The basic concern of Constitutional Law is protecting core values from being nibbled away. If told we have "Freedom of Speech," but that some speech is "unprotected," where does that leave us?
It leaves us in the position of having to draw lines, usually in follow-the-dot fashion, in which it takes "a line of cases" to see the known bounds.
The one thing we don't want to do is provide lines with no safety-margins, for if we do, the user of the guaranteed right might find himself in guaranteed hot water. We want the right to be considered a zone of safety in which one cannot be legally punished even for mistakes committed in the haste, pressure, or hyperbole of the moment. That's the rule of NYT v. Sullivan, which protects newspapers from stupid mistakes that harm reputations and feelings. Unless the publisher is reckless in reliance or in failing to check sources, or intentionally lying, he's in safe water from successful suit. Notice I said "successful" suit. Anyone can sue you for anything if he's got the filing fee and cares to invest it.
In order to protect core values, we have to protect the fringe element. Frequently this has the defenders of First Amendment (FA) values coming to the aid of crackpots and Nazis, unfortunately, but the rights we secure to them, since they asked, are usable for us, the good moderate types allegedly, who comprise the more or less silent majority that keeps this country on an even keel most of the time. But sometimes we need to speak up loud and clear, too, and we don't want to get nailed for our bravery.
Here's the latest on protecting the core by protecting the fringe. Fringe in this instance is not the lunatic fringe but the person who breaks new ground, such as the coach who spoke up for his women basketball team which was getting stepped on by the school and he called foul, a violation of Title IX, which provides equal rights for women in athletics, for which the school fired him. Does the federal whistle-blower statute protect the coach? The Supreme Court says yes. The Court is protecting the core by protecting the coach who ventured into new territory. He broke new ground by standing up for his team against the school
Here's the case, Jackson v. Birmingham Board of Education, (decision, Findlaw), issued 3/29/05, today.
Below is an early news report providing a summary of the facts.
The conservative wing, bless their hearts, just cannot see the liberals, with Sandra Day O'Conner, the big bear, tipping the balance, going around creating new rights, willy-nilly, out of whole cloth, just by snapping their fingers like that. The poor guys; it must be tough to have to put up with new rights. What's wrong with the old ones? Nothing, except sometimes they don't go far enough to cover new situations.
The ordinary American is a lot better at creating new situations than the legal eagles are at anticipating them with all their laws 'n' stuff.
The Constitution may not be "a living document" as Justice Scalia says, but individual Americans are living and they frequently get ahead of the text. Text written in 1787, mind you, plus a few amendments, 27 to be exact.
If Justice Scalia wants fewer rights, that's okay with me, but I like to play a round with a full bag of clubs, thank you. In golf, you're limited to fourteen clubs in the bag. We don't have a fourteen-rights limit in Con-Law, so when we need a new one, we go into the workshop and invent it. Then we carry it around and pull it out when we're behind that tree or stuck in a hole.
Not the conservatives, though. They want us to go through the amendment process and have the country vote on any new clubs. Which is why there are only 27 of them when the nation seems to need more like thousands, all crafted in the workshop, aka the Supreme Court.
Fore!