The way Clarence Thomas sees it, “As originally understood, the Constitution does not afford students a right to free speech in public schools.” In the old days, says the associate justice of the United States Supreme Court, student liberties were mostly limited to sitting down and keeping quiet, and that was good for them. He was writing last June in Morse et al. v. Frederick, the “BONG HiTS 4 JESUS” case. No other justice agreed with Thomas on the free-speech score, but it is harder to differ with another of his conclusions: the court makes up First Amendment rules for students as it goes.
This case pitted Juneau-Douglas High School principal Deborah Morse and senior Joseph Frederick. They clashed over the events of the morning that runners relayed an Olympic torch past the Alaska school, on network television, and through crowds of students on an official outing. Hoping to get on TV, Frederick and friends unfurled a 14-foot banner that read, “BONG HiTS 4 JESUS.” Morse took it to advocate marijuana smoking, and ordered the banner down. Frederick said it was just camera-candy gibberish and refused. Morse confiscated the banner and suspended him.
Student speech was most famously before the court in 1969’s Tinker v. Des Moines Independent School District. There, a school punished anti-war students for wearing black armbands to class. The justices said “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students,” and speech cannot be suppressed unless officials “reasonably conclude” it will “materially and substantially” disrupt school work and discipline.” The armbands did not. No disruption, no problem. That was the standard for a generation.
But in a 1986 case, the court said a student could be penalized for employing “an elaborate, graphic and explicit sexual metaphor” during a high school assembly speech. It ruled student free-speech rights are “not automatically coextensive with the rights of adults in other settings,” and a school could punish students for “offensively lewd and indecent speech.” Two years later in Hazelwood School District v. Kuhlmeier, it ruled against parents and students who sought to compel publication of two articles in a school newspaper. The justices said school officials could regulate such speech if their actions were “reasonably related to legitimate pedagogical concerns.” Then, in 1995, the court said student constitutional rights depend on “what is appropriate for children in school.”
The BONG HiTS 4 JESUS court said the banner could reasonably be read to promote marijuana smoking, and found that schools could protect students “from speech that can reasonably be regarded as encouraging illegal drug use.”
Justice Thomas saw speech of the BONG HiTs sort, for that matter, all kinds of school speech, as among “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” That is, Thomas said, until Tinker, which the court had been chipping away at, exception-by-exception. “I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t . . .”
The court seems to be deciding school speech cases by rules it invents for each. How can students know which forms of speech are protected and which are not? There may be something to what Thomas says: a kid is better off to sit down and keep quiet, just like in the old days.
Being a journalism student, I will always stand up for legitimate free speech. But when the person is holding a sign that is clearly inappropriate in a high school setting and has no significance to any opinion except they like to take bong hits, I don't really think that has the power be called to a court case. The student should have known that displaying anything that refers to drug use in high school is going to get you in trouble. However, a ten day suspension seems harsh. I realize that the principal is trying to make an example out of the stoner but ten days? Come on.
When it is said better to sit and be quiet than to speak out, we will never change anything due to the fact that being quiet rarely gets a point made. Although the sign might have been slightly inappropriate, he should not have been suspended. Nor should it have gone this far.
Thomas' comment on the original intent of the Constitution and free speech rights of public school students overlooks the fact that there was absolutely no conection between a document describing the powers and limits of a new federal government and a mostly yet to exist public school system. An "orginal intent" argument has no application in this case.
Actually, Justice Thomas canvased the history of schools in America at the outset of his concurring opinion, and discussed how First Amendment rights questions came to the classroom. No other justice joined him in his concurrence, but it is worth reading. The whole case is.
But that's not why I write.
I wanted to ask whether, if the provisions of the Constitution and its Bill of Rights were intended to describe only the powers and limits of a new federal government, how they could apply to other institutions developed and invented in the past 219 years?
For example, how do free speech rights apply to radio and television. For that matter, how does any of the Constitution, by your reasoning, apply to any public institution developed since 1789?
Or would you say that the question really is how to apply free speech, and the rest of the protections written into the document, to the circumstances of the Republic as it progreses?
Good question. Easy answer.
In the early twentieth-century case "Near v. Minnesota," the Supreme Court ruled that the First Amendment of The Bill or Rights, originally intended to protect the rights of citizens of the United States only from federal encroachment, also protected the citizens of the states by virtue of the adoption of Reconstruction's Thirteenth and Fourteenth Amendments with their due process and equal protection clauses.
Described as the Incorporation Doctrine, it has come to embrace the individual's protections against the states', as well as the federal government's, trespasses on the natural rights the Bill of Rights, perhaps unwisely, attempted to codify.
If children should be seen, not heard, whats wrong with the students sign? he didnt say a word!
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