Roberts, Alito & Kennedy: Swinging Supremely Right

Freedom of speech, religious liberty and school discipline were winners in three key opinions issued Monday by the U.S. Supreme Court.

In FEC v. Wisconsin Right to Life, the Court held that a section of the McCain/Feingold campaign finance law is unconstitutional as applied to “issue advocacy” ads. In Hein v. Freedom of Religion Foundation, the Court denied “ordinary taxpayer” standing to atheists and agnostics who challenged President Bush's Faith Based Initiative as unconstitutional.  In Morse v. Frederick, the Court held that a public school principal didn't violate the First Amendment when she restricted student speech that she viewed as promoting illegal drug use at a school event.

I. Federal Election Commission v. Wisconsin Right to Life: “Enough” already, as

Chief Justice John Roberts says about criminalizing political speech in the name of combating corruption.

The Court held that § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) is unconstitutional as applied to the “issue advocacy” ads that Wisconsin Right to Life (WRTL) had planned to air within 30 days of the 2004 Wisconsin primary election. Three justices would have gone further, striking down § 203 as unconstitutional.

The BCRA makes it a federal crime for a corporation to use its general treasury funds to pay for any “electioneering communication,” which BCRA defines as “any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate is running.”

The WRTL radio ads at issue had asked listeners to contact Senators Russ Feingold and Herb Kohl and urge them to oppose filibusters of federal judicial nominees to allow them to have a simple “yes” or “no” vote by the Senate. Senator Feingold was running for reelection in the Wisconsin primary.

The Court first found that its jurisdiction was not barred by mootness because the controversy was capable of repetition, yet evading review. On the merits, it concluded that the ads were genuine issue ads, not express advocacy or its “functional equivalent” under McConnell v. Federal Election Comm'n, and held that no compelling interest justified BCRA's regulation of such ads.

Chief Justice John Roberts wrote for the Court.

In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the “functional equivalent” of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases.

In McConnell, the Court upheld § 2003, against a First Amendment facial challenge even though the section encompassed not only campaign speech, or “express advocacy” promoting a candidate's election or defeat, but also “issue advocacy,” or speech about public issues more generally, that also mentions such a candidate.

Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas concurred in the Court's judgment but would have overruled that part of McConnell upholding §203(a).

Roberts and Justice Samuel Alito did not agree that the case presented an “occasion” to overrule McConnell.


Justice David Souter read his dissenting opinion from the bench, which was joined by Justices John Paul Stevens and Ruth Bader Ginsburg and Stephen Breyer.

Souter accused the majority of “effectively and unjustifiably” overturning a recent Court precedent. Souter complains that under “the Roberts' standard, an ad with the “magic words” urging the public to vote for or elect a specific candidate could be allowed if it also mentions an issue.

Justice Souter and company apparently found some “magic words” to support their whimsy despite the majority's plain words to the contrary.


II. Hein v. Freedom of Religion Foundation: “Fax a Kleenex to your favorite wall-building atheist”:


In this one, the Court barred “ordinary taxpayers” from challenging a White House initiative helping religious charities, such as Teen Challenge and Prison Fellowship, get a share of federal money to aid the poor.

President George W. Bush, by executive orders, created a White House office and several centers within federal agencies to ensure that faith-based community groups are eligible to compete for federal financial support. To that end, executive branch officials hold conferences to encourage religious charities to apply for federal grants.

The Freedom of Religion Foundation, a group of self-described atheists and agnostics, asserted taxpayer standing in order to bring a federal suit to challenge the program as a violation of the First Amendment's Establishment Clause. The only asserted basis for standing was that the individual respondents are federal taxpayers opposed to Executive Branch use of congressional appropriations for these conferences, despite the fact that “the expenditures at issue here were not made pursuant to any Act of Congress.”

Justice Alito wrote the Court's plurality decision in which Chief Justice Roberts and Justice Kennedy joined, finding that the group lacked standing under Flast v. Cohen:

Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. … Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.

In other words, it doesn't involve Congress and the taxing and spending clause, and there's no particularized injury to the respondents different from the public at large.

The plurality did acknowledge taxpayer standing to challenge the collection of a specific tax assessment as unconstitutional when a taxpayer is being forced to pay such a tax that causes a real and immediate economic injury to the individual taxpayer.

Justices Scalia and Thomas concurred in the judgment but would overrule Flast “as wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that are embodied in the standing doctrine.” Scalia expressed stinging disapproval: “But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.”

Justice Souter filed a dissenting opinion joined by Justices Stevens, Ginsburg and Breyer that would have granted standing. Souter faulted the controlling opinion for clos[ing] the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury.”

III. Morse v. Frederick: No “Bong hit” for student speech:

Joseph Frederick, a high school senior in Juneau, Alaska, with a little help from his friends, unfurled his homemade 14 ft. banner, “Bong Hits 4 Jesus,” as the Olympic torch made its way through Juneau in January 2002, en route to the Winter Olympics in Salt Lake City.

Frederick was standing on the sidewalk across the street from his school with other students attending what school officials said was a “school-sanctioned and school-sponsored event.” When Principal Morse saw the banner, she crossed the street, told the students to take down the banner, and when Frederick refused, she suspended him for 10 days. The district superintendent upheld the suspension on the grounds that the banner appeared to advocate illegal drug use in violation of school policy. The school board agreed.

Frederick filed suit in federal court alleging his First Amendment rights had been violated. He claimed that his speech was a nonsensical means of getting TV coverage and was not political or religious speech.

The district court ruled for the school, but the U.S. Court of Appeals for the Ninth Circuit reversed, finding a First Amendment violation because the school punished Frederick without demonstrating that his speech “materially and substantially disrupt the work and discipline of the school,” citing Tinker v. Des Moines.

Chief Justice Roberts wrote the 5-4 majority opinion, joined by Justices Scalia, Kennedy, Thomas and Alito, holding that a public school principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Roberts explained that Tinker alone is not dispositive of the issue:

Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The “special characteristics of the school environment,” Tinker, … and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.

Justice Thomas filed a separate concurring opinion stating he would overrule Tinker:

In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. …

Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” … or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.”

I join the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.

Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Stevens filed a dissenting opinion in which Justices Souter and Ginsburg joined.

Conservative groups filed briefs in support of Frederick urging the Court to avoid a broad ruling that would allow schools to infringe upon student religious expression, including speech that might oppose homosexual conduct or abortion.

Justice Alito wrote a concurring opinion to express that the Court's opinion provides no support for any restriction on speech that goes to political or social issues. “I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.” Justice Kennedy concurred.

The rulings may leave lovers of the Constitution breathless but not speechless and faithless.

Jan LaRue is a member of the Culture and Media Institute's Board of Advisors.