FREE SPEECH AND SELECTIVE ORIGINALISM. The Supreme Court today issued a relatively narrow holding upholding a principal's suspension of a student for holding a banner reading "Bong Hits 4 Jesus." Clarence Thomas, meanwhile (and, interestingly, without a join from Scalia) wrote a concurrence arguing that the landmark student free speech case Tinker v. Des Moines should be overturned and schools be given the essentially unlimited power to censor student speech on (plausible, it must be said) originalist grounds.
Oddly, however, in joining Scalia's concurrence in another case today arguing that virtually all campaign finance laws are unconstitutional, neither of the Court's two "originalists" managed as far as I can tell to muster a shred of evidence that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation. Nor did Thomas's dissent in McConnell contain a historical analysis of the original understanding of the First Amendment, although it does cite any number of libertarian 20th century precedents that would seem erroneous under a strictly originalist standard. Hmm, and the ability of wealthy people and corporations to give and spend money for political purposes is enormously important to the modern Republican Party, while protecting the free speech of students who if you squint really hard can be vaguely construed as encouraging drug use is not. What an amazing coinky-dink!
--Scott Lemieux
