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Free Speech From the Mouths of Babes?

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Last week the Supreme court handed down three free speech rulings that find favor with conservatives. One of them is Morse et al. v. Frederick, a case involving the free speech rights of students. At issue is a five year old incident wherein a Juneau-Douglas High School senior named Joe Frederick raised a 14-foot banner stating “Bong Hits 4 Jesus” and was subsequently suspended for “drug speech” by then school principal Deborah Morse. Writing for the majority in a five to four decision in favor of the school, Chief Justice John Roberts reasoned that the First Amendment should not be applied in this case because the student was encouraging drug use.

While I agree with the principal’s actions and take solace in the knowledge that educators’ hands won’t be further tied, the Supreme Court’s ruling does nothing to address what is the underlying problem. In fact, with the convoluted logic displayed by virtually all members of the court, it’s hard to find much to applaud in this judgment.

The real issue here extends far beyond this one case and harks back to a precedent set in 1969 in the Tinker v. Des Moines ruling, which divined from the Constitution a right to free speech in schools. Upon issuance of that decision the court stated,

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Really? What can hardly be argued is that the donning of a black robe confers intelligence, wisdom or even much useful knowledge upon the wearer.

The truth here can be found in one of the few bright spots in this case. Writing in his concurrence, Justice Clarence Thomas drove to the heart of the matter in saying,

“. . . it cannot seriously be suggested that the First Amendment ‘freedom of speech’ encompasses a student’s right to speak in public schools.”

Leftists can argue till they’re blue in the face, but the truth is that students do not have freedom of speech in school. Why, we can spew profanity at others on the street – in fact, some people where I grew up in NYC consider it a pastime – but a student may be punished if he directs same at a teacher or peer. I also have to wonder if the left’s highly principled stand in defense of free speech would be maintained in the face of a student given to Nazi and white supremacist rhetoric.

The fact is that we don’t ascribe to minors an adult set of rights. Minors may not buy alcohol or cigarettes, drive before a certain age, join the military, get married or enter into other kinds of legal contracts. Most tellingly, while enshrined in the Constitution is, “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed,” there isn’t much clamor to extend this right to minors.

In ignoring this, the more conservative members of the court are guilty of the same reasoning, if not the same sanctimony, as the left. Virtually no one supports granting “free speech” to students; that is, free speech properly understood. As I’ve said before, freedom of speech is but a facade unless the guarantee protects even the most odious, most offensive, most unpopular speech of all. Popular sentiments require no legal protection, as their popularity is protection enough. Thus, to draw the distinctions we already have – oh, such as proscribing “hate speech” on school grounds (remember, we may spew whatever hatred we wish, even the faux variety the thought police hate so much) – is to tacitly acknowledge that there is no free speech in that arena. (Note: This isn’t a violation of the Constitution because the original intent of its framers is what rightly governs the document’s application, and it’s unreasonable to believe these 18th century men would have granted children the right to be sassy brats.)

Schools also are not alone as governmental institutions that prohibit free speech. Most obviously, military personnel are quite limited in the use of the tongue, and police departments come to mind as well. In fact, with sexual harassment and hate speech codes becoming the stuff of bureaucratic rubric, it may be hard to find an American governmental entity that affords its workers that most important American freedom. And while I definitely dislike the way this principle of censorship is applied by our Orwellian puppeteers, the principle itself is sound. Only the most delusional egalitarian fails to understand that for a society to function properly, just hierarchies must be operative and respected. Thus, when the Black Robes turn around and speak of protecting what does not exist, students’ “right to free speech,” they illustrate their philosophical bankruptcy.

A mature approach begins with the understanding that it isn’t a question of whether students will be muzzled, but only what kind of filter that muzzle will be fitted with. This begs the next question: Who should make this judgment? Parents should, through their local school boards; as with obscenity, local community standards should apply. After all, who should be the arbiter of the rules governing your schools, you or some Black Robes in Washington?

The degree of irrationality exhibited by the court becomes truly evident when you consider that after accepting the supposition that the First Amendment applies to students, it turns about and states that this constitutional protection doesn’t apply to their advocacy of drug use. But why not? After all, many among us encourage drug use – with the protection of the First Amendment. Are there two first amendments, one for schools and another for everyone else?

What this boils down to is that, after all the intellectual contortions and philoso-babble, the court is saying something very simple: Students shouldn’t be allowed to say certain things. It’s just that most of our jurists are too dull to realize this.

The truth is that the Black Robes are once again casting themselves as men for all seasons, not just as those well versed in the law but as experts in the area of everything. They are anything but, however, and this is evident in their own lack of consensus; not only was the high court divided in this matter, the ninth circuit court of appeals had previously ruled contrarily. Then there is the fact that the court upheld students’ “right” to religious and political expression. Okay, then, what if Master Frederick had claimed that his message was not pro-drug but anti-religion?

In point of fact, what he did claim was that he was just trying to raise a ruckus. Principal Morse certainly didn’t accept this explanation, and maybe she was right, maybe she was wrong, but is the court better suited to discern such things? Could they say definitively that the message wasn’t designed to create a ruckus when it was certainly controversial or that it wasn’t a religious statement despite the use of Jesus’ name? Our courts have come to define hubris; in the past they told us some religious symbols aren’t religious in nature; will they now tell us that some religious motivations are not? Ah, the Black Robes, they aren’t just constitutional scholars (if only), they’re also theologians and authorities on ruckuses.

What’s so tragic about this manifestation of judicial imperialism is that it’s part and parcel of a destructive, wider problem: The undermining of just hierarchies and discipline through an incremental neutering of authority figures. Our troops in Iraq are handcuffed by ridiculously stringent rules of engagement and must worry about criminal prosecution if they run afoul of them; our police are in a similar predicament. Parents hands are partially tied by a government that tells them how they may discipline their children, and the threat of social services intrusion looms large. And teachers are rendered impotent by lawsuit-loving parents and legal prohibitions. Understand, though, that power stripped from the people doesn’t disappear into a black hole of permissiveness; like wealth, it’s transferred. In this case it’s placed in the imperious hands of the Black Robes, those higher authorities that fancy themselves to be the highest authority.

You know, when I sniff the air downwind of the Black Robes, I sense the stench of ego. For they aren’t content to be governmental umpires. Flushed with power and illusions about their own intellectualism and infallibility, many judges’ master status follows a certain evolutionary path: Jurist, social activist, social-engineer, demigod . . . you can finish the progression. But I wonder if the people’s obeisance is as boundless as Black Robes may fancy. For how long will we continue to respect the rule of law when that law is handed down by those who believe in the law of their rule? After all, when Black Robes cease abiding by the supreme law of the land, the Constitution, we are then governed not by the rule of law but the rule of lawyers.

So, I have a word of caution for the Black Robes. One day you will go to the well once too often, and then maybe, just perhaps, people will recognize what surrounds you as more miasma than mystique. Perhaps then, realizing our law has become a mere toy of judges who would be kings and that bearing the title “Your Honor” doesn’t confer honor, citizens will echo the 150 year old sentiments of President Andrew Jackson. Knowing the court was as bereft of coercive power as it was of the intellectual variety, his response to an unfavorable court ruling was simple: “They have made the decision, now let them enforce it.”

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About Selwyn Duke

  • RJ

    Good article.

    Why doesn’t the author mention that he does occasional guest commentary on the Michael Savage radio show?

  • Alec

    Selwyn — RE: For how long will we continue to respect the rule of law when that law is handed down by those who believe in the law of their rule?

    Gee, I don’t know. Bush and Cheney regularly delcare that they are above the law, outside the law, in an undisclosed secure location hiding from the law, and yet Republican true believers continue to passively accept the Bush Administration’s desecration of the Constitution. Apparently, these people, like you, believe that blind obedience to “just hierarchies” and “authority figures” supersedes democracy and representative government. Strangely, although I think I might be able to find a discussion of why some people desperately need to subjugate their own autonomy to authority figures in the section of a psychology textbook discussing aberrant psychology and defective ego formation, there is absolutely nothing anywhere in the constitution that citizens — or even students or children — are supposed to take their place in a hierarchy, just or otherwise.

    There are questions, practical, moral, and otherwise, about the degree to which the natural rights of minors should be respected, but the idea that minors are their parents’ chattel property is absurd.

    RE: Writing for the majority in a five to four decision in favor of the school, Chief Justice John Roberts reasoned that the First Amendment should not be applied in this case because the student was encouraging drug use.

    Roberts’ reasoning was flawed here on a number of levels. He appears to be arguing for a particularly literal and stupid kind of prior restraint here, suggesting that students have First Amendment rights as long as they espouse ideas that are acceptable to a principal or a community. So while “Bong Hits for Jesus” is prohibited, presumably “Ritalin Doses for Jesus” would be acceptable.

    RE: Writing in his concurrence, Justice Clarence Thomas drove to the heart of the matter in saying,
    “. . . it cannot seriously be suggested that the First Amendment ‘freedom of speech’ encompasses a student’s right to speak in public schools.”

    Typical Thomas, and typical right-wing looniness, and like Roberts, Thomas does not seem to understand the internal logic of his own position. The question, of course, is does a minor have a right to speech anywhere. And while both Thomas and Roberts can reasonably argue that there can be restrictions on a student’s right to free speech, if they think that this right does not exist at all, they have to put forth an affirmative argument, and offer something much more substantive than an appeal to hierarchy and authority.

    RE: The fact is that we don’t ascribe to minors an adult set of rights. Minors may not buy alcohol or cigarettes, drive before a certain age, join the military, get married or enter into other kinds of legal contracts.

    Actually, minors, that is people under the age of 21 can join the military and drive cars. Minors can certainly bear arms. Growing up in the South, I would regularly go hunting with my .22 caliber rifle, from about age 12. In most states, the age of consent as well as the age that a person can get married is not in sync with the age at which a minor can enter into a legal contract, and even here there is often the concept of an “emancipated minor” which allows people under the age of 21 to be recognized as adults for most legal and social purposes.

    You stumble badly here. Obviously, society does not impose a hard bright line separating a legal minor from an adult. Heck, a 21 year old cannot run for president.

    As for the founders not recognizing a right of children to be sassy brats, Ben Franklin wrote a newspaper column using the pseudonym “Mrs. Silence Dogood” when he was 15, and Alexander Hamilton wrote a series of pamphlets attacking the Tory position when he was 16 or 18. The Tories, by the way, were big believers in hierarchy and authority.

  • Why doesn’t the author mention that he does occasional guest commentary on the Michael Savage radio show?

    Perhaps because even Selwyn is embarrassed by Michael Savage?

  • bliffle

    Should Selwyn be investigated for his enthusiastic promotion of drug use? After all, he boldly said “B*ng h*ts for jesus” (which I’ve delicately bowdlerized to protect children).

  • Minors can’t buy cigarettes now…but they surely could when I was a kid. My mother used to send me to the store all the time for smokes and no one ever said a word about it.

    And in most other countries the drinking age is lower than here in the states. Hell, it was 18 when I was 18!

    Just because the govt decides to regulate every freaking thing in the country doesn’t mean squat anyway. Pots been illegal for what…60 or 70 years in this country…and why, because some bureaucratic moron said that’s the way it should be…not for any other reason. I mean come on! You can’t even grow hemp in the states!!! How dumb is that?

    The govt needs to stay the hell out of all of our lives. Seat belt laws…helmet laws…they’re trying to make it a law in NJ that you can get ticketed for smoking in your car with kids in the car…yeah, smoking in an enclosed space with kids present is dumb…but hell, I’ve seen parents do much dumber things with their kids. I mean. as far as I’m concerned parents that let their kids throw temper tantrums in the middle of the supermarket should be ticketed…and smacked in the head too…but that’s another story…

    I just wonder what would have happened back in the day, as they say, if someone in my HS…the catholic one…would have held up a sign like that…I’ll tell you…some nun woulda beat the crap out of him and sent him home so his parents could repeat the process. That’s how the hierarchal system that you speak of is supposed to work…at least when you’re 15 anyway!

    Have a nice day!

  • US drinking laws are crazy. Last time I was there, I had to produce my ID in several bars and I was in my late 30s at the time!

    The story of the banning of Marijuana is far more sinister than just the actions of some bureaucratic moron. It was directly targeted by chemical companies like DuPont and people like William Randolph Hearst as the many products that can be made from Hemp directly threatened their businesses…

  • Clavos


    I can understand why DuPont would want hemp banned, but why Hearst?

    BTW, did you know that the federal government actively grew hemp (in Tennessee, I believe) during WW II for the production of rope for the war effort?

    One of the things I learned in my younger, wilder years…

  • sr

    You speak with wisdom Mr Marsh. Thank you.

  • Clavos: I lifted that from Wikipedia’s Legal History of Marijuana in the United States article. Maybe something to do with paper?

    If you want to get into the story in more detail, Jack Herer has more info than you could ever want, although a simple Google search will turn up even more; this from Illuminati News is quite fun if you can get past the semi-hysterical tone of the site!

  • moonraven

    Chris had to produce his ID in several bars because he is underage–exactly what I have been saying on this site.

    As for the topic of student free speech: Education is prohibited in the schools, so why shouldn’t everything else be prohibited as well?

  • Zedd


    Why are you looking at this as a partisan issue. Do you think that parents who are Democrats want kids to be able to say whatever they want to teachers?

    Also, what was your real point? You seemed to be all over the place. Do you dislike judges? Are you just now realising that people are just people regardless of position? Do you feel powerless and under accomplished as a man and just want to spew negativity to make yourself seem more relevant? What is your logic or motivation?

  • Maurice


    I am printing this out for my 17 year old son. He turns 18 on 9/11 and thinks he will have all sorts of new privileges granted by the Constitution. I have tried to explain that he is free to do whatever the hell he wants in his house. In my house he must obey my laws no matter what the Constitution says.

    Thanks for a great article!

  • Zedd


    Selwyn is a White supremacist….

  • Clavos


    “In my house he must obey my laws no matter what the Constitution says.”

    If more parents had had your attitude over the last 40 years, we’d have a lot fewer problems with crime and scofflaws in this country.

    The guy who started it all was Benjamin Spock, MD.

  • Maurice

    Zedd – what makes you say that? Pretty inflamatory.. Is it because of this?

    Clavos – I mentioned that I have had some family problems this past year. It is trouble with my last 2 boys. They have both been in and out of Juvenile Detention. I don’t think I am going to make father of the year. My youngest is in a rehab for the next 3 months so I have high hopes there.

    Thanks for your kind words anyway. Maurice J

  • Zedd


    I’m glad I got your attention. I would not typically make such a blatant statement. It is rather potent but I meant it to be to get your attention before you forward that man’s garbage to your son.

    I read that post, if I remember you commented on that article when he posted it on BC and no that is not the one that convinced me of that.

    His statements and articles have a consistent flair, an ideology which promotes White supremacy. While he uses coded, watered down language there is a thread which ties his blogs that is dangerous. His subtle approach makes him dangerous to people like yourself who go out of their way to prove their impartiality. You will find yourself supporting a Hitler my brother without knowing it.

    On his last couple of articles a few of us refused to give him a platform and decided to have our own very unrelated conversation as a sort of protest to his racist spewing. I have to say the conversations were quite fun but moreover, it was nice to have several gents from different parts of the world and walks of life to come together in such a silly yet significant way.

    I would read more stuff from this guy before letting my kid think he is someone to admire.

    Hey Maurice, your son is going to be going to college soon. I wonder if he will remain a conservative throughout his education. :o)

  • REMF

    “The guy who started it all was Benjamin Spock, MD.”

    Naw, it was John Kerry. Anybody who can make a speech that leads to a certain behavior five years BEFORE he spoke has to be responsible.

  • Clavos

    yeah, you’re right.

    In fact, Kerry’s responsible for slavery and the Civil War too.

    Somebody oughta plug the bastard.

  • Maurice


    read what you wrote. Will take your advice.

    LOL about your last sentence. He is not a conservative. He is a teenager. He changes his positions everyday. Lately he has been very much into ‘personal freedoms’. We held him back one year so he will be a senior this year and go to college next.