Free speech from the mouths of babes?
By Selwyn Duke
Last month the Supreme court handed down three free speech rulings that find favor with conservatives. One of them is Morse et al. v. Frederick, a case involving the free speech rights of students. At issue is a five year old incident wherein a Juneau-Douglas High School senior named Joe Frederick raised a 14-foot banner stating "Bong Hits 4 Jesus" and was subsequently suspended for "drug speech" by then school principal Deborah Morse. Writing for the majority in a five to four decision in favor of the school, Chief Justice John Roberts reasoned that the First Amendment should not be applied in this case because the student was encouraging drug use.
While I agree with the principal's actions and take solace in the knowledge that educators' hands won't be further tied, the Supreme Court's ruling does nothing to address what is the underlying problem. In fact, with the convoluted logic displayed by virtually all members of the court, it's hard to find much to applaud in this judgement.
The real issue here extends far beyond this one case and harks back to a precedent set in 1969 in the Tinker v. Des Moines ruling, which divined from the Constitution a right to free speech in schools. Upon issuance of that decision the court stated,
"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Really? What can hardly be argued is that the donning of a black robe confers intelligence, wisdom or even much useful knowledge upon the wearer.
The truth here can be found in one of the few bright spots in this case. Writing in his concurrence, Justice Clarence Thomas drove to the heart of the matter in saying,
". . . it cannot seriously be suggested that the First Amendment ‘freedom of speech' encompasses a student's right to speak in public schools."
Leftists can argue till they're blue in the face, but the truth is that students do not have freedom of speech in school. Why, we can spew profanity at others on the street – in fact, some people where I grew up in NYC consider it a pastime – but a student may be punished if he directs same at a teacher or peer. I also have to wonder if the left's highly principled stand in defense of free speech would be maintained in the face of a student given to Nazi and white supremacist rhetoric.
The fact is that we don't ascribe to minors an adult set of rights. Minors may not buy alcohol or cigarettes, drive before a certain age, join the military, get married or enter into other kinds of legal contracts. Most tellingly, while enshrined in the Constitution is, "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed," there isn't much clamor to extend this right to minors.
In ignoring this, the more conservative members of the court are guilty of the same reasoning, if not the same sanctimony, as the left. Virtually no one supports granting "free speech" to students; that is, free speech properly understood. As I've said before, freedom of speech is but a facade unless the guarantee protects even the most odious, most offensive, most unpopular speech of all. Popular sentiments require no legal protection, as their popularity is protection enough. Thus, to draw the distinctions we already have – oh, such as proscribing "hate speech" on school grounds (remember, we may spew whatever hatred we wish, even the faux variety the thought police hate so much) – is to tacitly acknowledge that there is no free speech in that arena. (Note: This isn't a violation of the Constitution because the original intent of its framers is what rightly governs the document's application, and it's unreasonable to believe these 18th century men would have granted children the right to be sassy brats.)
Schools also are not alone as governmental institutions that prohibit free speech. Most obviously, military personnel are quite limited in the use of the tongue, and police departments come to mind as well. In fact, with sexual harassment and hate speech codes becoming the stuff of bureaucratic rubric, it may be hard to find an American governmental entity that affords its workers that most important American freedom. And while I definitely dislike the way this principle of censorship is applied by our Orwellian puppeteers, the principle itself is sound. Only the most delusional egalitarian fails to understand that for a society to function properly, just hierarchies must be operative and respected. Thus, when the Black Robes turn around and speak of protecting what does not exist, students' "right to free speech," they illustrate their philosophical bankruptcy.
A mature approach begins with the understanding that it isn't a question of whether students will be muzzled, but only what kind of filter that muzzle will be fitted with. This begs the next question: Who should make this judgement? Parents should, through their local school boards; as with obscenity, local community standards should apply. After all, who should be the arbiter of the rules governing your schools, you or some Black Robes in Washington?
The degree of irrationality exhibited by the court becomes truly evident when you consider that after accepting the supposition that the First Amendment applies to students, it turns about and states that this constitutional protection doesn't apply to their advocacy of drug use. But why not? After all, many among us encourage drug use – with the protection of the First Amendment. Are there two first amendments, one for schools and another for everyone else?
What this boils down to is that, after all the intellectual contortions and philoso-babble, the court is saying something very simple: Students shouldn't be allowed to say certain things. It's just that most of our jurists are too dull to realize this.
The truth is that the Black Robes are once again casting themselves as men for all seasons, not just as those well versed in the law but as experts in the area of everything. They are anything but, however, and this is evident in their own lack of consensus; not only was the high court divided in this matter, the ninth circuit court of appeals had previously ruled contrarily. Then there is the fact that the court upheld students' "right" to religious and political expression. Okay, then, what if Master Frederick had claimed that his message was not pro-drug but anti-religion?
In point of fact, what he did claim was that he was just trying to raise a ruckus. Principal Morse certainly didn't accept this explanation, and maybe she was right, maybe she was wrong, but is the court better suited to discern such things? Could they say definitively that the message wasn't designed to create a ruckus when it was certainly controversial or that it wasn't a religious statement despite the use of Jesus' name? Our courts have come to define hubris; in the past they told us some religious symbols aren't religious in nature; will they now tell us that some religious motivations are not? Ah, the Black Robes, they aren't just constitutional scholars (if only), they're also theologians and authorities on ruckuses.
What's so tragic about this manifestation of judicial imperialism is that it's part and parcel of a destructive, wider problem: The undermining of just hierarchies and discipline through an incremental neutering of authority figures. Our troops in Iraq are handcuffed by ridiculously stringent rules of engagement and must worry about criminal prosecution if they run afoul of them; our police are in a similar predicament. Parents hands are partially tied by a government that tells them how they may discipline their children, and the threat of social services intrusion looms large. And teachers are rendered impotent by lawsuit-loving parents and legal prohibitions. Understand, though, that power stripped from the people doesn't disappear into a black hole of permissiveness; like wealth, it's transferred. In this case it's placed in the imperious hands of the Black Robes, those higher authorities that fancy themselves to be the highest authority.
You know, when I sniff the air downwind of the Black Robes, I sense the stench of ego. For they aren't content to be governmental umpires. Flushed with power and illusions about their own intellectualism and infallibility, many judges' master status follows a certain evolutionary path: Jurist, social activist, social-engineer, demigod . . . you can finish the progression. But I wonder if the people's obeisance is as boundless as Black Robes may fancy. For how long will we continue to respect the rule of law when that law is handed down by those who believe in the law of their rule? After all, when Black Robes cease abiding by the supreme law of the land, the Constitution, we are then governed not by the rule of law but the rule of lawyers.
So, I have a word of caution for the Black Robes. One day you will go to the well once too often, and then maybe, just perhaps, people will recognize what surrounds you as more miasma than mystique. Perhaps then, realizing our law has become a mere toy of judges who would be kings and that bearing the title "Your Honor" doesn't confer honor, citizens will echo the 150 year old sentiments of President Andrew Jackson. Knowing the court was as bereft of coercive power as it was of the intellectual variety, his response to an unfavorable court ruling was simple: "They have made the decision, now let them enforce it."