Monday, October 13, 2014

The Supreme Court fears free speech

The New York Times article is "First Amendment Limit: The Supreme Court's Plaza", by Adam Liptak, the paper's Supreme Court correspondent.

The piece is an unflattering depiction of a Supreme Court that holds the First Amendment's protections to be absolute — except on the Court's own steps. The prohibition on political speech within the building or on its grounds stands in sharp contrast to a number of decisions the Court has issued protecting speech that many consider odious (protests at military funerals and anti-abortion activists confronting patients outside abortion clinics, for instance).

The Court's stance unavoidably raises the question: what are the Justices afraid of?

Liptak demolishes the two primary reasons proffered for the ban: the fear that the Justices could be improperly influenced by the protesters, and the fear that, even if the Justices aren't influenced, the public might think they were. Without using the word, Liptak effectively calls these reasons stupid.

The unavoidable conclusion is, the Justices don't particularly like free speech near them — probably because free speech can get boisterous and messy and loud. It might disrupt their gentle sensibilities. Poor things. They just don't have the robust constitution of the average poor woman seeking an abortion, who can skip blithely past a gauntlet of screaming, borderline violent anti-abortion protesters calling her a murderer.

But here's Liptak's most damning finding.

The Supreme Court is not even particularly consistent in how it treats speech on its plaza.

In a sworn statement in 2012, Timothy Dolan, deputy chief of the Supreme Court’s police force, conceded that “the court allows attorneys and parties in cases that have been argued to address the media on the plaza immediately following argument.” The court also occasionally permits “commercial or professional filming on the plaza,” he said.

It seems that people with power or connections can use the plaza.

Nice reputation, that. I'm sure it makes you proud, Chief Justice Roberts.

The Court's attempts to justify hypocrisy have never worked out well: Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States — these are shameful blots on the Court's history. The broad ban on political speech on the Court's own doorstep doesn't rise to that level of infamy, but it's not a rule in which the Justices should take any pride, either. It brands them cowards and hypocrites, unwilling to suffer what they (or at least the reactionary majority in their recent cases) righteously deem as politically necessary medicine.

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