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Supremes Require Big Bucks For Free Speech

Ann Schneider Jul 25, 2007

By Ann Schneider

On his way out of Washington on June 25, Chief Justice John Roberts delivered a gift to campaign contributors while further constraining free speech for public school students. A student who holds up a banner saying “Bong Hits 4 Jesus” may be suspended from school. Writing for a 5-4 majority, Roberts stated, “The First Amendment doesn’t require schools to tolerate at school events student expression that contributes to the danger of illegal drug use.”

On the same day, the court struck down spending limits that Congress had imposed on corporations and special interests in 2003. Now corporations can spend as much as they want to advance an issue in an election. Why? Because corporations are “persons” and have First Amendment rights to free speech. Without a hint of irony, Roberts wrote “where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

Just as the law, in its majesty, prohibits the rich as well as the poor from sleeping on a park bench, ExxonMobil has just the same right to purchase ads on television as you and I.

What was at stake in the campaign finance decision was whether corporations, trade unions or special interest groups could continue to use “soft money” to fund pro-candidate ads within 60 days prior to an election.

There is a long history of states trying to control the influence of big money in their elections. A 1977 Massachusetts law that prohibited banks and businesses from trying to improperly influence elections which was slapped down by the Supreme Court, which said that political speech is protected “no less because it comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of its source, whether corporation, association, union or individual.”

Subsequent efforts to limit campaign spending have been thwarted by this Supreme Court doctrine that corporations have free speech rights. This doctrine in turn, derives from an errant summary to an 1886 decision, Santa Clara County v. Southern Pacific Railroad. The magic words,“The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States which forbids a state to deny any person within its jurisdiction the equal protection of the laws,” were inserted by J.C. Bancroft Davis, a former railroad official who was working as a court reporter.

Organizations like PIRGs (Public Interest Research Groups) and the National Voting Rights Institute have been urging the Court to overrule past precedents that enshrine campaign spending as a First Amendment right. But, their voices have been outweighed by the basic instincts of the Roberts-led Court.

For now, what this Court deems political speech, and therefore worth protecting, depends more on the resources of the speaker than the content of his or her opinion. The satirical spirit of “Bong Hits for Jesus” is no match for the mischievousness of the Supreme Court’s humorless majority.