March 31, 2007
Guns and Speech II Posted by John Steele Gordon at 12:05 PM EST Joshua Zeitz writes, “I scarcely remember the details of the exchange, except that a few of us agreed that campus disruptions were more likely to be instigated by left-wing activists than by right-wing activists.” I still await learning of a single instance where a campus speech, discussion, poster, or newspaper was disrupted, systematically defaced, or destroyed by right-wing students. These sorts of actions seem to be exclusively, not “more likely,” the province of left-wing students. I suspect part of the reason for that is that right-wing students know that the college administration would come down on them like a ton of bricks for such behavior while left-wing students equally know they will get a free pass, as they did at Columbia. Mr. Zeitz says such behavior should be “appropriately disciplined.” I wonder if he thinks that is what happened in this case and, if not, what discipline they should have received. Had it been up to me, I would have suspended the students involved for a year and announced that anyone—of the right, left, or center—who trampled in such a way in the future on the free-speech rights of others would be summarily expelled. Moving on to guns and speech, let me say that I am not an Second Amendment absolutist. But, then, neither am I a First Amendment absolutist. I try to be a common sense absolutist. I think individuals have a right “to keep and bear arms.” But I have no problem whatever with reasonable restrictions on that right. I think all firearms should be registered, that age limits can be imposed, that certain areas (such as schools, courthouses, and—pace, Senator Webb—the United States Capitol) can be properly required to be gun-free, and that individuals can forfeit their right to keep and bear arms if they misbehave seriously enough, just as they can lose their right to vote. Equally, I think a person has a right to peacefully speak his mind on any and all subjects. But I don’t think a person has a First Amendment right to incite to riot, to stand up in the middle of a play and start telling the rest of the audience his political opinions, or to libel or slander someone. As Justice Oliver Wendell Holmes once said (I’m quoting from memory), “the right of free speech is like the right to swing one’s arm: It is absolute only until it comes in contact with someone else’s nose.” In other words, the right of free speech, important as it is, does not trump all other rights. I find the two cases Mr. Zeitz mentioned very interesting but quite different. In the Alaska case, while the incident took place off school property, the boy (now an adult—I believe he’s teaching in China at the moment) was still subject to school discipline as the school was acting in loco parentis. So the question is, did the school exceed its powers to control student behavior? As far as I understand it, the boy was deliberately trying to provoke a reaction, although I doubt he foresaw in his wildest dreams that the reaction he provoked would end up in the United States Supreme Court. The “speech”—involving a sign saying “Bong Hits for Jesus,” unfurled as the Olympic torch went by in a parade—is essentially meaningless, intended solely to get a reaction, in much the same way that “your mother wears combat boots” is. There was no idea or opinion related to the real world being offered. In retrospect, the school should have ignored the sign and, later, called the boy into the principal’s office for a dressing down for being a jerk. And the court of first instance should have dismissed the case under the doctrine of de minimis non curat lex. There was no real-world First Amendment issue here. Claiming one, and the courts taking the claim seriously, just because “words” are involved is, at best, silly. But do students have First-Amendment rights in school? The answer, I think, is both, yes, of course they do, and no, they don’t. Students are in school to learn. They are, quite properly, expected to listen, not talk, except when called upon to do so and then to respond appropriately. “Joshua, what is the past tense of donner?” is not a license to give one’s opinions on the war in Iraq. It’s exactly the same as a member of a jury. He does not lose his First Amendment rights by entering the jury box, but he may not talk while he is in it and he may not discuss the case outside of it until it is over. Would any judge allow a jury member to unfurl a banner saying “Bong Hits for Jesus” in the middle of a trial? I would certainly hope not. On the other hand, if a teacher asks a student what he thinks about X, the student has every right to honestly state what that opinion is and why he thinks so, regardless of how unpopular that opinion may be. And that is why I think the principal in Wilton, Connecticut, was dead wrong in banning the student-written play about the Iraq War. Assuming the New York Times description was an accurate one, the students, under the guidance of a teacher, had produced a genuine and worthwhile play on a painful subject. To ban it because it might “offend” someone is, to me, deeply offensive. Free speech—real free speech, not faux free speech like “Bong Hits for Jesus”—has suffered grievously in this country, especially on college campuses, because of the notion that selected groups have an absolute right not to be offended and an absolute, unappealable right to decide what is offensive to them. The trivial Alaska case got as far as it did because self-proclaimed defenders of the First Amendment have pushed the idea, with far too much success, that every noise issuing from a human being, regardless of both circumstances and content, is sacred. In the substantive Wilton case, the right of any person not to be “offended”—and a principal’s understandable if unacceptable reluctance to face their displeasure—caused what sounds like a very worthwhile project to be cancelled after a good deal of hard work. The students have every right to feel wronged.
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