Price of free speech is sometimes dear
JUST as the protests of civil libertarians about the erosion of civil rights were reaching a crescendo, the United States Supreme Court handed down a duo of decisions that staunchly protect First Amendment freedom-of-speech guarantees. But both decisions appear to exact a great price from the public. The rulings are largely unrelated. What they have in common is that they deal with highly controversial emotion-clad issues: post-Watergate electoral reforms and possible exclusion of public-school teachers and staff who advocate homosexuality.
Beyond the legal questions involved, both speak to the difficult task of balancing certain social values with the protection of individual rights. This is a traditional problem for the courts, for it is indigenous to the system. And, of late, it has been particularly vexing.
For instance, in recent years the Supreme Court generally has opted for protection of the general public over the rights of the accused in a spate of Fourth and Sixth Amendment cases involving both felons and those accused of crimes. Justices have cited public safety, among other things, in rulings admitting certain ``tainted'' evidence (that is, evidence obtained without proper police procedures) in criminal prosecutions and limiting so-called Miranda warnings, which inform suspects of their rights.
These decisions prompted howls of protest from civil libertarians, including some dissenting justices, who maintained that the Constitution was being dismantled by jurists who were less than zealous in their defense of the Bill of Rights.
The more recent rulings, based on the First Amendment, also evoked strong responses, but of a different kind.
In one case, the court voted conclusively (7 to 2) that the right of political action groups to freely spend their funds to help elect a president is a form of free expression. And it said this supersedes government restraints designed to curb the influence of big-money contributions to presidential campaigns. The ruling nullified a key post-Watergate reform that imposed a $1,000 limit on expenditures by independent political action committees (PACs) on behalf of White House hopefuls.
In the other case, involving the right of schools to dismiss or refuse to hire teachers who are advocates of homosexuality, the high court reached a 4-to-4 stalemate. (One justice, who was not present for oral arguments, didn't vote.) The decision left intact an Oklahoma appellate court ruling that struck down a state law that had permitted school districts to ban teachers for openly advocating homosexuality. The statute was too broad, said the federal Court of Appeals for the 10th Circuit, and it violated teachers' free-speech rights.
In both matters, what the Supreme Court didn't say may be important to future resolution of these issues.
It didn't say that campaign reform was illegal. More specifically, it didn't say that a contribution limitation law -- if framed so as not to muffle freedom of expression -- would be deemed unconstitutional. However, the ruling seems to demand that such legislation be penned with superb legal skill and ingenuity.
Meanwhile, lawmakers' zest, coupled with public concern over possible influence-peddling by wealthy contributors, could lead to other reforms. These might include federal funding for congressional election campaigns, more-flexible spending limits for presidential candidates, free television time for contestants, and the bolstering of the fiscal status of political parties.
Herbert E. Alexander, director of the southern California-based Citizens Research Foundation and an authority on money in politics, would eliminate restrictions or raise limits on money contributed to parties.
``The parties are more accountable than the [independent] political action committees,'' he says. ``They are also enduring. They know there will always be another election coming up. The PACs are sometimes hit-and-run.''
But Mr. Alexander also stresses that he is opposed to campaign reform at the expense of the First Amendment. ``It's a delicate balancing act -- protecting the integrity of the electoral system vs. freedom of speech,'' he says.
The balance in the homosexual-advocacy case is possibly even more delicate.
Here again, by allowing the Oklahoma appellate ruling to stand, what the court didn't say may be very germane. It didn't say that schools or other institutions couldn't set ethical standards for employment.
In fact, the Oklahoma court said that school boards could fire or refuse to hire a teacher based on his or her indiscreet homosexual activity. Only in the area of ``speech'' did it draw the line -- ruling it impermissible to dismiss a school staffer who merely advocates homosexual activity.
Such a stance is troublesome to many who feel that protection of easily impressionable youth is as important, possibly more important, than advocacy rights of teachers. But the challenge is not to abandon the First Amendment and resort to vigilante tactics or high-handed proceedings to rid their schools of homosexual teachers. It is to frame restraints, perhaps new laws, that guarantee constitutional protections to all. A Thursday column