Tuesday, June 26, 2007

No free speech in schools for you!

The Supreme Court, by a 5-4 vote in Morse v. Frederick, ruled that a school district may punish a student for speech which could reasonably be found to advocate drug use. According to the majority, finding the phrase "BONG HiTS 4 JESUS" somehow advocates drug usage is "plainly reasonable."

While I'm not so sure that's so plain (and, evidently, neither did four members of the Supreme Court), there's good arguments to be made on either side. But Justice Clarence Thomas' concurring opinion is pretty shocking. He's for ditching Tinker v. Board of Education altogether, and finding that students have no free speech rights whatsoever.

Yeah. How about that. Someone should go argue a case before the Supremes with a black armband in protest of that opinion. Just more evidence of what a loose cannon Thomas is with his opinions. First he doesn't think the Establishment Clause applies to states. Now he doesn't think students should have any First Amendment protection. Wow. Here's the highlights.


In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools.


I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker stan-dard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.


joe said...

in the universe of thomas dissents (some of which are actually kind of good) this is exceptionally embarrassing.

students right to speak does not start at Tinker. if he wants to eviscerate free speech rights then he at least needs to go back to Barnette

"If there is any fixed star in our constitutional constellation, it is that NO official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein. If there ARE any circumstances which permit an exception, they do not now occur to us." (striking down punishment against a student who did not participate in the pledge of allegiance)

but probably a lot further. Almost every decision (loco parentis jurisprudence) that he is quoting comes before Abrams and the modern era of free speech jurisprudence. Tinker was a product of re-applying post-Abrams jurisprudence to how students speak in public schools. Axing Tinker alone is not sufficient to take away students first amendment rights to speak in schools -- they are a logical extension of rights awarded elsewhere in the court's first amendment jurisprudence.

Tinker may well go to far but Thomas's analysis is so sloppily narrow that it offends basic notions of jurisprudence. a judge should know better and supervise whatever federalist society law clerk hack drew the short straw to cut short her golf game and afternoons reading tim lahaye novels to write a cookie cutter piece of original intent tripe. I mean, geez

which is odd because his concurrence in zelman is actually a lot like this but pretty good -- maybe I read it more closely

oh and -- http://www.cafepress.com/thewhitehouse.72893101

joe said...

oh, and by dissents i mean concurrences

joe said...

oh, and by dissents i mean concurrences