The First Amendment and the Bizarre Court

How is it that the First Amendment to the Constitution no longer protects political speech but protects nude dancing? Wasn’t the prohibition of nude dancing designed to keep us off the slippery slope of inhibiting political speech? Yet it did not. It appears that there was a way of getting around that roadblock, making the slippery slope a joyride and prohibiting free political expression all the while protecting the right of pole dancers to strut their stuff.

Jonah Goldberg has some excellent commentary on this subject.

...let me state plainly where I’m coming from. First and foremost: The more overtly political the speech is, the more protected it must be. The First Amendment was not intended to protect pornographers, strippers or the subsidies of avant-garde artistes who think the state should help defray the costs of homoerotica and sacrilegious art. This isn’t to say that “artistic” expression doesn’t deserve some protection, but come on. Our free-speech rights were enshrined in the Constitution to guarantee private citizens — rich and poor alike — the right to criticize government without fear of retribution. ...

For a long time, we concluded the best way to protect political speech was to defend other forms of expression — commercial, artistic, and just plain wacky — so as to make sure that our core right to political speech was kept safe. Like establishing outposts in hostile territory, we safeguarded the outer boundaries of acceptable expression to keep the more important home fire of political speech burning freely. That’s why in the 1960s and 1970s, all sorts of stuff — pornography, strip clubs, etc, — was deregulated by the Supreme Court on the grounds that this was now legitimate “expression” of some sort. ...

Still, such buffoonery would be pardonable if the grand bargain of defending marginal speech so as to better fortify the protective cocoon around sacrosanct political speech were still in effect. But that bargain fell apart almost from the get-go. At the same moment we were letting our freak flags fly when it came to unimportant speech, we started turning the screws on political speech. After Watergate, campaign-finance laws started restricting what independent political groups could say and when they could say it, culminating in the McCain-Feingold law that barred “outside” criticism of politicians when it would matter most — i.e., around an election.

And that’s why we live in a world where cutting NEA grants is called censorship, a student’s “Bong Hits 4 Jesus” sign is hailed as vital political speech, and a group of citizens asking fellow citizens to petition their elected representatives to change their minds is supposedly guilty of illegal speech.