Scott Lemieux notices some selective originalism on display from Clarence Thomas yesterday. In the "Bong Hits 4 Jesus" case, Thomas found that the original meaning of the Constitution gave schools nearly limitless power to censor student speech. But when it came time to weaken campaign-finance laws, history lessons from Thomas and Scalia on original meaning were nowhere to be found. How curious. Meanwhile, Dahlia Lithwick nicely captures some of the oddness at work in the two speech cases yesterday:
In Morse, Roberts goes to great lengths to insert meaning into the silliness of the words on the student banner. He insists the phrase "Bong Hits 4 Jesus" can be read as "celebrating drug use"; indeed to get there he needed only insert the imaginary words, "bong hits [are a good thing]." When did we enter into the era of constitutional interpretation through inserting pretend words? The sign could have as easily been read to say "bong hits [will kill you]."
Having effortlessly decoded the unintended pro-drug message behind the student speech in Morse, the chief then takes the issue ad in FEC at face value. The commercial that Wisconsin Right to Life wanted to run--which didn't say "don't elect Russ Feingold" but asked you to think darn hard about what Feingold did and to let him know that he is a bad, bad man--is protected "core political speech," regardless of its effect on viewers or the integrity of elections. ...
In the first case, the umpire gets to toss some new words out onto the field in order to get the outcome he desires. In the other, he merely reads out decades of congressional purpose and intent.
The truly weird part about Alito's opinion in the school case, though, is that he went out of his way to say that political speech was still protected in schools. So students can still protest against the War on Drugs or even agitate for legalizing marijuana. But the moment they start saying kooky things like "Bong Hits 4 Jesus"--even if they're doing so to rail against drug laws--then it seems that they're no longer protected. Eugene Volokh has more. Anyone care to make sense of this?