THE BEST OF THE JUSTICES

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." Nevertheless, the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War. With breathtaking scope, the Bipartisan Campaign Reform Act of 2002 (BCRA), directly targets and constricts core political speech, the "primary object of First Amendment protection." Because "the First Amendment" has its fullest and most urgent application "to speech uttered during a campaign for political office," our duty is to approach these restrictions "with the utmost skepticism" and subject them to the "strictest scrutiny."

In response to this assault on the free exchange of ideas and with only the slightest consideration of the appropriate standard of review or of the Court's traditional role of protecting First Amendment freedoms, the Court has placed its imprimatur on these unprecedented restrictions. The very "purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." Yet today the fundamental principle that "the best test of truth is the power of the thought to get itself accepted in the competition of the market," is cast aside in the purported service of preventing "corruption," or the mere "appearance of corruption." Apparently, the marketplace of ideas is to be fully open only to defamers, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); nude dancers, Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991) (plurality opinion); pornographers, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002); flag burners, United States v. Eichman, 496 U. S. 310 (1990); and cross burners, Virginia v. Black, 538 U. S. ___ (2003).

Because I cannot agree with the treatment given by JUSTICE STEVEN'S and JUSTICE O'CONNOR's opinion (hereinafter joint opinion) to speech that is "indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society," I respectfully dissent. [Citations omitted.]

It is one of my pet theories here that Justice Thomas is the best of the current justices -- and, in case that seems to be damning with faint praise -- one of the great justices in our history. In this opinion, he shows again why that is so. I am particularly taken with this following paragraph, which presages the undeniable truth that this statute, as destructive as it is to free speech and free elections, only sets the stage for the next "reform":

It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as "circumventing" the law's prohibition. Hence, speech regulation will again expand to cover new forms of "circumvention," only to spur supposed circumvention of the new regulations, and so forth. Rather than permit this neverending and self-justifying process, I would require that the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient.

Justice Thomas' point that the government should be forced to use the least restictive means possible when interfering with our core political rights and that its interest can be entirely protected by well-drafted bribery statutes, is unanswerable.

Posted by David Cohen at December 10, 2003 10:23 PM