Selective Freedom of Speech on the Left and the Right

The other day I marveled at the inconsistency of left-liberal journalists who love the First Amendment when it protects their work but suddenly consider it not just optional, not just inconvenient, not just pernicious, but utterly outrageous when, as in Citizens United, it protects the speech of (nonmedia) corporations. Writing in the Boston Phoenix, civil liberties attorney (and Reason contributor) Harvey Silverglate likewise highlights "the rocky marriage between the political left and the First Amendment," asking, "What good is the First Amendment if it does not allow citizens, individually or organized as a corporate entity, to disseminate political speech (and in the case brought before the Court, a video broadside against Hillary Clinton) during an election cycle?" But Silverglate notes that the Supreme Court's conservatives are not consistent defenders of free speech either, making exceptions for "obscenity" and for such dire threats to public safety as a banner proclaiming "Bong Hits 4 Jesus." "The right and left each has its own favorite form of speech deemed worthy of protection," he writes, "and the twain do not often meet."

Silverglate notes that Justice Samuel Alito voted in 2007 to uphold a high school principal's authority to punish a student for unfurling the aforementioned "Bong Hits 4 Jesus" banner at an Olympic torch relay rally on a public street, even though the student came to the event on his own and was not under the school's supervision. But as an appeals court judge in 2001, Alito took a different view of a student who challenged his high school's harassment code, arguing that it inhibited his freedom to express his moral views on homosexuality by banning speech "which offends, denigrates, or belittles an individual" because of his "sexual orientation." Since there is no "harassment exception" to the First Amendment, Alito wrote for the 3rd Circuit majority, the code was unconstitutional.

Silverglate thinks Alito's politics explain why the homosexuality hater got more sympathy than the bong booster, and he may be right. But I think drug phobia, which afflicts liberal as well as conservative members of the Court, helps explain the outcome in the "Bong Hits 4 Jesus" case, where the vote was 6 to 3. The tally was the same in the 1995 decision upholding random urine testing of student athletes, which attracted the support of the ostensibly liberal justices Stephen Breyer and Ruth Bader Ginsburg. Alito's fear that "illegal drug use presents a grave and in many ways unique threat to the physical safety of students" is not limited to the justices commonly described as conservative. Nor is it true that the conservatives are always eager to uphold restrictions on speech that conservatives stereotypically do not like: The 1997 decision overturning the Communications Decency Act was unanimous. Justices Antonin Scalia and Anthony Kennedy voted twice, in 1989 and 1990, to overturn bans on flag burning, while the supposedly liberal Justice John Paul Stevens (leader of the pro-censorship side in Citizens United) dissented from both decisions.

There is another possible explanation for Alito's apparent inconsistency in the two student speech cases. While the banner-waving student admitted his message was just a joke, the Christian student who considered homosexuality a sin was seeking to express heartfelt beliefs about a matter of public debate. In other words, the latter student's speech was closer to the heart of the First Amendment. I still think the school had no business punishing the kid with the banner, and I'm not sure Alito would have voted differently if the banner had said "Legalize Pot" or "End the War on Drugs." But there is something to the argument that the First Amendment is first and foremost—though not only—about political speech (which is also why conservative judges tend not to worry very much about the impact of laws aimed at pornography). And on that score the free speech inconsistency of liberals who supported McCain-Feingold looks worse than the inconsistency of conservatives who support obscenity laws.

In a 2007 column, I cited both campaign financial regulation and the "Bong Hits 4 Jesus" case to illustrate "the perils of making excuses for censorship."