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If James Madison were alive today …

Columnists all over the country have put in their 2 cents about two of the recent Supreme Court rulings that address the First Amendment.I agree with only one of the decisions in these two situations, but I think both cases mock the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.I am thinking that James Madison, who authored the First Amendment, is rolling over in his grave.Vincent Blasi, a James Madison Distinguished Professor of Law, talked about the intent of Madisonís First Amendment in a lecture he presented in 2004. The following is an excerpt from the Web site of Virginia Law citing Blasiís lecture: ìIn the Federalist Papers, Madison had said that majority factions were the real problem. But with the emergence of a threat from a well-organized and financially motivated minority faction Ö Madison began to perceive a role for public opinion in the system of checks and balances, and began to consider how the freedoms of speech and press could be important safeguards assisting in the mobilization of oppositional opinion.îIf Madison were alive today, would he interpret the following cases as violations of free speech?In Morse v. Frederick, school principal Morse instructed high school student Frederick to take down a banner he brought to a school-sanctioned event. (Frederick was not standing on the school property but he was displaying the banner during the event.) The bannerís message: ìBong Hits 4 Jesus.î Morse believed the banner violated school policy prohibiting the promotion of illegal drug use.Frederick refused and was later suspended. After the school superintendent and the school board upheld the suspension, Frederick filed suit alleging the school board had violated his First Amendment rights.I can only imagine how Frederick would have fared had he attended the same Catholic high school I did. Free speech? You gotta be kidding. And from my interactions with my public school friends, free speech was not an option for them either.Times are different. Frederick took the school board to court. The District Court ruled that Morse did not violate Frederickís First Amendment rights, but the 9th U.S. Circuit Court reversed the decision, citing that the banner had a positive slant to it (for Jesus) and the school had not demonstrated the bannerís message had disrupted the school.On June 26, the Supreme Court overturned the Circuit Courtís decision by a 5-4 vote. The majority maintained the banner did indeed violate the schoolís drug policy.I really donít think the banner would entice kids to smoke dope. But it was a teacherís observation ñ she simply said, ìNo.î I think that teachers and principals should have the right to interpret a policy in a momentís notice and make a decision, without fearing legal interference. Am I a simpleton thinking this case has nothing to do with free speech?Contrary to some of the editorials you might have read on this matter, the teacher suspended Frederick only after he refused to take down the banner.Frederick needs a lesson in respecting authority.Of course, it seems his parents supported his right to ignore the teacher, so my guess is authority is ill defined within the family.And what about earning the right to free speech? Anyone recall these parental words? ìYou can do and say whatever you want when youíre paying your own bills, but while youíre in this house (and certainly while youíre in the clutches of the nuns) youíll follow our rules.îTeachers deserve more. This case should have never reached the Supreme Court.Same goes with Wisconsin Right to Life Inc. v. the Federal Election Commission.I didnít agree with the Supreme Court decision on this one. And itís a bit inconsistent given the decision on Morse v. Frederick. Whose agenda are we following now, Supreme Judges?Anyway, this case pitted campaign reform laws against special interest groups. Section 203 of the Bipartisan Campaign Reform Act of 2002 makes it a federal crime for a corporation or a union to fund politically charged ads that feature any candidate 60 days prior to a federal election and 30 days prior to a primary.The Federal Election Commission ruled that Wisconsin Right to Life violated the reform act when its TV ads asked voters to contact two Democratic senators from Wisconsin, Russ Feingold and Herb Kohl, and urge them not to filibuster President Bushís judicial nominees. The ads ran close to the election, defying the 60 days. And Feingold was up for re-election. In other words, the ad campaign was a seemingly clever way of trying to discredit Feingold to pro-life voters.The Supreme Court ruled that free speech rights supersede campaign reform laws.Again, call it simplistic, but I donít think this is about the First Amendment. The Wisconsin Right to Life group did violate the campaign reform act, which was supported by many in Congress without reference to the First Amendment.The majority of Americans want campaign reform. We have to give up something to get something, too. We canít have it all.I personally think we should ban political TV ads period. Letís have debates, sponsored by neutral parties, and forget about the rest. Is that a violation of free speech? Smoking ads were banned a long time ago ñ is that a violation of free speech?Challenges concerning First Amendment rights did not occur in this country until the 20th century. Since then, I think weíre misinterpreting and exaggerating Madisonís intent.Blasi also said this about Madisonís objective regarding the First Amendment: ìFor Madison, the First Amendment is not about self-expression, the search for truth as an end in itself, or even the opportunity for political participation as a means of self-fulfillment ñ it is about checking abuses of power.îAnd common sense?

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