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Jules Witcover
If Ronald Reagan were alive today, he might well say about the
The court's decision, by an 8-1 vote no less, and with conservative Justice Samuel Alito the lone dissenter, is another declaration both frustrating and baffling to many court-watchers. They have come to see the court as a collective loose cannon. While the Supremes are regarded generally as swinging from the right in most 5-4 decisions, they are also unpredictable enough to cause head scratching over some of their rulings.
This one was disturbing to many Americans appalled at the court's sanctioning of Baptist church members' controlled demonstration at the burial of a U.S. Marine killed in Iraq in 2006. Chief Justice John Roberts, writing the majority opinion, said that no matter how vile was the substance of the picketing -- the church's belief that "God hates and punishes the United States for its tolerance of homosexuality, particularly in America's military" -- the recourse could not be "punishing the speaker."
The young Marine in question was not gay, but Roberts wrote that even though the picketing added to the family's "already incalculable grief," it conformed with local restrictions on proximity to the funeral. "As a nation, we have chosen a different course," he said, "to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Alito, in his dissent, said the nation's "commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." Nor, he wrote, does the First Amendment give the picketers "the right to brutalize" the father of the Marine, the plaintiff in the case, and deny him compensatory and punitive damages, as the decision did.
Justice Stephen Breyer, in his concurring opinion, noted that the majority opinion "does not hold or imply that the State is always powerless to provide private individuals with necessary protection." But he noted that "the picketing could not be seen or heard from the funeral ceremony itself" and that the father testified "that he saw no more than the tops of the picketers' signs (bearing the offensive slogans) as he drove to the funeral."
The near-unanimous decision was the most conspicuous evidence yet of this court's commitment to the First Amendment's guarantee of free speech. Barely a year ago, with a somewhat different membership, the court struck another blow in the name of the First Amendment with a 5-4 decision of far greater political consequence.
That was the ruling by the conservative bloc, written by Justice Anthony Kennedy and concurred with by Alito, declaring that corporations as well as individuals have free- speech rights and can make contributions previously barred by law to specific candidates for public office. The case, Citizens United v.
The concern they expressed was emphatically validated in the midterm congressional elections, as corporate money poured into Republican coffers and helped power the
In the majority opinion, Kennedy wrote that "by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate." But Justice John Paul Stevens, who subsequently retired, argued in dissent "that selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one's behalf."
In his two
For all the conventional wisdom that the
Available at Amazon.com:
Hot Time in the Old Town: The Great Heat Wave of 1896 and the Making of Theodore Roosevelt
American Insurgents, American Patriots: The Revolution of the People
Broke, USA: From Pawnshops to Poverty, Inc.How the Working Poor Became Big Business
Were You Born on the Wrong Continent?: How the European Model Can Help You Get a Life
The Disappearing Center: Engaged Citizens, Polarization, and American Democracy
The Virtues of Mendacity: On Lying in Politics
Bush on the Home Front: Domestic Policy Triumphs and Setbacks
The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House
Courage Grows Strong at the Wound
The Irony of Manifest Destiny: The Tragedy of America's Foreign Policy
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