The U.S. Supreme Court, whose 2010-2011 term ended last month, charted a mostly liberal course in ruling on free speech issues. But when it considered free speech as a part of electoral politics, the high court remained hostile to the view that democratic principles are left outside the door when money is ushered into the process.
First, the free speech rulings in which the court upheld the broadest interpretation of the 1st Amendment. In Brown v. Entertainment Merchants Association, the court ruled that a California law prohibiting the sale of some violent video games to minors was unconstitutional. The court asserted that minors have the same free speech rights as adults.
It’s an important distinction that admittedly puts more responsibility on the shoulders of parents to act as gatekeepers for their children.
The ruling on the California law was consistent with another high-profile ruling earlier in the term. In Snyder v. Phelps, the court reversed a jury verdict against the infamous Westboro Baptist Church whose members have traveled the country to demonstrate at military funerals. The church, whose members perversely believe God is punishing the nation for tolerating homosexuality, has the right to make its views known, the court ruled.
As the U.S. becomes more ethnically, culturally and spiritually diverse, this more pure view of free speech is integral to keeping American principles flourishing. Free speech means the right to hold and express despicable, inflammatory views, the court has correctly noted.
But when issues involve money, the court’s purity gave way to expediency. In Arizona School Tuition Organization v. Winn, a case brought by American Civil Liberties Union, the court ruled that Arizona residents did not have the right to block state tax credits being issued to religious schools. The court found that tax credits, though indirectly coming from the state treasury, were not the same as funding such religious education.
And as has been widely discussed, the court struck down Arizona’s public campaign finance program in which state funds were issued to publicly financed candidates when their opponents outspent them with private money.
The conservative court still does not distinguish money from speech, as evidenced in its 2009 landmark ruling in Citizens United v. FEC, a ruling that weakened participatory democracy, or perhaps enhanced the participation for those with the ability to pay the entrance fee.
We rely on the dispassionate, presumably apolitical court to be a bulwark between the principles enshrined in the Constitution and the prevailing winds of the day. This court’s defense of the right to speak is commendable.
In the months and years after the 9/11 terrorist attacks, privacy rights were sacrificed in the name of security, a sad regression of the American impulse to live with minimal law enforcement intrusion. In the early days of this decade, the biggest threat to American democratic principles is the power of money in determining who sits in the White House, Congress, the Blaine House and the State House. If the court won’t recognize that, voters must.