From the WSJ Opinion Archives

by JAMES TARANTO
Monday, June 25, 2007 3:19 P.M. EDT

First Amendment Rehab
"Congress shall make no law . . . abridging the freedom of speech," commands the First Amendment of the U.S. Constitution. Over the years the Supreme Court has expanded the meaning of this clause. Under a doctrine known as "incorporation," the court's case law protects speech from encroachment not only from laws passed by Congress but from state and local laws and administrative actions.

At the same time, the court has adopted a capacious definition of speech, which goes far beyond what lawyers call "core political speech." This has all generally occurred under the rubric of "liberal judicial activism." But there is one circumstance in which justices who operate under that rubric are inclined to defer to government: when Congress actually does pass a law abridging core political speech. Justice Antonin Scalia summed up the point in the 2003 case of McConnell v. Federal Election Commission:

Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.

So it's encouraging to see a pair of cases the court decided today, in which it moved toward an approach true to the actual meaning of the First Amendment. In FEC v. Wisconsin Right to Life, reports the Associated Press, the court "loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision" of the McCain-Feingold law restricting campaign speech:

The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group's First Amendment rights, the court said.

Chief Justice John Roberts wrote the ruling, which the court's newest member, Justice Samuel Alito, joined. Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas agreed that the provision was unconstitutional but wanted to go further and overturn McConnell v. FEC, in which they had dissented.

Chief Justice Roberts wrote the opinion for the same majority in Morse v. Frederick. This is the famous "Bong Hits 4 Jesus" case, described by the AP:

Joseph Frederick unfurled his homemade sign on a winter morning in as [sic] the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

"The message on Frederick's banner is cryptic," Roberts said. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."

Morse suspended the student, prompting a federal civil rights lawsuit.

In dissent, Justice John Paul Stevens (joined by David Souter and Ruth Bader Ginsburg) declared:

I agree with the Court that the principal should not beheld liable for pulling down Frederick's banner. . . . I would hold, however, that the school's interest in protecting its students from exposure to speech "reasonably regarded as promoting illegal drug use," . . . cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.

But when it comes to regulating core political speech, in the view of Stevens and his fellow dissenters (along with Stephen Breyer), the First Amendment doesn't demand so much. This is Souter speaking for the quartet in his Wisconsin Right to Life dissent:

Campaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or union treasuries, with no redolence of "grassroots" about them. Neither Congress's decisions nor our own have understood the corrupting influence of money in politics as being limited to outright bribery or discrete quid pro quo; campaign finance reform has instead consistently focused on the more pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions.

In other words, Congress has to restrict political speech because it's so important. Funny, but we thought that the exact reason the Founding Fathers said Congress couldn't restrict it.

Atheism's Moment
The Associated Press reports on Hein v. Freedom From Religion Foundation, yet another of today's Supreme Court rulings:

The Supreme Court has ruled that ordinary taxpayers can't challenge a White House initiative that helps religious charities get a share of federal money.

The 5-to-4 decision blocks a lawsuit by a group of atheists and agnostics against eight Bush administration officials, including the head of the White House Office of Faith-Based and Community Initiatives.

"This is atheism's moment," publishing executive David Steinberger told The Wall Street Journal last week. He's not kidding. There was a time, not so long ago, when atheists were considered deviants. Now they're just ordinary taxpayers.

Eat Your Heart Out, Unabomber!
Last week Ahmed Yousef, a "political adviser" from the Hamas terror group, managed to get op-ed pieces published in both the New York Times and the Washington Post on the same day. The articles aren't identical, so Yousef probably figured they don't run afoul of the papers' requirement for exclusivity. But a word to the wise: Don't try this with The Wall Street Journal, or you'll make an enemy of Rob Pollock.

Anyway, some Times readers disapproved of the paper's decision to give a platform to a genocidal terrorist--imagine that--and yesterday the paper's "public editor," Clark Hoyt, defended the decision:

The point of the op-ed page is advocacy. And, [editorial page editor Andrew] Rosenthal said, "we do not feel the obligation to provide the kind of balance you find in news coverage, because it is opinion."

David Shipley, one of Rosenthal's deputies and the man in charge of the op-ed page, said: "The news of the Hamas takeover of Gaza was one of the most important stories of the week. . . . This was our opportunity to hear what Hamas had to say."

I agree that Yousef's piece should have run, even though his version of reality is at odds with the one I understand from news coverage. He wrote blandly, for example, about creating "an atmosphere of calm in which we resolve our differences" with Israel without mentioning that Hamas is officially dedicated to raising "the banner of Allah over every inch of Palestine," which would mean no more Israel.

Op-ed pages should be open especially to controversial ideas, because that's the way a free society decides what's right and what's wrong for itself. Good ideas prosper in the sunshine of healthy debate, and the bad ones wither. Left hidden out of sight and unchallenged, the bad ones can grow like poisonous mushrooms.

That last paragraph is so over the top with sanctimonious clichés that we're still holding out hope Hoyt doesn't take his job seriously. But here's a question for Rosenthal and Shipley: Would they run an op-ed piece by Osama bin Laden after a terror attack on America?

Actually, we're not sure we want to know the answer to that one. Here's an example closer to home that we're pretty sure they'd answer in the negative: After one of David Duke's election victories, would they have published an op-ed by Duke in which he attempted (you'll pardon the expression) to whitewash his own record of hatred?

Yousef's statement was newsworthy, and we don't fault the Times for publishing it. But it didn't belong on the op-ed page. It should have appeared on the news pages along with an article reporting on it and putting it in context, enumerating the ways in which "his version of reality" is different from the real version.

Life Imitates the Onion

  • "In an emotionally charged press conference Monday, crazed Palestinian gunman Faisal al Hamad expressed frustration over the stereotyping of his people. 'As a crazed Palestinian gunman, I feel hurt by the negative portrayal of my people in the media,' said al Hamad, 31, a Hebron-area terrorist maniac. 'None of us should have to live with stereotyping and ignorance.' "--Onion, March 5, 1997

  • "A full house has turned out at the Directors Guild of America for the L.A. premiere of the new documentary 'Reel Bad Arabs,' which makes the case that Hollywood is obsessed with 'the three Bs'--belly dancers, billionaire sheiks and bombers--in a largely unchallenged vilification of Middle Easterners here and abroad. 'In every movie they make, every time an Arab utters the word Allah? Something blows up,' says Eyad Zahra, a young filmmaker who organized the screening this week with the support of the American-Arab Anti-Discrimination Committee."--Washington Post, June 23, 2007

The Shmethicist
The Spokane (Wash.) Spokesman-Review has decided to discontinue Randy Cohen's "Ethicist" column from the New York Times. The decision is the result of MSNBC's report, which we noted Thursday, that Cohen had donated hundreds of dollars to MoveOn.org despite his employer's prohibition on such contributions.

In the comments section of the SSR's blog, features editor Ken Paulman imagines Cohen offering ethical advice to himself:

Q: My employer has a clear policy against campaign contributions. I think I should be exempt from this policy and allowed to make donations, because I don't see any difference between this and other forms of civic involvement. What should I do?

A: By all means, ignore the policy, quietly make your contribution, and hope that no one finds out. If you get caught, agree to abide by the policy in the future, but don't acknowledge any wrongdoing--you'll be able to rationalize it after the fact.

Meanwhile, one of our readers read Cohen's actual column in yesterday's Times, and it's a hoot too. "K.V." from Brooklyn asks if she should fire her (literally) psychotic nanny, a Haitian national who is in America illegally, "to protect my children." Cohen urges her not to fire the nanny, downplaying the risks to the children and adding:

You are restrained not only by ethics but also by the spirit of the Americans with Disabilities Act. An attorney I consulted says that if you ran a larger business, "to fire her would be illegal." Were she to stop taking her medication or otherwise display dangerous behavior, a business could dismiss her. Fortunately, as a stay-at-home mother, you can see if her condition deteriorates before anyone is imperiled.

Her immigration status already restricts her other employment prospects, and her limited options, as you imply, impose an additional ethical burden on you. If she can do the job, she should be allowed to keep it.

You've got to love this. Cohen starts by making an appeal to authority--or, more accurately, to a penumbra of authority, namely "the spirit of the Americans with Disabliities Act." K.V., he avers, has an ethical obligation to comply with the requirements the ADA would impose on her if she were a mighty corporation rather than a harried mom.

But when it comes to immigration, K.V. has an ethical obligation to defy the law by knowingly employing someone who has no legal right to be here!

Now, the requirements of ethics or morality are not always the same as those of the law, and one could make a case that the ADA is an unjust law in that it allows someone in K.V.'s situation to do the wrong thing, or that immigration law is unjust in that it requires her to do so.

But Cohen makes no such argument. He simply assumes a correspondence between the demands of ethics and his own political prejudices. That's why Paulman's parody hits its mark.

Fund Goes Back to Drawing Board

It Was a Long Week, but at Least It's Over
"They suffered decades of violence from a Maoist guerrilla insurgency by touring there on Friday with a bag emblazoned with one of Mao Zedong's favourite political slogans."--Press Association (Britain), June 23

'Take Me to Your Leader'
"Two Top California Republicans Are Aliens"--headline, New York Sun, June 25

Cover Your Phallus or You Won't Get to Dallas
"Lawmaker Urges Condoms for Border Control"--headline, Reuters, June 22

Jews for Jesus
"Gay Rabbi Complains Bloomberg Skipped Church"--headline, New York Sun, June 25

'They Were Black and White--Oh, and They Were Really Big'
"Scientists Describe Giant Penguins"--headline, Associated Press, June 25

News You Can Use

  • "Bottled Water Available at Landfill"--headline, Idaho Statesman (Boise), June 24

  • "Sporran Wearers May Need License"--headline, BBC Web site, June 24

Bottom Stories of the Day

* Toronto Transit Commission.

Turn On, Sue In, Drop Out
Joseph Frederick, the unsuccessful plaintiff in the "Bong Hits 4 Jesus" case, has been out of high school for five years, and things haven't worked out so well for him, the Associated Press reports:

Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.

Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.

Pardon our curmudgeonliness, but what's the matter with kids today? The AP reports on a Frederick contemporary who had a similar brush with the law when he was stopped at a Border Patrol checkpoint near Alamogordo, N.M.:

Charles Barnes, 24, had 67 marijuana plants in the trunk of his car when he was pulled over on U.S. 70 [recently], police said.

"Dude, I totally thought weed was legalized in New Mexico," Barnes told police.

Dude, be cool. You can totally appeal to the high court!

(Carol Muller helps compile Best of the Web Today. Thanks to Evan Slatis, Mark Murray, Steve Prestegard, Matt Murphy, Lewis Sckolnick, Taylor Dinerman, Mark Van Der Molen, David Gerstman, Neal Sanders, Tom Massey, Patrick Swan, Roger Heinig, Kathleen Sullivan, Andrew Klavan, Thomas Mobley, Steve Bartin, C.S. Goldstein, Gary Petersen, Bryan Fischer, Alan Jones, Dagny Billings, Marc Young, Steve Karass, Peter Iorio, Raymond Hull, Jim Orheim and Paul Wood. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)

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