BONG HiTS 4 JESUS 
   & Other Atrocities

   Two decisions recently handed down by the Supreme Court, though at the opposite ends of the first amendment, reached a perfectly consistent and coherent result between them.  They held essentially that small speech is subject to impediment, large speech is not.  When the big boys with big money talk, we must listen, whereas small speech may be squelched by any authority figure for nearly any imaginary reason that occurs to them.
    I exaggerate slightly.  The decisions were not quite that cut and dried.  But in the majority opinion of both cases, each written by Chief Justice John Roberts, which I don't think will do the Chief Justice's reputation any great credit over time, carry at the core of their reasoning some fairly obvious untruths and easily refuted arguments.

1  May Our Sacred Right to
Gibberish be Never Infringed     

    To take the ridiculous first, in a case that is no doubt soon to be renown for its silliness, a high school student in Alaska unfurled a banner with the statement BONG HiTS 4 JESUS.  The occasion was a school field trip to watch the Olympic torch being run down the street, apparently nearby the school.  His principal took offense at the sign and the student was suspended when he didn't take it down upon her urgent request.  Fine.  A student did something to irritate an authority figure and they told him to knock it off.  
    Then of course someone decided to make a federal case of it.
    There were a lot of ways this case could be decided except for the way the Chief Justice actually did decide it.  The student himself said that the banner was a nonsense phrase designed to get himself on TV.  There is certainly nothing implausible in this.  Or one might have guessed that he was a student provocateur trying to get the principal's goat (and who among us hasn't been there?) and succeeded famously.   But the school board decided to adopt a more extreme position and declare that the sign expressed an unambiguously dangerous pro drug sentiment.  The Chief Justice actually argued the school's position on this basis which was, inarguably, the least likely true of all interpretations available to it.
   The problem with banning the banner on the basis of the argument accepted by the Court was that the Chief Justice not only first had to abandon the student's own explanation of the banner.  Next he had to ignore his own common sense which should have told him the phrase was nonsensical.  And finally he chose to arbitrarily emphasize the first part of the banner's message to the exclusion of the latter part as if the entire meaning of the sign resided in only a part of the slogan.  This takes a great deal of license with the actual words printed on the banner and reads a great deal into this sign and the student's intention that isn't there.  
   Ignoring the obvious, that the slogan really is nonsense that only a teenager could love, the chief Justice of the United States chose to argue that it must be considered to have been a sincere attempt to promote drug usage in our schools whether it was intended that way or not.  Best to err on the side of censorship.  
   But once you determine that this "cryptic" message must be taken seriously than it takes itself, don't you have to take the second part of the phrase as seriously as the first?  
   Grammatically, this phrase is a severe contraction, dysfunctional, a profoundly elided sentence without verb, articles or punctuation.  This phrase essentially boils down to two nouns connected by a number.  Why should the first part of the message be accorded more weight in its reading than the last?  In a regular sentence is the subject more important than the object?  Don't they have to work together to form a whole thought?  The Chief Justice helpfully speculated that the inarticulate phrase may have been "declarative".  But declarative of what?
    If the banner had said "athletes for Jesus", or "win one for Jesus", and the student had been ordered to remove the sign, this would have been a religious freedom issue.   Conversely, if it had read, "do drugs for fun and profit," there would be no dispute at all what had been intended.  But it said neither.
   On the contrary, it was precisely the non-rational juxtaposition of two nouns that normally have nothing in common that the student no doubt found amusing.  We know the Court was not amused, of course, but clearly farce or satire or extreme ambiguity, perhaps vaguely seditious or intended to be provocative, was the entire point of the sign.  In this case the absurdist message meant nothing larger or more far reaching than the immediate result it was intended to provoke. 
   Though I support the free speech of students, on occasion it seems we may just have to shake our head and accept the obvious - sometimes they may not really have a whole heck of a lot to say - and that it is possible to read much more into this slogan than was really there.  Reason and our fading memories may be all we have left to remind us that what a teenager finds to be hilarious may well be lost on us as we grow a little older and wiser.  BONG HiTS 4 JESUS might well typify this category perfectly; be its poster child, as it were.  
   Therefore, we can't so much disagree with the conclusion of the case as with the argument by which it was arrived at.  The student's argument is that he ought to be able to spout any kind of gibberish he wants (according to his own characterization of the sign's meaning) when and if and where he chooses without interference.  While the spouting of gibberish may indeed be a time honored right of all Americans, it is surely not one of our more cherished ones.  Fortunately, especially for Washington, the court made no ruling so profound as to come out against gibberish itself. Who knows where that would end?  Congress might be forced to close and this current Supreme Court be put on notice.     
   Instead, rather than take the risk, the Robert's Court merely chose to pretend to misunderstand what the case was really about and call it a drug case.
   In conclusion, you may have been able to consider this kid's activities disruptive, inappropriate to the occasion, anti-social or non-responsive to legitimate authority.  You may have been able to dismiss it as a childish prank or overlook it altogether, but you could not possibly contrive this sign to be promoting drug use any more than you could call it a serious call to embrace Christianity into your life by accepting Jesus as your own personal savior.
   In sum, the problem was not the decision but the superficial irrationality that was used to justify it.

2  FEC v. Wisconsin Right to Life     

    The second decision mines the ore of a far darker vein.  In clear intention and effect, this decision gutted a key component of the McCain-Feingold campaign finance reform legislation, just upheld by the Supreme Court three years before.  And frankly, despite the seriousness of the topic, the reasoning used to justify this reversal was nearly as superficial as that used to decide the case just referred to.
    The great scourge of our elections is the domination of them by big money and big money concerns which tend to drown out all saner, less self-interested, more patriotic and more intelligent debate and swamp most honest candidates from even seeking, much less obtaining, public office.  
   Serious people have noticed the wholesaling of our democratic principles and the retailing of the day to day operations of our government to the highest bidders. They have spent much time and many years trying to craft solutions to the steadily growing, gnawing corruption these practices create. Commensurate with free speech and the participatory rights of all reformers have sought ways to squeeze as much of this tainted, corrupting cash out of the process of our elections as possible to return them to their true and rightful owners, the people of the United States.   
   Unquestionably, the greatest complication to the problem has been that the very ones we must rely on to reform this system are themselves the chief beneficiaries of its continuance.  These are our incumbents who very often quite rightly believe they owe their jobs less to their legislative brilliance and diligent performance in office than to the acquisition and manipulation of these funds which are by their nature generally unavailable to the same degree to any would-be challenger.  Campaign finance abuse has become the bad politican's best friend and most trustworthy guarantee of continuing their stranglehold on office.   
   Needless to say, it has been a long and torturous time to get even a bare majority of Congress to set aside their own advantages even as far as McCain-Feingold was able to achieve, watered down as it was, and for once place the public good over their private interests.  Surely such a good faith attempt by our politicians to finally at least try to do the right thing, even if the legislation that resulted was not perfectly crafted or as comprehensive as it needs to be, deserves to be rewarded.  
   Perhaps it was the very rarity of this unexpected congressional selflessness that left Justice Roberts and the other members of the majority so confused as to what they was looking at.  In any case it was disheartening to see them so callously dismiss and fail to acknowledge this legislation for the invaluable and good faith effort it represented.  
    Instead the Chief Justice pretended to believe that well heeled special interests would somehow be reduced to helpless, whimpering silence if they had a phenomenally slight restriction placed upon their astonishingly well funded and far reaching operations.  The legal qualification in question only specifically prohibited the mentioning of a candidate's name in political ads a few weeks prior an election.  It did not prohibit advertisements that discussed principles nor preclude anyone from working for their preferred politicians in any other way they might choose. 
    Opponents pretended that this enforced civility and restraint would extraordinarily limit their rights to free speech despite the countless other opportunities and avenues available to them to make their opinions known.  The Court was eerily sympathetic to this argument and ruled that having to take a brief hiatus from getting to smear candidates they hate with specificity, the free speech of these interest groups would be mortally infringed in principle in perpetuity - a pretty broad assessment to result from a very narrow and obviously quite salutary restraint.
    Now take a brief glance back at the "bong hits" case.  If you take the controlling right of the principal of the school to maintain discipline among students, and compare it to the controlling right of the people of the United States to have fair, free and civilized elections, you'll notice a certain consistency of purpose in the Court's reasoning.  In the first case they found against small speech and in the second they found in favor of uncontrolled "big" money dominated speech.   In the first case they ruled in favor of the principal to control her students and in the second case they ruled against the right of the American people to exercise any control over their own elections.
   Though in the second instance they said they were ruling in favor of free speech it is not true.  The speech they ruled in favor of is very expensive, bought and paid for speech, of a type that very few Americans can afford to indulge in and therefore not "free" speech either in monetary value or in ultimate cost to our democracy.  
   There is a whale sized distinction here they are pretending not to see.  Being able to make your case persuasively known to the American people is freedom of speech.  Whereas the right to unduly influence elections and thereby ensure the allegiance of politicians running for office to enforce unpopular opinions on the rest of us is not freedom of speech at all but its abrogation.  An idea with the inducement of money connected to it is not an idea.  It is a bribe. The fly wheel of deliberation and communication between poltician and private citizen must be allowed to swing as freely as possible according to public opinion and the best interests of the country, rather than get so gummed up with the tar and gunk of outside financial interests that it cannot move at all.
   "The tie goes to the speaker, not the censor," Justice Roberts wrote expansively in the campaign finance case.  Who said we had a tie?  It is precisely due to the massively unjust ability of big money special interest groups to so overwhelm all competing voices and so thoroughly corrupt our elections, our politicians and our two parties, while suppressing the voices of the many with the shrill exaggerations and financial intimidation of the big mouthed voice of the few, that this law was written to partially redress.  To suggest that this law has pushed the balance too far in the other direction, at the expense of the freedom of the big money interests, which have no qualms, by the way, of making sure that all other quieter and more reasonable and honest voices are never heard from again over their din, is an absurdity on its face.  
    Roberts went on to write, "issue ads are by no means equivalent to contributions."  Of course they are.  Since Buckley v. Valeo which first confused campaign expenditures with the exercise of free speech, as if the two in every circumstance were strangely indistinguishable, this odd concept has served as the underlying basis for the thoroughly destructive argument that campaign contributions can never be limited.  
   Which is it?  You can't have it both ways.  They say that money is speech when they want to protect money's unfettered dissemination to the politicians (something many of us with dictionaries would consider indistinguishable from bribery) yet when they wish to emphasize its benign nature, they say that political ads on behalf of some politicians against others are not the same as money.  To say that protecting spending in elections is the same as protecting free speech is as lucid a foundation to build the law on as "BONG HiTS 4 JESUS".  The contradictions are too obvious, the distinctions too critical and the conclusions drawn too specious to be sustained.
   In fact, there is a sliding scale to the relationship of speech to money and its effects are far from uniform.  In smaller portions money may indeed facilitate speech among those who would not otherwise be heard, but as the sums necessary to compete for political attention grow larger and become available to fewer and fewer people they tend to price ordinary speech out of the political market place.  Then money becomes an overall and eventually comprehensive suppressant of free speech and vigorous debate.  This is where we are now.  And it is precisely this growing imbalance and corruption and the resulting deadening of intelligent debate in this country that McCain-Feingold was enacted to try to timidly begin to reform.
   The clear intention and result of this decision by the Roberts court is that the small quiet voice of the individual American is to be forever dimmed and ignored in preference to the Court's devoutly devoted allegiance to the blaring few.  Moneyopoly must trump democracy and freedom of expenditure must be allowed to stamp out freedom of speech.  Limits and controls on expenditures might actually start to free democracy from the shackling deadweight of money under which it is laboring and replace it with a fresh primacy of competition, a resurrection of political ethics, a resurgence of new ideas, a return to our time honored ideals and ultimately, return of a much better class of politicians to Washington.  
   The point the Court was allegedly trying to make in this case about protecting free speech was not well taken.  Contrary to the Court's conclusions, effective campaign finance reform will actually free democracy not limit it and allow more people to participate and be heard in our political process, not fewer.  It is the long overdo first step in trying to regain a level playing field in this country not one permanently skewed by the prerogatives of big money interests and private prejudice.  Only true reform can prove to our increasingly corrupt political class and all its hangers-on once and for all that the whole of this country is far greater than the sum of just a few of its parts.  Electoral and campaign finance reform is the absoutely necessary prerequisite to a return to actually make free speech in this country free again.   Because unless speech is free it can never be equal.
    If you actually subscribe to the Court's bizarre and self-serving position that this marginal, timid, first step legislation of McCain -Feingold has already been effective, too effective, and if you readily suppose that these oppressive, heavily moneyed special interests have been bled out of our electoral system you have only to chance a glance at the current prematurely started presidential race.  It is already more awash with corrupting cross winds and thoroughly bought and paid for politicians than any in American history so far.   And congressional elections, because they are less in the public eye, are even worse.  
   Yet Chief Justice Roberts fatuously characterizes the minor reform and barely effectual hindrance of McCain-Feingold as "enough is enough", by which he apparently really means that any reform was way too much for the corrupt capital which runs our political system and is destroying our democracy to stand for.  In the name of the specious claim of freedom they have allowed our system of free and fair elections and open debate to continue to be debased in service to corrupting outside influences.  Meanwhile the political and electoral process of the United States will continue to balkanize and polarize and propagandize while the real challenges to the nation that concern the vast majority of us continue to go begging and unheard.  
 
3  The Wages of Bush v. Gore  

   But who doubted that this was what this Court would do, mischaracterize their actions as they will.  It was predictable.  The conservative members of the Supreme Court have already proven their disdain for the public weal and any exercise of free will through the agency of free and fair elections.  They proved this without doubt in Bush v. Gore where three members still sitting on the Court preemptively stole the results of the still undecided 2000 presidential election and opted for their preferred candidate over the other regardless of what the eventual outcome of the political process would have proven to be.  
   That decision was not only an astonishingly broad unconstitutional reach but was rife with incredibly transparent conflicts of interests.   This is exactly why courts were not empowered by our founders to decide the winners in our elections in the first place - because they may be too easily corrupted.  Bush v. Gore resulted in the Supreme Court, in effect, able to pack itself.  They got to pick their own boss, and at least in general, as far as picking the type of jurists who would be future members of the court, got to choose their own colleagues and successors.   
   In the case of two conservative Justices this allowed them to choose the manner of their retirements and the specific political leaning of the jurists who would be their own replacements.  No honest court in world history has been empowered to pick its own successors merely to ease the contention of their deliberations and to ensure a longer duration of their own legacies.  Two other controversial Justices who decided the winner of the 2000 election had literally become a live issue in the campaign.  Quite unsurprisingly, they chose the candidate who had effusively praised them in the campaign as model jurists over the one who hadn't.
   The result was one branch of government, the Judiciary, overruling the Legislative branch of government in order to choose the next leader of the Executive branch of government.  This makes mud of the constitution and the system of checks, balances and separation of power on which our entire democratic system of government is based.  This enabled those jurists who decided Bush v. Gore to corrupt the proceedings of the bench on which they currently sit. 
    Bush v. Gore was probably the greatest malfeasance by the Supreme Court since Dred Scott.  But it was actually structurally far more damaging because it did not just use the law to try to influence the political debate as that case did but interfered in the political process to moot a free election to try to shape the law for their own personal benefit and in accord with their own narrow prejudices and predilections.  It also, perhaps not just coincidentally, seems to have given the United States one of the weakest, most destructive and least popular presidencies of modern times.  Maybe that's why the system wasn't designed to put such fallible, prejudiced people in charge of our elections.
    So it is now no surprise to see these new justices, the Bush appointees, emerge as loyal acolytes to the very power structure that they have previously pandered to, been promoted in, profited from, and prospered within.   It is not strange to see that they have a natural affinity for politicians easily corrupted by money and elections thoroughly controlled by special interests. 

    Again, as in the previous, infamous BONG HiTS 4 JESUS case, the argument in favor of the conclusion reached in this campaign finance case is facile.  This was even acknowledged in backhanded fashion by a Justice who agreed with the general finding.  His dispute was not that the decision was wrong but only that the decision did not go far enough to ensure that access to big money should remain the nearly sole determinant and dominant qualification for high office in this country.  This was Antonin Scalia who in a footnote to his separate opinion wrote, "this faux judicial restraint is judicial obfuscation."  
   Meaning that this decision was in fact intentionally designed to be a radical overturning of the very concept of restraint in campaign finances and not the carefully nuanced opinion that it was masquerading as.  Regardless of the fact that it was seemly and appropriately draped in official black judicial apparel falling primly to the floor, the robe is but loosely tied and keeps falling open inopportunely to expose the naked intent within, which is to further gut the ability of honest citizens to control the process of their own elections. 
   Yes, the fox (or faux) has been set loose in the hen house of democracy once again, free to do its worst, as money will continue to give us the most bought and paid for congress and least responsive and effective government we have ever seen in America.  Clearly the fruit of the poisoned tree of Bush v. Gore is bound to haunt this country and the operations of the Court for a considerable period of time to come.