Hot Air has the rundown on a rash of Supreme Court rulings — one of which may rehabilitate free speech, even as another (absurdly, in my view) weakens it.
In short, the Supreme Court has positioned itself to be forced to deal with elements of McCain Feingold, with the likelihood being that portions of the law will be ruled unconstitutional.
At the same time, though, the Court — with Roberts writing for the majority — ruled that “Bong Hits 4 Jesus” was properly policed by a school employee, insofar as dissuading kids from doing drugs is a compelling state interest, and school personnel have to able to balance freedom of speech with the potential for creating a disturbance that troubles the learning environment.
Evidently, Roberts either isn’t much interested — or isn’t much attuned — to the cultural intertext that makes the banner’s “humor,” such as it is, both ironic and self-referentially tongue in cheek. And many intelligent conservatives, it seems to me, are giving the school too much power over what constitutes a school’s jurisdiction.
This is, in short, a huge blow to free speech (under current law) — and may even be, in the long term, a move toward an unwritten legal requirement that would have demanded that, say, Andy Kaufman use irony tags were he operating in a school zone.
Or, to put it another way, utterances must include the same kind of disclaimers as TV commercials (professional driver on closed course; do not try jumping your own Elantra through a burning hoop and over eighteen school buses) — otherwise people are free to find unintended offense, and to punish those unintended offenses accordingly.
As Allah puts it:
Presumably, “Hard Liquor 4 Jesus (If You’re Over 21)†would be okay.
Meanwhile, Justice Stevens, in his dissent, has it right, it seems to me:
Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship…
And while schools might be afforded a bit more leeway in controlling speech, there was simply no reason to believe, in this case, that the sign was actually promoting the use of illegal drugs.
Too, I argued previously — as Stevens argues here — that I don’t believe this was a school event wherein the principle should be asserting jurisdiction.
Hearteningly, not all conservatives agree with Roberts and the majority — which as Volokh Conspiracy points out, was far more splintered than it appears on the surface.
Justice Thomas, for instance, is of the belief that public school students are entitled to no “free speech” protections — an opinion that I find far more compelling, legally-speaking, than those that worry about the “pro-illegal drug” message of a banner that, to those attuned to its cultural referents, was clearly meant as a joke, not as pro-illegal drug use advocacy.
As one of the commenters at Volokh put it:
Regardless of how you come down on this issue, the Supreme Court needed to clearly set forth rules on this constitutional framework. Tinker, Fraser, and Hazelwood interact in such an odd way that there is a lot of confusion in the lower courts regarding how these cases interact, et cetera. They need to make up their minds already and clearly establish the law. I had hoped they would do so in this case, but it doesn’t sound like it.
Thomas’ separate concurrence, whether you agree with his endorsement of Justice Black’s dissent in Tinker, at least is clear where it would draw the line.
For overviews of the decisions, see SCOTUSblog.
Let’s not exaggerate the importance of the "Bong Hits 4 Jesus" case, in constitutional law, the status of freedom of speech in public K-12 schools is a narrow and special case that does not generalize outside of the K-12 arena at all. The court has historically been deferential to the needs of elementary schools to control the behavior of children – a deference not shown elsewhere. The caselaw is not used outside of this area.
My problem with the Bong Hits case is that the kid wasn’t on campus. I fail to see how the school had any control over him in regard to his speech.
Presumably, “Hard Liquor 4 Jesus (If You’re Over 21)†would be okay.
As would “Blow Jobs 4 Jesus”, apparently.
Robin —
The importance is that, again, the Court essentially punted, given the variety of thinking in the concurrences.
And the problem, in addition to the Court trying to determine how a joke works (and failing), is that the Court gave the school jurisdiction outside of its jurisdiction.
I had hoped to see the end of this kind of nonsense with Roberts and Alito. Apparently, silliness knows no ideological bounds.
This page could right now be on a screen in some high school computer lab somewheres. </Irony>
Certainly one can argue about whether or not the events took place under the school’s jurisdiction but I don’t think that the court’s conclusion that the students were under the supervision of the school is wrong. Frankly, I don’t see this case as being as important as its made out to be.
I think that this case is better explained by the fact that the Ninth Circuit created a rule for school speech in this case that is just too strict in restricting the ability of school’s to control speech on campus. The court had to overturn that rule, and so this is the result. If the Ninth Circuit had ruled on the narrower ground that the event was not within the school’s actual jurisdiction, even if wrong on that factual issue, the Supreme Court would not have taken the case. This is an example of the only Supreme Court joke: An attorney is beginning his opening before the Supreme Court and says : "May it please the court, I am here appealing a decision of the Ninth Circuit … and I have other arguments."
It’s interesting that speech by, for, and among private individuals the purpose of which is to finance assaults on public office is protected while speech by, for, and among private individuals the purpose of which is to enjoy previously constitutionally-protected assaults on private sensibilities is suddenly not.
The difference? In my view it’s not some arcane detail of law, it’s government school.
Doesn’t that make this issue ultimately about the constitutionality of public school (the existence of which is apparently sufficient to call into that damn scary “state’s interest†slippery slope?)
From there the complexity is hard to track: When Jeff cites an intelligent conservative who either cannot or chooses not to separate the conflict between free speech – as it should, for example, apply to my first example – and a public institution that has clearly taken upon itself the enforcement of morality, then I question conservatism. (Note that the school wasn’t applying the law against existing pot-smokers here; it was applying preemptive morality.)
The complexity builds further when government school is accepted for what it is: An unassailable, eternal, socio-moral institution to which one has all rights, including those that trump others that came before it and are more essential than it. There, stir in doses of the general, functional, practical malaise that so clearly plagues government schooling, of tacit public classroom statism and society-degrading homoganization, of the failure of forced race relations inculcated from an early age in schoolchildren, of gross financial waste, of overtaxation, and of policy wars over a monolithic structural backbone and curriculum, etc., etc. Clearly the government school itself becomes the issue.
By contrast, private institutions of learning, being the rendering of services for profit, have policy limits – dress codes, language standards, civil rules, codes of conduct and ethics, and so on. Yet each are chosen and each are prepared and instituted by the vote and choice of the private citizen; the customer.
Yet with government education we now have clear management of speech the purpose of which is to conform potential behaviors to what best approaches the State’s growing philosophical monopoly. Need proof? Search YouTube for Hilary’s chilling speech about her negative views of vouchers because they put government in the position of having to decide what’s a morally-fit school option for the taxpaying citizen and what’s not.
No separation clause here? The State’s interests?
My point is that I cannot for the life of me see where or when the threshold is crossed from acceptable constitutional principle into downright unconstitutional tyranny on thought and behavior if it wasn’t crossed with the very introduction of the government school. If the clash between speech and “state’s interests†does not then come to a rolling boil in the cesspool of today’s public schooling, I can’t see where else it would. At the link, ultimately Betsy herself, being an intelligent conservative, engages in weighing morals vs morals under the government school’s umbrella and not basic rights versus the clear assaults on them enabled by government institutions themselves. Even if for only existing.
Why the debate is about speech versus some variable morality – remembering that yesterday’s “state interest†is tomorrows gulag – and not about basic rights versus completely unacceptable structures of government power held against the individual, as happened for Bongs Hits, escapes me. Government school itself is obviously "a disturbance that troubles the learning environment."
If the State has a compelling interest it should be to fall back securely on secure constitutional principles, abolish conflicts like these, and take itself out of the morals business, which is undoubtedly what its schools are and have been. If it does not, and if it sees itself as the enforcer of moral vs immoral speech, then heaven help us.
You have an important point, JHoward. The problem in this line of cases is that a school of necessity requires a control of the behavior of its students to function. We would not have this silliness if the court did not feel a contradiction between how public schools need to function and the fact that they are government entities.
The court also did take care, I believe, to point out that had this been a case of political speech, then it would have been protected.
And the problem, in addition to the Court trying to determine how a joke works (and failing), is that the Court gave the school jurisdiction outside of its jurisdiction.
What’s more troubling is that that particular argument seems to have been given short shrift all the way up the judicial ladder and through some very convenient yet specious reasoning at the SCOTUS.
That’s the Question That Dare Not Be Asked, Robin. Try as I may, I cannot find any "conservatives", most notably those at NRO, presenting a case for the problem with state schools clearly clashing with rights and freedoms. We can only hope that the Court acutely feels that silliness. We’ll have to content ourselves with the Reason crowd and Ron Paul! fans. Maybe Republicans feel that with enough legislation and enough morals-management, their eventual majority can solve the classroom problem. Kinda makes it a political problem and not one of principle. Speaking of which, it’s entertaining to see McCain arguing for his piece of shit on purely subjective grounds and Romney arguing against it and for free speech on constitutional grounds. We would be wise to also remember that there’s a renewed interest underway in the US to "reform" the increasingly runaway judiciary by replacing elections with appointments. This too has that same, McCain-like tang of practical sense while being questionable on principle and will, as these things typically do, come to ruin as one corrupt power base merely evolves to replace another.
High school students are out of control because the USSC has sided too often with ACLU et. al. Now, a reasonable approach to the stupidity and permissiveness of my own generation occurs. Good. When the government gets out of the business of education and stops using my dollars to build a society that is out of control, I’ll sympathize with libertarians on these issues. Otherwise, get a grip and let general sensisbilities rule.
As many have said before, I was hoping that Roberts might change the usual SCOTUS game plan of punting when it comes to two similar issues (see Michigan, AA ruling), but I’m afrad things don’t seem to have changed. You look at things like the Kelo decision, and wonder if we’re better off having them punt. I’m not sure it matters which way the court was/is leaning.
Still, it’s better than say, Mexico. And we have a better soccer team.
Yeah, this was one of the rare times I agreed with Stevens too.
Conservatives lose all perspective on limited government and get frothy at the mouth whenever the War On Drugs To Keep Drug Dealer Profits High And Employ More Police comes up.
Again, I have to point out how ridiculous it is that they needed a constitutional amendment to make alcohol illegal, yet Congress has since somehow gained the power to make illegal virtually anything you ingest.
Someone correct me if I’m wrong, I can’t get to the site from my phone, but I read yesterday that the kid with the sign was in school, released from class under teacher supervision to see the parade, then crossed the street to show the sign off of school property.
That’s what I remember reading yesterday and if that’s true, he deserved to lose no matter what the message was on the sign.
Seems to me if he hadn’t shown up for school that day there might have been a different outcome.
So someone tell me if I’m wrong, because If I’m correct on my facts the kid deserved a detention for leaving school grounds, and maybe a note home. Oh yeah, he should have to pay the court costs for the school district because otherwise the property taxes are going up to pay for his little tantrum, and that will have a much more chilling effect on everyone involved. Especially the tires on his VW microbus when I get the revised tax bill.
“Pro-Life Barbers for Putin!”
Seems to me if he hadn’t shown up for school that day there might have been a different outcome.
He hadn’t shown up for school.
Whether or not he had shown up for school is immaterial if that was where he was supposed to be at the time and the principal recognized him as a student. I have to agree with Thomas in this case that our children do not have full constitutional protections when it comes to speech. As such, I don’t see this as quite the hit on free speech. I think that as an adult, you will still be able to wave that sort of sign to your hearts content, or put it on a t-shirt, or a blog if you wish.
So if he didn’t show up for school, and gets caught, does anyone deny the school’s right to punish a truant? Including messing up his little sign?
I’m all for free speech, incidentally, really. I’m just anti- teenager.
Now that I can see the links I find that I agree more with Thomas than Roberts. And I really agree with Education Guy up above whose comment didn’t show up on my phone.
I don’t think this case was about drugs at all. I suppose I’ll have to explain myself later
The basic conflict isn’t where a student has free speech rights in school or not… I agree with Justice Thomas here that a student has as much free speech rights when under the realm of a school, in loco parentis, as they do in their own home under the control of their parents …. ie they have none. The conflict is that the student’s parents have little to no choice about which school the student attends. And as a government run school, students should retain as many rights within the boundaries of the campus as they would have in a public park on the weekend.
And there’s the rub. Government schools have been intruding more and more upon those non-school hours activities of schools.
whoops… last line should read “non-school hours activities of students”
Agreed, Darleen — in spirit. Choose one way or the other. Either go with Black / Thomas or go the other way. This in-between crap — where we have Roberts parsing a joke that you simply cannot get unless you happen to have the “in” — is silly. On the basis of current law, however, I think the decision was wrongly decided.
Thomas, as I’ve noted before, is the Justice I most admire, given that he leans libertarian AND is willing to correct bad law rather than defer to precedent and the bad law that has since accrued.
I also don’t believe in the Ed Rooney school of policing the student population. If the kid didn’t show up for school and had no excuse, punish him on those grounds the next time he shows up. But I have to tell you, were I a student and a teacher tried to reprimand me off school grounds at a non-school event, I’d probably tell them to kiss off.
Or, you know, slap them with my COCK.
(in case the trolls are leering in. Don’t say I never gave you nothin’).
I think that as an adult, you will still be able to wave that sort of sign to your hearts content, or put it on a t-shirt, or a blog if you wish.
Frederick was 18 at the time, off school grounds, on a public sidewalk, and was not in school or with the school group. Can the teacher walk into his house and declare it school grounds? Can she walk into the local arcade and declare that school grounds?
If the kid didn’t show up for school and had no excuse, punish him on those grounds the next time he shows up. But I have to tell you, were I a student and a teacher tried to reprimand me off school grounds at a non-school event, I’d probably tell them to kiss off.
Amen.
Just an interesting aside, this ruling also preserves the school’s power to discipline kids for saying things outside of school on Facebook, MySpace, etc. If I were in high school and I go to my Facebook page and say “Jeff is a big gay guy who slept with Dan Collins and McGehee”, and this obviously is untrue and malicious, then the three of them might be angry with me. Since we’re all males, they’d probably beat the hell out of me behind the Kwik-E Mart after class, but young ladies seem very susceptible to this sort of malicious gossip.
Schools around the country have determined they can suspend me from writing what I wrote at my home computer, even if that was accessed by Jeff, Dan, or McGehee (or anyone else) on their home computer.
Now, I’m against malicious gossip, but that seems like an over-reach to me. Couldn’t Potsie tell Fonzie he was a tool at Arnolds without getting suspended? Why can’t you do it on MySpace? This sort of ruling will encourage those districts to continue to reach outside of school property to control students’ behavior and, whereas Darleen and Clarence Thomas are okay with that, I’d say that’s b.s.
Damn, Timmy, that’s absolutely right.
Except that Darleen is arguing the opposite.
And in weighs timmah! with a predictable, self-important, and perfectly subjective opinion.
Which is why we’re in this pickle: Unless there’s underlying principle that takes the government out of enforcing morality, as it did here and as timmah! suggests it may do on the basis of the judgements of any old lofty opinion, we’ll get just what we’re getting: the slippery slope.
“Well, I think” policy is clearly troublesome, which means Darleen’s take on minimal government leverage against private, otherwise legal behavior is correct. As Pablo said, the kid was not a kid and wasn’t even on school “property”.
The problem is the increasing lack of separation of
churchstatist philosophy and state. If we’ve learned from Larry Flynt that free speech is paramount, let’s be consistent about it.Pablo,
Was he enrolled as a student? I do know that here, if you are enrolled and not at school, they can come and get you. 18 or not. If you aren’t enrolled, they aren’t even going to look.
If a kid with a history of truancy cuts school, impersonates Abe Froman, attends a Cubs game, visits the Sears Tower and a museum, leads a parade, then vandalizes a freinds house and destroys a classic car belonging to same freinds father and the vice principal of the school, in the course of investigating the alleged truancy is physically attacked by an unknown person or person (and dogs), I think the school has a legitimate right to punish the student.
What I don’t understand about this case is how the kid managed to get this defined as a “Free Speech” case. I’m guessing that the administration of the school is too tied up in the politics of “language” to manage student conduct and this allows a student to define any
disruptive behavior as “speech”.
Was he enrolled as a student? I do know that here, if you are enrolled and not at school, they can come and get you.
Yes, he was enrolled. But here, when you’re 18, you can do as you please. Of course, they can expel you or otherwise reprimand you, but they don’t have authority over you. An 18 year old cannot be truant, legally speaking.
As for the speech issue, the principal framed it that way as well, suggesting that she had the right because it was pro-drug speech.
You’re right, Pablo. Darleen, I apologize. I was still in disgust over the “students have no rights in the schoolhouse” bit that I completely misread the last sentence. Sorry for mis-representing you. That was stupid
I agree with timmy as well.
Have any of you ever been suspended for starting a fight in the parking lot of a school in another town after your basketball team lost by like ninety points? How about after puking seven gallons of hairy buffalo all over the junior prom at some school in Jersey?
How about this, if this punk was your kid, wouldn’t you let the school throw the book at him? I would.
Then I’d get him circumcised.
Can the teacher walk into his house and declare it school grounds? Can she walk into the local arcade and declare that school grounds?
No, and like timb above, I have problems with the idea that a school can police speech that clearly occurs outside of the school during non-school hours. My point was simply that it is not a mitigating factor if he never went to school in the first place, as the principal clearly identified him as a student who was at the time, supposed to be at school, and as such, under the principals care.
Should the principal have done nothing?
My point was simply that it is not a mitigating factor if he never went to school in the first place, as the principal clearly identified him as a student who was at the time, supposed to be at school, and as such, under the principals care.
How does that logic exclude similar action at anyplace else that isn’t the school, including the student’s home? Could the principal identify him in another state and exert “care” over him? And if he’s reached the age of majority, why wouldn’t he have every right to tell the principal to sod off?
Of course they’d have the authority to discipline him for his absence upon his return to school, but not to control his behavior or his person outside of their sphere of authority, which should end at the school property line.
You didn’t answer my question. Should the principal have done nothing? If not, what was the proper course of action? What if she didn’t know the student was under 18? What if the student hadn’t been under 18?
My Bad.
What if she didn’t know the student was 18? What if the student had been under 18?
Yes, the principal should have done nothing in that venue. She should have punished him later on for his truancy.
I urge you to read the French piece linked in the article for a suggestion of the kind of slippery slope this creates / strengthens, if you haven’t already done so.
You didn’t answer my question. Should the principal have done nothing?
Actually, my second para answers it, and Jeff expresses my answer a bit more concisely. She had no authority over him in that venue. Or at least, she shouldn’t have. But it now appears that the SCOTUS has expanded the educator’s reach beyond the school.
[…] disagrees. “Evidently, Roberts either isn’t much interested  or isn’t much attuned  to the […]
One question I haven’t seen answered anywhere (of course, I haven’t asked it before now), did they have to get a signed consent form from their parents to attend? If he had been run over by a car or injured in some way, could he have sued the school? If the answer to the first question is “No”, then I’m pretty sure (IANAL) that the answer the second question is “No” and therefore, the school did not have jurisdiction.
But then, I always have a problem seeing penumbras and emanations. I guess I’m blind that way.
Yes, the principal should have done nothing in that venue. She should have punished him later on for his truancy.
We will have to agree to disagree on this, as I think that given that he was supposed to have been in school at the time, and given that she recognized him, she was within her rights as the principal to intervene. Now, I do not agree that she had a right to intervene solely due to the subject matter, which I find to be a separate issue. I do not believe, for instance, that you can say with enough certainty that the banner espoused a pro-drug message, and even if it did…
In any case, I would love to read the article you are referring to, but having clicked all the links related to this case, I am not sure which one you are talking about.
BTW – I used to be known around these parts by a different name, but since I have switched bureaucracies, I switched my screen name too.
The article is the one by David French for Phi Beta Cons.
Jeff,
I don’t think there’s a slippery slope argument here, at least I don’t find it convincing.
Bear with me. The kids were there as part of a school-sanctioned activity. They were supervised, the argument that the kids weren’t supervised falls apart because the principal was there, supervising the kid with the sign. The speech was disruptive. Why? Because the principal decided it was disruptive, it was planned to be a disruptive act by the kids who made the sign, he wanted to see how far he could go. He found out. His intent was to be as disruptive as possible.
In regards to drug references being worse than other speech, well I think that’s stupid, but, the kid clearly knew what bong hits were and are. As ridiculous as the sentence is, it is not nonsense as he claims. Since this happened he’s been busted for selling pot I think that alone probably had a huge influence on if not the court, then definitely Starr’s argument. Low hanging fruit and all that.
As far as High School cases being used as precedent in university cases, I would think that that’s a nice try, but for one problem, a college student has much greater leeway in where he chooses to get his education. If I don’t like Penn State’s speech code, I can leave and go somewhere else much more easily than I could with a public High School which has a virtual monopoly on secondary education in a lot of areas.
As much as I hate to be on the side of a High School principal, it is part of the job of a principal to determine what is appropriate behavior for a student and what is not. I don’t buy the argument that you can skip school, show up at a school sanctioned event, even off school grounds, and tell the principal to go scratch because you didn’t come to school that day. I think the real slippery slope, especially when it relates to school, is to deny teachers and administration the ability to effectively discipline students placed in their care by the community be it curricular or extra-curricular. And God help me, I mean that, even if it means little Johnny can’t eat ham for lunch or use racial slurs in casual conversation.
Thanks Jeff. French makes some interesting arguments; guess I’ll have to mull this one over some more. I still say we are in a bad place if we don’t allow our school officials some amount of control over the speech and actions of those we put under their care.
I agree that there is a slippery slope here. That said, I can think of several instances where the principal should have the authority to act.
1. Kid cuts class but shows up at a event held at a hotel facility where school sanctioned and sponsored bands are playing. Student exercises right to free speech by loudly heckling the band and/or unfurls banner some feel is offensive
2. Basketball tournament involving the students school at Staples Center. Student cuts class and attends preliminary game played by two high schools he/she does not attend. Student unfurls banner some find offensive.
I think in both instances the principal should have the right and maybe even a duty (depending on content) to intervene.
The kid has had his 15 seconds of free expression and now the shelf life is over.
I think Patterico nailed it over on his site earlier when he noted that all nine justices were in agreement that the principal was not liable