In two separate cases Monday, the Supreme Court struck down laws in California and Arizona as violations of the First Amendment: a California ban on violent video games and an Arizona campaign finance law that publicly finances “matching funds” for political candidates whose opponents outspend them beyond a certain threshold.
On the basis of the First Amendment, the Roberts Court has ruled in favor of every challenge to campaign finance laws that it has heard so far, with a bloc of five Justices which includes Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Samuel Alito. The high court set off a national controversy last year when it struck down portions of the McCain-Feingold campaign finance law as unconstitutional in its landmark Citizens United decision.
So contentious was the Supreme Court’s ruling, that President Obama even broke with tradition shortly after Citizens United to chastise the court for its decision during his State of the Union Address, inciting Justice Alito to depart from the court’s longstanding tradition of listening without reaction to the president’s annual address by grimacing, shaking his head, and mouthing something in response to the president’s rebuke.
The contentious issue in both Citizens United and this Monday’s 5-4 ruling in Arizona Free Enterprise Club v. Bennett, is the influence of corporate money in political campaigns. Critics of the Roberts Court argue that its jurisprudence on campaign finance opens the doors to a flood of corporate money, making elections inherently unfair by giving moneyed special interests an advantage. The injection of corporate money into elections, they argue, guarantees political corruption and policy-making that rewards a well-connected and entrenched wealthy class.
The Arizona law overturned by Arizona Free Enterprise Club sought to fix this problem by establishing a public fund that’s triggered by certain spending thresholds to finance a candidate who is being outspent by an opponent in a political campaign. The idea is to give equal time to opposing ideas and prevent a flood of corporate money from skewing the results of an election. But the majority argued this Monday, that this law inherently punishes people for exercising their free speech by forcing them to subsidize opinions with which they disagree.
Chief Justice Roberts wrote:
“The First Amendment embodies our choice as a nation that, when it comes to such speech, the guiding principle is freedom — the ‘unfettered interchange of ideas’ — not whatever the state may view as fair.”
In a less controversial ruling on a California video game ban, the Supreme Court voted 7-2 to strike down a law that would have fined retailers $1000 for selling violent video games to minors, defining violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being,” when lacking in “serious literary, artistic, political or scientific value.” Again, the issue for the Supreme Court was free speech.
Antonin Scalia, writing for five justices in the majority, said:
“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”
While the stakes may be lower than in the campaign finance debate, critics of the Supreme Court’s decision this Monday in Brown v. Entertainment Merchants Association are also casting it in terms of a victory for unrestrained corporate greed. California senator Leland Yee, who wrote the now-overturned ban on violent video games, said in a statement:
“The Supreme Court once again put the interests of corporate America before the interests of our children. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.”
In all fairness, critics of the Robert Court’s First Amendment decisions don’t seem to base their opposition on judicial philosophy and interpretation of the law as written. For them, the issue is not whether a law violates the Constitution’s prohibition on abridgements of free speech, but whether they happen to like the outcome of the free exercise of a particular kind of speech. Note that their objections to the court’s recent rulings are rooted in the negative results they perceive as stemming from speech they don’t like, whether it’s political speech or video games that they find obscene.
It is possible, indeed it’s very American and very enlightened (having its place in a certain famous quotation by Voltaire) to disagree with the expression of an idea, but uphold and defend the right of a free people to express it. Living in a tolerant and pluralistic society will undoubtedly bring results we don’t always like. The LGBT community may be offended by a pastor’s sermon on the evils of homosexuality, and that same pastor’s congregation might not like gay pride parades in their town. But a free society is one in which both are free to express themselves without any sanctions, punishments, or burdensome “equal time” corrections from the government.