I’ve generally not commented on the “Bong Hits 4 Jesus” case, in part because there are some very specific factual issues that make the lines rather blurry here – as well as one or two legal issues that people can disagree upon in good faith. However never, in any of my reading, have I encountered anyone proposing that the landmark decision in Tinker v. DesMoines should be overturned by the Supreme Court.
Some history: Lawsuits over the free-speech rights of schoolchildren exist because the Supreme Court legitimized them in 1969. Several years earlier, a 13-year-old girl and 15-year old boy decided to wear black armbands to their schools in Des Moines, Iowa, to protest the Vietnam War. The schools had a policy against wearing symbolic armbands at school and warned they'd be suspended. They showed up with the anti-Vietnam armbands, were suspended and in what today is the landmark Tinker case for school "speech," Justice Abe Fortas famously wrote that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Two later cases, Fraser and Kuhlmeier, refined Tinker's scope, which we'll see shortly is the background to one of the most hilarious--and revealing--exchanges at oral argument ever in a school free-speech case.
In the years since, school officials and lower courts have struggled with Tinker. The Massachusetts Supreme Court said a T-shirt, "Coed Naked Band: Do It to the Rhythm," was protected speech. But schools in several states have banned a T-shirt with "Abortion is Homicide. You will not mock my God." (Religious groups filed amicus briefs for the Juneau "bong" banner because they want similar protections to wear anti-abortion shirts and the like.) A federal appeals court in California said schools could ban a T-shirt calling homosexuality shameful because it was "injurious to gay and lesbian students and interfered with their right to learn." But a federal court in Ohio conferred constitutional protection on a shirt with: "Homosexuality is a sin! Islam is a lie! Abortion is murder!" All these cases involve public schools.
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Rather than just fiddle with the dials on the school-speech contraption, the solution would be to take Tinker and throw it out the window. But they won't. They'll tinker, telling us what to do, but unable to give coherent reasons why we should do it.
The pious extension of First Amendment speech rights amid Vietnam from adults to students prior to college was a mistake. The Bong case may be another nail in the coffin of public schools. Parents, including liberals who can afford it, will quicken the trend to sending their children to private schools whose principals can exercise real discretion and in loco parentis.
One argument for the say-it-loud status quo is that kids should be free in school to learn how "to deal" with different viewpoints. I'd bet all nine justices went to high schools with principals who put learning first and Tinkered "speech" in its place. It doesn't seem to have stopped them from growing up to drive people nuts with their opinions.
I’m sorry, but Daniel Henninger has this one completely wrong here. If one fundamental mission of public education is to teach young people the importance of American political values and the freedoms that are part of our representative democracy, then it is essential that Tinker not be overturned, but instead be reinforced. If it is not, our public school would become no different from the old Soviet Union, which had a Constitution guaranteeing expansive individual liberties which were systematically denied to the inhabitants thereof.
Imagine the situation that would ensue were Tinker to fall. Schools would be free to establish an official orthodoxy that could not be contradicted or questioned by students. A school could, as in the example pointed to above by Henninger, establish a de facto policy that any speech opposing homosexuality would be subject to punishment. To avoid offending religious minorities, expressions of the Christian faith could be restricted or banned. And recalling the irritation I caused my teachers as a high school senior whose Reagan button was constitutionally protected under the Tinker doctrine, I would not see it as being far-fetched to have support for the “wrong” candidates or parties banned by those who see themselves as the guardian of “correct” speech and messages. Do we truly teach young people how to live in a free society by closing off such fundamental freedoms to them?
And let me correct one notion put forth by Henninger. Tinker presented no constitutionally novel doctrine, being based in large part upon the holding in West Virginia State Board of Education v. Barnette, which at the height of World War II held that the government could neither compel student speech nor punish refusal to speak a state endorsed message – the Pledge of Allegiance. Indeed, the words of that 1943 decision ring as true today as they did 64 years ago.
Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. [319 U.S. 624, 641] As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism [319 U.S. 624, 642] and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
And indeed, if a student cannot be compelled to confess by word or action his or her assent to that which one does not believe, is there any legitimacy to forbidding the expression of views contrary to the officially established orthodoxy? Do we not betray our own constitutional heritage if such a regime of speech suppression is permitted? Can young people learn freedom by being taught lessons in oppression and suppression of their fundamental civil liberties?
That is not to say that there are not legitimate limits to student speech – as Tinker itself points out. Actual disruption or interference with the educational mission of the school caused by a student speaker can and must be prohibited, and on this point it is possible to argue that the school in Morse v. Fredericks may well be acting in a manner consistent with the relevant precedents. Similarly, it is possible to argue against strict financial liability on the part of educators in some First Amendment cases. However, nothing in this case merits overturning Tinker -- or its predecessor, the Barnette case – and proper application of the precedents lends itself to their reaffirmation.
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