Activist Judges

The Supreme Court further restricts a student's free speech rights, even as he speaks from a public sidewalk at a public event. The restriction apparently has very little to do with school discipline, safety or order but a "latent" message promoting drug use. Now, a student can be expelled from his public high school for unfurling a banner on a public street at a public event based solely on the banner's content.

Welcome to the revolution, originalists.

Update: As a law professor, I should repent of the foregoing message and provide a bit more analysis, instead of knee-jerk reaction to a CNN piece.

Here is the opinion for Morse v. Frederick, -- U.S. -- (2007).

I disagree with Judge Robert’s majority in this case, not because of its factual determinations that this is a school speech case or that the banner, “BONG HiTS 4 JESUS” somehow implicated drug use. I do not agree that the most reasonable interpretation of this 14 foot banner on a parade route advocates illegal drug use by high school students. As Justice Stephens notes in the dissent, “Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.”

Although the majority goes too far, Justice Alito’s concurrence demonstrates a sounder basis for the outcome in the school’s favor. Here is his right-thinking, but naïve, view of the majority’s rule:

For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting. The special characteristic that is relevant in this case is the threat to the physical safety of students. School attendance can expose students to threats to their physical safety that they would not otherwise face. Outside of school, parents can attempt to protect their children in many ways and may take steps to monitor and exercise control over the persons with whom their children associate. Similarly, students, when not in school, may be able to avoid threatening individuals and situations. During school hours, however, parents are not present to provide protection and guidance, and students' movements and their ability to choose the persons with whom they spend time are severely restricted. Students may be compelled on a daily basis to spend time at close quarters with other students who may do them harm. Experience shows that schools can be places of special danger.

In most settings, the First Amendment strongly limits the government's ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker's "substantial disruption" standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508-509.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.

The problem with Justice Alito’s fair reading of the law is that his rule does not apply to these facts, so that the majority actually is promoting the extension of infringement that he chooses to ignore.

In this case, the kid’s banner was a bad joke, a play for attention, nothing like a black arm-band protest to the Vietnam War. This was a stoner’s good idea of a gag in his senior year. Despite the weakness of this speech, he presented no danger whatever to his classmates, the school, its educational mission, and he certainly did not promote drug use to anyone who is not already toking in Alaska in the winter.

I have sympathy for the principal confiscating the banner, but I have none for the 10 day suspension. The majority says that it is making no new law and to parse whether the banner actually is advocating drugs is missing the point because of the school’s reasonable policy and the principal’s quick thinking. The message, however, makes all the difference. In short, the State of Alaska punished a high school student for the content of his speech that posed no threat to anyone or anything but the school’s reputation and principal’s sensibilities. That is unconstitutional infringement of the First Amendment.

The student was bound to lose this case before this Supreme Court. The Roberts Court would be loath to let the Ninth Circuit set speech precedent, especially regarding pot. The kid’s weakness in his case is that no one else had a banner at the Torch Relay. If other students had other, unauthorized, homemade banners, the content persecution would be more pronounced. His greatest weakness, however, is making his stand on such a ridiculous, penny-ante sign with no message at all.

If the Supreme Court is not permitting school’s to censor all drug-related speech, it at least is permitting schools to censor really stupid speech, and that certainly is a very slippery slope.

If I were teaching this case socratically, I would pose these questions. Respond at will.

1. What difference would more and varied student banners have made at this event?

2. As the dissent ponders, what if the message were “WINE SiPS 4 JESUS” which reasonably could be a religious message, even if underage drinking is illegal?

3. Would the school have been on stronger ground to ban all banners and signs meant for TV?

4. What if Frederick and his friends had chanted the message when the camera crews rolled by instead of writing it largely? Would the principal have been justified in the 10 day suspension?

5. Does the majority’s rule permit a school district in similar circumstances for punishing a student for a sign that said:

“The Olympics Suck!”
“Pot 4 Life (and Cancer Treatment)!”
“Blow the Torch”
“Osama bin Ladin is Coming!”
“JDHS IS THE WORST SCHOOL IN ALASKA!”

6. Does the majority’s rule permit a school to censor a student in a school sanctioned debate to advocate recreational pot use as a political statement?

(Speaking of originalists, Justice Thomas gets pretty crazy in his concurrence. Because colonial schools were almost universally private when the First Amendment was ratified and because 19th century public schools did not provide any recognizable free-speech to its students when the Fourteenth Amendment was ratified, then the Constitution does not provide any free speech rights to students in public schools at all. Have a nice day!)

The Beginning of Wisdom

Warning! Aimless rambling to follow. If you are looking for a point or a conclusion you might not find it if you continue reading. You have been warned.

There are a lot of people, much smarter than I, that believe that there is no God and that I am wasting my life trying to discern and follow his will. I generally defer to those of great intellect and much learning. For example, despite what I would like to believe about global warming I fully accept the general scientific consensus that our world is heating up and that this warming is partly to be blamed on the vast increase in emissions of greenhouse gases. But in the case of the ultimate question I find myself continually drawn back to the story of an itinerant teacher that lived 2,000 years ago. I suppose I am a faith sufferer.

Why is it that I am fully convinced that Jesus bar Joseph of Nazareth is the actual incarnation of the creator of the Universe? It is, after all, a silly thing to believe. I don't particularly like being considered silly or foolish yet here I am. I am still a Christian despite what I believe to be honest and continuing examination of the alternatives.

I don't question my doctor when he tells me that I have a sinus infection and that I need to take an antibiotic. I see the diploma on his wall and I understand that he has studied and knows things that I do now know. I put aside whatever "feelings" I might have about medicine do what he tells me. When Richard Dawkins tells me there is demonstrable proof that belief in the supernatural is idiotic, I immediately start questioning him despite the diploma's on his wall and despite him absolutely knowing much more than I do.

Dawkins would say that I am deluded. Sam Harris would say that I am feeding the root of all evil by supporting a religion. I don't think I am deluded. I can see the leaps in "logic" that I have to make to believe that Jesus is the son of God. My eyes are wide open when it comes to my faith. No, I don't think I am deluded nor do I think I am suffering from a mind virus. I may be stupid but I am not delusional.

It boils down to this; I choose to believe. Of my own free will and despite what looks like absolute foolishness to many very smart people I choose to be a faithful and active Christian. But why, one might ask, would someone that is apparently not delusional choose to believe that an unseen God has created the universe and everything in it. Why would I believe in a loving God when there is so much suffering in this world. Why would one believe these unprovable things despite what very smart and learned people would say to dissuade such a belief. Well, that's kind of why I am writing this. I am sure it has a lot to do with my upbringing (though I don't believe a lot of things my parents taught me to believe) but ultimately I can't rightly explain why I really do love Jesus.

To say that it feels right to believe sounds a little trite and ultimately meaningless even though it does happen to be true for me. I do in fact, feel a connectedness to the divine just by being alive. There is also a large element of me wanting there to be a God and wanting the message of Christ to be true. These desires inform my choice to believe. Of course I also really want there to be a Santa Claus but that doesn't mean I choose to believe in jolly old Saint Nick. Reason does come into play when I think about why I believe. It does make a lot of sense to me to say that the incredibly complex systems found in the natural world have a creator just like the incredibly complex systems found in this computer or in my car. It also seems to me that a human's innate morality would not have arisen through an unguided evolutionary process (disclaimer: I consider myself a Theistic Evolutionist so I am not trying to say anything about the theory of evolution here, I believe that the process of evolution has occurred over billions of years).

So now what do I have here. The whole reason behind my belief system is that it feels right, seems logical, and satisfies some of my wants and needs. So, Is that it? Is that all? Is that enough? Shouldn't I rightly be considered a fool for surrendering my life to a belief system based on such a paucity of real physical evidence? I'll answer those questions as briefly as possible: Yes; Probably not, but it's all I got now; absolutely yes; maybe so.

So what can you take from my ramblings? For starters you should take from this post the fact that Kile can't articulate (even to himself) why he has chosen to believe in God. I struggle with my faith and this is one way I deal with the struggles by "talking them out". Probably the only point that I wanted to make is that in life we all have to choose what to believe. Every last one of us has to look at this world and decide what we think is going on. That is all that we can do. No matter how smart we are or how much we study we will never be able travel back in time to see or not see evolution in action or to see or not see an ex nihilo creation. So we have to choose. We choose based on the evidence, based on our feelings, based on our desires, based on what other smarter people have told us, based on what our culture dictates but ultimately we choose. I have chosen God and not the Flying Spaghetti Monster.

I want to add just one more thing. We humans can make pretty dumb choices from time to time. We misunderstand things and make mistakes all the time. So I urge all of us to be humble and always be willing to examine the choice we have made. If you are a believer I think you should try to examine why you choose to believe. If you are a non-believer or are undecided then you should examine that choice as well. This post was just part of my self examination process.

Twenty Nine Months Old

I feel a little Matisse coming on.

Kudzu Killers

Goats! Chattanooga! Kudzu! Mauling Dogs! Guard Donkeys! Guard Llamas! Country Music!

Enjoy!

One summer in college, I worked in forestry and received an assignment to kill a patch of kudzu. Even after blades, herbicide and fire, we failed. Oh, but if we had the goats. . .