Friday, April 21, 2006
Eugene Volokh, who has long worried about the impact of diversity considerations on freedom of speech, has a thoughtful response:
This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.
I do not have the time this morning to read the opinions of the court and Judge Kozinski in dissent. From the news accounts, though, it will be interesting to see whether the Ninth Circuit's opinion can stand without a reversal of Tinker v. Des Moines School District. That case, which involved students who wore black armbands in opposition to the Vietnam war, held, in pertinant part:
1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth.
2. First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment.
3. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.
In his otherwise praiseworthy post, Professor Volokh suggests that the risk of "disruption" might provide grounds under Tinker for some restrictions on the speech of students in public schools, as long as those restrictions were not content-based:
The Supreme Court has indeed recognized that speech in K-12 public schools must be somewhat more restrictable than speech on the street. Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it's likely to substantially disrupt the educational process. And sometimes speech that's hostile based on race, religion, or sexual orientation -- as well as speech that offends people for a wide variety of other reasons -- might indeed lead to substantial disruption.
But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn't categorically cast out certain student viewpoints from First Amendment protection. While the standard isn't without its problems, it is at least basically consistent with the First Amendment principle of "equality of status in the field of ideas." (bold emphasis added)
May I suggest most gently to Professor Volokh, who has surely forgotten more about the First Amendment than I have ever known, that the bolded text opens a door that we do not want opened, to wit: that the potential for disruptive conduct by the audience of speech can ever circumscribe the right of the speakers. In suggesting that the behavior of the audience might constitute the disruption that might permit restrictions on the speech of students under Tinker, Professor Volokh at least implicitly reads Tinker much more narrowly than it needs or ought to be read. Yes, Tinker hints that the behavior of others might be taken into account ("the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred"), but the heart of the case focuses on the fact that the students who wore the armbands were not acting disruptively:
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.
In fact, the Tinker court was brutally clear that high schools had no authority to regulate the content of otherwise protected speech:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend." Burnside v. Byars.
If, as Professor Volokh said, it is possible for putatively offended students to abolish the opinions of other students by threatening to be "disruptive," then Tinker is a guarantee of nothing. If Tinker is indeed that narrow, then any controversial opinion of any student -- no matter how passively communicated -- can be vetoed by the threat of "disruption" so long as the offended and disruptive students can secure an alliance with the school administration.
It is the job of schools to protect students who do nothing more than express their opinions, whether in published pamphlets, on blogs, on t-shirts or by the wearing of armbands, and to punish students who behave "disruptively," no matter how insulted or offended those students may purport to be. The remedy for speech is more speech, and the remedy for bad behavior must be punishment. Any court that determines otherwise is in violation of the only reading of Tinker that makes any sense at all.
CWCID: Volokh link via Glenn.
Well, I can see your point about not letting the threat of disruption map the limits of free speech, and I agree insofar as it applies to adults. But K-12 students, not so much.
For example, I wouldn't want my kid's 2nd grade classmates showing up to school wearing t-shirts emblazoned with "f*ck da police" or "God hates fags." I think the school has a legitimate interest in curbing such expression, though I'll admit drawing the line can be dicey.
It's not so much the disruption I fear but the fact that kids aren't intellectually and emotionally equipped to handle the consequences of their actions. That's why we restrict their rights in many other ways, such as voting, drinking, entering into binding contracts, etc. Minors by definition have limited rights, and rightly so.
The remedy of more speech to combat bad speech won't necessarily carry the day in the elementary school marketplace of ideas.
The public schools, which are essentially a monopoly (insofar as they have a market share that would be considered a virtual monopoly in traditional antitrust analysis), are an organ of the State. The State, as represented by the public schools, teaches our children all sorts of opinions, often in a tone that suggests that contrary opinions are "wrong" or morally bad. You suggest that children should not be able to speak back. I believe that not only is that a violation of the constitution, it is a terrible way to teach.
Now, it is clearly possible under the constitution to impose restrictions on the speech of children that are not content-based, but represent reasonable limits. For example, I have no problem with a rule that says that you cannot use, in speech or on clothing, certain "bad words." We know what they are -- George Carlin listed them in a comedy routine years ago, and if you want to add a few more for good measure, fine. I also do not have a problem banning certain words that are universally understood as epithets, including "fags" or the "n" word. But one can express opinions without using those words. To pick up on your example, Betty, a t-shirt that says "God hates homosexuals" must be allowed. My argument is that if that shirt provokes a response that is more disruptive than simple speech back -- "People who hate homosexuals are neanderthal morons" -- it is the job of the school to punish the disrupters, not the speakers.
It seems to me that otherwise the Government is deciding which ideas are OK and which are not, which is deeply offensive to our constitution.
All Things Beautiful TrackBack "Be Ashamed Our School Embraced What God Has Condemned"
Tinker does not stand up in situations where symbols may actively affect the school climate in a negative manner.
can you imagine if some kid wore a shirt to school that said things like:
1. Christians suck
2. Christianity is a Scam
3. Shame on Christ
and then the Supreme Court uses Tinker to justify the wearing of those shirts in public schools?
I absolutely believe that Tinker would allow those shirts. Whether the current Supreme Court would have the inclination, or stones, to say so is another matter entirely. I would be the first to denounce any decision that held to the contrary.
Our constitution should permit no circumstances under which state action can be deployed by any audience because it objects to the content of any opinion. Nazis can march in Skokie, and as long as we are confused enough to permit the State to educate our children, a practice that causes no end of conflict with the Bill of Rights, a "Shame on Christ" t-shirt should be absolutely protected. Of course, so should a t-shirt that says "If you don't believe in Christ, you will burn in hell you infidel scum."
As I said, I agree with the free speech principle absolutely when applied to adults, but I still say it's an entirely different kettle of fish when we're talking about children.
As I mentioned, children's rights are restricted in all sorts of ways in recognition of the fact that they lack maturity.
To resurrect my previous example, if one of my kid's 2nd grade classmates came to school wearing a "God hates homosexuals" t-shirt, would anyone really believe he or she arrived at that conclusion independently? Would anyone seriously expect the other kids to have a firm enough grasp on the issues to mount an effect counter-argument?
My point is that the principle that animates free speech -- the marketplace of ideas -- isn't as applicable in this particular marketplace. It has nothing to do with what speech I personally find objectionable.
Now, you make a good point when you say that teachers already do inject opinions into the curriculum, and I do think children should be able to express contrary opinions in the context of a reasoned debate. But I think there's a difference between that and wearing a provocative t-shirt, though I'll admit again that drawing the line can be dicey.