Yesterday, the Supreme Court handed down two decisions with implications for free speech. In each case, the Court seemed to make its decision not based on any constitutional principles, but on getting the right outcome.

The first case is the famous "Bong Hits for Jesus" case. A Juneau, Alaska, high school student unfurled a banner with the aforementioned phrase outside the school as the Olympic Torch passed by. The student was playing hooky from school, but was right across the street from the campus with other students who had been allowed a sort of "field trip" to watch the torch.

The Supreme Court ruled that the aforementioned banner wasn't entitled to First Amendment protection because it advocated illegal drug use at a school-sponsored "trip." The conservatives voted against the free speech claim, the liberals for it.

In the second case, FEC v. Wisconsin Right to Life, the Supreme Court ruled 5-4 that McCain-Feingold's ban on "issue" ads mentioning a candidate running for federal office within 30 days of a primary election or 60 days of a general election to be an unconstitutional infringement on free speech.

But Roberts said, "Discussion of issues cannot be suppressed simply because the issues also may be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

I've got mixed feelings on the "Bong Hits" case. I think that public high schools should be able to prevent students from making banners or wearing T-shirts advocating illegal (and dangerous) drug use. However, I also worry about the slippery slope where some government entity passes a "hate crimes" bill that protects homosexual conduct and uses that as a method of silencing religious individuals who believe differently. In fact, I suspect that if the banner in question in this case had read something along the lines of "homosexuality is immoral," then you'd see the same justices lining up on different sides.

The FEC v. WRTL case shouldn't even be a close call. This is about political speech in advance of an election. There's some Twilight Zone effect going on when nude dancing is accorded more "free speech" protection than political speech -- the kind of speech the Framers were most interested in protecting. However, in this case, the liberal wing of the Court said that there was some public interest in preventing corporations and unions from expressing their views.

As I was driving home this evening, I heard Duke University law professor Erwin Chemerinsky on the radio explain that this position wasn't an assault on free speech because it only prevented "corporations" from speaking -- not individuals. Chemerinsky's foil on the program, Chapman Law School Dean John Eastman, pointed out that the corporation simply the legal structure that groups of people with a common interest create nowadays in order to operate most efficiently in the public sphere.The National Rifle Association, NARAL, Wisconsin Right to Life, the ACLU -- they're all corporations that represent a group of people with common views.

There don't appear to be any free speech absolutists on the court nowadays. I suppose that's tolerable as long as the "right" side has a majority, but it's scary that our right to petition, criticize and lobby the government isn't dependent on the plain reading of the Constitution, but upon the whims of five guys in robes.