— by Joan E. Bertin

“Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” So says Chief Justice John Roberts, in his decision in Federal Election Commission v. Wisconsin Right to Life, which considered whether federal restrictions on “electioneering communication” immediately prior to an election violate the First Amendment.

The statement is heartwarming but curious in light of the Court's ruling in Morse v. Frederick, decided on the very same day.

The federal law in question in the FEC case, the Bipartisan Campaign Reform Act (BRCA), was enacted in 2002 to reduce the influence of large contributions on elections. While reasonable people disagree about the constitutionality of the BCRA, a year after its passage the Court held that the compelling interest in the integrity of the electoral system justified the BCRA’s restrictions on pre-election speech. The recent decision limited the law by holding it unconstitutional as applied solely to pre-election “issue advocacy.”

The Court’s solicitude for free speech in FEC, but not Morse, reveals that its commitment to First Amendment principles is highly selective. The right to place “issue ads” immediately before an election was protected, while the harmless (if brainless) stunt of an 18 year-old high school student was not. It seems that free speech rights may depend on who’s talking and what they’re saying.
In an exchange with Dahlia Lithwick on Slate, former Solicitor General Walter Dellinger noted “the striking gap between the expansive free speech protection afforded corporations in the campaign-finance cases, and the more limited free speech protection afforded public-school students.” Lithwick concludes that “ads are serious important speech, whereas goofy student speech is not.”

It’s a cardinal principle that “good” and “bad” speech are equally entitled to protection. In 1948, in Winters v. New York, the Court ruled on a law prohibiting distribution of publications “principally made up of criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes.” The particular magazine at issue “was read as advocating the commission of [a] crime.”

In Winters, the Court rejected the argument that First Amendment protection “applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right.” While the Justices could “see nothing of any possible value to society in these magazines,” they nonetheless held that “they are as much entitled to the protection of free speech as the best of literature.”

If that principle is indeed in jeopardy, it’s anyone’s guess what “unworthy” speech will be next to lose First Amendment protection.