Jewish World Review June 24, 2002 / 14 Tamuz 5762

Thomas Sowell

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Judicial ad hocracy | Maybe it was not the most important case before the Supreme Court of the United States. But still it was a galling example of the way some justices casually wave aside the rights of ordinary people for the sake of some special interest that they favor.

The case involved a village in Ohio that required door-to-door solicitors to get a permit before going to the homes in that village. J. Witnesses challenged that ordinance in the courts and, just a few days ago, the Supreme Court overruled their convictions for violating that ordinance.

Anyone who has been pestered by door-to-door solicitors or by telemarketers on the phone can understand the reason for at least limiting such annoyances. But not the Supreme Court, which voted eight to one in favor of letting door-to-door solicitors continue ringing doorbells in a community where the residents obviously do not want to be bothered.

Why? Because the Constitution's right to free speech is read in Justice John Paul Stevens' majority opinion as if it were a right to try to get an audience, whether or not the audience wants to be intruded upon.

Unfortunately, there is a long line of cases over the past half-century or so which have given those who want to talk a priority over those who don't want to hear them. Still, this case -- Watchtower Bible & Tract Society vs. Village of Stratton -- stretches the First Amendment even further than before from the meaning it had when it was first written into the Constitution.

Prior cases have allowed communities to limit the "time, place, or manner" in which free speech could be exercised. That is, you can't start blasting away on a bullhorn at 3 a.m. in a residential neighborhood, for example, or get up on a soapbox in the middle of the street in rush-hour traffic.

In short, these cases operated on the general principle that the government has no right to censor the content of what you say, but it does have a right to limit where and how you say it. Even so, the Supreme Court has long taken a very narrow view of what limits it would permit.

Property rights, which are just as much a part of the Constitution as free speech, have been given short shrift by the courts. Neither a privately owned development nor a shopping mall could stop people from trespassing on their property to hand out leaflets. Now, with this latest case, the Supreme Court does not even allow a village to require a permit before going to homes in that village -- even though the permit was free and did not depend on the local authorities' approval of what was going to be said.

No part of the Constitution has been more corrupted by judges than the right of free speech. The obvious intent of this right was to prevent the government from silencing its critics or censoring the content of political discussions in general. But the past two generations of judges have stretched people's right to speak their mind to the point where it is a right to override other people's right to be left alone if they don't want to be pestered.

In addition, the courts have stretched the concept of "speech" to include actions like nude dancing or burning flags. Meanwhile, the central point of free speech -- political discourse -- has been allowed to be narrowed by laws restricting how much money you can donate to those who want to discuss political issues or candidates. Democracy has been sacrificed to a judicial ad hocracy.

The pretense that these judicial self-indulgences are based on the Constitution has been dressed up in words about protecting the "values" of the Constitution -- as distinguished from following its plain words and the meanings that those words had when they were written. Since the whole point of a constitution is to restrain what all branches of government -- including courts -- can do, escaping from its plain words in the name of "a living constitution" turns it into a dying constitution that means whatever judges happen to like.

Like so many who practice judicial ad hocracy, Justice Stevens preened himself on his concern for the "little people" -- in this case, those who don't have enough money to use more expensive ways of expressing themselves, and so have to go door to door to get out their message. But the Constitution does not authorize judicial favoritism. It expressly forbids it in the 14th Amendment, where "equal protection of the laws" is mandated for all.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, The Einstein Syndrome: Bright Children Who Talk Late.


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© 2002, Creators Syndicate