Marty Lederman raises an interesting inconsistency argument against two opinions the Supreme Court handed down yesterday, both touching on free speech and both written by Chief Justice Roberts. If you want to read the opinions themselves, they are Morse et al v. Frederick and Federal Election Commission v. Wisconsin Right to Life, Inc. Here are the quotes Lederman compares:
From Wisconsin Right to Life: “Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the Chief wrote. In defining what qualifies as “express advocacy,” "the court should give the benefit of the doubt to speech, not censorship."
From Morse: ''The message on Frederick's banner is cryptic. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.''
I think the key would be to distinguish between different contexts for the two statements. If the context, the kind of case, and the circumstances of when it might be ok to act on the speech in some way differ in the right ways, then there's no inconsistency. In the school case, the issue wasn't whether it was a criminal act to say it. It was whether the school had the right to make a rule against it and thereby punish him in a non-legal way. It could outlaw that kind of speech within certain contexts, the Court concluded.
The other case didn't involve disciplining a student in a school for violation of a speech code or some such thing. It was about whether certain actions violate a law prohibiting a certain kind of speech.
I can understand why someone would think the burden of proof is much higher for establishing that someone has broken a law than it is for establishing that someone has broken a school speech code.
The other issue is that express advocacy seems to be a narrower concept in the Chief's mind, and there's no such narrower concept at work in the Bong Hits case.
I haven't read the opinions, so I don't know what Chief Justice Roberts would actually say, but I think I can make sense of why someone might view both cases differently even though both involve free speech. An interesting question is whether the dissenters, who also took opposite views on the two cases, can also provide a justification for wanting to restrict free speech in the campaign finance case while allowing it in the school case. They probably can, but I haven't read the opinions, and I haven't given it much thought.
I do think it's noteworthy that when people make such inconsistency claims they often forget to apply them to both sides. If conservatives favor restricting abortion but oppose animal rights, that has equal potential for inconsistency as favoring animal rights but opposing fetal rights. If conservatives have to explain how it's consistent to oppose abortion but favor the death penalty, then liberals who oppose the death penalty but favor legal abortion also need to explain how those positions are compatible. In any these cases, there isn't necessarily an actual inconsistency, but the charges are often made without considering that the opposite views might also have the same potential inconsistency.