1st Amendment Rulings Are Out of Order, Liberals Complain

The 1st Amendment and freedom of speech have been consistent winners in the Supreme Court of late, but some liberals are none too happy about it.

Throughout this century, the cherished notion of free speech had a unique power to unite liberals. The “freedom to think as you will and to speak as you will” are the “indispensable means” to a just and democratic society, Justice Louis D. Brandeis, a liberal hero, once wrote--albeit in dissent.

Liberal lawyers used the 1st Amendment to defend Communists in the 1950s, civil rights protesters in the 1960s and anti-war activists into the 1970s.

While the 1st Amendment itself has never stood stronger, its champions in today’s more conservative high court are lawyers for advertisers, phone companies, cable TV operators and political campaign fund-raisers.

Free-speech advocates won six out of six cases decided by the high court in the 1995-96 term, and seven of nine cases in the term before.

Consider these developments:

* In May, the court struck down state laws that banned the advertising of beer and liquor prices and said the government generally cannot ban the truthful promotion of legal products. That ruling, in 44 Liquormart vs. Rhode Island, spells trouble for the Clinton administration’s proposal to restrict cigarette advertising.

* Also in May, the court overturned lower court decisions that allowed the city of Baltimore to ban billboards that advertise beer and cigarettes. That issue is being reconsidered in an appeals court.

* In June, the court struck down federal election laws that limit how much money political parties can spend to promote their views. That ruling, in Colorado Republican Party vs. FEC (Federal Election Commission), opens the door for parties to spend vast amounts of money.

* In October, the justices signaled during an oral argument that they will likely strike down a federal law requiring cable television operators to carry the signals of all local broadcasters. Liberal groups such as People for the American Way and the Consumer Federation of America had urged the justices to protect small independent broadcasters, such as those offering Spanish language programs or educational fare. But the giant cable companies are likely to win the free-speech right to drop small, alternative channels.

Dismayed by these decisions, some dedicated liberals are having second thoughts about how their favorite constitutional amendment is being used.

“Now it’s the favorite argument for corporations and advertisers,” complained New York University law professor Burt Neuborne, the former legal director of the American Civil Liberties Union.

The court is using the 1st Amendment to protect the wealthy and powerful, he said, and seems unable to distinguish between laws that “censor speech and those that regulate concentrations of private power.”

The recent campaign-finance scandals have focused renewed attention on the high court’s refusal to uphold true campaign-spending limits.

Last month, a group of 26 liberal legal scholars signed a statement urging the court to reconsider the 1976 Buckley vs. Valeo ruling, which invalidated many campaign-finance limits on 1st Amendment grounds.

Professor Ronald Dworkin of the New York University Law School, a leader of the group, says the court was simply wrong to equate money with speech. The ruling in Buckley vs. Valeo was a “bad decision,” he said, and its consequences are still being felt.

But don’t expect the justices to heed this advice. Instead, the court seems more inclined to strike down the remaining limits on campaign spending.

If the 1st Amendment protects flag-burners, cross-burners and pornographers, the justices say, how can it not protect the political party that wants to run television ads or print bumper stickers that say, “Our candidates will cut your taxes or protect Medicare?”

Ads run by candidates or parties are “core 1st Amendment activity,” entitled to the highest protection, a 7-2 high court majority said in June. Chief Justice William H. Rehnquist and three other justices indicated that they may be willing to strike down the federal limits on campaign contributions as well.