April 4, 2007
Defining Free Speech II Posted by John Steele Gordon at 05:05 PM EST Well, it is certainly nice for Joshua Zeitz to produce an argument to back up his position instead of just a sneer of contempt for anyone who could be so unenlightened as to not agree with him. It is an argument worth a serious reply. All of the famous cases cited by Mr. Zeitz, many of which are the basis of the modern jurisprudence regarding free speech, involve adults engaged in the serious expression of ideas: an editor criticizing a state judiciary, a person of antiwar views distributing pamphlets advocating resistance to the draft, a socialist expressing a basic tenet of socialist doctrine, even a newspaper spewing hate. The case of the schoolboy holding up a banner saying “Bong Hits for Jesus” involves neither adults nor ideas. Mr. Zeitz fails to note the fact that the plaintiff in this case was a child. While children most certainly have civil rights, no one has ever argued—at least that I know of—that they enjoy the full panoply of them. Do six-year-olds have the “right” to decide when to go to bed, whether or not to take a bath, what to eat for supper, where to live? Of course not. To be sure, the Supreme Court ruled in Tinker v. Des Moines Independent Community School District (1969) that students had the right to wear black armbands in school to protest the Vietnam War, calling it a matter of free speech. I think it was a disastrously wrong-headed decision, and I am not alone. Justice Hugo Black—as firm a friend of the First Amendment as has ever sat on the Court—dissented vigorously, writing, “The Court’s holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected ‘officials of state supported public schools . . .’ in the United States is in ultimate effect transferred to the Supreme Court.” Black was right. Children have a right to wear armbands, display signs, stand on soapboxes (not that soapboxes actually exist anymore, I suppose, but plastic milk crates will do nicely), and proclaim truth to the world. They should just have to do it outside of school. For six hours a day, five days a week, nine months a year, they should be learning, not teaching. Tinker made matters that are properly decided by educators and parents a matter of judicial process instead of common sense. That, 99.9 percent of the time, is a ridiculous waste of money and time. It is a measure, I suppose, of just how rich this country has become that we can afford to spend tens, perhaps hundreds, of thousands of dollars arguing in court a case this trivial. Mr. Zeitz writes, “The United States is governed by laws, and by a written constitution. Is there a place in such a system for the distinction that Mr. Gordon is making between protected free speech and unprotected mischievous speech? If so, who should be the arbiter of whether speech merits protection, and what are the standards that should govern this decision?” The jurisprudence of free speech requires distinctions between what is allowed and what is not allowed (yelling fire in crowded theaters, libel, false advertising, inciting to riot, etc.) all the time. It is judges who make those distinctions, by means of well-established legal standards. In the case of schoolboys in school, it should be educators using the standards of common sense. If the schoolboy in question genuinely thinks he has been seriously wronged, he should complain to his parents when he gets home and let them decide if he is right and, if necessary, speak to the school. Or he can just wait until two o’clock, when he will be entirely free to exercise his unalienable right to proclaim the sacred truth of “Bong Hits for Jesus” to the world.
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