ACSBlog: The Blog of the American Constitution Society

Ed’s Note: This is the fourth part of ACSBlog’s series on the Supreme Court cases awaiting decision this Term.  Previous installments of this series are available here, here and here. 

Campaign Finance

In McConnell v. FEC (2003), a 5-4 Supreme Court upheld the virtually all provisions of the Bipartisan Campaign Reform Act (BCRA) against claims that the law violates the First Amendment.  Justice O’Connor cast the deciding vote in that case, and her departure leaves the staying power of McConnell uncertain less than four years after it was decided.  This term, the Roberts Court’s decisions in FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life could strip Congress of much of its power to regulate campaign finance. 

The narrow issue in WRtL relates to a provision of BCRA directed towards “sham issue ads,” which purport to advocate a position on a particular issue (“call Senator X, and tell her to . . .”) but which has the alleged effect of enticing voters to vote for or against a candidate for federal office.  In order to prevent such ads, BCRA includes a prophylactic measure which prohibits corporations and unions from running any ad mentioning a candidate’s name within 30 days of a primary or 60 days of a general election.

A potential broader issue is whether longstanding limits on corporations influencing elections will continue to stand.  In Austin v. Michigan Chamber of Commerce, the Court held that because of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas,” corporations may be categorically barred from contributing to political campaigns.  Justice Kennedy dissented in Austin, and he reiterated this view in McConnell, in which his dissent characterized Austin as “an indefensible departure from our tradition of free and robust debate.”  If the Court’s newest Justices share Justice Kennedy’s view, corporations could soon find themselves with new power to influence federal elections. 

Bong Hits 4 Democracy

In Tinker v. Des Moines School District, the Supreme Court held that public school students are protected by the First Amendment, except when their speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”  This term, in Morse v. Frederick, the Court revisits the issue of the First Amendment in public schools. 

Joseph Frederick was a high school student who was dismissed from classes to watch the Olympic Torch relay pass by the school.  While standing across from the school, Frederick unveiled a 14-foot banner reading “Bong Hits 4 Jesus.”  The principal tore down the banner and suspended Frederick, prompting his suit.

Strange bedfellows have lined up to support Frederick.  Frederick is himself represented by the ACLU, which fears that a ruling against its client will allow “school officials to censor speech solely because that speech disagrees with the school’s own, preferred message.”  Joining the ACLU as amici are Lambda Legal, a prominent LGBT rights group, as well as several conservative religious groups—with a history of anti-gay litigation.  Lambda fears that a decision against Frederick could allow anti-gay school administrators to discriminate against openly gay students, while the religious groups want to defend the right of students to engage in religious, or even anti-gay speech. 

As Professor Marty Lederman notes, this unusual lineup in the amicus briefs may have influenced at least one conservative Justice to side with Frederick.  At oral arguments, Justice Alito told advocates for the school district that he found many of their arguments “very disturbing,” because they could allow districts to “suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that's inconsistent with educational missions.”

Nevertheless, even if Justice Alito is unwilling to allow schools complete discretion to censor student speech, it is possible that he and his fellow conservatives will be moved to rule against Frederick while still preserving the interests of religious conservatives.  This was a position suggested by Liberty Counsel, a law firm associated with the late Jerry Falwell, who wrote in their amicus brief that the Court could rule against Frederick while still preserving the interests of the religious conservatives by “carv[ing] out an explicit exception [to the First Amendment] for advocacy of the use of illegal drugs” in public schools, and also allowing schools to punish “sexually explicit speech.”