Thursday, 28 June 2007

Student free speech and church-state separation shot down by SCOTUS?

Arguably, two basic tenants of American government were arguably shot down Monday the 25th by the Supreme Court.

The first was student free speech in the case of Morse v. Fredrick (read case summary and court decision (PDF)), better known as the case involving a banner reading "Bong Hits 4 Jesus".

The ruling in the second case hinders 'ordinary taxpayers' from suing the Bush administration over its federal grants to religious groups. That case can be tied to the separation of church and state. In his attempts to court the tens of millions of politically-active evangelicals, aka the religious right, George W. Bush has created many faith-based initiatives that include doling out millions to religious groups in return for services. This is both ethically and constitutionally questionable.

Both of the aforementioned cases deal with ideals — free speech and the separation of church and state — supported by the US Constitution.

Morse v. Fredrick saw a rare alliance between liberal civil liberties groups and conservative Christian organizations in the first student free speech case the Supreme Court has heard in years. Why was the religious right joining hands with the ACLU left? Because it is worried that similar restrictions on student free speech may reach into the realm of religious expression in schools. The court ruled in favor of the school district, which was being sued by a former student who claimed his free speech was trampled upon when he held up a banner with a suggestive drug message at a school sanctioned event and the principal made him take it down and suspended him. The banner was shown when the Olympic torch relay passed through Alaska, where the case originated, in 2002. The teenager was not officially at school that day nor was he on school grounds, which made this case especially legally sticky.

Liberal Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented on the free-speech issue and said the majority seriously harmed the First Amendment by allowing Frederick's punishment for expressing a view the school disagreed with.

"No one seriously maintains that drug advocacy (much less Frederick's ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences," Stevens said.

"Although this case began with a silly nonsensical banner, it ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs," he wrote.

Justice Stephen Breyer said he would have decided the case without reaching the free-speech issue by ruling the principal cannot be held liable for damages.

Breyer's opinion probably makes the most sense. Although the court ruled in 1969 that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate", which dealt with protests to the Vietnam war, it also ruled in 1986 that sexually suggestive and obscene speech at an assembly are not covered by the constitution's free speech rights. Also in 1988 the Supreme Court upheld the censoring of school newspapers.

For some legal debate on the ruling, see here.

Other recent cases in which the majority-conservative Supreme Court — often reaching narrow 5-4 decisions — showed its rightward tilt was another (poor) decision on free speech like the restrictions on some political advertising created in the 2002 McCain-Feingold act (although that one can be justified by a judicially conservative look at the constitution and arguably acted in favor of the First Amendment, even though the amendment has its own restrictions...). The right of free speech is waived if one waves a drug suggestive banner during a school-sanctioned event, but not if the corruption of the American politik with money and the filthy smears brought about by many political ads is at hand. The United States needs all the campaign reform it can get.

Today the Roberts court also ruled against affirmative action in some US public high schools. (More on the issue of positive discrimination soon.)

Chief Justice John Roberts, the protege of former conservative Chief Justice Rehnquist, was nominated to America's highest court in 2005.

Scalia is the most right-leaning of the group, supposedly representing the side against liberal 'judicial activism' (former Chief Justice Earl Warren ushered in the civil rights era in the mid-20th century with his progressive 'activism' — when no other branch followed the basic tenants of human rights and the rules inscribed in the constitution, he made sure the Supreme Court did), but in reality picking and choosing parts of the constitution and ignoring the leniency the Founding Fathers intended to give the Supreme Court in its interpretation of the US Constitution as long as they did not rule against what is stated in the constitution itself. Is America really better off with a constitution when it can be ignored by the White House and twisted and misinterpreted by the judiciary?

Thomas agrees with Scalia almost always — together they form a Supreme Court conservative superteam known as Thomas and Scalia! Seriously, often they are grouped together, with Thomas following Scalia.

Stevens and Ginsberg are the most liberal of the bunch.

SCOTUS justices' rough political leanings (more ideologically extreme come before more moderate, e.g. Scalia is more right-leaning than Kennedy)
  • Conservative

  • Liberal

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