One more for the road
Don Quixote on Jul 13 2008 at 7:44 am | Filed under: Free speech, Political correctness
First, thanks to all of you who have posted such interesting, informative and intelligent comments the past two weeks. You always make my time here enjoyable and educational. Still, I’m glad Bookworm is back and ready to bring you her wide diversity of posts, and her thoughtfullness and intelligence that make the Bookwormroom such a great place to hang out.
Still, I’d like to talk about one more topic. Last year about this time, the Supreme Court, in Morse v. Frederick, 127 S.Ct. 2618 (2007), held that a student could be disciplined for unfurling a banner saying “BONG HiTS 4 JESUS” at a school event (specifically, while standing at the side of a street waiting for the Olympic torch to go by). As a libertarian/conservative, I’m distressed that the conservative members of the Court were so willing to restrict speech.
The Court used to apply a “substantial disruption” test, but this Court rejected that test. I suppose it had to, because the most disruption this banner could have caused was that some students might have been distracted and missed seeing the torch go by — hardly a great loss to their education.
The Court correctly notes that students do no have the same rights as other citizens, because of the ”special characteristics of the environment,” whatever that means. Though it could have been clearer on the point, the Court appeared to make a distinction between advocating illegal drug use (which it viewed this banner as doing) and advocating changes to legalize drug use. This strikes me as an unworkable test that breaks down completely when considering advocacy of civil disobedience. Obviously, in this case, advocacy of drug use at least implicitly advocates making drug use legal.
In any case, the notion that a school should be permitted to suppress advocacy of drug use on campus is most unfortunate. Are teachers to become hall monitors, listening in on student conversations, suspending anyone they hear suggesting drug use is a good thing? I would go back to the substantial disruption test. Unless the student’s speech threatens to disrupt the educational process, it must be permitted. Granted, drug use is a bad thing. Granted, as the Court goes on at length about, we’ve decided it is a part of the schools’ mission to discourage drug use (Lord knows why this is a part of the schools’ mission, but that’s another subject). That just turns this rather silly banner into dissenting political speech, in that it dissents from the message the school is tasked with preaching to the students.
The First Amendment matters. Speech must be protected, even in our schools. Dissenting speech must be especially protected. Where, as here, that speech clearly does not threaten to disrupt the education of the listeners, and is not lewd or offensive, it must be protected absolutely.
We conservatives should keep in mind that the vast majority of the schools in this country are controlled and run by liberals. Do we really want to give them authority to suppress dissenting speech, and to teach our children that suppressing speech (in the name of political correctness, for example) is okay? Yet, it’s the conservative members of the Court, led by Justice Roberts, the author of the the opinion, who have struck this blow against free speech in the school setting. I think that’s unfortunate. What do you think?
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14 Responses to “One more for the road”
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I was confused about this case when it was originally reported. I felt I just didn’t know enough about the facts. It seemed to me that the student wasn’t on school property, and it was an afterschool event. I thought there was no way he should have been disciplined. Then I think it came out that he was off school property, but it was a school event. That puts a different light on the matter. If it was a school sponsored event, then I think that displaying a sign for the tv cameras is a legitimate reason for discipline. If he had just yelled it out as someone went by, then not.
I don’t know. I think schools _must_ have some rights in applying discipline to keep order in school sponsored events, but to be honest, this particular case was about as clear as mud. I agree that the rights of free speech have to be upheld - maybe even especially in school settings, but we’re talking about teenagers here…you don’t use the same standards of behavior - including speech - that you do with adults. The school stands in loco parentis - though since his parents supported his suit, obviously in this case his parents would have made a different decision!
PS.
>>Where, as here, that speech clearly does not threaten to disrupt the education of the listeners, and is not lewd or offensive, it must be protected absolutely.>>
I suspect that this doesn’t pass the “offensive” test - at least for someone. Of course when “black hole” is considered racist, almost anything can be offensive. Still when you have a Minnesota professor openly stating that if someone will obtain a eucharist wafer for him, he will openly defile it, you have a level of religious offensiveness in public education that will probably only be countered with threats of bodily harm. It’s actually nice to see that someone is offended by a disrespectful comment about Christianity.
We conservatives should keep in mind that the vast majority of the schools in this country are controlled and run by liberals. Do we really want to give them authority to suppress dissenting speech, and to teach our children that suppressing speech (in the name of political correctness, for example) is okay? - D.Q.
I think you’re using the wrong paradigm here, D.Q. Such concerns aren’t a case of liberals VS conservatives, but of libertarians vs authoritarians.
There are plenty of conservatives who are all FOR suppressing dissenting speech, provided that Republicans are in power. Ditto for liberals who gladly overlook bill-of-rights violations, provided that Democrats are running the show.
This morning, I watched an interview with Naomi Wolf, who said she was shocked at how many Republicans come to hear her speak about what she sees as encroaching facism.
http://stoplying.ca/video/naomi_wolf_end_of_america.htm In fact, she appeared to be saying that more Republicans care about liberty than Democrats.
The interviewer was surprised to hear that, too.
The’re stuck in a “Left” Vs “Right” way of looking at things.
People who are prejudiced against “the right” see Republicans as jack-booted thugs. People who are prejudiced against “the left,” see Democrats as Socialist thugs.
Authoritarians of both stripes scare the crap out of me, and I think the Bill of Rights are in jeopardy, regardless which party holds power. *
* There is also a book about how “thought police” extremists on both the right and the left determine what can - and can’t- be included in children’s text books. It’s very, very scary.
Ozzie, I agree completely! I made the point because I think of conservatives as, generally speaking, defenders of the First Amendment against liberal’s introduction of “political correctness,” “thought police,” “hate crimes” and the like. It is disturbing when I see conservatives chip away at the First Amendment as the conservatives on the Court have done here. It reminds me that you are right — conservatives are often every bit as guilty of suppressing speech as liberals are. It just depends on whose ox is getting gored at the moment. The point of my comment was to suggest to conservatives who are inclined to approve of such suppression that, especially in schools, it’s likely more often to be conservative speech that ends up suppressed by authority of the decision of the Court’s conservatives.
Conservatives should not impose limitations on others they are not willing to live with on themselves. And the limit imposed by the Court is a bad idea by any standard.
“I think of conservatives as, generally speaking, defenders of the First Amendment against liberal’s introduction of “political correctness,” “thought police,” “hate crimes” and the like.” - D.Q.
I used to think of Conservatives as traditionalists when it came to the Bill of Rights, until I repeatedly heard Republicans making the the troubling assertion, “The Constitution isn’t a suicide pact.”
Maybe it’s because the Republicans were in power, but an alarmingly number of so-called “conservatives” were A-OK with assaults to the Constitution. (”If you dont have anything to hide, why would it matter if the government listens to your phone calls, reads you e-mail, etc?” was another favorite)
While the founders were tossing and J.Edgar Hoover was grinning, I was amazed at how quickly people will toss aside core principles when they are fearful.
I tend to think NSA wire taps were more of an assault on Congress’s right to keep their phone conversations secret from the public and the President than it was an “assault on the Constitution”.
(”If you dont have anything to hide, why would it matter if the government listens to your phone calls, reads you e-mail, etc?”
Obviously because Democrats in Congress, like the Democrat prosecutor Spitzer, had something they needed to hide. Jefferson hiding money in his freezer is another thing as well.
Obviously because Democrats in Congress, like the Democrat prosecutor Spitzer, had something they needed to hide. Jefferson hiding money in his freezer is another thing as well - Ymar
So, you’re FOR wiretapping, I take it?
Just proves my point that Americans of all stripes wouldn’t mind it if the Bill of Rights were banished to the trash heap of History.
As a matter of fact ,in the early 1950s, Madison’s Capital Times editor John Patrick Hunter took to the streets with a petition, (which was actually the Declaration of Independence, along with portions of the Bill of Rights) and tried to get people to sign it. Only one in 112 did. The rest found it too subversive.
I don’t know if they were Republicans or Democrats, mind you, but to me, it matters not.
Land of the free, home of the brave? YeahRightSure
>>So, you’re FOR wiretapping, I take it?>>
Guess you were born well after party lines were no longer the norm, eh?
You know, the critical issue here is not whether the overheard information is admissable in court. I have no problem having the government listening into my phone conversations - or even searching my home…as long as they can’t admit what they find into a court of law. Until they have that court order giving them permission to tap the phone etc., all they have is hearsay and probably “fruit of the tree” as they say. I don’t think the NSA should be restricted from listening in anywhere they think might be relevant to terrorism. Using what they hear in a legal proceeding is another issue entirely.
Going back to the Constitution, you’re applying the principles of a “right of privacy” where it doesn’t exist. Should you have overheard a conversation in the days before telephones, could you have used the information? Of course you could. If you overheard the someone planning a bombing, are you supposed to just pretend you didn’t hear it? Of course not. Can you arrest the man before he bombs something? No…not on the basis of what you heard…there is no crime. Could you make an effort to prevent the bombing? I should hope so. Could you then arrest the man for _planning_ a bombing? Don’t think so. Telephones are no different from simply overhearing conversations you’re not part of. Listening should not be against the law. Prosecuting on the basis of what you overheard should be - unless you have a court order.
Tell me where in the Constitution you find a “right to privacy”?
“I think you’re using the wrong paradigm here, D.Q. Such concerns aren’t a case of liberals VS conservatives, but of libertarians vs authoritarians.”
Sorry, Ozzie, but conservatives (that doesn’t necessarily mean Republicans) support small government and emancipated individual rights, whereas Liberals today are basically an outgrowth of socialist/progressive movements, in support of centralized government planning, control over individual civil and economic rights, control over education, control over family values..etc. It is the Left that dreamed up with the idea of a “living” Constitution that can be amended by Liberal/Left judges according to their whims in pursuit of their political goals. It was Liberal justices that have consistently attacked the right to self defense, the right of government to confiscate private property for commercial gain, and supported the concept of enforced social values and “thought crimes” (i.e., ‘hate speech’). Sure, some (not all by any means) of the Christian Right will advocate enforced social policies aligned with their religious beliefs, but these are very small movement within conservatism (which I, too, oppose, by the way).
You refer to “J. Edgar Hoover” - wasn’t he mostly head of the FBI under Democrat Administrations (I think of FDR, Truman, Kennedy and Johnson, in particular)? You want Presidents who assaulted the constitution? Well, Jackson (D), Wilson (D), and FDR (D) certainly come to mind. If you cut through the BDS directed against the current administration, what assaults really are you talking about? Have you been given your marching orders to the nearest resettlement camp? Have they broken down your door? Pray tell. Either that, or get medication.
The wiretapping issue is a straw man issue created by the Left - the FISA law applies to the right of government intelligence agencies to wiretap in advance of getting a warrant of communications that originate from overseas or from non-U.S. citizens but, because of the way that satellite and optic communications are routed through the U.S., are accessible by U.S. intelligence agencies. There is no “right” to wiretap conversations of Americans ad lib.
However, we on the “Right” can’t help but notice how the Left does seem to be overly considerate of the supposed Constitutional rights of non-Americans who would endeavor to attack us.
Why is that?
Is it that the enemy of my enemy is my friend? Help us to understand this, would you?
DQ - a school is not and should not be a public forum. It is there to educate kids who don’t yet have the full rights of adults. This does not deny kids the right to express themselves, but it does set limits on where and when so that they cannot disrupt other kids’ rights to an education.
If I work in a private or public corporation, I don’t enjoy free speech rights therein either. Same goes for public institutions, such as the military or government. Similarly, universities can define where and when people are free to express themselves - students cannot freely interrupt a class in session and turn it into a political event, for example…nor should they.
If you cut through the BDS directed against the current administration, what assaults really are you talking about? Have you been given your marching orders to the nearest resettlement camp? Have they broken down your door? Pray tell. Either that, or get medication.” — Danny
I guess I see a long line of violations, though Bill Clinton was a referred to as “a serial violator the Bil of Rights,” so, once again, I dont think it maters if a Democrat or Republican is in charge.
http://www.villagevoice.com/1999-01-05/news/what-s-happening-to-the-left/
There have been serious violations since the war on terror began, which, I suspect is the nature of all governments — just as the Founders warned.
Lincoln supsended habeus corpus and FDR shuttled people off to internment camps, but the Civil War and WWII ended, and scholars deemed both presidents wrong. The war on teror isnt going to end on our lifetimes, and the Bill of Rights will continue to take hits.
Danny: “However, we on the “Right” can’t help but notice how the Left does seem to be overly considerate of the supposed Constitutional rights of non-Americans who would endeavor to attack us.”
So, the 1 million people on the “terrorist watch list” deserve to be on it? And it isnt, in any shape or form being used to stiffle critics?
And you HAVE to love the “free speech zones,” where the public can air grievances, far away from elected officials.
D.Q suggested that the Right champions free speech, while the left tries to stiffle it.
I contend that authoritarians on the right and left only appreciate free speech when they agree with the message and try to stifle it when they disagree.
True patriots want to see the First Amendment protected no matter what.
Tell me where in the Constitution you find a “right to privacy”?- Suek
The fourth amendement refers to “unreasonable search and seizure,” which, to me, extends to e-mails and phone calls in this electronic age.
I fully understand that the government has loooooong been in the business of snooping into citizen’s lives, as witness by the FBI files on Albert Einstein, John Lennion and Martin Luther King.
But geeze, Bobby Kennedy had to OK J.Edgar Hoover’s request to peek into MLK’s window…
Again, this isn’t “Left vs Right” issue.
Authoritarians are OK with expanded government power, and libertarians don’t trust government not to abuse said power.
libertarians don’t trust government not to abuse said power.
That’s obviously false given that libertarians are moving towards having the government be in charge of producing hard core and soft core drugs.
When the government can make lots of money the more addicted people become, this is a libertarians’ ability to “not trust the government”?
False.
The war on teror isnt going to end on our lifetimes, and the Bill of Rights will continue to take hits.
That’s actually why Bush refused to declare war. One of the primary reasons anyway.
If Congress declared war on an entity that will “never end”… what do you suppose happens to your rights under the Emergency Powers given to the President after Congress has officially declared war and legitimatized terrorism as an official and recognized enemy?
The US Navy is still fighting pirates in Somalia and Indonesia. You think if the US Congress declared war on them, that that war would ever end? No, it wouldn’t.
Yet, if your axioms are correct, Ozzie, Bush would already have forced Congress to declare war officially given the pressure and political capital he had after 9/11. Yet he didn’t. Obviously, you might want to go back to your drawing board, Ozzie, and make up an ideology that actually is a little bit more logically consistent.
True patriots want to see the First Amendment protected no matter what.
Liveleak thought something of the same, but they bended their knee anyways to Islam cause they found out that laws and “rights” weren’t as precious as life and limb. You will too.
So, the 1 million people on the “terrorist watch list” deserve to be on it?
You don’t even have the names of these people. So stop making things up, will you.