Splitting the First Amendment

In minimally scaling back the advertising restrictions contained in the McCain-Feingold gag law, the U.S. Supreme Court yesterday issued a decision that suggests a truly bizarre understanding of the concept of freedom of speech.

In the majority opinion of the Court, XLIII-appointed Chief Justice John Roberts wrote, according to The New York Times, that

“the restrictions on television advertisements paid for from corporate or union treasuries in the weeks before an election amounted to censorship of core political speech”


“unless those advertisements explicitly urge a vote for or against a particular candidate”


Such content-based application of the law itself runs afoul of the First Amendment.

While siding with the majority, Justices Scalia, Thomas, and Kennedy refused to sign the opinion because it does not overrule the Court’s 2003 decision upholding Section 203 of the Bipartisan Campaign Reform Act (McCain-Feingold), which contains the speech restrictions in question.

In a separate opinion for the Court’s three remaining First-Amendment advocates, Mr. Scalia wrote: “It is perhaps our most important constitutional task to assure freedom of political speech. And when a statute creates a regime as unworkable and unconstitutional as today’s effort at as-applied review proves [Sec.] 203 to be, it is our responsibility to decline enforcement.”

Blasting Mr. Roberts’ opinion for splitting the baby, Mr. Scalia quipped, “This faux judicial restraint is judicial obfuscation.”

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