April 4, 2007
Defining Free Speech III Posted by Joshua Zeitz at 09:05 PM EST Defining Free Speech III In his original post on this subject, Mr. Gordon drew a distinction between “meaningless” words or “mischievous acts” on the one hand and substantive free speech on the other. He characterized the now-famous “Bong Hits for Jesus” banner as belonging in the first category and thus deemed it unworthy of court protection. My question was this: If we apply such a standard, who decides (and according to what criteria) what is and isn’t meaningful speech? In his latest post, Mr. Gordon largely sidestepped this question and instead focuses on the age of the person hoisting the banner. He writes, “Mr. Zeitz fails to note the fact that the plaintiff in this case was a child.” (Not quite. In my original post on this subject, I explained that the plaintiff was “a high school student in Alaska.”) Abandoning for the moment his prior reliance on the distinction between the meaningful and the mischievous, Mr. Gordon instead takes issue with the Supreme Court’s ruling in Tinker v. Des Moines Independent Community School District (1969), which affirmed the right of students to wear black armbands to school in protest of the Vietnam War. Mr. Gordon writes: “Children have a right to wear armbands, display signs, stand on soapboxes . . . and proclaim truth to the world. They should just have to do it outside of school.” On legal principle, I disagree with this notion (as did a majority of the Supreme Court), and I would remind Mr. Gordon that the Alaska plaintiff was operating outside school grounds, though on school time, which makes matters somewhat more complicated. In the context of 1969, I disagree doubly. During the Vietnam War, the average combat soldier was 19 years old. Of the 2.5 million men who served in the war, two thirds were either drafted or were draft-motivated enlistees. Representatives of the armed forces actively recruited on high school grounds in those days, and if my memory serves me right, they were still doing so when I was in high school in the late ’80s and early ’90s. They may still recruit in public schools today; I’m not sure. In any event, students who wore black armbands to school in 1969 were often mourning the loss of people with whom they had attended the same school. To deny them that right was to make a mockery of the very system that asked 17-year-olds and 18-year-olds to fight the war, and that drafted many of them the moment they were handed their high school diplomas. Returning to Tinker v. Des Moines Independent Community School District, The New York Times ran a short article last month on a 14-year-old middle-school honors student from northern California who was reprimanded for violating her public school’s dress code. Her crime: sporting Tigger (of Winnie the Pooh fame) knee socks. This was the twelfth time she had been sent home for violating the dress code. Amazingly, one of those times her offense was wearing a T-shirt with an antidrug slogan on it. Along with five other students, the girl in question is suing in federal court, arguing that the school district has violated her First and Fourteenth Amendment rights. John Glasser, the district superintendent, explained that the code was intended to clamp down on the use of gang iconography and argued that “there are other ways to express your individuality in an academic environment.” (Of course, as we learned earlier in this thread, writing and performing an original play about the Iraq War is not one of the acceptable ways to express individuality. No wonder kids hate high school. They’re told to think and punished when they do.) The Napa Valley Unified School District clearly needs a new dress code and, arguably, a new superintendent. But what of the law? If the operative point is age rather than content, should a school district be permitted to impose dress codes on students? If students can’t wear Winnie the Pooh logos on their socks, or black armbands on their sleeves (in fact, they can, but Mr. Gordon wishes they couldn’t), can they be barred from wearing Christian T-shirts, crosses, yarmulkes, and head scarves? After all, if we can limit one part of the First Amendment inside school grounds, why not the other parts, too? And if we allow students to wear crosses or stars of David on the grounds of religious freedom, why can’t a student in Alaska hoist a banner that invokes Jesus?
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