like maybe we're stretching it a bit to try to say that we see some new philosophy emerging from this court when it comes to the First Amendment.

RICHARD GARNETT: Well, it is a cliche to say, "Time will tell," but I guess I'll say it anyway. Walter is right that, in the abortion case, the partial-birth abortion case from a few weeks ago, I think it's pretty clear that the change in personnel yielded a change in outcome. And it is true that, in a number of sort of hot button cases from this term, it appears that the conservative side, for lack of a better word, is winning.

But, of course, we could go through the court's cases this term and come up with somewhere the result was different. And it might well be that next term there's a different menu of cases that yield sort of different rulings.

I wouldn't want to fight the idea that there has been a shift. I don't see anything like a seismic shift. It seems to me, to use the word I used before, that we're seeing incremental steps. We're seeing a reluctance to extend dramatically some of the precedence from the Warren and Burger court areas.

First amendment and faith

Walter Dellinger
Duke University School of Law
In some sense, the First Amendment side won in the campaign finance case. It then lost in the application of the school case, so I think we come out even.

JUDY WOODRUFF: And specifically with regard to the First Amendment...

RICHARD GARNETT: That's right.

JUDY WOODRUFF: ... what are you seeing here?

WALTER DELLINGER: Well, I mean, in some sense, the First Amendment side won in the campaign finance case. It then lost in the application of the school case, so I think we come out even. I think in the other case that Marcia mentioned, its importance is easily understated, the decision that the group...

JUDY WOODRUFF: The faith-based...

WALTER DELLINGER: Yes, that the group cannot get into federal court to challenge the faith-based initiative. I think that's an important decision and, in my view, correct, because it really transforms the role of courts in a very aggrandizing way to say that courts can decide controversial issues even where there's not a lawsuit to be resolved.

JUDY WOODRUFF: This was the case of atheists and agnostics...

WALTER DELLINGER: That's right. And they brought the suit as taxpayers, but everybody agreed that their tax bill would not change one dollar or one penny by the outcome. And, indeed, it seems to me not necessarily a conservative doctrine to say that courts ought to resolve -- ought to get the job of resolving actual cases, but that the court doesn't have any special warrant to proclaim what the Constitution means for everybody else and would therefore have to make up a lawsuit where no lawsuit actually existed.

Limitations of the Supreme Court

Richard Garnett
Notre Dame Law School
In our Constitution, though, it's a bedrock requirement that the Supreme Court, the federal courts, generally have limited powers, and those powers extend only to deciding real cases, where people actually got something to fight about.

JUDY WOODRUFF: Professor Garnett, you have a thought on that one?

RICHARD GARNETT: Yes, Walter and I agree about the merits of this case. And just to add, in some other countries, their courts are expressly given the power to render advisory opinions. They're given the power to decide outside the context of a particular case whether a law accords with the Constitution.

In our Constitution, though, it's a bedrock requirement that the Supreme Court, the federal courts, generally have limited powers, and those powers extend only to deciding real cases, where people actually got something to fight about, when something's at stake. So today's ruling doesn't mean that the administration has sort of a blank check to run around establishing churches, but what it does mean is that these very important constitutional questions need to be decided in the context of a case where the litigants are fighting over an actual injury to one of the parties.

JUDY WOODRUFF: Any thoughts, Walter Dellinger, down the road, what we should look for from this court when it comes to First Amendment cases in particular?

WALTER DELLINGER: Well, I think this court is going to continue to be a fairly strong First Amendment court, but what we really see in the court is a gap that is widening between the five and the four. The answer to Sandra O'Connor, who had a lot of practical experience as a state legislature, a state senator, knew a lot about life and came up with some often pragmatic, bridging ways of dealing with issues, that's gone, and we see a really solid and growing doctrinal gap between the five and the four. It is somewhat unsettling.

JUDY WOODRUFF: We're going to have more to talk about when this court ends its term in just a few days. We can ask that question, among others. Walter Dellinger, Richard Garnett, thank you both.

RICHARD GARNETT: Thank you.