On the announced retirement of Justice Stephens, I’m reminded that he wrote a dissent in the case of Texas v. Johnson, a case that established that the First Amendment protects expressions of opinion through the medium of a burning flag.
Stephens disagreed, saying that the case “has nothing to do with ‘disagreeable ideas.’ It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.”
Metaphorical national assets aside, separating ideas from conduct is the aim of many speech reformers who cringe when people use money to advocate on behalf of things they like. It’s the money they want to regulate, not the speech, don’t you see? Spending money is conduct, but everyone likes free speech. Yup, eeeeveryone likes free speech juuust fine.
The speech reformers just want to make sure that money doesn’t distort the minds of voters who, as we all know, are, well, fragile. Mentally. They just need to be free of the distractions of people who want to influence them unduly. Spending money on TV ads or the could inflame their passions, misrepresent The Truth about an incumbent or distort otherwise carefully deliberated, reasonably determined voter sentiment. We just need to let them think, so quit trying to influence those good people with your money-speech!
Burning a flag, while less expensive than a series of slick 30-second issue ads featuring a candidate in grainy slo-mo footage where he advocates on behalf of The Plague, is conduct that could do the same thing. It would, after all, be harder to regulate or ban outright if it were treated as speech. Would Shepard Fairey’s iconic in-kind assistance to the Obama campaign pass Constitutional muster if Stephens had his way and flag burning and ad buys were treated less like speech and more like hurling Molotov cocktails? How could it? Creating that image was an act with intent to influence! It was unadulterated, fully regulable conduct! Even if it did pass muster, it would require the rubber stamp of some kind of election committee. I don’t want to meet the people that incumbent lawmakers and presidents would appoint to such a committee.
Given President Obama’s bombast against a Supreme Court majority that found the First Amendment contains the right to organize for effective speech, I fully expect a Stephens replacement to possess the same hostility to speech-facilitating conduct (with intent to influence!).
(via Jonathan Blanks)