The Australian

By David Weisbrot

Free speech still sways the Supreme Court

The US Supreme Court completed its (northern) spring term with a well-orchestrated bang, saving the high-profile Obamacare decision for the final day. The huge attention paid to that case obscured a number of other recent decisions, which collectively may point to longer-term trends in the court's thinking.

One set of cases demonstrated again that a clear majority of the judges are strong proponents of free speech, as guaranteed by the US Constitution's First Amendment, even (or especially) where the speech concerned is unpopular or ''inconvenient''.

The 2004 Super Bowl introduced the world to both the term "wardrobe malfunction" and Janet Jackson's right nipple. Despite the very brief exposure and the protestations of the performers it was accidental, the Federal Communications Commission imposed a hefty fine on the CBS network for broadcasting indecent material. The FCC similarly punished Fox TV for broadcasting "fleeting expletives" during a music awards program and a reality-TV show. While recognising the FCC's role in safeguarding public interest, the Supreme Court found in favour of the broadcasters since the regulations in place at the time were "unconstitutionally vague", while the risk of curtailing free speech requires clear guidance in advance about what is prohibited.

Meanwhile, a California man named Xavier Alvarez was telling anyone who would listen in 2007 that he was a former professional ice hockey player, had rescued the US ambassador during the Iran hostage crisis, and was awarded the Congressional Medal of Honour for his heroism as a Marine. None of it was true. Once exposed as a liar, Alvarez was subject to public humiliation and convicted under the federal Stolen Valour Act. By a 6-3 majority, the Supreme Court ruled that the act contravened the First Amendment. Judge Anthony Kennedy's lead opinion noted there was no evidence the public's esteem for military awards was diminished by false claims, and suggested the ridicule to which Alvarez had been subjected should be sufficient deterrent to others.

The court cautioned "content-based restrictions" on speech required the most stringent scrutiny, and historically had only been permitted for a few categories of speech, such as obscenity, defamation and child pornography. Authorising a more general exception "would endorse government authority to compile a list of subjects about which false statements are punishable", resulting in a power with "no clear limiting principle".

In another case, the court re-asserted its approach to corporate free speech in the political sphere. In Citizens United in 2010, by a 5-4 majority split along political and ideological lines, the court ruled ''electioneering communications'' were a form of protected free speech under the First Amendment, and this extended to corporations and trade unions. The ruling invalidated the McCain-Feingold Bipartisan Campaign Reform Act of 2002, the culmination of a long effort to reform campaign financing by tightening loopholes used by corporations and special interest groups.

While corporations remain barred from donating directly to political campaigns or candidates, they can now expend funds to persuade the public about "issues". This has greatly enhanced the growth and power of so-called SuperPACs, which cannot be formally affiliated with political parties or candidates, but whose allegiances are usually obvious from their advertisements.

This term the court considered the validity of a 1912 Montana law banning corporate contributions, a response to the perceived corrupting influence of powerful mining magnates whom Mark Twain accused of buying "legislatures and judges as other men buy food and raiment". The Montana courts upheld the constitutionality of the state law despite Citizens United, finding the state's history of "rough contests for political and economic domination" provided justification.

By the same 5-4 majority, however, the court struck down the Montana law as incompatible with Citizens United. In bitter dissents, judges Stephen Breyer and Ruth Bader Ginsburg argued the experience in Montana and elsewhere casts grave doubt on the majority's assertion that such expenditures "do not corrupt or appear to do so".

This brings us to the Obamacare decision. The prediction was the court would again split along political lines, with Justice Kennedy the deciding swing vote. The court did split 5-4, but Justice Kennedy sided with the conservatives, with Chief Justice John Roberts becoming the surprise saviour of President Obama's reforms.

There has been cynicism in recent decades about whether the Supreme Court remains independent and aloof from politics.

Chief Justice Roberts may have seen an opportunity to protect the reputation of the court and his own legacy. While his decision may have saved Obama's bacon, it did so on a conservative basis, ruling out the use of the commerce clause to extend federal power, and limiting the ability of the federal government to attach strings to funding to the states. Sometimes smart law is smart politics.