Supreme Court rules in Wisconsin Rt to Life
Here's the ruling. On a quick read of the syllabus:
Core issue: McCain-Feingold forbid a corporation to spend money for airtime ads that mention a candidate's (literally, make any mention of it) within certain time periods before elections. The Court earlier upheld these limits, as a generality, in the McConnell decision (a 5-4).
Here a nonprofit advocacy group desire to buy airtime, and mention candidates who happened to be incumbents, urging people to call them and ask them to vote to confirm certain judges. The ads had no "express advocacy" of an election type, never said vote for or against the legislator or anything close.
The Court rules that forbidding this is a first amendment violation, but splits pretty widely:
Chief Justice Roberts and Justice Alito don't see a need to question McConnell just now, but do see that the law as applied here is unconstitutional. It burdens political speech, is subject to strict scrutiny. Ads may be reasonably interpreted as something other than election advocacy (note that narrows such advocacy to situations where there seems no other explanation). Statute in this context fails strict scrutiny. Alito's concurrence adds that if it is later shown that the statute chills political speech despite this interpretation, it may be necessary to revisit McConnell and decide whether the statute is unconstitutional on its face.
Justices Scalia, Kennedy, and Thomas, concur on a broader basis: they'd overrule McConnell.
Justices Souter, Ginsburg, Stevens, and Breyer dissent, and would uphold the ban as applied to this ad. They argue that the ads here are indistinguishable from at least one ad involved in McConnell, and say the lead opinion (Roberts + Alito) really does overrule that cast.
Update: I agree with SCOTUSBlog's take on the issue. (1) the Chief Justice and Justice Alito are suggesting that in a later case they will likely join with the concurrences and overrule McConnell, holding the relevant parts of McCain-Feinstein unconstitutional on their face; (2) in the meantime, the statute will only constitutionally apply to advocacy unless it is pretty obviously meant only as "vote for or against this candidate." Since the core idea of the statute was to outlaw (unconstitutionally, in my view) messages that didn't say vote for or against a person (on the argument it was easy to cloak that message with "Sen. Smith is going to gut Social Security, demand that he stop") this means that the core of McCain-Feinstein is largely removed, even if it may take some years before the statute itself is struck down. (3) This approach avoids the criticism that would come from the Court ruling 5-4 in McConnell, having a couple of seats change, and then ruling 5-4 to overrule McConnell.
The McConnell decision should be overruled. McCain-Feingold is an abomination - a law supposedly to uphold the First Amendment by restricting political speech!
Posted by: Bill at June 25, 2007 12:05 PM
Posted by: Jim W at June 25, 2007 12:11 PM
A win for free speech! Sadly, we also had a lose for free speech today, as well.
Posted by: Jonas Salk at June 25, 2007 12:59 PM
It is worth reading through Roberts opinion to reach the test he proposes for determining future 'as applied' challenges.
It is a thing of beauty that completely guts McCain-Feingold in all but name. Its something like, if an ad could reasonably be seen as not just advocating a candidate it can't be touched, and if it is unclear (i.e. a tie between advocating a candidate and a general issue ad) then the presumption has to be that it is a general issue ad and therefore it can't be touched.
Posted by: Gildas at June 25, 2007 09:18 PM
Eh, had he done so outside of LOS of school grounds his case would have won. At my high school there was a bike path running outside across the street with a very light screening of trees. Kids would go out there to smoke underage all the time. When caught, even if they were let off of school that day for some reason, they could be suspended whereas the ones that walked 2 blocks down the bike path to the parking lot and started smoking, the school could do nothing about.
Posted by: Jordan at June 26, 2007 10:12 PM