Tonawanda News

March 12, 2007

DICK: Student speech needs protection


It was in 1966 when a meek-looking girl, Mary Beth Tinker, 13, wore a black armband to her Des Moines, Iowa, school to protest the Vietnam war. She was promptly disciplined by school officials. When the Tinkers sued the Des Moines Independent Community School District, the case ended up at the U.S. Supreme Court where this famous ruling was handed down in 1969: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Tinker v. Des Moines became the standard for students’ right to express themselves at school. Alas, that was then — a more liberal time — and this is now — where the straight-laced, buttoned-down and fearful regulate speech at a frightening rate.

During the years since Tinker, the Supreme Court has slowly chipped away at this fundamental right. The last time the court visited student First Amendment rights was in 1988, Hazelwood School District v. Kuhlmeier, which said high school students didn’t have the right to publish stories on divorce and pregnancy in the school newspaper over the principal’s objection. With that judgment, every tin-horn principal in the land turned into a dictator to keep their rebellious and inquisitive students in line.

The Supreme Court is about to hear another case, Morse v. Frederick. Joseph Frederick erected a banner when the Olympic torch passed through Juneau, Alaska, in 2002. Frederick’s banner read: “Bong hits 4 Jesus,” something nonsensical, he said, to catch the eye of TV crews. (At least give him credit for knowing what TV likes.)

His principal, Deborah Morse, suspended him for 10 days, saying the banner violated the school’s anti-drug policy. The Supreme Court will hear arguments on March 19. And guess who the attorney for Morse is? None other than Ken Starr, the man who built a career being President Clinton’s voyeur.

We should probably have no illusions where the Roberts court will go with this. Principals will probably be safe in making decisions based on their fears.

But that’s not America. The justices should go all the way back to Tinker to make their decision. The First Amendment makes no stipulations on students or speech that might violate the zero-tolerance of overreacting, middlebrow administrators.

This really shouldn’t have been an issue. Frederick’s banner was unfurled across the street from the school, But Morse’s boss, Superintendent Peggy Cowan, said the sign had to come down because it promoted drug use. Actually, it didn’t. But even if it had, it wasn’t on school property. Besides, the First Amendment doesn’t make such distinctions.

Ever since Columbine, in 1999, and especially Sept. 11, 2001, anyone with authority has put the clamps down by saying safety first. There’s nothing in the Constitution about safety, but there is freedom of speech.

Taking away someone’s freedom of speech is liberty limiting. Those who engage in it can offer up a plethora of excuses to limit speech. But the only acceptable reason — and the Supreme Court ruled on this before Tinker — is if the speech can cause harm, the “clear and present danger” that Justice Oliver Wendell Holmes wrote about in Schenk v. United States in 1919.

Would Frederick’s sign cause immediate harm to someone? Obviously not. Was it a "clear and present danger" akin to shouting fire in a crowded theater? Obviously not. Did it embarrass school officials and violate their fear-based policy? Sure, but good speech is designed to provoke, challenge and knock down straw men.

Frederick’s banner was mostly silly. But it did contain a grain of political speech by lighting a fire under the righteous anti-drug teetotalers. Of all forms of speech, political is the most sacrosanct in this country.

Political speech is what Zachary Guiles had on his T-shirt at a middle school in 2003 when it said “Chickenhawk-in-chief” under a picture of George W. Bush. He was suspended and, with the American Civil Liberties Union’s help, sued his school, losing at the trial round before being vindicated on appeal, just like Mary Beth Tinker.

Students have the same freedom of speech as anyone else. A school is not an oasis of repression. It’s where students learn to be adults. A right so fundamental to the makeup of America should not be sacrificed upon entering the school. In fact, that’s just the place where speech — in all its uses — should be encouraged.

Stephen Dick writes for The Herald Bulletin in Anderson, Ind. He can be reached at steve.dick@heraldbulletin.com